In 1994, Jack
Allen bought a 400-acre cow pasture on the Duval-Nassau counties
line and began selling 2-acre chunks for $45,000.
There was only one condition. Customers were not allowed to use
their land for anything. Ever.
In exchange, Allen agreed to take the land, plant a
quarter-million trees all over it, dam up a nearby creek and turn
the whole thing into an impassable swamp.
It sounded like a fool's bargain, but Allen now is selling 400
acres of adjacent land. The whole thing is called the Northeast
Florida Mitigation Bank, and buying a parcel is an increasingly
popular way to make federally required restitution for destroying
wetlands in Duval or Nassau counties.
Thirteen years after the first President Bush promised "zero
loss" of wetlands in 1989, the Army Corps of Engineers announced
Jan. 15 it would abandon acre-to-acre replacement requirements in
favor of greater regulatory flexibility. The move parallels a
similar decision by Florida regulators last year.
The move, like the growing number of mitigation banks nationwide,
signals a shift from stabilizing the nation's wetlands acreage to
ensuring those wetlands function as a nursery for seafood, a buffer
against flooding and a filter of impurities in the water supply.
"We've tried to make the process more flexible," said David
Olson, a corps biologist who consulted on the new regulations. "We
recognize that development will continue, so we're trying to follow
more of a watershed approach."
The change applies only to projects affecting less than half an
acre of wetlands. Larger projects will continue to be reviewed
individually. Even on smaller projects, builders will be required to
protect wetlands when possible and create replacement wetlands when
practicable. Also, the requirement that each project match acreage
will be replaced by a requirement that more wetlands are created
than destroyed in each of the corps' 38 districts nationwide.
Nonetheless, the rules change has stirred old emotions in the
environmental community, which does not trust the Corps of Engineers
to make ecologically sound decisions outside the confines of a
strict acreage requirement. After all, the corps was created to
build things.
"I think it allows for some funny accounting," said Julie
Sibbing, the lead wetlands lobbyist for the National Wildlife
Federation. "Are you really going to let some mom-and-pop operation
[slip] by and then charge more to the people with more money?"
Exactly, Olson said.
He cited the example of a small lot with a small wetland on it,
owned by someone who lacks the money to construct a new wetland
somewhere else.
"If it's a degraded wetland, we might just decide the watershed
will be fine without that wetland," he said.
Hard to achieve
Stopping the loss of wetlands has remained an elusive goal. For
all their ecological importance, wetlands also are waterfront
property and fertile farmland and 75 percent of the total acreage is
in private hands.
The nation lost 60,000 wetland acres in 1997, according to the
U.S. Fish & Wildlife Service. But the pace of destruction has
slowed, down from 200,000 acres in 1986. And the corps says it
already has stabilized wetlands loss in many of its districts.
For example, the First Coast sits in the Jacksonville District,
which encompasses Puerto Rico, the Virgin Islands and all of Florida
except the panhandle. Last year, 5,800 acres of wetlands were
destroyed in the district while 15,500 were created or restored,
according to the corps.
That statistic raises eyebrows in the environmental community.
Many point to the Fish & Wildlife numbers as evidence that
wetlands remain in decline.
The new rules "demonstrate the corps' complete lack of respect
for our county's natural resources," Sibbing said.
The corps says its image is outdated. The biologists and
ecologists who run its wetlands program simply need the power to do
the right thing for the environment.
Homebuilders agree that the corps' reputation for environmental
insensitivity is a thing of the past.
"Environmentalists think that the corps rubber-stamps these
things," said Susan Asmus, a spokeswoman for the National
Association of Home Builders. "That's not true, and if you were a
permit applicant, you would know that's not true."
Asmus has taken the changes with a different grain of salt.
"I see this change as a paperwork change for the corps that
benefits the corps and the corps only," she said.
The association filed suit against the corps for its old
regulations, arguing they were illegal because they took private
property without justification. The suit will continue, because the
new regulations do nothing to address that concern, she said.
But environmentalists question more than the intensity of
oversight. Some also are displeased with mitigation required by
overseers.
