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Bennett, Allyson R.
The builders versus the birds :
b wetlands, people, and public policy in the united states, florida and hillsborough county
h [electronic resource] /
by Allyson R. Bennett.
[Tampa, Fla] :
University of South Florida,
Title from PDF of title page.
Document formatted into pages; contains 185 pages.
Thesis (M.L.A.)--University of South Florida, 2008.
Includes bibliographical references.
Text (Electronic thesis) in PDF format.
ABSTRACT: This thesis is an interdisciplinary analysis of humans' relationship to the natural environment, specifically how wetlands are reflected in our legislative decisions. Our perceptions of wetlands and our relationship to the environment are influenced by our locality, history, and inter-generational relationships. These perceptions shape decision-making within a community. Our relationship to the natural environment and the way we interact with it can be explained through psychological and geographical theories. Historical trends reveal our consistently negative perspectives of wetlands in the United States and a rapid decline in wetlands acreage. At the federal, state, and local level, Americans have attempted to agree upon regulations that protect both essential wetland functions and private property rights.Literature, academic discourse, newspaper articles, local voices, county employees, and legislation help reveal the relationship between perceptions of wetlands and the regulations that affect these ecosystems. Hillsborough County's wetland controversy exemplifies a debate between differing public attitudes toward wetlands similar to that seen across the state and country. Pressure from landowners and developers encouraged the Hillsborough Environmental Protection Commission to vote to eliminate the county wetland protection division in the summer of 2007. Public concern following this decision led to debate about the significance of local wetland regulations. The decision to eliminate the wetland protection division was placed on hold for further discussion. In the first four chapters I examine the historical, social and psychological roots of our relationship to wetlands. Then, chapters five and six address wetland regulations on the federal and state levels.Chapter seven is a case study of Hillsborough County's wetlands controversy that arose in summer 2007 with a commission vote to do away with the county wetlands protection. Finally, in chapter eight I attempt to bring together all sides of the wetlands conversation into towards finding a solution to what position county governments should take in regulating wetland impacts and use.
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Advisor: Christopher F. Meindl, Ph.D.
t USF Electronic Theses and Dissertations.
The Builders versus the Birds: Wetlands, Pe ople and Public Policy in the United States, Florida and Hillsborough County By Allyson R. Bennett A thesis submitted in partial fulfillment of the requirements for the degree of Master of Liberal Arts College of Arts and Sciences University of South Florida, St. Petersburg Major Professor: Christopher F. Meindl, Ph.D. Rebecca A. Johns, Ph.D. Gary R. Mormino, Ph.D. Date of Approval: November 17, 2008 Keywords: environment, Section 404, Florida, topophilia, biophilia Copyright 2008, Allyson R. Bennett
Acknowledgements I owe my deepest gratitude to my thesis committee: Dr. Christopher F. Meindl, Dr. Rebecca A. Johns, and Dr. Gary R. Mormino. Dr. Meindl accepted the role as my major professor wholeheartedly and with wisdom and friendship. He offered valuable encouragement, resources, ideas, and time throughout the entire thesis pr ocess. I am also thankful for Dr. Johns whose outlook on life is inspiring and thought-provoking. Dr. Johns played an integral and essential role in this thesis throu gh her vast knowledge in environmental theory and social science re search. I am grateful for Dr. Morminos encouragement. Dr. Mormino was the first pe rson I met in the Florida Studies Program, and his positive attitude, generosity, and enthus iasm influenced my decision to join the program in the first place. All of my committee members demonstr ate a passion for academics, a drive toward personal achievements, and a desire to help their students succeed. Their dedication to their work goes beyond their jobs as professors. They are researchers, writers, thinkers, teachers, a nd humanitarians. They repr esent the real meaning of scholarship. I would also like to thank my parents, Joyce and Tony for their never-ending love and encouragement. Finally, my boyfriend Joe motivated me and helped make this seemingly endless task manageable and enjoyable.
Table of Contents Abstractii Chapter 1: Introduction: W etlands in America1 Chapter 2: Wetlands Definitions, Classifications, and Functions Chapter 3: Wetlands, Wilderness and the Human-Nature Bond... Chapter 4: Historic Trends of Wetla nd Perceptions in the United States..48 Chapter 5: Federal Wetland Regulation.....56 Chapter 6: State-Level Wetland Regulations.78 Chapter 7: A Case-Study on Wetlands Protection in Hillsborough County, FL...98 Chapter 8: Conclusion..120 Endnotes...124 Bibliography Appendices...166 Appendix A: Cover Letter for County Survey.....167 Appendix B: County Survey....168 Appendix C: County Survey Responses..171 Appendix D: UMAM Forms Used by Hillsborough County EPC..179 Appendix E: Wetland Impact Permit File Review..182 i
The Builders v. the Birds: W etlands, People, and Public Policy in the United States, Florida and Hillsborough County Allyson R. Bennett ABSTRACT This thesis is an interdisciplinary anal ysis of humans relati onship to the natural environment, specifically how wetlands are re flected in our legislative decisions. Our perceptions of wetlands and our relationship to the envir onment are influenced by our locality, history, and inter-generational relati onships. These perceptions shape decisionmaking within a community. Our relationship to the natural environment and the way we interact with it can be ex plained through psychological a nd geographical theories. Historical trends reveal our consistently negative perspectives of wetlands in the United States and a rapid decline in wetlands acreage At the federal, state, and local level, Americans have attempted to agree upon regul ations that protect both essential wetland functions and private property rights. Lite rature, academic discourse, newspaper articles, local voices, county employees, and legisla tion help reveal the relationship between perceptions of wetlands and the regulations that affect these ecosystems. Hillsborough Countys wetland controvers y exemplifies a debate between differing public attitudes toward wetlands similar to that seen across the state and country. Pressure from landowners and developers encouraged the Hillsborough Environmental Protection Comm ission to vote to eliminate the county wetland protection division in the summer of 2007. Public con cern following this decision led to debate ii
iii about the significance of local wetland regula tions. The decision to eliminate the wetland protection division was placed on hold for furthe r discussion. In the first four chapters I examine the historical, social and psychologi cal roots of our relationship to wetlands. Then, chapters five and six address wetland regulations on the federal and state levels. Chapter seven is a case study of Hillsbor ough Countys wetlands controversy that arose in summer 2007 with a commission vote to do away with the county wetlands protection. Finally, in chapter eight I attempt to bring to gether all sides of the wetlands conversation into towards finding a solution to what position county governments should take in regulating wetland impacts and use.
1 Chapter 1 Introduction: Wetlands in America History, culture, science and politics su rrounding wetlands have been a part of public discourse in the United States since th e colonial era. Wetlands are places where the substrate is at least occasionally satura ted, specially adapted plants thrive, and a unique set of life is supported. Without wetla nds many species that rely on them for food and habitat would become endangered or extin ct. Beavers, alligators, and wood storks are just a few examples of wetland animals that were nearly eliminated from the U.S. While many former wetlands are now agricult ural and urban developments, the wetlands that remain play a valuable role in provi ding ecological and socioeconomic benefits. Because wetlands benefits extend across regional, state, and even national boundaries, regulatory discourse has become increasingly complicated. In this thesis, I examine historical perceptions of wetlands and the w ilderness philosophies that encouraged these perceptions. I will also examine wetlands re gulations on a variety of spatial scales: national, state, and county levels, and the interactions between the various regulating bodies. A wide range of wetlands can be found in the United States from permafrost underlain wetlands in Alaska to portions of tropical rainforests in Hawaii and riparian wetlands in the arid southwest. Once view ed as an obstacle pr eventing productive land use, the value of wetlands ha s only recently been recognized. Wetlands provide fish and wildlife habitats, protect shorelines from erosion, maintain ground water supplies and
2 water quality, store floodwaters, trap polluting sediments, and modify climate. Yet the continental U.S. lost 53% of its wetlands between 1780 and 1980.1 Roughly sixty acres of wetlands have been lost every hour for the past two centuries.2 Environmental and socioeconomic benefits provided by we tlands are now seriously threatened.3 A number of theoretical concepts attempt to explain humanitys relationship with nature. Our relationship and interactions w ith nature influence the collective decisions we make that affect the environment. The bond between humans and the environment influences peoples interactions with thei r surroundings. Proximity, life experiences, cultural messages, and education all impact our relationship with wetlands. People perceive wetlands in a variet y of ways including profitabili ty, recreation, aesthetic appeal, or plain distaste. Regardless of which res ponse a person has to wetlands and other wild areas, there will always be an innate physical and mental attachment to our natural surroundings. Furthermore, people will always be dependent on nature and the resources and functions natural areas offer. Wetlands are certainly vital natural areas that offer humans a number of beneficial values and f unctions, and our relationship with these areas impact the way our society chooses to regulate their use. The various perceptions of wetlands and wetla nd uses also play a vital role in the discussion of wetlands regulations across the na tion. Historical perspectives of wetlands shape our attitudes toward decision-making th at affects wetland ecosystems. Memoirs, literature, academic discourse, and legislati on reveal the trends of attitudes toward wetlands over the last few centuries. Wetla nds have long been an appealing theme for American writers and naturalists. Histori cally, our cultural attitudes towards these ecosystems were overwhelmingly negative. While some Romantics and other literary
3 figures of the nineteenth a nd early twentieth centuries have advocated conservation and preservation, a strong environmentalist move ment recognizing the important values and functions of wetlands did not emerge until well into the twentieth century. The changing trends in perspectives toward wetlands have shifted from swamps in need of draining to sensitive ecosystems in need of preservation. A pivotal moment occurred in 1849 when the federal government passed the Swamp Lands Act encouraging agriculture and development by transferring federal wetlands into states hands. This transfer was the first time the federal government played a significant role in the fate of wetlands. By the 1930s, Americans witnessed the apparent impacts wetlands conversion had on wildlife. People also began to understand the values these ecosystems offered. Concerned Americans pressured the federal government to switch gears and focus on prot ecting wetland habitats and wildlife. The U.S. Army Corps of Engineer s was directed to enforce the wetlands permitting program under the Clean Water Act of 1972. Ironically, the Corps became responsible for protecting the same wetlands they previously helped drain, dredge, and fill. Conflict continued between developers and environmen talists regarding the Corps success, or lack thereof in enforcing the permit pr ogram. Indeed, the federal governments inadequate protection of wetla nds led 35 states to establis h some form of state level wetlands protection program.4 Still, many wetlands remained inadequately protected. Suffering a nine million acre loss of wetlands mostly since 1900, Florida serves as a prime example of the increasingly compli cated state of wetlands policy-making. The rain and temperate climate has long been ideal for an abundan ce of plant and animal life, and the mostly flat surface of Florida contributes to the accumulation of water forming
4 ort. wetlands. Floridas landscape endured only modest human impacts prior to the late nineteenth century, as Native Americans were few in number. It was not until Governor William Bloxham, Hamilton Disston, Henry Flag ler, and other leaders of the Guilded Age that development projects in Florida during the 1880s began to threaten wetlands and the values they provide.5 Federal, state, and local environmental regulations have protected Floridas fragile environment sin ce the 1970s. Indeed, the Florida legislature created five water management districts in 1975 and blessed four of them with state-level wetland permitting authority. As the benefits of wetlands and thei r mass destruction became increasingly understood, many county governments stepped in to further ensure protection of wetlands. A prime example in Florida is in Hillsborough County. In a state that was once comprised of about 20 million acres of wetlands, federal and state wetlands protection did not satisfy Hillsborough Count ys people who created the Environmental Protection Commission (EPC) in 1967, whic h later added a Wetlands Management division. Indeed, twenty of the sixty-seven counties in Florida now have their own wetlands rules.6 Yet conflict erupted in Hillsborough County during the summer of 2007. The County Commission initially tried to shut down the wetlands division of the EPC, but public outcry halted that eff In this thesis, I will address American academic and political discourse about wetlands, the cultural foundations of the wilderness dichotomy, the history of wetlands perspectives in the United States, and the fede ral, state, and local roles in regulating the use of wetlands. The focus of my thesis wi ll be a case study of the 2007 controversy that arose in Hillsborough County, Florida when C ounty Commissioners initially voted to do
5 away with the EPCs Wetlands Management Division. What protection did the County program provide that state and federal gove rnments did not provide to wetlands in Hillsborough? What were the motives of co mmissioners who attempted to kill local wetlands protection? Why was there such outrage from the public and certain commissioners about the decision ? In addition to answering these questions, I will report on where the wetlands management division of Hillsborough County stands today. I hope to offer a unique perspective that comb ines academic discourse across disciplinary boundaries regarding wetlands and which sheds light on humanitys relationship to the environment.
6 Chapter 2 Wetlands: Definitions, Classifications, and Functions Until the mid-1970s wetland policies in the United States aimed to fill and drain wetlands for urban and agricultural developmen t. With over 50 percent of the nations original wetlands converted to other purpos es by this time, a heightened concern for wetlands losses led to political support for protecting wetlands.7 Mounting public concern and political involvement led to environmental protection policies that encompassed wetlands throughout the United Stat es as early as the 1970s. Wetlands are the only ecosystems comprehensively regula ted across public and pr ivate lands in the United States.8 A complete, scientifi cally sound definition of wetlands is important to both government agencies who regulate land us e and to the public whose understanding of the values wetlands offer is crucial. The term wetlands first publicized in a 1956 U.S. Fi sh & Wildlife Service report, a bulletin published in re sponse to a rising concern over losses of wetlands.9 There is no all-inclusive definition for wetlands, only in terpretations and delineation guidelines. Wetland ecosystems are best understood as th e transition zone between an elevated upland and a lower lying deepwater environment. It is in this transition zone that a unique array of plant and animal species thrive. The act of delineation is the determination of specific boundaries around wetlands, generally for legal or regulatory purposes. Yet a high level of variability from one wetland area to another further
7 complicates the process of determining one unive rsally accepted defini tion. A clear-cut definition is important for consistent rule enforcement and delineation. Three federal regulatory agencies have devel oped distinct definitions of wetlands : the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, and the Soil Conservation Service (now called the National Resour ces Conservation Service). All three agencies rely on similar research and scientific data to define wetlands, but they have somewhat different primary responsibilities and hist ories. Although it is not perfect, the definition used by the U.S. Army Corps of Engineers offers a r easonable point of depa rture. According to the Environmental Protection Agency and th e Army Corps of Engineers, wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typica lly adapted for life in sa turated conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.10 A number of landscape issues shape and characterize wetlands. Because it takes such a wide array of cross-disciplinary knowledge to properly apply the definition of wetlands in the field, federal agencies develop extensive manuals for delineation purposes. Every widely accepted definition of wetlands includes three main components: (1) the presence of water: hydrology, (2) th e presence of flood-tolerant vegetation: hydrophytes and (3) the presence of unique soil conditions: hydric soils. Along with the federal government, many states including Florida use indicator s of these three characteristics to identify and delineate wetlands.11 While hydrologic conditions can sometimes be a clear-cut sign of wetlands, the hydrology of an area can vary greatly throughout the year and from year to year. For this reason, the presence of standing
8 water observed during one site visit cannot stand alone as a si ngle reliable wetlands indicator. The presence of hydrophytes and hydric soils are also important indicators used when defining and delineating wetlands. The three factors analyzed together can provide an adequate repres entation of an area. Wetlands hydrology is generally characterized by water that is at or just below the surface during the local growing season. The frequency, duration, depth, and timing of wetnesscollectively referred to as the hydroperiodare the hydrologic characteristics considered when defining wetlands.12 These four hydrological factors influence the plant and animal life, soil characteristics, and wetla nd functions. It is sometimes difficult to determine an areas hydrology because conditio ns can vary greatly from year to year, during different times of the year, and even da y to day. Wetlands in general also vary greatly from region to region. Oftentimes, an area must be studied over a long period of time, sometimes over a century to adequately characterize its hydrology. Most wetlands possess very dynamic water flows and levels dependent on the time of year, location, and past and current soil conditi ons. For example, a coasta l marsh may experience daily flooding with each high tide, while a river swamp may experience seasonal flooding. Flood frequency refers to how often prol onged wetness occurs in a given area. The standard determination of frequency is based on the number of times saturated conditions exist in an average yeartaking into considerati on variations from year to year and allowing for extremely dry and extremely wet exceptions. The frequency requirement in the United States sometimes leaves out arid and semiarid areas from wetlands regulation even if they may have cy clical periods of wetness. This further supports the idea that plant and soil charac teristics must be considered because the
9 presence of moisture is often an insuffici ent basis for wetland determinations. Just because an area does not appear to be wet wh en examined, does not mean the area is not a wetland. The duration of flooding represents an im portant issue in wetlands because if places are flooded long enough, anaerobic (oxygen-l ess) conditions can occur. This is important because plant roots need access to oxygen. With scientif ic evidence suggesting anaerobic conditions can occur anywhere fr om one day to one month after flooding, the National Research Council concluded that f ourteen consecutive days of flooding would generally produce a wetland environment. We tlands need not experience standing water to produce anaerobic conditions in soil. Most all root systems of wetlands vegetation are found no more than four feet below the surf ace and most often occu r within the upper one foot of soil.13 Therefore, if soils as much as a foot below the surface become saturated, only plants capable of coping w ith the resulting anaerobic cond itions in the root zone can flourish. The timing of the wetness is critical, as the conditions of the growing season determine what vegetation will be found in an area and what vegetation will not. In federal regulations, the growing season refers to the period of time for germinating and growing cultivated crops. This has typically been defined by the frost-free period of a region with thresholds from 28F to 32F. In central Florida, the growing season persists from the last freeze in spring (on average January 31) to the first freeze in fall (on average January 8) of the following year. Ce ntral Floridas growi ng season is thus 342 days out of the year.14 If flooding occurs when plants are not growingthe excess water
10 does not harm them. But, saturation duri ng the growing season cau ses stress on plants, limiting the species that can survive. Because the hydrology of an area can be so varied, one way to determine wetlands conditions is if the hydrology and soils support hydrophytic vegetation. Hydrophytes are plants that can tolerate flooded and anaerobic conditions at least some of the time. Some hydrophytes compensate for anaerobic conditions by rapid stem growth or oxidizing rhizospheres.15 Oxidation of rhizospheres in hydrophyte is the process of releasing excess oxygen through the roots into th e surrounding anaerob ic environment.16 This aids in oxidizing toxic mate rials within the soils. Others have raised root systems or adventitious roots (roots just at the wate r surface) to access oxygen above the anaerobic soils. Developing airspaces in roots a nd stems, seed production during dry season, production of floating seeds, and occupying wetlands that are flooded during the cold, non-growing season are other ways hydrophyt ic plants avoid flooding stress. Hydrophytic species are important in the process of classifying wetlands because to the untrained eye, an abundance of mois ture-absorbing plants may give a misleading impression of an areas water table being lower than it is. An example of this would be an area with extensive tree cover keeping an area drained through transpiration, which might otherwise be flooded.17 Also, the vegetation can change from the wet areas of wetlands outwards to the drier borders, co mplicating delineation. On the outskirts of wetlands, the typical hydric species intermix with mesi c species making the boundary unclear. This goes to show that all characteristics of an area must be examined in relation to one another before making a final dete rmination, as they all go hand in hand.
