To Proctect and Preserve?

Development projects throughout Florida are stopped in their tracks — and it’s all because of recent federal ruling concerning permitting of construction in environmentally sensitive wetlands.

The ruling, in response to a federal lawsuit, said permitting for those projects must come from the Army Corp of Engineers, not the Florida Department of Environmental Protection.

The U.S. District Court in Washington, D.C., said that, in allowing the state to take over the process for awarding wetlands permits in late December 2020, the Environmental Protection Agency (EPA) and U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act.

What’s next is up in the air — just like the plethora of permits in the state DEP wetlands pipeline.

Since the permitting process is now held up court, the projects can’t move forward.

In requesting a partial stay of the judge’s decision, the state wrote that the ruling, “has already begun to create enormously disruptive consequences and raise complex problems for the state and thousands of Floridians to navigate.”

Amber Crooks, environmental policy manager for the Conservancy of Southwest Florida, speaks at a press conference held Dec. 7 outside a Naples Library, where a public meeting was held about the Bellmar project. CONSERVANCY OF SOUTHWEST FLORIDA / COURTESY PHOTO

“Well over 1,000 pending 404 (wetlands) individual and general permit applications — the vast majority of which have been in the Florida 404 permit review process for more than six months (with many far along toward a final decision) — are now in regulatory limbo with no clear timeline or expectation for a permit decision,” the state continued.

Among other projects seeking wetlands permits, the federal ruling also applies to two highly controversial developments for which state permitting was imminent. Both were waiting for the final wetlands permit from the state DEP to go ahead and turn dirt:

• Bellmar, slated for about 4,000 homes and 8,000 residents, along with some commercial amenities to serve them, is in eastern Collier County. It’s about a mile from the Florida Panther National Wildlife Refuge, which supports the greatest density of the endangered animal. According to FWS, the project would result in an estimated three panther deaths per year

The landscape in the Florida Panther National Wildlife Refuge during a January visit by the Conservancy of Southwest Florida. CONSERVANCY OF SOUTHWEST FLORIDA / COURTESY PHOTO

• Kingston, a massive development that would bring 10,000 homes and 25,800 residents to Corkscrew Road in East Lee County, also in panther territory. This project, FWS said, would result in three to 22 panther deaths per year.

The panther deaths would fall under the category “incidental take,” and most likely be caused by vehicle collisions, the main cause of panther mortality.

Both projects are now on hold due to the lawsuit.

However, FWS did not consider the impacts to create a “jeopardy” situation — “jeopardy” meaning a species’ extinction or inability to recover in the wild by reducing reproduction, numbers or distribution.

Protecting the panther

Environmental groups and advocates cheered the Feb. 16 court decision by Judge Randolph Moss.

The plaintiffs are seven nonprofit organizations: Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Conservancy of Southwest Florida, Florida Wildlife Federation, Miami Waterkeeper and St. Johns Riverkeeper.

Amber Crooks, Conservancy environmental policy manager, holds a sign at the Lehigh Acres library during a press conference at a Jan. 16 public meeting on the Kingston project. CONSERVANCY OF SOUTHWEST FLORIDA / COURTESY PHOTO

“This ruling sends a clear signal that Congress meant what it said when it passed the Endangered Species Act,” said Christina Reichert, an attorney for Earthjustice, which is representing the plaintiffs. “No state can be allowed to take over a federal program as important as the Clean Water Act Wetlands permitting program by making an end run around the Endangered Species Act.”

Elise Bennett, Florida and Caribbean director and senior attorney for the Center for Biodiversity, said, “We’ve been saying that this process the state has been using is unlawful for years now. And to know that we were able to stop permits under this unlawful scheme that would have irreparably harmed panthers is an incredibly important win for wildlife here in Florida.”

The accepted estimate for the current panther population is approximately 120 to 230 animals. FWS estimates that eight to nine panthers are added to the population per year. However, the latest research from wildlife experts shows the population may have leveled off or is dropping, perhaps due to a mysterious neurological disease and other factors.

REICHERT

The amount of panther deaths from these and other proposed projects would put the panther on the path to extinction, environmental groups say.

The panther is not the only listed species the projects would impact. The threatened Audubon caracara, the eastern indigo snake and others are also in the FWS review.

“The Conservancy of Southwest Florida is grateful that the judge’s ruling will reestablish the foundational laws that we desperately need to protect our natural resources, particularly in light of the major development decisions that were being processed under the unlawful program,” said Amber Crooks, environmental policy manager for the Conservancy.

The “big six”: These are the six developments that are most concerning for the Conservancy of Southwest Florida as well as other environmental groups: Kingston, Bellmar, Rural Lands West (including Rivergrass and Longwater), Troyer Brothers Mine, Florida Farms Development (a housing development) and Immokalee Road Rural Village. They would put nearly 1,000 acres of wetlands at risk of destruction, and directly impact more than 8,000 acres of important panther habitat, the Conservancy says.

She was speaking not only of Bellmar and Kingston, but a total of six proposed development and mining projects in eastern Lee and Collier counties — two of them within 5 miles of Kingston — that were in the process of permitting.

Together, the six projects — Troyer Brothers Mine and Florida Farms Developments (a housing development); the towns of Rivergrass and Longwater, which make up a project called Rural Lands West; and the Immokalee Road Rural Village — will bring in nearly 28,500 homes, nearly 68,700 residents, and 264,228 additional traffic trips.