A better way
On the Fish & Wildlife wetlands map, Northeast Florida is
riddled with green, a seaside plain with wet land everywhere.
The larger areas, such as the Timucuan Preserve or the Black
Creek Ravines Conservation Area or Guana State Park, can be
preserved with public money.
Given America's stringent protection of land rights, protecting
feeder creeks and small wetlands on lands otherwise suitable for
construction is far more difficult.
In particular, the Environmental Protection Agency has found that
small replacement wetlands constructed by developers at the site of
development often suffered from poor planning, poor execution and
poor maintenance. It does not take much to kill a wetland.
The increased emphasis on function has led to a willingness, when
appropriate, to sacrifice wetlands at the development site in favor
of more valuable wetlands within the same watershed, the area in
which all raindrops roll to the same river.
Allen's wetland lies at the headwaters of Thomas Creek, which
flows into the Nassau Basin in the Timucuan Preserve. It was a
wetlands before it was a cow pasture, and if a choice must be made,
everyone agrees its restoration is far more valuable to the
watershed than the preservation of the many individual wetlands
whose owners contributed to Allen's preservation effort.
"I knew there had to be a better way," Allen recalled of his
decision to create Florida' second mitigation bank. The first sits
on 450 acres of city-owned property in Pembroke Pines, southwest of
Fort Lauderdale.
Moving isn't easy
Today, Allen's wetland is a classic example of watershed
management, as if smaller wetlands from around Duval and Nassau
counties had been plucked from the ground and dropped at the
headwaters of Thomas Creek.
Regulators emphasize that relocation is not the preferred
solution. Preserving wetlands where they lie remains the priority.
But when wetlands are destroyed, the preference has intensified for
the use of larger, contiguous and well-managed preserves.
Not everyone approves.
"They are creating wetlands in places where the land prices are
the least expensive and destroying them in places where the land is
the most expensive," said Sibbing, the National Wildlife Federation
lobbyist. It is not impossible that economic and ecological
priorities will coincide, but there is no particular reason to
believe they will, she said.
Environmentalists also point out that replacement wetlands do not
really replace things such as mangrove swamps or peat bogs, which
take centuries to develop. And they wonder whether anyone knows
enough about wetlands to make educated decisions about function
rather than preserving as much acreage as possible.
The corps says the concerns are overstated, the talents of its
staff underestimated and the choices limited given development will
continue.
"Listen, wetlands are not static," said Olson, the corps
biologist. "There simply hasn't been enough time for [man-made]
marshes to change" into tree swamps or congested bogs.
Olson also underscored that the most recent change in regulations
only affects the corps' expedited permit process, which only applies
to projects that meet low-impact criteria.
Not really expedited
The expedited permit process is called the nationwide permit
program, a series of rules that give blanket permission for people
to put buoys in waterways, build boat ramps on riverbanks, or
otherwise affect wetlands in ways that are individually
insignificant and won't add up to much even if lots of people do
them.
One of the permits gives carte blanche to developers who destroy
less than a half-acre of wetlands in the construction process. That
number used to be 10 acres, then it was 3. The Clinton
administration sliced it to 0.5 in 2000.
The blanket permits account for only a small part of wetlands
impact. The vast majority comes from larger projects, which are
reviewed individually by the corps and state regulators.
Last year, 614 wetland acres were destroyed under a blanket
permit in the Jacksonville district. The district authorized the
destruction of 2,465 acres after individual review.
Still, blanket permits have drawn the ire of both
environmentalists and builders. While environmentalists want the
regulations tightened, builders say the nationwide permit is a
tease.
"There are very few differences between the general and
individual permit programs," Asmus said. "It's not really a
streamlined program at all."
There also is concern among Florida homebuilders about the
differences between federal and state regulations.
"Where the system runs aground is if you have different
mitigation rules," said Keith Hetrick, general counsel to the
Florida Association of Home Builders. "Most of [our members] just
want to know what the regulations are and they want to do it as
quickly as possible."
Staff writer Binyamin Appelbaum can be reached at (904)
278-9431 or via e-mail at bappelbaum.