11 To ensure accurate delineation and identification of wetlands, the federal government has developed a list of vascular plants that occur in we tlands. These species vary from plants that can tolerate saturated so ils for a few weeks to those that can tolerate standing water for several months. Wetland scie ntists often classify plants into one of five different categories. Ob ligate wetland plants are found mo re than 99% of the time in wetlands. Facultative wetland plants are usua lly in wetlands and Facultative plants are found in wetlands half the time. Mean while, Facultative Upland plants are only occasionally found in wetlands and Upland plan ts are almost never found in wetlands. Obligate wetland and Facultative wetland plants are generally accepted among scientists as indicators of wetlands.18 Soils are important to defining wetlands b ecause the nature of soils affects plant growth and peat deposits, and they can be es pecially helpful in identification where much of the vegetation has been removed. Hydric soils are most often found in depressions and flat plains that do not have drainage outlets and they may be created by outside factors such as beaver dams and human construction. The foul smell often found in wetlands is due to these anaerobic conditions, specifi cally, the accumulation and release of carbon dioxide, nitrogen, hydrogen, and methane gases. Soils are composed of mineral and organic materials, liquid, and gases that occur near the land surface. The anaerobic conditions of hydric soils greatly reduce the ability of oxygen breathing microbes to decompose organic matter. Fluctuations in the amounts of the constituents result in additions, losses, transfers, or transforma tions of energy over time and the ability to support plants with root system s in their natural environment.19 Hydric soils are saturated or flooded long enough during th e growing season to develop anaerobic
12 ic environment. conditions in the root zone. In flooded soils microbial respirati on quickly uses up the available oxygen, creating an anaerob Some wetlands are hard to identify because the plant species, soil characteristics, and hydrology are difficult to classify with pr ecision. This is partially due to human effects on wetland plant dist ribution. Human disturbances and interference can drastically alter the presence of indicators. It is hard to te ll which plants would naturally grow if the agricultural or s ilvicultural species that now occupy an area were to be removed from an altered piece of lan d. Ralph Tiner suggests that the 20th century landscape can be a most confounding ecological expression to deciphe r due to the great impact of urban development, agricultural and grazing practices, and natural resource management.20 Once an area has been designated as a we tland, it can be further classified as a specific type of wetland. Classification of wetlands is important for conducting inventories, watershed planni ng, assessing biodiversity, eval uating wetland functions, and assessing alteration, degrada tion, and restoration impacts, among other issues. The United States Geological Survey groups wetland s into three categories: (1) areas with hydrophytes and hydric soils (marshes, swamps and bogs); (2) areas without soils but with hydrophytes (aquatic beds and seaweed-covered rocky shores); and (3) areas without soil and without hydrophytes (gravel beaches and tidal fl ats) that are periodically flooded.21 The USGS classification takes into ac count the variations due to alterations of wetlands, assuming the presence of two of the three factor s: hydrology, hydrophytes, and hydric soils can imply the third is or once was present. Tiner in troduces two types of classification systems, horizontal and hierarch ical. Horizontal wetl ands classification
13 divides habitats into a series of classes or types. Examples of horizontal classifications include bogs, marshes, swamps, and flatwoods. Hierarchical classifi cation uses a set of matrices that include lower levels of wetlands that share only genera l characteristics of wetland vegetation, substrate, and hydrology to higher levels of wetlands that share more detailed and exemplary vegetation, substrat e, and hydrology wetland characteristics. The U.S. Fish and Wildlife Service reor ganized their wetla nds classification system in 1979 to prepare for a national we tlands inventory. The new system groups ecologically similar habitats before judging the value of a wetland, furnishing habitat units for inventory and mapping, and ensuring uniformity in concepts and terminology for classification across the United States. The new classification system, Classification of Wetlands and Deepwater Hab itats of the United States by Lewis Cowardin, et al., is widely used by governmental agencies, universities, and private and non-profit organizations for identification and classification of wetlands.22 This system includes five main types of wetlands. Marine and estuarine wetlands have connection to the ocean; riverine wetlands are f ound near rivers and streams; lacustrine wetlands near lakes; and palustrine wetlands near smaller inland water bodies. Marine and estuarine systems are saltwater wetlands while the latter three are freshwater systems. These five systems are further organized into classes, subclasses, and dominance types. This classification system examines an areas vegetation, water chemistry, hydrology, origin of water, soil types, landscape, size, and ecosystem and energy sources. Over the next 20 years, government scientis ts and regulators prepared a series of different wetland identification manuals. In 1993, Congress re quested that the Environmental Protection Agency ask the National Research Council to assess the
14 adequacy and validity of wetland definitions, the delineation methods, present knowledge about wetlands, and the regional variation of wetlands. This request was triggered by the constant preparation, criticism, withdrawal, and amendments of various federal agency manuals addressing wetlands definitions and regulations. The cri ticized legislation promoting federal manuals included the Clean Water Act amendment to the 1977 Federal Water Pollution Control Act, the U.S. Army Corps of Engineers (Corps) 1987 Corps manual, the 1989 interagency manual, and the 1991 proposed revisions to the 1989 federal interagency manual. The National Research Council (NRC) comm ittee concluded that the 1991 proposed revisions would greatly reduce the amount of protection give n to wetlands in the 1987 and 1989 manuals. The NRC saw the importance of having a definition of wetlands that stands alone, with no agency or policy connection. Their reference definition of wetlands serves as a contrast to definitions associat ed with specific regulatory or legislative practices. The three themes of the 1995 N RC report are wetland identification and delineation, functions and values of wetla nds, and variations among wetlands. The relationship between these themes is seen in manuals and legisl ation throughout the federal agencies. The NRC reference definition is as follows: A wetland is an ecosystem that depends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate. The minimum essential characteristics of a wetland are recurrent, sustained inundation or saturation. Common diagnostic features of wetlands are hydric soils and hydrophytic vegetation. These feat ures will be present except where specific physiochemical biotic, or anthropogenic factors have removed them or prevented their development.23 In this reference definition, the three majo r factors characterizing wetlands are water, soil, and supported plant life. The NRC also put s stress on the possibili ty that an area of
15 wetlands has been so drastically altered by out side influences, that one or all of these factors may not be apparent. The identific ation factors used by NRC revolve around an areas hydrology reflecting recurrent, sustained saturation conditions. Wetland identification and boundary delineation methods have been established by a number of federal agencies, each with their own wetlands definition. With each agency having different purposes and missi ons, the definition of wetlands plays a different role in each of the agencys agendas. The Corps enforces the Clean Water Act passed by Congress in 1972. The U.S. Fish and Wildlife Service manual focuses on the goal of protecting wildlife found in wetland s. The Natural Resources Conservation Service (previously the USDA Soil Conservation Service) wetlands manual is focused on in wetlands in terms of their relationshi p to agriculture. The need for wetland identification and delineation techniques arose with the evolution of conservation and preservation laws passed to protect wetland s and water resources. Because private property is such an important right of Americans, and public land is a shared treasure of the American people, regulatory practices including land use c ontrol need to be consistent. Prior to the development of fe deral wetlands delineation manuals, wetlands were mostly identified by scientists using indicator plants and plant communities. Recent federal definitions include the soil and hydrology characteristics of wetlands along with the presence of certain plant species. Ralph Tiner criticizes the wetland regulati ons enforced by Corps (created in order to carry out the intent of Section 404 of the Clean Water Act passed by Congress) arguing that they fall short of the NRC standards. Tiner contends that while the NRC suggests that farmed wetlands are flooded up to 10 pe rcent of the average growing season, the
16 Corps 1987 manual limits the wetlands hydrolog y threshold to 5 percent of the average growing season.24 The NRC concluded in 1995 that wetland hydrology should be considered to be saturation within 1 ft of the soil surface for 2 weeks or more during the growing season in most years (about every other year on average).25 It is within one foot of the surface that most root systems would be affected by saturation. The Corps similarly uses a 12-16 inch saturation depth (a nd under 6.6 feet which is the depth used to classify a body of water) in wetland delineation.26 The U.S. Fish and Wildlife Services (FWS) definition of wetlands includes swamps; freshwater, brackish water, and saltwater marshes; bogs; vernal pools; periodically inundated saltflats ; intertidal mudflats; wet me adows; wet pastures; springs and seeps; portions of lakes, ponds, rivers and streams; and all other areas which are periodically or permanently covered by shallow water, or dominated by hydrophytic vegetation, or in which the soils are predomin antly hydric in nature. The FWS definition is a non-regulatory, technical definition geared toward wetlands prot ection and scientific investigations. FWS calls wetlands lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For purposes of this classificat ion, wetlands must have one or more of the following three attributes: (1 ) at least periodically, the land supports hydrophytes, (2) the substrate is predominantly undr ained hydric soil; and (3) the substrate is non-soil and is saturated with water or covered by shallow water at some time dur ing the growing season of each year.27 The National Resources Conservation Se rvices (NRCS) definition was developed in response to the Swampbuster provisions of the 1985 Food Security Act. As long as a
17 piece of property is used for agricultural purposes, the Swampbuster provisions require that the NRCS delineate wetlands on the prope rty to determine mitigation requirements. The NRCS defines wetlands are defined as: lands that have all of th e following characteristics: (i) A predominance of hydric soils. (ii) Are inundated or saturated by surface water or groundwater at a frequency and duration sufficien t to support a prevalence of hydrophytic vegetation typi cally adapted for lif e in saturated soil conditions. (iii) Under normal circumstances support a prevalence of hydrophytic vegetation. Exception: Lands in Alaska identified as having a high potential for agricultural development a nd a predominance of permafrost soils shall not be considered wetland for purposes of the Act. (7 CFR 12.2)28 Aside from a few short comings, all thr ee agencies acknowledge the relationship between an areas hydrology, soil, and vegeta tion to a recurrent, sustained saturation condition encouraged in the NRC publication. These defi nitions and the differences between these three federal agencies beco me increasingly important when they are viewed in light of regulatory practices. While this chapter focuses primarily on characterizing wetlands, the federal rolespecifically that of the Army Corps of Engineers in wetlands delineation, protection, and destructionwill be discussed in more detail in chapter five. Despite regulatory agencies and permitting practices that are supposed to limit interference with natural wetlands, these envi ronments continue to be degraded. The dredging, destruction, and altering of wetlands has led to demands for well-regulated and effective policies at the federal, state, and local levels. Aside from aesthetic values of wildlife and natural enjoyment, wetlands serv e a number of ecologi cal, biological, and hydrological functions that are of value to humans and other life forms. In their extensive
18 account of wetlands, William Mitsch and Ja mes Gosselink remind us that the term value casts wetlands in an anthropocentric light: how do wetlands benefit humans?29 The idea that the term value is anthropocentric is apparent in the legislative decision-making regarding wetlands delineati on, regulation, conservation, and preservation. The National Research Council groups wetland functions into three categor ies: hydrologic, biogeochemical, and habitat and food web support.30 Critical functions and values include storm abatement along coasts, flood control, wate r quality, and habitat and ecosystem sustainability. It is important to understand that a single wetland and its values are not limited to the wetland itself, but play a role in the larger hydrologic systems of the region, continen t, and world. For example, many animals feed in wetlands but spend much of their lives in neighbori ng uplands. The destruction, manipulation, and degradation of wetlands has led to a loss of functions burdening people with costs such as controlling floods and treating water. Wetlands are an important component of many watersheds because they help reduce flood peaks and maintain base flow s and seasonal flow distribution in moving water bodies. Wetlands around rivers and stream s play a major role in flood control by absorbing excess waters. Natural wetlands of ten recover quickly after storms, suffering little long-term damage. In floodplains, wetlands absorb flood waters and slow down the release of water into the rive r and watershed system. This prevents flash flooding that would be caused by storm or flood waters fl owing downstream. In areas where wetlands have been eliminated, flood waters discharge mo re rapidly than flood waters in an area of wetlands. Of course a wetlands ability to store flood waters is re liant on the topography, size and depth, antecedent soil conditions, ty pe of soil, and temperature below the
19 surface. While some wetlands serve as places for ground water discharge to the surface, others provide a place for surface water to recharge the ground water supply. The societal values from the effects of hydrologi c systems in wetlands include maintenance of biodiversity and fish habitat during dry periods.31 The biogeochemical functions of wetlands include transformation and cycling of nutrients, retention and removal of dissolved substances, and accumulation of peat and inorganic sediments. Some wetlands serve as a sink for nutrients and sediments while others transform nutrients into other forms. Some nutrients are simply removed from water by attaching to sediment particles that settle at the bottom of wetlands. Nitrogen and phosphorous are two nutrients commonly found in waste water and absorbed by plants in wetlands. Biogeochemical functions ensure nutrient stocks within wetlands and reduce the transport of nutrients downstream. By retaining these nutrients, not only are they available within wetlands to support plant growth, but the downstream water quality is improved. By retaining inorganic sedi ments, wetlands further provide additional natural filtering for increased water quality. In addition, wetlands offer ecosystem su stainability by supporting food webs and providing habitat for a number of species, including some endangered and threatened species. By supporting hydrophytic plant comm unities, wetlands offer food, nesting and cover for animals including furbearers and waterfowl popular with the hunting community. Migratory waterfowl rely on North Americas wetlands in four major flyways.32 Unfortunately, the decrease in the amount of wetlands has led to a decrease in the waterfowl population. The decrease in wetland areas has also led to an increase in the spread of avian diseases due to fewer av ailable resting places within the migratory
20 flyways. In addition, fish, shellfish, and other seafood resources we rely on are dependent on wetland habitats. A constant en ergy flow within wetlands also supports a number of vertebrates mainta ining biodiversity and a significant food web. A bio-diverse community is important to beneficial natu ral processes such as nutrient cycling and maintaining water quality. Finally, there is a strong interdepende nce between wetlands and their neighboring upland and aquatic environments. Another function many people can appreciate is the aesthetic and recreational value wetlands offer us. Wetlands contain unique vegetation, a direct contrast to terrestrial and aquatic surroundings, and great er biodiversity. As far back as Henry Thoreau, William and John Bartram, James Audubon, and John Muir, Romantics and nature-lovers have placed value on the sheer be auty of natural wetland s. Others rely on wetlands for recreational uses such as ka yaking, hiking, and bird-w atching. Culturally, wetlands preserve archeological evidence of past societies and serve as a place of inspiration for artists, poets, and writers. Destruction, manipulation, and degrada tion of wetlands has led to a loss of functions burdening people with large costs to control fl oods, treat water, and protect endangered species. The National Research Council concludes: when wetlands are removed, their collective functions are likely to decrease faster than the rate of reduction in surface area.33 Past perceptions of wetlands as disease-ridden and bug infested bogs have led to a number of wrong turns in wetlands management for which we are now paying a hefty price.
21 Chapter 3 Wetlands, Wilderness and the Human-Nature Bond The philosophical development of humanity s relationship to nature over the course of United States hist ory is vital to understanding wetlands as a wilderness environment, regulated, managed, and debate d in American politic s and legislation. Humanitys relationship to nature impacts our view of nature, thus having a direct influence on how we will solve our modern ecological and environmental problems. The evolution of the idea of wilderness in western society explains the changing attitudes toward wetlands in the United States and the twentieth-cen tury emergence of environmentalism. Wetlands have been a part of American culture since the colonial era when they were largely viewed as dismal and unhealthy swamps and bogs. While the cultural attitudes expressed in the literary di scourse of early Americans have often been negative toward wetlands, merely having th ese views expressed in popular literature provides evidence of the longstanding re lationship between Americans and wetland environments.34 This chapter first addresses the human-nature bond, and then examines the idea of wilderness in a cultural contex t. Finally, this chapter addresses the two theories of topophilia and biophilia as possible explanations for how and why we have developed stereotypes for natural environments throughout history. The bond humans have with nature impacts our view of wilderness. Our view s of wilderness then influence our decision-making regarding natural environm ents such as wetlands. The discussion of
22 s wilderness sheds light on some of the deeper, cultural meanings behind management and policy debate regarding natural areas. Th rough understanding wilderness and the humannature bond, this chapter functions as the cultural, ph ilosophical, and psychological foundation of the thesis. I hope to emphasi ze a deeper, cultural m eaning in the public discourse influencing wilderness and wetla nd policy-making, historic ally and currently flooded with politics, ec onomics, and science. The idea of wilderness is a cultural c oncept imbedded in the particular culture defining it.35 In western society, wilderness is trad itionally defined as the other, all that is not humannatural landscapes, wildlife, and na tural disasters typica lly fall within thi definition. An understanding of western perspectives of nature and the human-nature bond provides substance and layers to the cultural meaning of wilderness beyond ecological and biological func tions, and beyond prospective economic worth. There is an ever-lasting and undeniable cu ltural bond between Americans and their environment. Gordon G. Whitney suggests that this bond is based on the simple fact that humans rely on the earth to survive and are sup erimposed upon its natural features.36 We have to find a way to relate to the natural environm ent because it is not only our home, we rely on its resources to maintain our livelihood. Understanding the evol ution of the idea of wilderness and the evolving relationship humans have with their environmentand equally important why we have this undeniable relations hip, are fundamental ideas to our understanding of environmental policy in the United States. Edward O. Wilson added Consilience to the academic lexicon in 1998.37 Wilson argues that unlike animal sociality, human social existence is based on our genetic propensity to form moral precepts and laws. This occurs through the gene/culture co-
23 evolution. According to Wilson, culture is a super-organism that evolves on a track parallel to natural selection.38 With this in mind, it will take the entire nation world bringing together knowledge to find the soluti on for our increasingly inadequate food and water supplies, polluted land and water, and diminishing natural resources. Consilience stresses a bond between the f our major disciplines that im pact our understanding of life: environmental policy, ethics, social science, and biology. With the unity of physical, natural, and social sciences (through consilience), humanity will have the tools to recover from the human-induced destruction of the na tural world and regain moral sentiments that Wilson argues are embedded in our genes. This is possible by crossing disciplinary boundaries and unifying research fi ndings in an interdisciplin ary setting. Viewing culture as a super-organism also helps explain our propensity towards preserving nature. There seems to be an emerging public belief that hum ans are inflicting irreversible damage to natural environments. This is evident in the increasing number of environmental organizations in the United States and thei r impact on political decisions over the past century. The same genetic morality embedded in the culture super-organism can be examined on an individual basis as well. Kay Milton argues that every individual is a product of their environment, and interactions with the environment shape each persons perspective.39 Every experience triggers some fo rm of an emotional reaction and our awareness of these reactions motivates our ac tions. Therefore, while human experiences are based on direct relationships between an individual and the environment, our environmental actions are products of our em otional reaction to th ese very experiences within the environment. Through the realization that emotion drives rational thought,
24 rly public discourse will lead to stronger deci sion-making in regards to nature and natural things. Milton contends that [all] commitments are funda mentally emotional, without emotion there is no commitment, no motivation, no action.40 This argument can be directly applied to political action over the course of Americas e nvironmental history. This will become increasingly evident in the following chapters of this thesis where I examine wetlands policy and the cultural attitudes that have encouraged legislation and enforcement of wetland protection laws. The meaning of wilderness has a str ong, cultural context in Western and particularly American society. Westerners have historically vi ewed the wild as the other, non-human components of the world. Modern perceptions of nature have also been skewed by the biblical interpretations of wild as satanic and beastly. Wildness was once the antithesis of everything good and orderl y, and modern society clung to this idea by dominating and managing everything we call natural.41 To understand Americans modern idea of wilderness, we must look back to the firs t humans and their encounters with nature, and to the cultural influen ces that impacted our European ancestors. The idea of wilderness dates back to Pa leolithic peoples; or rather, that the Paleolithic peoples had no idea of wilderness.42 Paleolithic peoples were hunter/gatherers of the Pleist ocene era who viewed the worl d and survival as a game. They were players in a game where they l oved, not hated, their opponents. They viewed hunting as a gift, the life they killed as a gift of life, and th eir own lives as a gift. They used plants and animals to develop symbo lic thinking. There was no hiding of birth, death, butchering, or other facts of life. Child ren were able to unders tand life at an ea age without age-restricted events like birth and death. Th ey were a transient species
25 nonhum is for e, n ed a ters and of the natural world. Wilderness became a place absent of human settlem estern focused on place rather than space. Killing an anim al was a sacred gift of food, not a sacrificial loss. Pleistocene people cheris hed their relationship with animals and the an world.43 Ten thousand years ago, the first Agricult ural Revolution formed the bas human civilization and paved the way for the modern view of wilderness. The Agricultural Revolution was significant because it led to sedentary villages, an anthropocentric view of the wo rld, and patriarchal cultures. This differed dramatically from the Paleolithic hunter-gatherers who lived a more balanced existence with other lif leaving an area as food supplie s became scarce. The agricu lturalists on the other hand lived a sedentary life an d domesticated animals and plants to maintain and control food supply.44 Manipulation and extraction of resour ces from the land led to human reliance on crops for survival, steering away from th e hunter-gatherer lifestyle. The dominatio of land led to the competition for property because of the increased demand for large units of property for farming and livestock. The increased competition for land play vital role in the cultural pe rspective of nature. Notions of private property and land ownership eventually emerged and prevaile d over the old hunter-gatherer nomadic mentality. Nature became separate space and humans viewed themselves as mas manipulators ent.45 The Judeo-Christian mindset is also argued to play a significant role in W views of wilderness and nature. Early Gr eeks and Christians viewed the soul as independent from our bodies and in an eter nal realm of existence. The soul was recognized as the intellect and personality. Th is is significant to the developing views of