These would put 1,000 acres of wetlands and more than 8,000 acres of important panther habitat at risk of destruction, Crooks said.

Another five projects in the pipeline are the Preserve at Pepper Place; Daniels South; Brightshore (aka Hogan West); Horse Trials; and Collier Rod & Gun Club. Together, they would bring in 7,625 homes and 18,405 more residents. Four of the five would directly impact 2,470 acres in the primary panther zone and directly impact 185 acres of wetlands. Additional traffic impacts were only available for one: 19,204 trips for Brightshore (aka Hogan West).

The numbers — provided by their developers and included in an August 2023 presentation by the Conservancy to FWS — are in flux as the projects progress.

Also, at the Collier County level, Bellmar, Longwater and Rivergrass are seen as making up the Town of Big Cypress, with Bellmar including a “town connector.” The state and federal governments view the conglomeration differently. The Bellmar website lists the total homes in the Town of Big Cypress as “approximately” 8,350, with a set-aside acreage for Collier County to create 880 affordable housing units.

Developers decry

Wetlands permits are issued under section 404 of the Clean Water Act. They are generally referred to by government agencies, developers and environmental groups as “404 permits.” They allow for dredging and filling of sensitive wetlands as part of a particular project.

The federal Environmental Protection Agency and the state DEP agreed in December 2020 to transfer wetlands permitting to state control. The move was aimed at streamlining the process and allowing permit decisions to be made more quickly.

This sparked the federal lawsuit filed by the seven environmental groups in January 2021.

They said that instead of streamlining, the move allowed for an end-around the guardrails for protecting animals under the Endangered Species Act, and that the agreement was full of loopholes that would aid developers.

Joseph Cameratta, developer of Kingston, has been the loudest in decrying the lawsuit ruling as unfair and biased, and that the description and perception of his development under the CAM7-Sub LLC/Cameratta Companies LLC of Estero, is false and misleading.

“I believe this hurts all of the Florida home building industry, so the state has to figure it out,” he said. “We played by existing rules and it didn’t matter. We pay mitigation and do the right thing and get penalized.”

Bellmar was developed under Collier Enterprises, which has since been purchased by the Tarpon Blue Family of Companies. A Tarpon Blue spokesperson initially said the company had no comment, but it subsequently filed a brief with the court as an intervenor, as Tarpon Blue Silver King I, LLC d/b/a Collier Enterprises. It asked for clarification on what choices it would have to proceed under a possible limited stay of the ruling.

At the heart of it all are the terms “biological opinion,” “jeopardy” and “incidental take.”

When a 404 wetlands permit is requested, The Army Corps of Engineers analyzes the project and issues an opinion as to whether the project’s impact would cause “jeopardy” to any species listed under the Endangered Species Act.

Included in the biological opinion is an estimation of “incidental take,” which means the number of a particular species that might be harassed, harmed or even killed due to the impacts of the project.

The “streamlined” wetland permitting process under the state DEP did not follow the rigorous analysis requirements of the Endangered Species Act, but skirted them, according to the environmental groups.

A blanket biological opinion was issued for the transfer of the program from the federal government to the state, saying that the transfer would not jeopardize any species. Not only would there be no limit on incidental take, but also, developers would not be liable for them, either.

FWS would look at each individual project and analyze its impacts under a newly created “technical assistance” process that was nowhere as rigorous as the analysis under the Endangered Species Act and could not be challenged in court, the environmental groups said.

The judge agreed and gave the defendants the opportunity to request a stay on his decision, with motions due by Feb. 26.

Claims of confusion

Under the general guidelines of such a proposed stay, Florida would handle only the projects seeking wetlands permits that would not impact species listed under the Endangered Species Act. The U.S. Army Corps of Engineers would handle the permit cases that could affect listed species.

The federal defendants opted not to file for a stay, saying it would be “practically and legally unworkable.”

However, Florida/state DEP — which is not a defendant but considered an “intervenor” in the case — filed a 21-page motion asking for a stay of at least six months, asking numerous questions and offering several scenarios along the proposed guidelines.

Besides noting the “enormously disruptive consequences” of the judge’s ruling, the state’s request for stay claims it has caused “substantial confusion … over the ability of applicants with pending or forthcoming applications to obtain necessary Section 404 permits in assumable waters of the United States.”

The state says that its pending permit application list includes “roads and bridges, hospital construction projects, school buildings and facilities, affordable housing, military base projects, power grid reliability projects (including construction of new power generation facilities and transmission lines), and various projects necessary to improve water quality in the Everglades, just to name a handful of examples.”

The judge “gave Florida and the federal government an opportunity to propose a limited stay of his ruling for only the wetlands permits that won’t affect endangered species,” said Bonnie Malloy, attorney for Earthjustice. “But Florida’s legal filing is convoluted and confusing, and the federal government has said a limited stay is unworkable. The surest path forward to ensure clarity is the clean slate that the judge ordered: sending the 404 permitting program in Florida back to the U.S. Army Corps of Engineers.”

The lawsuit ruling will also have national implications, in perhaps discouraging other states from following Florida’s quest to take over authority for wetlands permitting, the environmental groups say. Only two other states, New Jersey and Michigan, have done so. But others, like Alaska, have been working toward it.

While Moss’s ruling resolves the portion of the lawsuit that concerns the federal agencies’ failure to comply with the Endangered Species Act, according to Earthjustice, “the remainder of the suit, which concerns violations of the Clean Water Act and the Administrative Procedure Act, is still ongoing.” ¦

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