26 s sacred and profane. Th is dualism fostered the idea of a He a of as eas set h. anth ropocentrism placing humans nature b ecause it places an eternal existence separate from the natural world; humans, a soul-bearers, became separate from the natura l world. According to this view, there is the supernatural and the natural; the aven separate from earth.46 The mainstream recovery narrative of Judeo-Christian belief is based on the biblical, linear story of the fall of man from the Garden of Eden found in Genesis. Prehistoric religions were polytheistic with anim al and fertility idols. Yet as the ide exploitation of wilderness expanded, monotheistic supernaturalism emerged. The monotheistic belief system that formed th e base of modern Judeo-Christian beliefs emerged around the time of the Kingdom of Israel between 1000 and 700 B.C.E. The Hebrews believed they were the chosen pe ople of Yahweh (Hebrew for God) meant to occupy the land.47 Their ideas of nature ultimately mo lded into the belief that land w useless unless it was used by humans.48 The Old Testament rejects nature gods and mythology and contends that nature has no im portance outside of serving human needs. Also, God, or Yahweh in the Old Testament is entirely outside of nature. These id humans apart from nature and continue to justify the manipula tion and use of the environment. The Judeo-Christian belief is that God gave man dominion over the eart The Old Testament also desacralizes nature and states that humans have claim on the land. Genesis in particular justifies huma n manipulation and separate from nature and free from nature idolatry. In Genesis, humanity fell from the Garden of Eden following Eves temptation to eat the fruit of the tree of knowledge. Gene sis starts with God creating everything. The story says that God create d man from dust: Adam or adama which is feminine, means
27 ain e way of life and nature becam e seen as acting thr ough God in response to human sins.51 ome nd ains ejects r earth that g ives birth to plants.49 God created Eden, includ ing the tree of knowledge of good and evil. God created Eve from Adams ri b. Humans were told to dress and keep Eden, and be fruitful and multiply. Yet, Eve is ultimately tempted by a serpent in the garden and she consumed the forbidden fruit God said to avoid. Adam follows suit and the couple is expelled from the Garden. Th is represents the loss of innocence and Eve becomes wife and mother of all the living.50 Adam and Eves sons Abel and C become pastoralist and farmer, respectively. Humans were forced to adopt a laborintensiv Bef ore the fall, nature was a positive pr esence. After Adam and Eve disobeyed God, nature became a condemned and fallen land. The Recovery story believed by s modern Christians starts with the Fall of Eden into the desert, moves upward to the recreation of Eden on earth, and ends with heavenly paradise, a recovered Garden on Earth.52 This belief contends that humanity can be redeemed through Christianity, the Garden can be recovered, and when merged with advances in sc ience, technology, a capitalism the fall of Eden will be followed by a long, slow, process to recreate the Garden on Earth.53 It also conveys a path of upward progress by which humanity g power to manage and control earth. Human ity will ultimately regain a life of ease through utilizing Gods gift of the earth. Time is viewed as linear with two poles, the beginning and the end, creation and salvation. The mainstream recovery narrative r the modern environmental narrative which describes a long, slow decline from ou prehistoric past where the world was ecol ogically pristine and society was more equitable.54 Conversely, the environmental narrative suggests a rapid recovery through
28 mental narrative, Earth is l now be on use science to perfect nature and recreate heaven on earth, rising after humani th sustainable ecology and a m ore equitable societ y, not a slow process of recovery through dominion of nature suggested by the biblical narrative. In the environ a victim of exploitation and the beneficiary of restoration.55 Cartesian dualism and the Scientific Revolution of the sixteenth and seventeenth centuries also shaped the belief that humans are separate from nature. Rene Descartes and Francis Bacon argued that the immateri al mind and material body are ontologically distinct substances that causally interact. The mind is immaterial and everything of a physical worldly existence is of lesser value than the s uperior human mind. Nature became re-conceptualized not as mythical, but simply matter-in-motion. Knowledge became viewed as a means to reveal Gods presence, an instrument unique to humans. The Scientific Revolution heralded major shifts into new science, new logic, mechanica reductionism, and physics. The meaning of th e word nature changed dramatically and became an object of scientific study. Nothing could be wild because everything could studied. Nature became a lifeless mechanism; it became the physical world.56 Bacon introduced the ideas of hypothesis and data. Hi s anthropocentric view creation argued that humans are the master of all things. Bacon wanted to convert everything wild into a sculptured New Atlantis a Kingdom of Heaven on earth. He believed this would rescue humanity after it s fall from Eden. The Bacon-Cartesian idea is that humans will tys fall.57 Following the Scientific Revolution, west ern society experienced the eighteen century Age of Enlightenment, a philosophica l movement in which critical thinkers began to question traditional institutions and customs. Thinkers of this time period
29 as re eter mability of mans ignation, followed Descartes and Bacon, stressing reas on as the prim ary authority. During the Enlightenment, the attitudes toward the environment shifted to the idea of manifest destiny. This attitude implied that it was reasonable to think that people were made in the image of God and they were give n Earth to use for their benefit. Indeed, it was viewed mans duty to redeem otherwise unwanted a nd unhealthy lands and put them to more productive use. This manifest destiny view us ed reductionism and rationality as its basis, as opposed to holistic or intuitive approaches Reductionist approaches understand natu by reducing things to simpler pa rts and explanations. Rationa lity uses logic to explain natural occurrences. Both of these Enlightenment views rely on our ability to reason, and not on our instincts and innate abilities to connect with and understand nature. As P Fritzell puts it, a belief in the perfectibi lity of man and the redee environments provides a legacy that augurs ill for wetlands.58 The modern idea of wilder ness has its roots in the cu ltural constructs of the sublime and the frontier.59 Sublime lands are seen as ra re and sacred places like the mountaintop, waterfall, thunderc louds, rainbow, and sunsets. They evoke emotions and bring one closer to divinity. It is clear that nineteenth century Americans had a stronger desire to preserve sublime places by preserving spectacular landscapes rather than more swampy areas that did not become established wilderness areas and parks until the later twentieth century. An example of the sublim e versus the swamp and the transition in the wilderness perspective is evid ent in the national park system The first such des Yosemite National Park was establishe d in 1872, while Floridas great swamp, Everglades National Park, was not funded a nd dedicated as a national park until 1947. Fritzell reinforces th e sublime versus the swamp in s uggesting that wetlands are not
30 ey do rand views; they hum ble you rather than reinfor ce your delusions of erick pearing as nd ns led Americans to bond toge ther and form democratic communities and pra odern conventional wild areas. They do not cater to established, classical concepts of vista, horizon and landscape.60 As I further examine in chap ter four, historically, wetlands have a reputation of being frightening and unpleasant places. Fritz ell concludes, By comparison with the Smokies or the High Sie rra, wetlands are claustrophobic Th not give you g grandeur.61 The myth of the frontier in U.S. history is the myth of primitivism. Fred Jackson Turner described how Americans from back east and recent European immigrants were moving to unsettled lands further west, essentially reinventing American democracy. In the 1890s, Turner cl aimed that the frontier was disap more and more people moved west, simp ly reestablishing the old democratic communities of the east. He argued that th e United States was dependent on free land and wildernessthe frontier, and that is why we established national monuments and parks.62 This ensured wilderness for the future and protection of th e nations myth of origin, frontierism. To some, the American west was a last resort of individualism a roughing it. To Turner, the Wild West offered a communitarian theme in which primitive conditio ctices.63 Mainstream Western society defines w ilderness as separate from humans. William Cronon argues the Western wilderness definition has hindered our ability to relate to nature in a constr uctive and progressive way. A ccording to Cronon, the m understanding of wilderness is somewhere we can escape from our own material creations. Wilderness, however, is not pris tine, rather it is a product of our own
31 d rse and provide the foundation for todays environmental perspectives and dia e and be redeemed and refresh he a civilization. Sublim e nature is the older and pervas ive cultural construc t that comes from the European mindset. Today, sublime nature is referred to as a Romantic perception an the frontier is a construct of American soci ety. The two merged through literature and academic discou logue. Lynn White argues that the wilderness ar ea mentality attempts to freeze in time a historical ecological existen ce but ignores an ev er-changing natural environment that cannot be locked in time and place. In the nineteenth century, there was a shift in th idea of wilderness from obstacle to progress, to valuable resource, and finally to an endangered landscape in need of preservation. White and others ar gue that the idea of wilderness did not exist during Paleolithic times because humans were not separate from nature. Wilderness is now viewed by modern people as non-human; places in need of our dominion or stewardship. However, wilderness is a cultural construct, not something separate from us. The wilderness concept ha s changed from a savage place, desolate barren, to a new kind of wild beautiful Eden where people may ed. To most, it is now a place of recreation, not work.64 Preservation is a modern method of protecting wilderness areas from human impact for their aesthetic value, not for possible economic gains. William Cronon identifies an important problem of the modern preservation mentality. He argues that t modern view of wilderness is problematic because of its definition as uninhabited and pristine land. Removing people from a land to justify it as nature is exactly what has harmed our environment over the centuries. Preserving a people-less landscape such as rainforest or national forest becomes a subs titute for the real concern, finding a way to
32 e to and nt it fo r recreation and belittl e or disregard those who us ad and tructing br ingings and biases, we can develop a m ore sustainable re lationship with nature. live a sustainable and harm onious life with nature. As part of western culture, we forgiv ourselves for living in cities. People who work the lands are perceived as harmful and indigenous people were removed from their natural homes to preserve natural spaces and to make way for urban development. The we stern idea of wilderness is also intertwined with the problem of socio-economic class. In the U.S., we construct wilderness areas provide for those who can afford to use wild erness for recreation. This has been true since just after the Civil War when the elit e began to seek wilderness through tourism consumerism. Wealthy people had second hom es or vacation spots near wilderness areas. Nature became a consumers place, not a place for productive labor or permane residences. Policies and plans in place to dominate and manage wilderness areas are generally geared toward those who use e the land to make a living.65 Meanwhile, we pollute and degrade lands not labeled as wilderness areas. A middle ground between destruction and separati on is needed. That middle ground begins with an abandonment of the wilderness-human dualism that labels civilization as b nature as good; and it continues by accepti ng a way of life more in tune with and immersed in nature. Our current concept of wilderness is a serious threat to nature because we continue to work, live in houses, and buy consumer items that contribute directly to the destruction of wilderness. Meanwhile, we believe in preservation of wilderness areas separate from our developed neighborhoods.66 Through decons our cultural assumptions of what is natu re and by recognizing the objectivity of wilderness and nature as by-products of our cultural up
33 The wilderness-human dualism is the environmental construct of modern American culture transplanted by European thought. Since humans first established agricultural settlements, the idea of wilderness has been grappled with and debated. It is not clear if a culturally unifying definition and understanding of wilderness will ever exist in the United States or the western worl d. This may be attributed to our diverse cultural backgrounds and the in fluences of our own enviro nment and upbringings. To place this in perspective of th e wetlands conversation, political lobbyists range from truck driving, wetlands dredging land devel opers, to bus riding, organic eating environmentalists. Regardless of whether on e is a land developer who views wetlands as sources of profit, or one is an enviro nmentalist who views wetlands as sensitive ecosystems in need of protection, one holds a specific value of wetlands and wilderness. Ones relationship to nature is inescapable. The conversation addressing what to do with wetlands is never-ending, and will remain that way for a very good reason: we are innately bound to nature and our environment. Humanitys relationship to nature impact s our view of nature, and thus has a direct influence on how we attempt to solv e our modern ecological and environmental problems. Now, we will look deeper into the meaning of our relationship with nature and why humans cannot escape th eir natural environment. Topophilia and biophilia offer insight on why wetlands and other wilderne ss areas have been a focal point in Americans lives through scienc e, transportation, development, agriculture, public policy, environmental management, economics, and r ecreation. These two distinct theories explain the source of the huma n-nature relationship. Both theories explain the human-
34 o ones nature bond that is so vital to the ecological health of earth and the biological and m ental health of humans. Topophilia and biophilia individually and jo intly explain the natural tendencies humans have toward nature. Both stress an innate love for nature and natural surroundings. Topophilia is defined by Yi-F u Tuan as the affective bond between people and place or setting.67 Perception, attitude, valu e, and world view are all fostered by ones experience with place. Un like topophilia which is specific t surroundings, biophilia can be sought by anyon e, anywhere. E.O. Wilson expands on Erich Fromms concept of biophilia, the innate relationship we have with life and living things. Simply put, biophilia is the love of life. According to Fromm, biophilia is fostered through the freedom to create, cons truct, wonder, and venture. Biophilia will develop the most in situati ons and societies where there is security, justice, and freedom.68 The biophilic instinct shared by all people elevates the ideas of life and oneness.69 In the context of topophilia, perception, attitude, and value characterize ones relationship with nature. Per ception refers to sensory responses triggered by external stimuli and purposeful activity. While certain phenomena are registered, others recede or are blocked out. Our perceptions have value both for biological surv ival and preservation of our cultural roots. Attitude is the cultura l position one takes in view of the world. Our attitudes have a greater level of stability th an our perceptions as they are formed from lifelong experiences and perceptions. Attitude re lies on experiences and leads to stronger establishment of values. Therefore, at infancy we lack both experi ences and attitudes. Our world view relies on our social context, but includes personal experiences. Our
35 world view manifests from our attitudes and belief systems.70 Our environmental preference is impacted by our biologi cal heritage, upbringing, and physical surroundings.71 Topophilia is influenced by visual pleasure sensual stimulus of physical contact, fondness of a familiar place, feeling of home an d keeper of the past, pride of ownership or creation, and joy in the health and vita lity of all members of the local ecosystem.72 The human world is derived from human percep tion. The sensory organs are the same in all people, but differ from other animals. Vision is the sense we are most dependent upon. Humans possess stereoscopic vision and a highly accurate level of color sensitivity, despite our narrow spectrum visibi lity. Sight binds our environment to a static space. Objects and boundaries define space through vi sion; without sight, space is empty. Unlike the other senses, sight triggers little emotional response. An object that is only seen remains distant to the viewer. Hands an d tactile senses reveal static details such as shape and texture. The tactile sense offers a direct experience of pressure and resistance. This allows humans to distinguish feelings. He aring is less essential and less acute in humans compared to other animals. Auditory sound functions to extend space, and gain information beyond our visual field. While sense of smell is important to primates, it is far from the acuity of carnivor ous animals. However, the human nose does have the ability to distinguish a wide range of odors. Odor is also a powerful emotional trigger. It takes the simultaneous use of the senses to evoke a complete emotional response. The sight of a forest while dr iving does not trigge r the same emotional response as walking through a forest smelling the crisp air, crumbling a dead leaf in your hand, and hearing the wind blow through the tr eetops or feeling it on your skin. When
36 not in use, senses will diminish. This results in different senses strengthening according to ones particular cultural and environmen tal surroundings. Not only do attitudes to the environment differ based on our direct surr oundings, but the capaci ty of our senses differs as well.73 An individuals perceptions, attitudes, and values reflect three levels of being: biological organism, social be ing, and unique individual. Hu mans have the biological ability to receive enormous amounts of sensor y stimuli from the environment. Culture and environment are two factors that determ ine which senses are used and what is perceived. While genetic makeup plays a role in what our senses perceive, our cultural and ethnocentric background determines what co lors, sizes, and symbol s we detect in our environment. It is the group that enfor ces cultural standards of society affecting perception, attitude, and environmental value. Tuan calls attention to the danger in cultural influences. A culture can influence perception to such a degree that its people see things that do not exist, a sort of group hallucination. Meanwhile, the physical environment is the second factor affecting perception. Our visual acu ity is related to the ecological components in our environment. The environment creates the foundation of cosmologies and world views. Of course, different environments provide a range of opportunities to perceive our wo rld in different ways. Meanwhile, biophilia explains the deep and complicated mental process of exploring and connecting with lif e. Erich Fromm first introdu ced the concept of biophilia in his 1964 book The Heart of Man, an analysis of the nature of evil and the human choice between good and evil. Biop hilia is the love of life in contrast to the love of death. A biophilous is someone completely de voted to life. Fromm argues three levels
37 of progression leading to the syndrome of gr owth, or maturity; biophilia, love, and independence/freedom.74 The essence of a human is not defined by their qualities or substance, but rather the contradict ion inherent in human existence.75 The contradiction is represented in two components. First, a human is an animal, but the only animal that needs material things, speech, and tools to en sure survival. Second, humans have intelligence like other animals, but unlike other animals, people have selfawareness. Man is life aware of itselfMan is confronted with th e frightening conflict of being a prisoner of nature, and yet to be as it were a freak of nature; being neither here nor there. Human self-awareness has made man a stranger in the world, separate, lonely, and frightened.76 We cope with this existence by seeking harmony and a sense of unity with other living things. We strive for the feeling of union a nd oneness with life to overcome our separateness from other life. Humans strive for this unification in response to his innate trait of biophilia. Unlike Fromms argument that people are naturally separate from nature because of our material needs and self-awareness, E.O. Wilson argues that thousands of generations of cultural development are to blame for the human-nature dichotomy. Wilson introduces four realms of time a ll interacting with each other that help characterize biophilia. Moreove r people are part of organismic time, where effort takes seconds or minutes to produce any critical action. Humans and larger organisms are made up of billions of cells involved in co mplex chemical and electrical communication, leading to longer time frames of thinki ng or acting. Biochemical time exists on a molecular level, and includes brain cell intera ction and microscopic events. Biochemical time is too fast for the unaided eye or mind to comprehend. When we compress
38 biochemical time, we enter ecological time. Ecological time is mathematically defined by birth, death, competition, and replacement.77 Ecological time is dependent on the species: a dog and a person will experience di fferent ecological time frames. Gene pools and gene contributions make up evolutionary time. The genes of an individual diffuse steadily outward through children, grandchildren, great-gra ndchildren, and so on. The unity of the four time frames demonstrate th e larger picture of biology, and to understand a single species takes knowledge of all four time frames for a given species. Wilson refers to biology as a time machine, studying evolution over billions of years and split second activities at a molecular level. Th e Romantics and humanists remind us that science reduces, oversimplifies, and generalizes. It is not until the humanities and science bond that humans and nature will bu ild a harmonic relationship. Humanitys fixation with life and life forms is apparent in both the scientist who studies nature through the time machine, and the Romantic who studies nature through an aesthetic connection. When the two merge, the problem atic relationship between humans and all other life will be reconciled. Th is is consilience at its best: the unification of disciplines leading to a greater understand ing of the oneness of life. Another characteristic of biophilia is hu manitys evolving relationship to life through assigned cultural meanings. The snake is an example of this. People generally have an immediate, adverse reaction when a snake is in sight. Western cultures JudeoChristian foundation uses the snake, or the serpent as a demonic tempter to evil. Biologically, humans have an i nnate propensity to establish fear of snakes, as do other primates. While we fear the snake, it is in fact a biophilic trait of humans to fear and admire of this creature. Cultures throughout time and place give meaning to the snakes
39 existence. The snake appears in literature, art, and other cultural patterns across most or all societies as symbols of sex and power, totems, protagonists in myths, and gods.78 The biological fear of snakes leads to a cultural fear, ca lling the snake a serpent and assigning it a personality. We have a relatio nship with the snake through our evolved meaning of the snake. The tendency to give life meaning, and enhance our relationship with it, is an essential component of biophilia. Wilson further implies that our biophilic te ndencies influence our fascination with machines through time. People have a stronger and more interested reaction to natural organisms than to machines. We often adorn mechanical devices with pictures of natural things, such as a desktop image of an island or waterfall. It is the complexity of nature that stimulates our minds. Yet humans design complicated contrap tions, and the more complex a machine is, the more interest humans have in it because mechanical complexity resembles nature. We strive to create machines that act independent of the creator and hold complexities sim ilar to our own. This is a result of our love for complex and unpredictable entities that occur natura llythe complexities and intricacies of nature. Our biophilic tendencies lead us to mechanophilia (a love of machines), but humans need to pay closer attention to our dependence on other life forms for our own survival, and less on the aesthetic appeal de rived from nature and replicated in our growing obsession with machines.79 Wilson describes biophilia as a physical, emotional, and intellectual inclination toward life and nature. Our identity and our ne ed to affiliate with nature are rooted in our connections to the natural world. Our psyc hological and physical development and wellbeing rely on this connection. Wilson ar gues that biophilia is innate, but can be
40 repressed. Evolution is competitive. Thus instinctual and innate processes involve competition when resources are limited. The competitive aspect of biophilia is evident in our desire to control our surr oundings and create a safe and secure existence by mastering nature.80 We instinctively seek nature to foster physical and mental well-being.81 Aesthetic and symbolic values also play role in our connection to nature and life. While some want nothing to do with natureexplora tion, adventure, challenges, and recreation in natural environments is a way some human s strive to attain ps ychological and physical balance. Furthermore, the unifying connect ion felt between humans and nature is an influential component of all mainstream religi ons, including the Judeo-Christian heritage. Creation, peace, harmony, and the cycles of lif e and death are rooted in religion and sought out in nature. Peoples attitudes and values become a reflection of these inclinations. Some are more inclined to connect to nature in an aver sive or fear driven way as seen in our relationship to the snake, while others co nnect in a symbolic or moral way as exemplified in fables of the wi se owl or the slow and steady tortoise.82 Now that we have examined topophilia and biophilia theories, we can contextualize them. With the ability to rati onalize and reason, our act ions are influenced by our thoughts versus an animal acting on ins tincts alone. What we rationalize is based on what we perceive, and what we perc eive is based on our immediate, daily surroundings. Yet not only are we capable of applying thought to our actions, but it is natural for humans to do so. A member of an indigenous culture will come to different rationalizations than somebody fr om modern Western culture. The size and utility of perceived objects will vary greatly from one culture to the next based on their daily surroundings and experiences, which build unique emotional bonds to different life
41 forms.83 Furthermore, a culture utilizes cardinal directions to define what surrounds their region. When the earth does not offer distinct spatial orientations such as mountains, savannas, water or land, a culture will define boundaries ethnocentrically.84 Ones psychological structures and responses are formed by their schemata and culturally influenced symbolis m. Schemata are structured through binary oppositions. These polarities can be biological, social, geographical and cosmol ogical. Biological, social, and geographical schemata rely on expe riences of ones physical reality: life and death, male and female, we and they.85 Physical realities are often characterized in a culture by cosmological narration, such as the mainstream Judeo-Christian narrative of Western culture. The circle is a popular symbol used to make sense of lifes contradictions and often representing harm ony, oneness, and wholeness. One perceives the world with self as the center. Ethnocentrism is a universal human trait that defines symmetry and space. While egocentrism cannot be achieved because of a constant reliance on other human beings for survival, et hnocentrism is more attainable. A group, rather than an individual can achieve a strong level of self-sufficiency and sustainability. The early maps of Greeks, other Europeans, Chinese, and American Indians reveal an ethnocentric world view through the central positioni ng of their own culture and the size distortions of themselves and others.86 While the group plays a major role in ones world view, we must not forget the individual ity of every single person. Physiology and temperament, including differing levels of e ndocrine secretion, sex, and age all influence environmental attitudes and life views. Someone who is color-blind, a person with an uneasy temperament, or a passive individual will all develop differentl y. An individuals needs, desires, and expectations will sta nd out above social demands for harmony in a
42 group.87 The group helps shape the individuals schema and perception of the world and environment. There is a reciprocating causal relationship between topophilia and environment. This is apparent in our aesthetic appeal physical connection, patriotism, and the urbanization and wilderness dichotomy. For exam ple, aesthetic appeal is exemplified in the differences between the visitor and the native. The natives view of their local environment is influenced collectively by be havior, local tradition, lore, and myth. The outsiders perspective is limite d to aesthetic response to th e environment, judging simply in terms of appearance and beauty.88 The outsiders view is superficial, while the natives view is skewed by the stability of long -term dwelling. This is not to say that the outsiders view is worthless, as they can certainly offer a fresh perspective. While topophilia includes any humans bond to the ma terial environment, a more permanent topophilic connection is felt toward a place one calls home. Awareness of the past, loyalty, elements of history, and a societys he roes build a bond that fosters patriotism. Patriotism literally means love of ones natal land. Patriotism is an interesting influence based on pride and power, versus locality. On e may be patriotic toward their residence, but it is not a required charac teristic. Experiences, intimate knowledge, and symbols contribute to ones feel ing of patriotism. It was once a local sentiment, but with modern mobility, one may be fond of their locality and patriotic toward a land halfway across the world. The dichotomy of man and nature is exemplif ied more in urban life than rural life. A typical city dweller has little physical cont act with the nearest natural environment, often developing a less intense a nd limited visual relationship. A typical farmer however,
43 works closely with the land and develops a mo re personal relationship with nature. The life of a rural resident is root ed in nature and connects to the cycles of nature more so than a city dweller. While a farmers life may be full of hardships, familiarity breeds affection when it does not breed contempt.89 However, some urbanites and suburbanites seek the outsiders aesthetic bond to nature through vacations and temporary interactions with nature. Landscape architec ture and gardening are other wa ys to inject nature into cities and suburban areas and fulfill the desire for connections to nature. Balance is often sought in urban areas between human construc ted buildings and natural environment. The city is an important place of observa tion. City dwellers have limited control of their environment, perhaps in their home s, neighborhood interactions, and work place. While people living in cities may have simila r lifestyles and daily interactions, their perception and world view will differ from one another. Tuan contends that attitudes toward the environment start in cities, leadi ng to the dichotomy of man and nature. Cities reinforce the idea of wilderness and a hu man-constructed Eden. Three types of environment manifest unique attitudes from mainstream America: the chaotic, demonic, and pure wilderness; the idyllic Edenic garden and farm; and th e orderly city blessed with freedom and glory but plagued by oppressi on and corruption of natural values.90 The perspectives and attitudes of city and subur ban dwellers are shap ed by their topophilic relationship to their immediate environment even if the immediate environment found in a typical city or suburban area lacks the natu ralness found in more rural areas. A city dweller may be more influenced by biophili c tendencies than t opophilic tendencies to explore and connect with nature A typical developed area ma y have trees, parks, lakes,
44 and gardens, but some seek to fulfill a deeper biophilic connection than urban surroundings have to offer. One result of ignoring our dependence on a nd oneness with nature is the loss of genetic and species diversity as a result of the destruction of natural habitats. The greatest problem with the loss of genetic diversity is that we are losing pieces to the puzzle of life. Wilson insists that if we want to understa nd how the puzzle of life fits together, we cannot destroy pieces of it.91 According to Wilson, our typical thought process hinders the ability to think of futu re generations, as we naturally focus on our own physiological well-being. Our values ar e time-dependent to ourselves and seldom incorporate the needs of distan t generations. To enhance our conservation ethic, we need to be more aware of evolutionary time versus organismic time.92 Current conservation efforts across all cultures have been limited to immediate social needs.93 Wilson calls this surface ethics. We approach conser vation decisions with the same outlook as deciding the relative value of a piece of artw ork or a book. We favor certain animals or species because of the superficial role they play. For example, dogs serve as pets and deer as game, while many people kill ants and rats without hesitation perceiving the latter to be lesser species serving little purpose. These surface ethics are helpful as the start to developing value criteria, but are far from complete.94 Wilson introduces Garrett Hardins interpretation of human altruism as the only solution. To make conservation work, Hardin argues that humans need to act on purely selfish reasoning, thus we must realize premises that fit our best interests.95 Wilson similarly expre sses that protection of the human spirit is the key to ultimate survival. This can be atta ined through balancing expansion, or personal freedom, and delicate, sustainable stewardship.
45 ited W hile the differences in the two theori es are important, the application and combination of these theories helps us unders tand our relationship with nature, both individually and culturally. Topophilia is triggered by ones immediate surroundings and biophilia by ones biological tendencies. Both are necessary to understanding our relationship with nature and the environments fragile existence. In 1983, Howard Gardner introduced the theory of multiple intelligences.96 This theory suggests that seven intelligences define human thought and most of us only possess strengths in lim intelligences (perhaps one or two types). The seven intelligences are linguistic, logicalmathematical, spatial, bodily-kinesthetic, musi cal, interpersonal, and intrapersonal. An eighth intelligence, introduced by Richard Louv, is our natu ral intelligence developed through readily using our senses, being outdoors, noticing patterns and anomalies, and being aware of our surroundings.97 Nature is the direct stim ulus of our eighth sense. Most importantly, natures well-being depe nds on the relationship society fosters between our youth and the environment. An at tachment to land will ma intain the role of nature as an emotional stimulus. This attachment can occur naturally through the processes of topophilia and biophilia, but the success of our relationship to our surroundings depends on how we foster our topophilic and biophilic te ndencies. If we neglect these natural tendencies, or only place ourselves in contact with commoditized nature or virtual nature, we will continue to damage our bond with nature, placing our planets health and personal health in a deadly dilemmaand we are arguably already there. We can now apply these concepts to our original question: what to do about wetlands? With wetlands existing in every state, we must first decide what is important
46 about our relationship with wetlands, and th en decide how wetlands should or should not be regulated. Oftentimes regulations impact private property ; indeed roughly 75% of all wetlands in the United States are in private hands. This brings about complex discourse regarding the Fifth Amendment to the Constitu tion, which states that private property cannot be taken (or used) for public purposes without just compensation. Our decisions regarding wetlands protection are influenced by our hist orical relationship with wilderness and our innate de sire to relate with nature Now that we understand the deeply embedded roots of our perspectives of wildernessand by extension, wetlands we can examine the stems of Americans changing perspectives toward wetlands since the colonial settlements of the 1600s. Wetlands offer a variety of values in cluding aesthetic app eal, cleaner water, wildlife habitats, and flood c ontrol. While some enjoy wetlands for recreation and something of a Romantic experience, others see their functional value. Still, there are others who view these ecosystems as a nuisanc e or waste of space. However, whether or not it is evident to them, residents in Hillsborough County have some form of relationship to wetlands. This is because of our relations hip to our locality. This relationship is a source of care and concern for the value of wetlands whether they are economic, recreational, aesthetic, or holistic values. The local community will ultimately decide what aspects of wetland s are appealing and worth protec ting. This is not a simple task because each person has a different pers pective on these precious habitats. The way in which humans connect with natural envir onments is partly defined by their topophilic relationship to their surroundings. The way th ey were raised, the environment they are from, and the values instilled by their commun ity all impact their idea of nature. In
47 Hillsborough County, there are folks from rural areas of the county, developed cities within the county, and implants from all ove r the world seeking Fl oridas paradise. These varying perspectives influence the we tlands discourse in Hillsborough County, and elsewhere. Each perspective brings a diffe rent attribute to the table from personal freedoms to sustainable stewar dship. Our biophilic connection to nature is the reason for the constant dialogue (if peopl e did not feel connected to their surroundings, there would be apathy and essentially no conversations a bout wetlands). Sometim es the conversation gets complicated, especially when local re sidents believe their government can better serve the needs of their immedi ate surroundings than state or federal governments. The following chapters will examine this conversation.
48 Chapter 4 Historic Trends of Wetland Per ceptions in the United States Until recent decades, Americas perceptio ns of the environment encouraged destruction of wetlands throughout the nation. The original colonists viewed swamps as worthless and disease-ridden and avoided them altogether. Gradually, federal policy and public attitudes took a turn to ward conservationism, but conservationism did not have the same meaning that it carries with mode rn environmentalists. In fact, early conservationist attitudes encour aged more orderly and effici ent use of natural resources but use of these resources. While some of these early conservationists acknowledge the importance of wetlands and other natural ar eas, there was little public awareness of wetland contributions toward wildlife and human well-being. Once the importance of protecting natural resources reached the public radar, environmentalism emerged to protect our nations remaining wetlands. While the U.S. had previously been occupied and mildly altered by numerous Native Americ an groups, it was not until centuries after the arrival of Europeans in America that ma ssive degradation and alteration of wetlands began. For the first time in our history, fede ral regulations are striving for no net loss of wetlandsand this is directly attributed to the increased environmental awareness of the twentieth century. Before 1800, Americas landscape was quite di fferent than it is today. It is estimated that the lower 48 states containe d 221 million acres of wetlands in the 1780s, but two centuries later over half of these wetlands were converted to other uses.98 One
49 factor that helped create many wetlands prior to early colonists was the presence of an estimated 60-400 million beavers building dams and flooding landscapes.99 Alligators serve a similar purpose by digging holes that trap water. This creates small reservoirs important for other species during the annual dr y season in the Everglades. The glaciated north of the continent spills water into the Missouri and Ohio Rivers, which eventually join the mighty Mississippi which pours out southward through the bottomland forests of the Mississippi River floodplain before reachi ng the Gulf of Mexico. Of course, Florida, the upper Midwest, the South Atlantic and Northeastern states all had many wetlands.100 While this general pattern still exists, it has b een greatly disrupted since the colonial era. While Native Americans had a modest impact on the natural landscape, European contact and mass settlement, agriculture, industrialization, and urban development threaten the integrity of our ecosystems, biodiversity, and water quality. Prior to European arrival in the New World, Native Americans used wetland resources for food, medicine, sh elter, and tools. They would harvest and hunt fish, shellfish, waterfowl, and other game. They w ould pick berries and ot her edibles such as cattails. Many made use of hydrophytes for me dicinal purposes. Others used wood from wetlands for shelter, firewood, and tools for hunting and eating. Settlements by a river, stream, or sea shore were desirable because of the access to dri nking water, seafood, and water transportation. Eventually Native Amer icans began to plant crops such as corn, beans, and squash. While they were maki ng use of land for agricultural needs, their impact on wetlands was minimal. The agricu ltural practices of pr e-colonial groups did not have a great impact on wetlands because they did not have the advanced tools to alter
50 large areas of land, and their relatively sm all population had access to copious natural resources, so they did not have the need for intense land management.101 The very first colonists in North Americ a had little need to change the landscape because of availability of productive land el sewhere and the lack of tools to alter wetlands. By the 1630s, the Puritans of th e Massachusetts Bay Company sought a moral landscapea political, theological, and natura l landscape. It was common for them to see the taming of wetlands as a kind of public service leading to economic success. The initial attitude toward wetlands to simply l eave them be changed rapidly. The Puritans settling near todays Boston wanted private property, knew of the unhealthy reputation of wetlands, and viewed creating usable land from marshes as benefici al and desirable. Moreover, they viewed both swamps and Native Americans as evil and in need of taming and spiritual salvation. Draining wetlands eventually became considered as a public service, ridding areas of mo squito and malaria filled swamps. Removing the foul smelling air and the natives was viewed as an improvement of the landscape. Early European settlers found prospects of economic hope and priv ate property in wetlands drainage in the New World. As early as the late seventeenth and early eighteenth centuries, the northern U.S. focused on commerce and commercial success through timber and other natural resources, and th e South focused on ag ricultural opportunities the mild climate encouraged. The uniting goal was to transform useless swamps, marshes, and bogs into economically profitable resources. Early American naturalists and Roman tics recognized the sheer beauty of wetlands. William Bartram is famous for his eighteenth century acc ount of the natural landscape along the eastern coas t of the United States, incl uding much of Florida.
51 Bartram spent much time in the forests and we tlands of Florida, primarily in the St. Johns River region. These adventures were documented and originally published in 1791.102 John Audubon was an ornithologist, naturalist, hunter, and pain ter in late eighteenth and early nineteenth century America. While A udubon was not a literary figure, his artistic endeavors are well known th rough his publication of Birds of America which is full of paintings and artwork of birds in swamps and marshes.103 His paintings aimed to uncover the beauty of these much belittled landscapes. Henry David Thoreau was a student of the nineteenth cen tury transcendentalist Ral ph Waldo Emerson. Both men engaged in first hand encounters with the e nvironment and believed that nature is not separate from consciousness.104 These early wetlands preservation supporters added to the cultural conversation but failed to prevent wetland c onversion in the nineteenth century. Early American literature held conflicting views of we tlands, but the most popular view was a negative one. Other figures in literature prior to th e twentieth century expressed the more commonly held view of wetlands as dismal and unhealthy places. Ann Vileisis argues that the publication of ficti onal, exaggerated, and misleadi ng representations of wetlands in myths and literature helped to shap e the early negative views of wetlands.105 The Old English story of Beowulf depicts Grendel as a monster that stalks through the marshes and fens.106 In 1732, Carl Linnaeus, (a botanist) described the Lapland peatlands of Finland as hellish.107 Another popular example of this is found in Washington Irvings The Legend of Sleepy Hollow with th e headless horseman appearing out of the swamps.108 These stories have stood the test of time and portrayed wetlands as fearful
52 and gruesome. This negative depiction of we tlands in literature influenced the cultural perception of wetlands as worthless mucks. The environment remained interesting to some late-nineteenth and twentieth century writers. John Muir, the father of the American preservationist movement and founder of the Sierra Club was a Romantic and travel writer who wrote about his view of the web of lifespecifically, seeing God with in nature. Muir documented his journey through Floridas panhandle and dow n the Big Bend to Cedar Key in A Thousand Mile Walk to the Gulf published in 1916.109 Aldo Leopold was a forester and ecologist of the nineteenth and twentieth cen turies and founder of The Wilderness Society. Leopold published A Sand County Almanac inspiring the use of sc ience to make ethical environmental choices. He su mmarizes his land ethic by stat ing that a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.110 The view placing humans within the community of life was not commonplace in twen tieth century America. Romantics and naturalists rejected the popular view of humans being above nature holding dominion over the land. Slowly, these views eventually became embe dded in public discourse and environmental organizations, such as the Sierra Club and Audubon Society. Floridas extensive wetlands inspired write rs and environmental activists alike. May Mann Jennings, Marjory Stoneman Douglas, and Marjorie Carr are important female figures in Americas twentieth century environmental movement in Florida. May Mann Jennings, the wife of former Florid a Governor William S. Jennings (1901-1905), spearheaded the Florida Federa tion of Womens Clubs moveme nt to preserve Paradise Key, leading to the establishment of Royal Palm State Park in the Everglades in 1916.111
53 Marjory Stoneman Douglas is famous for he r environmentally conscious rendition of the history and ecological stat e of the Everglades in River of Grass originally published in 1947. She lived to the age of 108 (passing aw ay in 1998), and spent the second half of her life fighting for the Everglades an d environmental protection in Florida.112 Marjorie Carr, wife of ecologist and c onservationist Archie Carr, wa s a prominent leader in the grassroots fight during the 1960s and 1970s to end the construction of the Cross Florida Barge Canal, a plan that would have perman ently damaged some of Floridas sensitive wetlands, including the Green Swamp, and the St. Johns and Ocklawaha River floodplains.113 Selected pieces of twenti eth century Florida literatu re describe wetlands and represent the ups and downs of swamp life. Zora Neale Hurstons characters provide awe-inspiring and sometimes distasteful expressions of wetlands. In Hurstons Their Eyes Were Watching God she describes Tea Cake and Janies experience in the Everglades. To Janies strange eyes, ever ything in the Everglades was big and new Weeds that did well to grow waist high up th e state were eight and often ten feet tall down there. Ground so rich that everything went wild. Dirt roads so rich and black that a half mile of it would have fertilized a Kansas wheat field. Wild cane on either side of the road hiding the rest of the world. People wild too.114 Her account of the 1928 hurricane showed nature overcoming the power of man. It woke up old Okechobee (sic) and the monster began to roll in his bed The folks in the quarters and the people in the big houses further around the shore heard the big lake and wondered. The people felt uncomfortable bu t safe because there we re the seawalls to chain the senseless monster in his bed.115 People tried to cont rol nature by wrapping a
54 wall around Lake Okeechobee, but their feeble efforts were no match for the storm of 1928. Suddenly Tea Cake shouts De lake is comin!116 The dike did not hold up and Janie and Tea Cake find themselves running from the gushing waters. This is important to understanding the view that nature is m eant for humans to dominate and manipulate. However, here we see humans succumbing to the power of nature and witnessing the role wetlands plays in storm abatement and flood cont rol. The dike provided a false sense of security (no dike would have ended with the same result). Perhaps if people had not settled in the swamp to begin with, the storm of 1928 would not have taken the lives of more than 2,500 people. In Marjory Kinnan Rawlings The Yearling the Baxter family experiences the trials and tribulations of liv ing near a sinkhole amidst a bo ttomland forest swamp. While Pa and Jody Baxter spend several occasions hunting for bear, deer, and other forest creatures, the swampy conditions make one a ppreciate a good pair of boots. Sometimes, the swamp dwellers provide unfriendly encounter s: once, Penny Baxter nearly dies from a rattlesnake bite. Rawlings describes the Baxters hunting path as they emerge out of the forest and hammocks: to the south and west la y a broad expanse that looked at first sight to be a meadow. This was the saw-grass. It grew knee-deep in water, its harsh sawedged blades rising so thickly th at it seemed a compact vegetation.117 Rawlings continues: the hound, Old Julia splashed in it. The rippling of the water showed the pond. A gust of air passed across the open area, the saw-grass waved and parted, and the shallow water of a dozen ponds showed clear ly The treeless expanse seemed to Jody more stirring than the shadowy forest.118 Her description of marshlands in central
55 Florida evokes feelings of tranquility and wondermenta quite Romantic take on wetlands. Literary voices are a reflection of public opinions that influe nce federal and state policies. The twentieth cent ury witnessed major technological advances in agriculture, urbanization, and industrialization that furthe r impacted wetlands. Wetlands were viewed as nothing but a nuisance during this time. Bugs filled the air, farmers were limited to growing rice, wetland animals ate their crops, and the terrain hinde red transportation. These problems led to the development of drainage technology. Unfortunately, the increased technology and thriving agriculture in dustry resulted in dried out wells and a rapidly declining waterfowl population.119 The view of wetlands as conquerable and in need of drainage held strong on the minds of Americans until recent decades and is evident in federal and state wetland policy.
56 Chapter 5 Federal Wetland Regulation Economic prosperity and private prop erty rights have swamped wetlands legislation. With various governmental ag encies owning and controlling only about a quarter of the countrys remaining wetlands, private land rights and wetland values are both at stake. All regulations regarding wetla nds have to wrestle wi th the constitutional right of private property. Yet landowners impede on the pu blics rights when private property is used in ways that threaten public water supply and water quality. Legislators and agency officials must dis tinguish the public aspect of w et from the private aspect of lands on wetlands property. With this in mind, it is easy to rea lize the difficulty all levels of government have in balancing adequate wetlands regulations and landowner demands for use of land. Although we have we tlands regulation, we still experience loss of fully functioning wetlands. The federal government was first encourag ed by public voices in the mid-1800s to step into the wetlands scene, not to protect wetlands, but to drain wetlands for agricultural and urban development. It seemed silly to allow these mosquito-filled, spongy masses of land and water to remain unproductive wastela nds. It was not until the late nineteenth century that the federal government launche d any conservation and preservation efforts and it took even longer for the public and fede ral government to assign worth to swamps as valuable spaces in need of protection.
57 Prior to World War II, the federal governments involvement with wetlands was specifically to encourage and finance ex tensive wetland conversion to agriculture, transportation, and urban development. The Federal Swamp Land Acts of 1849, 1850, and 1860 transferred a total of 64,895,415 acres of wetlands to state ownership in hopes of increased drainage.120 Most of this land has since been put into private hands. Ironically, these are some of the same lands the federal government is now trying to buy back for conservation purposes. Drainage pr ojects initiated and funded by the U.S. Army Corps of Engineers continued to promote wetlands conversion throughout the nineteenth and twentieth centuries, but many such efforts were privately motivated and resulted in much of the agricultural land in the U.S. today.121 The Rivers and Harbors Act of 1899 (sometimes called the refuse act) established a basic permitting system aimed at preventing obstacles in navigable waters. By default, the Rivers and Harbors Act became something of a water pollution control act.122 For example, in 1959 the U.S. Supreme Court ruled in United States v. Republic Steel Corp. that the Act could be used to combat wastewater discharges caused by a steel mill. With a concern for the spread of communicable diseases, the Act also provi ded the means to prevent inappropriate discharge of human waste near drinking water si tes. It was also significant as it was the basis for both the National Pollutant Discha rge Elimination System (NPDES) and Clean Water Act (CWA) permitting systems.123 Both the Migratory Bird Treaty Act of 1918 and particularly, the Migratory Bird Conservation Act of 1929 gave the U.S. Depa rtment of the Interi or authorization to acquire and protect important wetland resources.124 Yet, by the 1930s, there was an apparent decline in waterfowl due to the loss of wetland habitat. The Federal Duck
58 Stamp Program of 1934 provided funds for th e purchase and protection of additional wetlands. The Federal Water Pollution Cont rol Act of 1948 was developed to control water pollution through stateled efforts with only lim ited federal assistance.125 This Act yielded poor results with few states following the guidelines for adequate enforcement of water-quality standards.126 Meanwhile, the U.S. Department of Agriculture and the Army Corps of Engineers continued to en courage, subsidize, and finance wetlands conversion projects.127 Still, the inherent value of wetlands remained unseen by the general public. While some fought to maintain wetlands, it was usually for hunting, fishing, or waterfowl and wildlife protection. Other values such as flood control, storm abatement, and water quality remained largely unrecognized until mid-century.128 A few federal acts emerged in the 1960s that offered some level of wetlands management and protection including the Fi sh and Wildlife Coordi nation Act (1967) the Land and Water Conservation Fund Act (1968), and the National Environmental Policy Act (1969). The Fish and Wildlife Coordination Act provides the basic authority for the Fish and Wildlife Services involvement in evaluating impacts to fish and wildlife from proposed water resource development project s ensuring consideration of fish and wildlife resources as part of project features.129 The Land and Water Conservation Fund Act regulates admission and special recreation user fees at certain recreational areas and establishes a fund to subsidize state and fe deral acquisition of lands and waters for recreational and conservation purposes.130 The National Environmental Policy Act established the Council on Environmental Qu ality (responsible for coordinating federal agencies and White House offices to develop environmental policies and initiatives) and a national policy for the environment.131 The agencies responsib le for enforcing these
59 acts were the U.S. Fish and Wildlife Serv ice, Bureau of Land Management, Forest Service, National Park Service, C ouncil on Environmental Quality, and the Environmental Protection Agency (created in 1970). Meanwhile, the U.S. Army Corps of Engineers and the Soil Conservation Servi ce continued to support drainage projects in direct conflict with the ot her federal agencies goals. Until 1972, federal jurisdiction over wetlands was limited to interpretations of the Rivers and Harbors Act of 1899. The 1899 Ac t limited Corps jurisdiction to waters affected by tidal flows or used by interstate or foreign commerce.132 By the mid-1970s, scientists made significant progress in id entifying and quantifying the many values of wetland ecosystems.133 Subsequent to increased public knowledge, environmental lobbyists made more noticeable efforts in Congr ess. In response to the increased public pressures to address the state of wetlands, President Jimmy Carter issued an Executive Order 11990 in 1977 instructing federal agencies to minimize damage to wetlands. In the same year, Carter issued Executive Order 11988 requiring federal agencies to avoid activities on floodplains whenever possible. Federal agencies were also advised on specific procedures to determine direct a nd indirect impacts th eir activities had on floodplains.134 William Mitsch and James Gosselink argue two important points regarding federal wetlands management. First, there is no specific national wetl and law. Wetlands management and protection are regulated by a se ries of laws intended for other purposes. Further, these laws are spread out ac ross agency boundaries requiring difficult interagency coordination. Second, wetlands are managed under regu lations addressing both land use and water quality. They argue th at these two separate issues cannot provide
60 a comprehensive wetlands policy.135 There is a need for consilience in the scientific realm to encourage union in legislation. M itsch and Gosselink suggest that a split occurs between ecologists who study aquatic systems and those who study terrestrial systems. Very rarely does an individual have expertise in both fields.136 According to Joel M. Gross and Lynn Dodge, the 1972 amendments (including Section 404) to the Federal Water Pollution Control Act (the Clean Water Act or CWA) represent a change in regulatory philosophy from water-quality standards established by states to a clean waters approach.137 The main objective of Section 404 was to maintain and in many cases restore the water qu ality and integrity of waters in the United States. Section 404 requires th at anyone dredging or filli ng in the waters of the United States must first obtain a permit from the U.S. Army Corps of Engineers (Corps). Section 404, or the Dredge-a nd-Fill Permit Program, is enforced by the Corps with the assistance of the Environmental Protection Agen cy and U.S. Fish and Wildlife Service. This was essentially an extension of the 1899 Rivers and Harbors Act in which the Corps was already responsible for regulating the dredging and filling of navigable waters.138 The Corps initially applied th eir responsibility to navigabl e waters because Section 404 did not explicitly refer to wetlands as waters of the United States. The Act aimed to eliminate all discharges of pollutants into U.S. waters by 1985. Specific goals included improving water quality to ensure safety for fish, wildlife, a nd recreational use; prohibiting the discharge of toxic amounts of pollutants; and more federal financial assistance for water treatment works, waste treatment management plans, research and development to eliminate di scharge of pollutants, and programs to control non-point sources of pollution.139 The Act made it necessary for everyone to receive authorization
61 from the federal government to discharge of an y pollutant into the waters of the U.S. Congress shifted the enforcement and determin ation of allowable levels of discharge from the states to the Environmen tal Protection Agency, created in 1970.140 Between 1972 and 1977 judicial decisions called for a clear definition of wetlands. Two U.S. Supreme Court decisions (in 1974 and 1975) and Executive Order 11990 in 1977 ensured the Corps responsib ility for regulating many non-navigable waters including wetland areas under the Section 404 guidelines.141 Following these cases and Executive Order 11990, regulations in cluded coastal and freshwater wetlands as waters of the United States, as long as the wetlands were connected to navigable waterways. In 1977 the Corps completed a regulatory definition for wetlands. These legislative and executive decisions led to the amendments of the CWA in 1977 and again in 1987. The 1977 Amendments required the best available technology to be implemented for limiting toxic pollutants, and it called for best management practices for pollutant elimination by July 1, 1984.142 While the EPA was the final authority on management and enforcement of standards and waste management, the 1977 amendments called upon the states to bear the initial responsibility.143 The 1987 Amendments phased out construction gr ants program and introduced the State Revolving Fund (SRF).144 The goal of the SRF was to finance not only municipal wastewater collection and tr eatment facilities, but also improvements to waste management, water protection, and pollution control projects. The amendment also included the Water Quality Act of 1987, whic h strengthened point source storm water discharge regulations.145
62 There are three major co mponents to the screening process for a Section 404 permit. The first of these is avoidanceare there practicable steps that can be taken to avoid wetland impacts? Second, if complete avoidance is not possible, minimization should be attemptedhow can the potential im pacts on wetlands be minimized? Third, if neither of these provide a practicable al ternative, mitigation is consideredhow can the permit-holder provide compensation for any remaining, unavoidable impacts through restoration or creation of wetlands?146 The main objective of Section 404 in regards to wetlands is to issue a dredge and fill permit only if no practicable alternative exists. With unclear language in defining specifi c activities and specific waterways, the extent of protection Section 404 provides remains open to debate.147 There are certain activities subject to S ection 404 regulations and some that are exempt. Controversy has erupted over the exempt activities. Regulated activities include discharge of dredged or fill material into the waters of the United St ates, landclearing resulting in the addition or redeposition of dredged material, dredging, drainage, and the placement of pilings in waters of the U.S.148 Exemptions apply to discharges of dredged and fill material resulting from normal farming, silvicultural, and ranching activities; maintenance or emergency reconstruction of dams, bridges, levees, and other transportation structures; construction of certain irriga tion, drainage, or sedimentati on systems; construction of forest and farm roads or temporary mining roads; and some state-approved activities.149 According to Joel M. Gross and Lynn Dodge: I n general, routine discharges made in the course of ongoing activity are exempt while one-time discharges resulting in permanent alterations are not.150
63 The Corps issues three types of Secti on 404 permits. Individual permits are issued on a single project basi s when planned activities re sult in potentially significant impacts. When an activity will result in mini mal effects, general permits are often issued. General permits group together activities that are similar and cause only minimal adverse effects when performed separately.151 Nationwide, regional, or state permits are issued for some common activities such as cranberry production, minor road construction, utility line backfill, and bridge repairs. The Co rps is ultimately responsible for deciding whether or not to grant permits considering all aspects of an applic ation, but it does not stand alone. The Corps receives assistance from the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and state agencies when considering dre dge-and-fill permits involving wetlands.152 The EPA has the power to designate wetlands subject to permits and to veto Corps decisions. Some states have their own permitting process that is separate from the Corps permitting process. States can apply to the EP A to take the place of the Corps in issuing Section 404 permits within the state. Only Michigan and New Jersey have opted to assume control of Section 404 permitting in their states.153 Applicants bear an additional burden when states have a permitting program separate from the Corps program and both require separate applications. To remedy this, some states work with the Corps to establish a joint permit application to meet state and federal application requirements.154 The individual application proce ss can take several months. The Corps encourages anyone involved in a major project applying for a pe rmit to meet with a Corps consultant for a pre-application consultation.155 This consultation is an oppor tunity for the applicant to
64 learn about the application and review process, the factors that will be considered, and any documents the applicant should prepar e ahead of time including possible mitigation plans. The applicant must provide a thor ough description of the proposed activity, the location, purpose, and need for the activity, sc hedules, and a list of authorizations required by other governmental agencies.156 The fee is virtually insignificant; applicants pay only $10 for non-commercial activities and $100 for commercial activities. Stephen M. Johnson outlines the Corp s steps in the permit process.157 The Corps has fifteen days from the receipt of an applic ation to determine whether it is complete and a public notice can be issued, or incomplete and the applicant needs notification of the missing information. Once the application is complete, a public notice is issued which allows the community an opportunity to co mment on the proposed project. The public notice must remain posted at least fifteen days and no more than sixty, the general length of time being thirty days. After reviewing the substance of the public notice comments, the Corps will determine if a public hearing is needed. The Corps will conduct a hearing if any person requests such a hearing duri ng the comment period, unl ess the request lacks substance. Section 404 guidelines require the Corps to review every wetland permit application and prohibit the Corps from issui ng any permit if there is a practicable alternative that would have a less adverse effect on the aquatic ecosystem. Section 404 also prohibits the Corps from approving a ny permit when the activity significantly contributes to the degradation of the waters of the United States; or violates water quality standards, toxic pollution standards, or federa l marine sanctuary prot ection requirements; or jeopardizes endangered species or their critical habitats.158 The Corps then weighs the public interest impacts of the proposed pr oject. Finally, the Corps reviews any
65 requirements of other laws such as the National Environmental Policy Act which sometimes requires environmental impact st atements for major projects causing significant changes in the quality of the environment.159 Section 404 of the Clean Water Act charge s the Corps to determine if practicable alternatives exist in the case of an indivi dual permit application. Two presumptions are outlined in the Corps guidelines to determine if a practicable alternative exists. The first is the water dependency test which presumes that a practicable alternative does exist if there is no requirement for access or proximity to the specified aquatic site to fulfill its basic purpose.160 The second presumption is that al l suggested practicab le alternatives have a less adverse impact on the aquatic ecosystem than the proposed discharge.161 Mark T. Pifher categorizes the steps the Corps takes within these presumptions to compare practicable alternatives with the pr ojects purpose. The Corps first defines the project purpose including multiple purposes in multi-component projects, and examines the projects water dependency. Then, the Corp s identifies practicable alternatives based on ownership and availability, timing of av ailability (the market entry test), the geographic scope of the alternatives, availa bility and other legal obstacles to the alternatives, the cost and economic viability of alternatives, logistics and technological feasibility, and a comparison of environmental impacts.162 When no practicable alternative exists in a project application for a Section 404 permit, the Corps can opt to allow an applicant to remedy the harmful impacts on wetlands through mitigationthat is recreating or restoring wetlands that offer similar functions in a nearby location. Historically the Corps has been known to allow applicants to buy down adverse effects of their pr ojects through proposing mitigation in their
66 original application.163 The U.S. Supreme Court ruled in Town of Norfolk and Town of Walpole v. U.S. Army Corps of Engineers (1992) that it is reasonable for the Corps to consider mitigation measures to prevent secondary impacts under the practicable alternatives analysis.164 The Corps now uses a sequencing approach that does not allow for compensatory mitigation within the practi cable alternatives requirement. In this sequence, an applicant must first demonstrat e that no practicable alternatives exist and propose ways to minimize the projects impacts. Only then will compensatory mitigation be considered for unavoidable adverse impacts to aquatic ecosystems.165 One might suggest that the net result of the sequen cing method toward mitigation would not differ much from allowing applicants to initially buy-down adverse impacts through mitigation. It merely changes the order in which the Corps approves mitigation measures. The four types of mitigation projects recognized by the Corps and the National Research Council are restorati on, creation, enhancement, and preservation. All methods are accomplished with human intervention or activity. Restoration is the process of returning a wetland to its existing co ndition prior to human disturbance.166 Restoration is the preferred course of action because it is more likely to be successful than the other alternatives.167 Wetland creation is the conversion of land or shallow waters into wetlands.168 Enhancement is the increase of one or more functions of an existing wetland.169 Preservation of wetlands without al teration protects existing wetland from future threats.170 There are several factors which characterize compensatory mitigation projects. The Corps examines on-site versus off-site mitigation projects. On-site mitigation is almost always preferred because it offers more direct affects to the area being degraded,
67 but sometimes off-site projects provide wa tershed benefits to the impacted area.171 Although mitigation projects are most desirable within the same watershed, costs, longterm maintenance, and likelihood of success ar e also considered in the decision making process.172 The Corps then looks at in-kind ve rsus out-of-kind wetlands, comparing the type and functions of wetlands in the propos ed compensatory mitigation project and the type and functions of wetlands to be degraded by the permitted activity. The Corps attempts to maintain no net loss of types or functions of wetlands by permitting activities. The Corps also authorizes the use of mitigation banking in which states, federal agencies, or private entities may sell credit s for wetlands development based on their own wetland creation or restoration activities. There are single-client banks in which the bank sponsor offsets its own development projects, and there are entrepreneurial banks that sell mitigation credits to others.173 President George H.W. Bushs introduced the goal of no net loss in his 1988 presidential campaign and his administration added no net loss of wetlands and wetland functions as a short term goal to the EPA policy in 1989. This goal started with the U.S. Environmental Protection Agencys request to hold a National Wetlands Policy Forum in 1987. The Forum was responsib le for investigating the state of wetlands management in the United Stat es and it formulated one overall objective: to achieve no overall net loss of the nations remaining wetlands base and to create an restore wetlands, where feasible to increase the quantity and quality of the nations wetland resource base (Nation Wetlands Policy Forum, 1988).174 The forum recommended that not only should there be no further decrease in the number of wetlands, but that in the long run, the number and quality of wetlands should increase.175
68 The no net loss goal paved the way for wetlands banking by creating a greater demand for mitigation. The Clinton Administ ration also set a no net loss goal through their Clean Water Action Plan. On Decembe r 24, 2002, the administration of President George W. Bush announced the National Wetlands Mitigation Action Plan which proposed to further [the] achievement of the goal of no net loss by undertaking a series of actions to improve the ecological performance and results of wetlands compensatory mitigation under the Clean Water Act and related programs.176 Bushs 2002 Plan intended to clarify mitigation guidance, in tegrate compensatory mitigation into the watershed context, and improve overall compensatory mitigation accountability.177 Often mitigation projects either fail or do not occur at all. The policy of no net loss prefers on-site restorati on or creation over restoration or creation in a different location, and a further preference for restora tion or creation of same type of wetlands altered by discharge.178 Although the no net loss policy impacts the Corps decisions regarding compensatory mitigation, the data representing gains and losses of wetlands reported by the Corps are not particularly encouraging. In 1991 for example, out of 40 mitigation projects involving wetland creation and restoration studied in south Florida, only about half of the required wetlands ha d been constructed and 60 percent of the projects were considered incomplete or outright failures.179 Less than 5 of the 40 projects were considered a success. A study in 1992 concluded that of the Section 404 permits issued in Louisiana, only 8 percent of the drained area was compensated for, and only 50 percent of the mitigation sites were visited at least once.180 In fiscal year 2003, the Corps permitted 21,000 acres of wetlands and waters to be affected across the U.S. by permitted activ ities and countered this by requiring over
69 43,000 acres of compensatory mitigation.181 This suggests a net gain of wetland acres. However, with unwilling and unable permittees this number does not reflect the actual gains and losses.182 In 1990, the Environmental Protection Agency and U.S. Army Corps of Engineers signed a memorandum of agreement providing guidance on wetland mitigation. The Corps is responsible for violations and allegations of unpermitted discharges; repeat violators, flagrant violations, speci fic requests, or a Corps recommendation can lead to administrative penalty actions by the EPA.183 Violations of a Section 404 permit requirement can result in monetary and criminal penalties.184 Yet regulations are hard to enforce when only ha lf of the supposed mitig ation sites are even visited. As a result, a 2001 report publishe d by the National Resear ch Council concluded five things about the Section 404 wetland program.185 First, the goal of no net loss of wetland functions is not being met by the mitigation program enforced by the Corps, (although the report noted progress over the last 20 years). Second, a watershed approach is recommended to improve permit decisi on making. Third, expectations are often unclear to the permittee and compliance has of ten not been enforced. Fourth, the Corps has inadequate support for regulatory decision making. Fifth, the report recommends that third-party compensation approaches such as mitigation banks and in-lieu fee programs be used instead of permittee-responsible mitigation.186 Mitsch and Gosselink argue that most st udies call for improvement in building mitigation wetlands. They suggest two categor ies when judging the success of created or restored wetlands. First, there is legal success which compares the lost wetland function and area with that which is gained by the replacement wetland.187 Second, there is ecological success which compares the replacement wetland with a reference wetland
70 (natural wetlands of the same type that ma y occur in the same setting or generally accepted standards of regional wetland function).188 The overall success would be the combination of the legal and ecological successes. In response to increasing wetland regulations, private property rights advocates have fought to protect the Fifth Amendment right to be justly compensated for any federal takings. Landowners argue that the restrictions caused by wetland protection policies inhibit or take their ability to earn profit from the land. In the 1985 case United States v. Riverside Bayview Homes the U.S. Supreme Court ruled assertion of regulatory jurisdiction by a governmental body does not constitute regulatory taking Yet, the Court added: when denial of a permit resulted in the prevention of all economically viable uses for the land, such regulation would constitute taking.189 In 1992, the U.S. Supreme Court ruled in Lucas v. South Carolina Coastal Council that regulations denying a landowner all economi cally viable use of land require compensation to the landowner, regardle ss of the public inte rest provided by the regulations.190 The issue in determining the need for compensation is whether or not there are other economically viable alternativ es to the proposed action that is denied a permit. The eruption by property rights advocates in the 1990s dates back to the 1960s, as landowners expressed opposition to the modern environmental movement. While the environmental movement encouraged the fe deral government to establish many national parks and wildlife refuges, property rights ac tivists argued that th e Fifth Amendment of the Constitution states that private property should not be taken for public use without just compensation. The Sagebrush Rebelli on was a populist movement that began in
71 1979 when the U.S. government began to increase environmental protection on public lands in the American West. Landowners ar gued the federal government had no right to regulate public lands to the extent that it inte rfered with the lands economic viability and fought for more state and local authority over the use of these lands. Essentially, landowners used public lands for grazing, mini ng and other natural resources. In 1981 a U.S. District Court ruled against the stat e of Nevadawhich originally filed suit arguing that the state gave up its rights to control public domain when it entered the union. The public lands belonged to the federa l government, not the state. People were frustrated with the federal governments oppos ition to resource development. Western states have abundant natural resources such as coal, natural gas, metals and timber. The states fought to have control over land use, arguing they had a bett er idea of what the lands should be used for than the federal gov ernment. Landowners who farmed or mined for a living on public lands were being threat ened and shut down due to the federal governments new environmental policies that protected these areas. Interest groups and organized activists came together in a move ment fighting for Amer icans land rights in the Wise Use Movement.191 The Wise Use Movement, a piece of th e Property Rights Movement was largely comprised of real estate developers, hunters, fishermen, and others often in opposition to environmentalists. While western states lost their skirmish in the Sagebrush Rebellion, the Property Rights Movement continue d. Increased governmental spending on environmental rules and regulations in the 1970s affected many Americans. In the 1970s, Congress passed a series of environmenta l regulations addressing property use and ownership.192 Regulating many aspects of our lives from the food we eat and the water
72 we drink to the clothes we wear and the homes we live in, environmental regulations impacted Americans like never before. Th e Property Rights Movement fought back, complaining that environmental regulation ha d gone too far. The Wise Use Movement was primarily opposed to the way in which the federal government was taking value from private land by implementing land use regulations without compensating land owners for their perceived economic losses. Some land owners took th eir cases to court, others involved the media, and still others we nt to their state and local governments for assistance.193 By the 1990s, the movement continued to fight for the recognition of property rights and the acknowledgment of the importance of working together with the property owner to achieve environmental protection.194 Often, the takings issue in regard s to wetland protection and the Fifth Amendment is inconclusive. Jody Lipford a nd Donald J. Boudreaux (1995) argue that, unlike physical takings, regulatory takings do not guarantee compensation to landowners who have suffered diminution of property values as a consequence of government regulation. Further, judicial rulings are ofte n uncertain and costly to pursue.195 Yet, in response to regulatory takings there is a growing movement to protect private property rights at th e state level. By 1994, fort y-two states had introduced property rights legislation (including Florida), and eleven had passed some form of legislation.196 The movement continues into the cu rrent decade. For example, the people of Oregon in 2005 and Arizona in 2007 passed legislation stating that a property owner is entitled to just compensation when the value of ones property is reduc ed due to state or local land use laws.197
73 0s lands and advise ct AWCA e While Section 404 is the prim ary regulat ory program governing wetlands, other federal programs and agencies have rulings that impact wetlands. Since 1990, at least thirty-six federal agencies have applied financial funding, acquisi tion, direct regulation, or other management techniques to help protect wetland func tions and values. 198 Section 404 exemptions for normal agricultura l and silvicultural activities allows for wetland drainage on farms and in commercial forests without permits. During the 197 and early 1980s, a conflict of interest emerged between federal agencies as the Corps and the EPA encouraged wetland conservation while the Department of Agriculture encouraged wetland drainage by providing fede ral subsidies for drai nage projects. To ensure wetland protection across the federal agencies Congress passed the swampbuster provisions of the 1985 Food Security Act stati ng that the federal subsidies would no longer be granted to farmers who knowingly c onvert wetlands into farmland.199 Congress directed the U.S. Soil C onservation Service (now the Natural Resources Conservation Service, or NRCS) to help farmers identify wet the farmers accordingly. Congress passed the North American Wetlands Conservation Act (NAWCA) in 1989 to provide grants to public-private partnerships for wetland conservation projects in North America. The program is funded by fede ral excise taxes, Migratory Bird Treat A funds, and interest earned on various federal accounts. These grants require that each federal dollar is matched by other government agencies or private sources. The N has funded over 20 million acres of wetlands conservation in over 1,600 projects throughout North America, including Mexico an d Canada. From the establishment of th
74 Act thr In y ore, untary basis. The Wetlan ne of iance ppeals for ough March 2007, more than $790 million in federal dollars have been invested through the NAWCA.200 Several federal actions were taken toward protecting wetlands in the 1990s 1990, Congress passed the Coastal Wetlands Pla nning, Protection and Restoration Act. This Act encouraged the U.S. Fish and W ildlife Service to engage in interagenc wetlands restoration and conservation planning, and expanded fe deral grants to rest enhance, and acquire coastal wetlands. Then, in 1991 the U.S. Department of Agricultures Natural Resources Conser vation Service implemented the Wetlands Reserve Program to protect wetlands on pr ivate property on a vol ds Reserve Program called for the acquisition of federal easements on up to o million acres of agricultural land that was formerly wetland.201 In the summer of 1993, the administration of President Bill Clinton released Protecting Americas Wetlands: A Fair, Fl exible, and Effectiv e Approach, the Interagency Wetlands Plan reaffirming no ne t loss and Section 404 of the Clean Water Act. The Plan assigned NRCS as the lead ag ency responsible for identifying wetlands in agricultural areas under both the Clean Water Act and the swampbuster provisions the Food Security Act.202 The plan also called for an increase in the quantity and quality of wetlands in the United States. Furthe rmore, the plan encouraged non-regulatory practices to protect wetlands (e.g. private restoration programs ), to decrease the rel on the Section 404 program, and to support public-private cooperative efforts and research and inventory activities.203 The plan changed the 404 permit process by establishing a ninety-day deadline for Corps action on permit applica tions and an a process for Corps actions. It also minimi zed the level of permit review required
75 Natural Resources Conser vation Service, U.S. Army Corps of Engine t t C s. e ve th e authority to regulate non-navigable, isolated, intrastate sm aller projects causing only minor environmental impacts.204 The U.S. Fish and Wildlife Service ers, and Environmental Protection Agen cy agreed to this in a memorandum in early 1994.205 In 2001, the U.S. Supreme Courts SWANCC ( Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers) decision marked an importan point in the path of federal wetlands pr otection. In this case, the Supreme Court examined the relationship between isolate d, intrastate wetlands and water bodies and intrastate navigable waterways. Based on the Migratory Bird Rule, the Corps argued that particular migratory bird habitats needed protection under Section 404 because the birds generated interstate tourism (a form of interstate commerce, which the Constitution gives the federal government the authority to regulate).206 According to Gross and Dodge, the Court ruled the Corps had stretched its outer limits of power and [the Court] would no assert jurisdiction under the Clean Water Act.207 It is now arguable that the SWANC ruling limits the ju risdiction of Section 404 to wetlands adjacent to navigable water Gross and Dodge add that others have in terpreted SWANCC to exclude only those wetlands that have no hydrological connection to available water.208 Oftentimes manmade structures such as levees can obscu re the proximity of wetlands to navigabl waters. In recognizing a pr evious court decision (1985 United States v. Riverside Bayview Homes, Inc. ) that based Corps jurisdiction of non-navigable wetlands on a significant nexus between wetland s and other navigable waters, the SWANCC Court ruled the Corps did not ha
76 ponds.2 ons have played a role in protecting our nation ced or ror to a 09 However, the Court explicitly refused to clarify the Corps specific and precise extent of jurisdiction.210 President George W. Bush announced a goal to achieve a net gain in wetlands in 2004. Some reports show that government regul ation did appear to slow the rate of wetland losses. The rate of wetlands destruction decrea sed from 290,000 annually in the mid-1970s to 58,500 acres annually in the mid-1980s, representing an 80% decrease.211 Between 1998 and 2004 wetland area increased by an average of 32,000 acres annually, mostly due to regulatory and non -regulatory restoration programs.212 Gross and Dodge attribute current wetland losses to urban de velopment (30%), agriculture (26%), mining (23%), and rural development (21%).213 When examining the state of wetlands over the past century, it is possible that federal regula ti s wetlands. However, declining we tland losses over time may reflect a redu number of wetlands that could be converted. Aldo Leopold argued in 1949 for a widely accepted ethic dealing with the relationship between man and land, as well as animals and plants.214 As long as economics dominate our relationship to land, he contends the relationship will be largely influenced by privileges gained from the land, and not our obligations and responsibility towards the planet. From a community standpo int, he suggests: the land ethic simply enlarges the boundaries of the co mmunity to include soils, waters, plants, and animals, collectively: the land.215 His land ethic would change our role from a conque citizen that respects its fellow members.216 Leopold considers conservation to be a state of harmony between man and land.217 He argues that the slow pace of progression toward this state of harmony is due not to the quantity of environmental
77 entu ry conservation education, he contends, defines no right or wron urrent orps d to profit organizat ions. As Leopold calls out for a land ethic that vie writer o l reflect the dynamic balance of federalism, achieving a streamlined permitting system resource use, and remains responsive to regional and local concerns, while education provided in our sc hools and public park system s, but the content of this education. Mid-twentieth c g, assigns no obligation, calls for no sacr ifice, implies no change in the c philosophy of values.218 While over a half century old, Leopold s message of harmony with, and obligation to our landcommunity still holds truth and va lue in our relationship with wetlands and other natural environments today. Applicants submit Section 404 applications for permits to degrade wetlands in order to profit from their land. The C then approves permits under conditions speci fied in writing that generally call for improvements to nearby wetlands on at least a 1:1 ratio. That is, an applicant must restore, create, preserve or otherwise mitigat e at least one acre of wetlands for each acre of wetlands degraded by the permitted activities. Yet, this creates merely an illusion that we are doing something right for the land a nd waters when the intended compensatory restoration, preservation, or mitigation projec ts either fail or neve r get off the groun begin with. The ultimate outcome generally tends to be development. This outcome has led to an increase in state and local wetland regulations as well as an influx in membership in private and nonws humans as citizens of the la nd, not conquerorsa modern environmental n wetlands comments: Ideally, the [government wetlands permitting] system wil that effectively protects wetlands, al lows for appropriate development and also being applied relatively uniformly across the states.219
78 his ideal is not far from the ideal expressed over thirty years ago in the Clean Water Act to restore and maintain water quality and the tegrity of waters in the United States. Sadly, we have a long way to go re garding Aldo Leopolds land ethic. T in
79 nd rs dged ials.220 State wetland protection programs began to emerge around the time the mod Chapter 6 State-Level Wetland Regulations State legislatures experience many pr essures from environmental lobbyists, private and not-for-profit organizations, and other public voices, encouraging the state government to take steps toward improving and enhancing wetlands and water quality. While public voices may create enough of a demand to take regulatory action, the U.S Environmental Protection Agency (EPA) offe rs funding, programs, guidelines, plans, a resources to help make state wetlands acti on possible. For example, upon a Governo request, the CWA requires the U.S. Fish and Wildlife Service to assist states in developing and implementing regulatory progra ms to control the discharge of dre and fill mater ern environmental movement surfaced. In 1963, Massachusetts was the first state to require a permit for fill and structures in coastal wetland areas. By 1978, thirteen states required a permit for such activities and five stat es had adopted inland wetland protection acts.221 Florida has roughly 11.4 million acres of wetlands and has extensive regulatory programs in place with the goal of no net loss within the state.222 Still, Florida struggles with the constant battle between land developers, farmers, and environmentalists to achieve balance be tween economic interests and ecological sustainability.
80 water each re ral picture of state s. ncy Through grant funding from the EPA, th e Environmental Law Institute (ELI) studied seven components of state wetland pr ograms published in four phases using data collected between 2003 and 2006.223 The seven components are: state laws, regulations and programs; monitoring and assessment; restoration programs and activities; quality standards; public-pr ivate partnerships; coordina tion among state and federal agencies; and education and outreach activities.224 The ELI designed four phases phase studied 12-13 states and represented a cross-section of geogr aphic diversity and various approaches to wetlands protection.225 The ELI concluded that wetlands we either explicitly or implicitly included in every states definition of state waters.226 There are a number of ways states protect and regulate wetlands. Michigan and New Jersey chose to implement the Section 404 permitting program, some states protect wetlands with water quality programs, some have state-wide permitting programs and other states have laws mandating local governments to regulate and protect local wetlands.227 In Phase IV, ELI compared the results of the seven components in all fifty states. While this final phase of the ELI study doe s not provide numeric representation of the differences of the 50 states i nvolvement with wetlands, the study offers a gene trends. Some states have specific la ws, others have broader regulatory program Some have permit programs for dredge-and-fill ac tivities, and other states have an age that administers regulations but not necessarily a permit program.228 Mitigation regulations are also examined. ELI reporte d that many states did not have mitigation provisions outside of the Section 404 provi sions. These states generally defer compensatory mitigation issues to the Corps. Some states, however, have established
81 lopers or a formal system for monitoring and assessing wetlands or state231 very difficult specif ic ratios, site preferences, and other mitigation guidelines, and a few state resource agencies have established either mitigation banks or in-lieu fee programs.229 According to the ELI, an in-lieu fee program is an agreement between a regulatory agency (state, federal, or local) and a single sponsor, generally a public agency or non-profit organization.230 A mitigation sponsor collects in-lieu fees from numerous deve other permittees and uses the funds for we tlands mitigation projects. In-lieu fee mitigation generally takes place after the permitted activity and its impacts take place. This allows the permittee to avoid the burden of completing a wetlands mitigation project. Most states do not have -established water quality criteria separate from those required by the CWA. According to the ELI study, m ost states in one way or another were involved with restoration projects and educational and out reach programs. However, only six states (Florida is not one of them) have a fo rmal, wetland-specific education or outreach program.232 Oftentimes, a state will instead have a more broad environmental education program that includes wetlands as a component.233 ELI also concluded that every state has some level of coordination with other st ate and federal agencies regarding permit applications, project reviews, and conservation and agri cultural programs.234 Florida has a long history of developers hoping to convert Floridas mosquitofilled, hot and humid swamplands into a trop ical paradise and money-making oasis. Floridas lands were sought out by inspir ed entrepreneurs, governors, and even presidents. In the late nineteenth and ear ly twentieth centuries developers and other hopefuls suffered failures due to the lack of funding and technology. Perhaps at first, the task appeared manageable, but they all soon r ealized that wild Florida was
82 to tame years gh al d l the Swamp and Overflowed Lands Act of 1850 (Swamplands Act), which g to It would take more than some bulldozers, handy workers, and a couple of to convert Florida into the Florida dream. Hamilton Disston, Henry Flagler, and Henry Plant were among the early sp eculators who made significan t marks on the state throu drainage canals, resorts, and railroads. The states Inte rnal Improvement Fund helped make conversion projects a possibility through project funding and swamp land giveaways. The early idea of internal im provements was not to protect land, but to build canals and railroad s among other development.235 Through the first half of the twentieth century, the Divisi on of State Lands maintained the IITF and its goals to improve lands for human use. The Internal Improvement Board, creat ed in 1851, and was Floridas first environmental program. The Board was quickly replaced by the Trust ees of the Intern Improvement Trust Fund (IITF) in 1855, ope rated by the Division of State Lands an managed by the Secretary of Agriculture and the Governor. The IITFs lands came from the Great Pre-Emption Act of 1841 which ga ve each new state 500,000 acres for interna improvements; and ranted Florida 20,325,013 acres. Initia lly, the IITF sold lands specifically to railroad companies, but the lack of funding le d the IITF to sell lands at a very low price to essentially any developersome lands were sold for just pennies per acre.236 The IITF earmarked money gained from the la nd giveaway (following the Swamplands Act) to guarantee railroad construction bonds.237 When the railroad industry plummeted after the Civil War, demands for bond paymen ts and a lawsuit against the IITF put the IITF nearly $1 million in debt. In 1881 Ha milton Disston offered nearly $1 million Florida for 4 million acres of swamplands, saving Floridas IITF from bankruptcy.238
83 ustle of construction and land deve lopment, the main actors in the paradise dream w n d land d to indled, tion more than doubled mation rease, The dredge and f ill development that swept the state over the course of the twentieth century was full of ups and downs, stops and gos, roads and floods. One could argue whether or not Floridas dream paradise was ever atta ined. In the midst of the hustle and b ere beginning to disappear. The wildlif e and vegetation that initially helped to make Florida so appealing declined rapidl y. In the 1930s, the Civilian Conservatio Corps, a federal program developed under President Franklin Roosevelt, came to Florida to wipe out all the undesirable plants from public lands. The program also altere for the purposes of flood control, insect control, and built or maintained paths, tracks, an fire lanes on public lands across the state.239 The CCC took part in destruction of Floridas ecosystems by converting wetlands to other uses through draining and ditch building.240 The conversions threatened native plant and animal species that were perhaps viewed as unattractive, uninviting, or dangerous to humans in Florida. Hunting and poaching alligators, water birds, and other animals added to the significant human impact on Florida. At long last, environmentali sts began to stand their gr ound in Florida, fighting protect our states precious lands. As Florid as wetlands and freshwater supply dw the state began to listen to environmentalist s concerns. Floridas popula between the 1950s and 1970s.241 The 1970s marked a period of transfor for the Division of State Lands most likely due to the increased awareness of decreased water quality and land availability. With the population increase and wetland dec the states water supply came under greater strain, and in 1970-71 Floridians found themselves rationing water supplies because of a severe drought.242 Recall that in 1972
84 a al 4 sh n Commission).245 In 1975, the Legislature created Endangered Lands A n ) the federal governm ent took action through the creation of the Clean Water Act. Florid subsequently created the Department of Environmental Regulation in 1975.243 This was not, however, the initial attempt by Floridas legislature to develop an environment program. Prior to Floridas Governmental Reor ganization Act passed in 1969, numerous agencies controlled various aspects of th e states lands including the Outdoor and Recreational Development Council, the Boar d of Drainage Commissioners, the Florida Board of Conservation, the Canal Aut hority, the Suwannee River Development Authority, the State Park Service, and th e Game and Fresh Wa ter Fish Commission.24Under the 1969 Act, the Departm ent of Natura l Resources was created to take over most of the duties of the various agencies, elimina ting the need for all but the Game and Fre Water Fish Commission (which was later merg ed with the Marine Fisheries Commissio to create the Fish and Wild life Conservation the Departm ent of Environmental Regulation (DER). The DER became the head agency over the states five Water Management Districts and all other agencies that dealt with pollution.246 In 1979, the legislature passed an act putting the Division of State Lands within the Department of Natura l Resources, responsible for acquisition, administration, and management of state lands for the Department.247 Florida continued to seek a solution for better management of the states environmental programs. In 1972, the state established the Environmentally cquisition Program (EEL) enabling Florida to purchase endangered or environmentally damaged areas for use as na tural resource preser ves and/or recreatio areas.248 The EEL transitioned into the Cons ervation and Recreation Lands (CARL
85 e or hed al ervice added a bout 250,000 acres to the Nationa re quire ational 4 program in the late 1970s and early 1980s. The legislature created CARL to purchas lands containing naturally occurring plants a nd animals; habitats critical for endangered or threatened species; unique geological fe atures; and to acquire lands to enhance protect, restore, or preserve lands and waters for the public interest.249 In 1984, Floridas legislature passed the Warren Henderson Wetla nds Protection Act requiring permits f any dredging and filling of Floridas wetlands for the first time.250 The Act establis guidelines for defining wetlands and required the state to consider mitigation projects before issuing a dredge and fill permit. The Henderson Act also required applicants activities to meet the states water qual ity standards and a pub lic interest test.251 The Department of Environmental Regulation (now called the Department of Environment Protection) was responsible fo r considering public health and safety, fish and wildlife conservation, navigation, recreation, and hist orical or archeologi cal significance when determining whether to issue a permit.252 On a federal level, the Fish and Wild life S l Wildlife Refuge System in Florid a during the 1980s alonemost of which we wetlands.253 Also in the 1980s, the National Park Se rvice gained authorization to ac almost 250,000 acres of wetlands in the Ea st Everglades and Big Cypress Swamp.254 The U.S. Forest Service acquired between 60,000 and 90,000 acres near Osceola N Forest, and Florida purchased over 500,000 acres of wetlands.255 Still, wetland losses continued and it was clear that Florida s wetlands needed more protection. There are several ways states can take regulatory action to protect wetlands, many of which are encouraged and even funded by the federal government. According to Section 404 of the Clean Water Act, states are authorized to take control of the 40
86 e also tate programm atic genera l permits (SPGPs) in cases where specific activiti l nts ve so te 4 (waters d 401 (water quality) of the CWA. Second, states and tribes should also monito perm itting process upon the EPAs approval. Only Michigan and New Jersey hav assumed this authority.256 Other states have not chosen this path because of the EPAs extensive requirements and the inability to meet specific regional needs such as protecting non-navigable waterway s or unique natural resources.257 The Corps may choose to issue s es are regulated in a state permit prog ram to an equal or greater extent than Section 404 requires. The activ ities must be similar in nature and have only minima effects on the environment (e.g. single-family docks, construction or restoration of seawalls, canal and channel maintenance).258 SPGPs minimize the hassle for applica that may otherwise have a duplicate proce ss applying to both state and federal permit programs.259 Regarding water quality, states are required by Section 303 of the CWA to adopt water quality standards that are at least as stringent as federal standards.260 While many states have included wetlands within th e definition of state waters, few ha specific water quality standards for wetlands.261 The EPA provides both technical assistance and funding for wetland programs (including but not limited to state assu mption of Section 404 enforcement) through Wetland Program Development Grants to stat e and tribal governments. The EPA al encourages states and tribes to adhere to six elements under their Comprehensive Wetlands Program.262 These six elements are as follows. First, the EPA asks each sta and tribe to establish wetland regul ations that are at least as strict as Sections 40 and wetlands) an r and assess the quality and quantity of their wetlands. Third, there should also be programs in place for improving wetlands through restoration, enhancement, and
87 es to the 5, and ed to to consolidate, to the maximum extent p e and tal increased w ater quality. Fourth, state/ tribal wetland programs should adopt EPA approved wetland water quality standards. Fi fth, public-private pa rtnership programs are encouraged to enhance wetland resources. Finally, state and trib al governments should ensure coordination between various agenci es that deal with wetlands and wetlandsrelated issues. While the Florida Department of Environm ental Protection (FDEP) and the stat water management districts (WMDs) are re sponsible for some Section 404 general permits, complete delegation of Section 404 en forcement has not yet been granted state of Florida. The state never forma lly applied for assumption of the Section 404 program, but formally explored the possibili ty in the late 1980s again in 1992-9 once more in 2000.263 An EPA-issued Wetland Program Development Grant funded the 1992-95 effort and resulted in the states SPG P program, allowing applicants to apply to the state for Corps-approved Section 404 general permits.264 In 2005, the FDEP developed a Consolidation of State and Federal Wetland Permitting Programs design implement House Bill 759 requiring the department racticable, federal and state wetland permitting programs.265 Later that year, the Florida legislature passe d Florida Statute 373.4144 dire cting the Department of Environmental Protection to implement the program.266 The intent was that dredg fill activities effecting wetland areas of 10 acres or less would be processed using an environmental resource permitting program that encompasses state and federal requirements. A report prepared by the FDEPs Office of Submerged Lands and Environmen Resources states several reasons to not pursue Section 404 assumption.267 Most of
88 to ace d by ory changes in clude requiring the C orps to continue enforcing and monito er ar r ral A Floridas waters are non-assum able under Sectio n 404 due to their lack of connection navigable waters. Moreover, Floridas met hod of delineating wetlands and other surf waters differs from the federal method, and so me inland wetlands would be significantly impacted by a change in assumption. For instance, non-navigable we tlands protecte the state are not protected by the federal gov ernment. Conversely, the federal wetland classification uses slash pine s and gallberries as wetland in dicator species, but Florida considers them neutral (neith er upland nor wetland) species.268 Some of the differences in legislation that would go along with assumption of Section 404 powers would potentially require federal legislative ch anges and a change in state legislation.269 The federal statut ring modifications to any previously issued Corps permits, including Clean Wat Act general permits; removing the clean break provision requiring the Corps to finish processing any pending applications at the tim e of transfer; and removing the five-ye limitation on state-issued Section 404 perm its because Florida has a 25-year permit program that includes a five-year review cycle.270 Floridas likely statutory changes include returning FD EP as the states leading agency for wetland permitting with authority to modify, revoke, or rescind permits currently issued by WMDs; revising state law to include consideration of project alternatives (e.g. accounting for economic cons iderations); and removing the automatic default issuance of permits that are not pr ocessed within the states 90-day limit fo permit review.271 It would probably take a signific ant amount of time for both the fede and state legislatures to pass the needed changes, which may deter the state and EP from following through. However, if the cons olidation of the two programs results in
89 anet aring land n the est source Perm it Program ew drawing the more protective characteristics of each into a single program perhaps it would be worth the assumption of powers. Indeed, the FDEP is working on its third attempt in the past 20 years to assume the Section 404 permitting responsibilities. J G. Llewellyn, Assistant Director of the FDEP Division of Environmental Resource Permitting describes Floridas ongoing process in a federal Senate subcommittee he in 1995: Florida has been undertaking an am bitious initiative to streamline its wet and surface water programs with the goal of reducing duplication, red tape, and delays for applicants, but without reduc ing environmental protection.272 This 1995 testimony is still being referenced in th is years discussion of stat e assumption of the Section 404 program.273 Florida was among the 12 states studied in the second phase of the ELIs state wetland study.274 Florida stood out particularly strong relative to the other states i category of restoration and partnerships. Floridas wetland re gulatory program is administered on a state and regional level, and has a no net loss of acreage goal and similar (but not identical) delineation criteria to those used by the Corps. Florida is divided into five Water Management District s (WMDs) and four of these five WMDs are responsible for the states Envir onmental Resource Permit Program.275 The Northw Florida WMD (in the panhandle) currently uses an outdated Wetland Re implemented by FDEP regulating dredge and fill activities. It does not include the regulation of activities in lakes or isolated wetlands under 10 acres that the new program includes.276 It is expected that the Nort hwest Florida WMD will use the n program developed in 1995 (which the othe r four WMDs already use) by the year 2010.277 The Environmental Resource Permit Program regulates landscape alterations
90 to in nding billions of dollars in restorin d 970s, net loss of wetla nds between the 1970s and 1980s equaled 260,300 acres, an annual av erage of 26,030 acres of wetlands.283 It is important including tidal and freshwater wetlands. It also regulates dredge and f ill activities, stormwater treatment, floodi ng, and upland alterations.278 In enforcing these activities, Florida may use abatement/ compliance orde rs and injunctions, civil penalties and prosecution, and criminal penalties and prosecution.279 The Florida permitting program is not mere duplication of the federal gove rnments Section 404 program. Florida delineates wetlands slightly differently than the Corps and protects non-navigable wetlands not protected under fede ral legislation. Florida also does not allow applicants apply for mitigation in an in itial application, while the Co rps will consider mitigation before an applicant makes any attempt to av oid or even minimize their planned impacts to wetlands. There are other programs in place to help improve the conditions of wetlands Florida. Both the state and federal govern ment are spe g the Everglades, the Kissimmee River and asso ciated floodplain wetlands. Another $300 million in state and federal funds are spent annually for land conservation, acquisition, and management under the Florida Forever program.280 Floridas SWIM Program (the Surface Water Improvement and Management Program), which is intende to repair degraded surface water bodies, and the states invasive plant management program both play a role in Flor idas wetland restoration programs.281 Floridas relatively well-funded and regulated wetland programs are what set it apart from other states. Unfortunately, so do Floridas wetland losses. By the 1 only about 11 million acres of the original estimated 20 million acres of wetlands remained in Florida.282 The total
91 to note d acres es ling, nfestation, drainage, impoundment, or wetlands in need of restorat that palustrine w etland s suffered the greatest loss.284 Palustrine wetlands are vegetated, small, inland bodies of water less than twenty acres in area and no more than two meters deep, generally ca lled ponds. These smaller wetl ands are often not protecte because of their perceived lack of function. Yet, palustrine wetlands offer habitats for plants and animals and provide relief from floodwaters during severe flooding from nearby lakes and rivers.285 As at the national scale, ag riculture, urban de velopment, and other forms of development ar e to blame for the conversion of wetlands to other uses. Agricultural areas increased by 528,500 acres and urban areas increase by 551,600 in the Sunshine State, but only 66,000 acres of the urban areas were converted directly from wetlandsmost were converted from agricultural lands that were once wetlands.286Thom as Dahl reported in 2005 that Florid a has approximately 11.4 million acres of wetlands, representing a ne t increase in quantity.287 Floridas wetland acreage reports can be misleading. The states Department of Environmental Protection reported the followi ng data for wetland impacts between 1984 and 1995: 7,476 acres permanently destr oyed, 10,071 acres temporarily destroyed, 22,195 acres preserved, 39,131 acres created, and 204,895 acres improved (accounting errors suggest this may actually be only 28,584 acres improved). However, the figur do not account for a number of effected wetlands.288 Losses from exempt activities, general permit activities such as agricultural activities, unauthorized dredging and fil whether the permitted actions including mitigation were ever implemented, or degradation from exotic i ion were not included.289
92 ental Resour ater, tidal an e Florida ion land bu r acquiri uted $1.8 bi cres of func program e program y the five WM Ds, Division of State Lands, Division of f rs se its in Florida than in any other state. A The 1993 Florida Environm ental Reorganiza tion Act initiated the Environm ce Permit program (ERP program) to re gulate activities dealing with stormw d freshwater wetlands and other connected and isolated surface waters.290 Th Forever land acquisition program esta blished in 1999 is the largest conservat ying program in the world.291 The program allows for $3 billion in bonds fo ng state lands over a ten-year period. Through 2006, the program has contrib llion toward the protection of ove r 530,000 acres of land, including 236,210 a tional wetlands in Florida.292 Passed by 72 percent of Floridas voters, the was a response to an overwhelming pub lic demand to protect state lands. Th funds land acquisition b Recreation and Parks, Rails to Trails, Florida Recreation Development Assistance Program, Florida Fish and Wildlife Cons ervation Commissi on, Department of Community Affairs, and Department of Agri culture and Consumer Services, Division o Forestry.293 Florida Forever is updated annually an d now includes the Save Our Rive and Preservation 2000 programs. The program has also pressured the Division of State Lands to develop better and more accurate mapping and delineation methods in respon to the demands for public lands.294 The program was also a response to the role the Corps has played in Florida, approving more wetland perm ccording to the St. Petersburg Times the Corps rejected only one permit to degrade wetlands out of over 12,000 pe rmit applications between 1999 and 2003 (approving the rest).295 Wetlands are defined by the state Stat utes as (adopted in the 1995 Florida Water Plan):
93 frequency and a duration sufficien t to support, and under normal r life in saturated soils. Soils present in wetlands generally are classified as reducing soil conditions. The prevalen t vegetation in wetlands generally typically adapted to areas having so il conditions described above. These have the ability to grow, reproduce, or persist in aquatic environments or marshes, bayheads, bogs, cypres s domes and strands, sloughs, wet lopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands understory dominated by saw palmetto. Upon legislative ratification of the limitation contained herein regarding the purpose of this definition shall types of r ging in deep water ports.298 areas th at are inundated or saturated by surface water or groundwater at a circumstances do support, a prevalence of vegetation typically adapted fo hydric or alluvial, or possess character istics that are associated with consists of facultative or obligate hydrophytic macrophytes that are species, due to morphological, physiologi cal, or reproductive adaptations, anaerobic soil conditions. Florida wetlands generally include swamps, prairies, riverine swamps and marshes, hydric seepage s generally do not include longleaf or slash pine flatwoods with an methodology adopted pursuant to s. 373.421(1), as amended, the cease to be effective.296 Florida has an abundance of wetlands and wetland types including all five major wetlands systems: Marine, Estuarine, Riveri ne, Lacustrine, and Palustrine. The Wetland Resource Permitting Program (WRP Program) was authorized in 1984 pursuant to the Warren S. Henderson Wetlands Protection Act.297 The WRP Program and Floridas administrative code and statutes protect wetland areas through the Mangrove Trimming & Preservation Act (1996), water quality stan dards, specific rules and procedures for permits and dredge and fill activities, regulation of stormwater discharge, and 25-yea permits for maintenance dred Floridas perm it program is similar to the Section 404 permit program of the Clean Water Act administered by the U.S. Army Corps of Engineers. Unless the activity is specifically exempt, all actions affecti ng wetlands and other su rface waters require a state permit, including dredging, fil ling, and construction of structures.299 The permit program also includes dredging channels, can als, ditches and lakes; depositing fill;
94 ect and m ay sti tions. al and general permits. Ind ral permits. s. evelop ents. An kes an constructing docks, piers, boardwalks, platform s, artificial reefs; or other activities in or connecting to jurisdictional waters.300 As of July 1, 1994, Floridas jurisdiction delineates the landward extent of all wetlands and other surface waters, including isolated wetlands throughout the state; except in the panhand le where the permit program is not yet in effect.301 While some activities are exempt from the permit program, all projects must meet water qual ity standards throughout the proj ll need authorization under other federal, state, or local regula Like the Section 404 program, Florida i ssues individu ividual permits are required for any activ ity not covered by the gene Permits are generally issued for five years, but may be issued for up to twenty-five year An applicant may decide to meet with the Florida Department of Environmental Protection before submitting their permit. Florida collaborated with the Corps to d a joint application process that covers the fe deral and state application requirem applicant submits their application to the a ppropriate WMD; the District then submits a copy of the application to the Corps. The Di strict reviews and pro cesses the application independent of the Corps. Generally, the Corps waits until the state or WMD ma authorization before issuing a permit because the applicant must first meet Floridas water quality standards.302 Florida considers water quality, public interest, and cumulative impact when reviewing an application. The state uses a uniform mitigation assessment methodology (UMAM) by calculating the amount of func tional loss of impacted wetlands and amount of proposed functional gains produced by mitigation wetlands.303 The District may propose mitigation if it decides that the projec t will have adverse effects on wetlands or
95 n the ion of: Enhancement of wetlands or other surface waters Preservation of wetlands and other surface waters in Florida upon program hen other su rface waters, and the applicant is unable to meet the permitting criteria.304 Except for mining applications, Florida does not allow mitigation to be considered i initial application process.305 It must first be determined whether or not a project is eligible for a permit. The WMD first consid ers practicable alternat ives and minimizat of adverse effects, and only if no practicab le alternative exists will they suggest compensatory mitigation. Mitigation proposal s can include any one or a combination Restoration of wetlands or other surface waters Creation of wetlands or other surface waters Net improvement of water qua lity or aquatic habitat.306 Like the federal program, on-site mitigation is preferred, but off-site mitigation will be considered if there are significant long-term values to the mitigation project.307 Mitigation banks and in-lieu fee programs are also used approval by the FDEP or the appropriate WMD.308 Mitigation is generally not considered by the state in potential cases of significant degradation to Floridas waters, when endangered species are put at risk by the project, or if proposed mitigation is likely to fail.309 An applicant must also provide 100 percent financial assurance of the estimated cost of the mitigation proposal by providing proof of financial resources w the estimated cost of mitigation is $25,000 or more.310 The Southwest Florida Water Management District (SWFWMD) is responsible for overseeing wetlands activit ies in 16 Florida counties, including Hillsborough County bordering the eastern side of Tampa Bay. This does not include the permits for activities within the district that must be approved or denied directly thr ough FDEP. The FDEP is generally responsible for revi ewing permits for projects ha ving complex issues such as
96 r e r o 7 for the St. ishing Wetlan explore wetland losses in Florida. s serves as an approximation of wetland boundaries and is n For f 0 projects th at also need a wa ste treatment or management permit, mining projects, powe plants, communication lines, natural gas act ivities and facilities, docking facilities, government navigational dredging project s, and high speed rail facilities.311 All other (standard) permit applications are directed to SWFWMD. Under the Florida Forever program, SWFWMD receives over $26.5 million a y ear for projects initiated through th program.312 Aside from statewide programs, SW FWMD runs numerous projects and programs. For example, the Adopt-A-Pond program encourages groups to restore o rehabilitate stormwater ponds. The Aquatic Plant Management program is designed to minimize invasive species. The FARMS pr ogram provides incentives to farmers wh install and maintain irrigation best management practices. These are just a few of the 1 local and statewide programs and project s SWFWMD implements. As of August 29 2008 SWFWMD has 255 permits pending review.313 Craig Pittman and Matthe w Waite, award winning envi ronmental journalists Petersburg Times launched a special series on wetlands in 2005 titled: Van ds. In this nine-part series, Pittman and Waite They begin by addressing the issue of wetla nd data in Florida. The National Wetland Inventory (NWI) was created in 1976 with the purpose of mapping wetlands in the United States. While Floridas wetlands ar e mapped, much of the data is more than twenty years old.314 The NWI data ot intended for jurisdictional purposes. Pittman and Waite revealed a flaw in the Corps permitting program, and perhaps the Co rps relationship with big business. instance, Wal-Mart applied for a nationwide permit claiming only one-tenth of an acre o wetlands would be affected w ithin the St. Johns River WM D boundaries, when in fact 1
97 as rm n Corps employee told reporters the Section 0 Thousa up for the dama ge by creating wetlands, the agency nt on projects with only a tenuous loridas Secretary of the Departm ent of Transportation, Denver Stutler, argued that transportation is the backbone of our economy and that we cannot afford environmental protection if our economy is not strong. Apparently Stutler thinks we must destroy wetlands in order to protect them There are at least 100 environmentally-concerned organi zations in Florida ranging from well-organized national societies like the Sierra Cl ub with branches throughout Florida to county-wide programs like Keep Hillsborough County Beautiful, Inc.; from neighborhood initiatives such as the Earth N Us Farm in Little Haiti, Miami to groups acres would be im pacted by the project (as determined by the WMD). The Corps w later sued for ignoring the cu mulative impact on Florida, a nd is now required to perfo a study examining the long-term impacts of the Corps permit program on wetlands in Florida.315 Cumulative impacts are a pressing concer n, but they are give n little attentio by the Corps. On no-net-loss the St. Petersburg Times reports that from 1990 to 2005, Florida lost nearly 85,000 acres.316 A recently retired 404 program is simply a make-believe program and that mitigation is a fraud.317 Floridas permitting program has offere d little more protection than the federal program in terms of mitigation projects a nd permit denials. In late 2005, Jeb Bush released his plan to spend an additional $3 billion on top of the original proposed $1 billion of federal and state money to sp eed up the states road building projects.318nds of acres of wetland s will be dest royed in the process. Pittman reports: The DOT destroys more wetlands than any other state agency. When the DOT has tried to make has run into expensive problems. When it has paid other ag encies to do the work, the money has been spe connection to balancing out wetland losses.319 F320
98 at cross international boundaries like th e ReefKeeper Interna tional or the Florida Caribbean Chapter of the American Bamboo ociety. Florida is a place with unique habitats, landscapes, creatures, and even a threatening number of exotic species. For some, Florida is also a place to escape to, a retreat to a tropical paradise.321 The same lands some and malls difficult. different jurisdictions. study wetland values and hazards. protection are related to wetland protection. Yet others argue that local pro tection is n ecessary to ensure the highest quality of management and supervision. This is ev idently a concern as twenty counties in Florida have opted to develop countyw ide wetlands programs separate from the states program. Hillsborough County is one of the counties that decided to develop their own wetlands protection rules. The following chapter will demonstrate the battles between the Corps, state, and county offi cials, developers, environmentalists, and citizens in Hi llsborough County as a case-study on wetlands protection. th S value as unique and natural are th e ones others want to build homes on, and others want to use for recreational activities. Despite so many special interest groups for and against wetland conversion to urban and agricultural uses (and regional differe nces within the state) Florida does have a progressive and arguably successful system of managing wetland resources. William Mitsch and James Gosselink suggest that states are more likely to be successful in wetland protection programs than local governments for the following reasons: 1. Wetlands cross local governmental boundaries, making local control 2. Wetlands in one part of a watershe d affect other parts that may be in 3. There is usually a lack of expertise and resources at the local level to 4. Many of the traditional functions of states such as fish and wildlife 322
99 nmental r h ction in their county plans hs Chapter 7 A Case-Study on Wetlands Protection in Hillsborough County, FL The U.S. Army Corps of Engineers and Florida Department of Enviro Protection shape their wetlands protecti on programs around budgets and pressure from citizens. Local governments are similarly sh aped by demands specific to the community. One could argue that the public can more effectively shape county policies than state o federal policies. Some argue that county wetland programs in Florida waste taxpayers money and simply duplicate st ate and federal regulations.323 Others are concerned wit extra fees and delays that burden applicants with a county program.324 Still, others demand their local government provide extra protection and local oversight of wetland use. Many county wetland programs in Fl orida developed in the 1980s and 1990s.325 There are currently twenty c ounties that have a wetlands regulation program separate from the state.326 Many other counties address wetlands prote or codes.327 Hillsborough County provides an excellent example of the wetland conversations that localities across the state and nation are involved in. Hillsboroug residents have contributed to the conversations of the c ountys Environmental Protection Commission (EPC) regarding these ecosystems. In this chapter I address the role of Florida counties in wetlands protection, the history of Hillsborough Countys EPC and its Wetlands Management Division, the permitting controversy that arose in the su mmer of 2007, and the role of Hillsborough
100 if the nd illsborough County applied for assumption of the singlef amily g y d. Countys Wetlands Managem ent Division (here on addressed as the Division) today. I conducted surveys and interviews of c ounty level officials in Hillsborough and elsewhere, asking a series of questions in hopes of better understanding the possible impact local governments can have on wetlands protection in Florida. Counties in Florida demonstrate various approaches to local wetlands protection. Florida Statute 373.441 provides the option for counties to assume the state Environmental Resource Permit program (which includes wetland use permitting) local government is financially, tech nically, and administratively capable.328 By the e of fiscal year 2007, only Br oward County assumed the state Environmental Resource Permit program.329 However, H permit portion of the state program. Some counties have a separate permittin process from the state, requiring applicants to apply to both the state and local permit programs. Hillsborough County combines the state and county permit application to make the application process easier. Counties that do not have local wetland permitting have the opportunity to provide feedback to their Water Management District (WMD) which has state jurisdiction, or to the FDEP in the panhandle. In September 2008, I administered a survey combining open-ended and closedended questions directed toward county o fficials most familiar with local wetlands protection. (See Appendices A, B, and C for the su rvey and tables of results.) The surve was sent to every county office in Florida. Of the 67 counties, 34 surveys were returne The response rate of 51 percent may create a bias in the counties th at chose to respond (e.g. less busy, no program or an extensive program, local pressures to respond to the public). Lack of time or inte rest, lost surveys, surveys a ddressed to the wrong person, or
101 o wetlands use regulat n in t zoning e tion tate nd pollution or other human disturbances. Counties reporte ther reported differences include vegetat ing other work pressures are possible reasons for not receiving responses from 49 percent of the counties. Recall that 29 percent of Florida is covered by wetlandsthe highest percentage of land surface of all othe r states in the lower 48 United States.330 Of the 34 counties that responded, only four (12 pe rcent) reported having n ions or protecti on at the county level. Wetland use regulations and protectio this survey differs from the criteria used by St. Petersburg Times to determine that 20 ou of Floridas 67 counties have a distinctive county progr am dedicated to wetlands protection. In this survey, wetland use regul ations or protection within a county may include, but is not limited to, wetlands use permitting programs, county plans, and and development regulations. When asked how their county wetland pr otection compares to the state and federal protection, out of 30 counties reporting some form of wetlands protection at th local level, 11 (37 percent) reported having similar protect ion as the state and federal programs. 13 counties (43 percent) reported mo re protection at the county level than the state and federal levels. 12 of the 30 coun ties having some type of wetlands protec reported setbacks and buffer zones as a prim ary difference between the county and s programs. A setback or buffer zone refers to a specific distance separating construction activities from wetlands. The zones generally consist of natural or managed areas a serve as protection for wetlands from d buffer zones from 25 to 75 feet from the wetland delineati on line. Of the 30 counties with some sort of wetland protection, 9 counties specified th at they rely on the state for permitting and enforcement of wetland use. O ion protection (not allowing mowing), protection for isolated wetlands (includ
102 SWAN ce and min pacts to wetlands when at all possible, and if not, then minimizi ng a projects impact as much as possible through the considera tion of reasonable alternatives. Twenty-three of the thirty-four countie s reported the initi ation of wetlands regulations at the county level sometime between 1980 and 1996. When asked if their county plans to take over the state wetlands permitting program, an overwhelming majority of the thirty-four respondents (97 perc ent) reported some di scussion or not at all likely to occur. Respondents reported seve ral pros and cons of their local county wetlands protection. On the positive side, ma ndated buffer zones, consistency with the state process, and stricter programs than th e state were common responses. Some county officials reported local problems including insufficient wetland protection, too much reliance on state and federal programs, no c ounty permit process, the need for larger buffers, and weak compliance and enforcemen t. One county reported having unqualified staff and another considered their program to not [be] very progressive. Of the counties that had no wetlands protection rule s (10 of the 34 counties), half of them reported it was not at all likely the county will create wetlands protection rules in the next two to three years. Only two counties viewed county wetlands protection rules as somewhat likely in the near future. Obviously, many counties in Florida are involved in local wetlands protection. Many of the responses received were well-thoug ht out and extensive. For example, one county official examined thei r local program stating: The County recognizes the actual wetland as a primary zone with CC exemptions), maximum disturbance of 5 percent, and additional avoidan imization requirements. Avoidance and minimization refers to avoiding im restrictions in accordance with state a nd federal law. Further, we reserve
103 order approval process. In additi on to the primary zone we have a and accounted for in development plans. Some counties reporting no local program stated that the co unty offers recommendations to the local WMDs regarding wetland use d ecisions within the county. One official explains that all wetland issues are forwarded to the FDEP or WMDs. Our land Development Code does not support the pe rmitting of wetlandsbut developers must first obtain a permit from the state prior to impacts. Conservation [or protection of] wetlands [is] required for large developments but not for a single family home owner.2 Availability of funding, development demands within the county, and amount of land available for use may all impact a countys decision to protect wetlands beyond the state and federal programs. One thing is certain, many county officials are talking about wetlands and no one seems to believe their county has the ideal solution for governing wetland use. Hillsborough Countys EPC is a separate entity from Hillsborough County, and was created in 1967 by an enabling act of the Florida legislature authorizing the EPC to adopt appropriate rules and regulations reasona bly necessary to provide for the effective and continuing control and regulation of water pollution in Hillsborough County.3 The Hillsborough County Commissioners serve in a separate capacity as the EPC Board. The EPC acts as an environmental extension agent to the citizens in Hillsborough and has administrative and legal departments separate from the county. The EPC believes it is within the countys auth ority to issue and deny authorizat ion of activities that impact wetlands and other surface waters under the EPC Wetlands Rule. The county created its W etlands Management Division in 1985 a nd the Division has played a role in the jurisdiction to approve/ deny dredge/fill activities through developm ent secondary protection zone or buffer of 25 feet which must be preserved 331 33 33 334
104 d nearly 1987, rdwood anting an orange grove. While the EPC co the arlie ls es in ear tion sites a ealthy mitigation project should look like. Bob Stetler, supervisor of the protection of wetlands ever since.335 In March 1987, Hillsborough residents vote 3:1 in favor of a tax increase to protect e nvironmentally sensitive lands. The money was immediately used to purchase over 1 0,000 acres throughout the county including wetlands within Cockroach Bay, Lithia Springs, Buckhorn Springs, and other marshes and riverbeds that offer a habitat to birds, fish and other species.336 Also in March a farmer in Hillsborough was ordered by the Division to restore 11 acres of ha swamps he illegally cleared with the intenti on of pl ped with wetland issues prior to the creation of the Division, this was one of largest illegal clearings the EPC handled in almost a decade.337 The landowner Ch Buzbee asked the county investigator, Are you trying to tell me what to do with my land?338 The owner insisted the land needed to be cleared for farming. County officia expressed that they believe Buzbees clearing was an honest mistake due to the farmers advanced age. In 1987, wetland mitigation was still a rela tively new idea with some advanc technology and knowledge increasing the succe ss rate of wetland restoration. A y after the Division was fully functioning, a sta ff biologist investigated mitiga approved by the EPC in previous years findi ng that 20 percent of the sites were not successful and overgrown with nuisance and invasive exotics.339 One problem developers, scientists, and environmentalists r un into is reaching a consensus as to what successful, h dredge and fill permit section of FDEP told the St. Petersburg Times in 1987, Mature cypress trees and the grasses that can grow under their canopy of shade function differently than a young stand of trees that provide no shade and share space with
105 use of y. The ommi different types of grasses.340 An environmental lawyer shared his concern with journalist Frank DeLoache that we are designing the wetlands around the developments rather than the development around the wetlands.341 That year, the EPC responded by requiring companies to monitor new marshes and grassy ponds for three years and new hardwood forests for five years. The ne w policy required developers to report the environmental condition of the sites to th e EPC quarterly in the first year and semiannually or annually in subsequent years.342 Hillsborough County Commissioners voted three times since the Divisions creation (in 1989, 1996, and 2007) on whether or not to keep major aspects of the Wetlands Management Division. In May 1989 landowners and development lawyers spoke out about the pitfalls of the county wetland regulations.343 Opponents argued at EPC hearings in May and June that the rule s defining wetlands unfairly limited the property, included too many types of land, a nd were enforced too strictl cssion proposed changes including limiting the kinds of plants used to define wetlands, waivers for certain types of land uses such as fish farming and digging irrigation ponds, and establishing a public interest balance test for land use authorization.344 By a 6-1 vote, commissioners ultim ately decided to leave the wetlands rules the same. Yet the commissioners urge d the EPC to develop better relationships with landowners affected by wetland rules a nd to enforce the rules more uniformly and fairly.345 The 1996 debate stemmed from large landow ners concerned with the significant role county environmental laws played in land use. With a struggling agricultural economy, farmers were particularly concerned.346 Still, the EPC citizen advisory
106 oles n, twice. use nd tion comm ittee voted 12-5 to reject changes that some argue would have provided looph for developers by avoiding oversig ht in certain circumstances.347 The concerns expressed by landowners did encourage the EP C to consider streamlining federal, state and local wetlands regulations under one ag ency. In 1996, the EPC, SWFWMD, and the Corps all claimed jurisdiction over wetland s within Hillsborough County. Time wise, this is not necessarily a burden on develope rs because if the EPC approves a project, SWFWMD and the Corps will also approve in re latively short order. The real problem developers had was not with the number of en forcing bodies, but the stricter regulations of the EPC. Roger Stewart, executive director of the EPC in 1996, argued that developers favor SWFWMD b ecause more often than not, the WMD allows destruction of wetlands as long as landowners promise mitigation.348 SWFWMDs former regulation director John Heuer disagreed, arguing that the WMD can allow greater flexibility because they examine the ecosystem of an entire region, not just a single county.349 In 2007, the Division did not simply face a ru le change, it faced extinctio The first instance occurred in March 2007 when a sentence was added to a Florida Ho bill by panhandle Representative Will Kendrick (R-Carrabelle) that read: In order to avoid duplication and inefficiency, no local government shall enact or enforce a wetla regulatory program unless a county is appr oved for assumption of the state program.350 The St. Petersburg Times reported that the bill would resu lt in a loss of legal protec for about 3-million acres of Florida wetlands.351 The Florida Home Builders Association and the Association of Florida Community Developers lobbied for the bill arguing it would take thousands of dollars off of the cost of a new home and limit the wetland permit process to a single standard in stead of three. Re presentative Kendrick
107 EPCs budget h 4 t 359 One Hillsborough resident, Manfred Liebner wrote t was singled ou t Hillsborough County for was ting $2.2 million annually on additional wetland protection, more than any other Florida county.352 However, the cost to taxpayers is not as significan t as Kendrick makes it out to be. Over half of the comes from sources outside the county budget (e.g. fees collected, grants).353 The EPC protested that the county provides protection to wetlands less than a half acre whic the state does not regulate. For example, in 2006 the Division reviewed 446 wetlands permits while SWFWMD re viewed only 166 permits within Hillsborough County.35Representative Scott Randolph (D-Orlando), an opponent of the am endment, argued tha local governments are best able to unde rstand and respond to the demands of its citizens.355 Tampas Republican representative, Fa ye Culp voted in favor of Kendricks amendment, even though Hillsborough County co mmissioners urged Culp to vote against it.356 Ironically, just one month earlier, Hillsborough County considered creating stricter wetland regulations by increasing the 30 foot buffer zones around wetlands to 50 feet The larger setbacks were not passed due to strong protest from developers.357 In April 2007, EPC commissioners voted to study the EPC and planning and growth management departments of the county to eliminate duplication of state wetlands protection within the county. After months of discussion, in June 2007 Hillsborough County commissioners voted 4-3 to di sband the EPC wetland division entirely.358 Some of the decision was based on the states pr operty tax rollback th at would reduce the countys budget by up to $90 million. o The Tampa Tribune express ing that the EPCs vote to eliminate the Division the most boneheaded, shortsighted and dumbest decision this county commission has ever made.360 Liebner suggests that the future of Hillsborough will be wall-to-wall
108 blic zer cres EP C would ds age) to iding projects near wetlands altoge the r, eliminating the need fo s concrete if the Divis ion is eliminated.361 The County Commission scheduled a pu hearing on the matter providing an opportuni ty for EPC executive director Richard Garrity to present a plan for stream lining the wetlands permitting process.362 While developers and other opponents of the EPCs wetland division continue to argue the duplication of the st ate process, the fact is that Hillsborough County protects wetlands less than half an acre including many isolated wetlands, and only considers wetland destruction when no other reasonable use of the property is available to the landowner. The Tampa Bay Builders Associat ion, a chapter of Fl orida Home Builders Association, lobbied the comm issioners to eliminate the c ounty Division. Also, a local developer Stephen Dibbs as well as a phospha te company (Mosaic Fertilizer) urged the county to save taxpayers money a nd eliminate the wetlands division.363 Mosaic Fertili owns thousands of acres in Hillsborough Count y and plans to mine more than 1,500 a of its land.364 While SWFWMD would approve most of the project, the protect 200 acres of wetlands beyond state regulations.365 Florida TaxWatch contends that the county could reduce spending by $1 million by drastically reducing its wetlan division.366 TaxWatch further argues that the EP C takes 144 days longer (on aver process each permit, and its permits are 22 times more expensive than SWFWMDs.367 Garrity pointed out that this 2006 data did not consider the h undreds of projects EPC staff worked on that resulted in avo r permits in those cases.368 Local developers with small businesse s have differing views of the wetland division. William L. Dean, a Plant City sm all-project general contractor, wrote to The Tampa Tribune expressing his belief that smaller developers and contractors like him
109 hat liminate five jobs (two of which were e nds cess r of have com e to understand and respect the im portance of even the smallest of local recharge areas as they relate to the over all health of the envi ronment and have found ways to incorporate them into the plans.369 Dean felt betrayed and angered by w appears to be a tendency by some on the comm ission to put the interests of a powerful, vocal and well financed few ahead of the concerns of the greater public.370 However David Campo, a local development consultant described the EPC permit process as a dreadfully painful experience: think IRS aud it, local automobile tag office, drivers license office, colostomy, root canal, and emergency room visit all rolled into one.371 The City of Tampa is one of many supporte rs of Garritys pla n, stating that the City would propose a wetland division if th e commissioners do away with the county Division.372 Garritys hybrid plan proposed to e vacant) and speed up the review process on building projects.373 The EPC would b required to create a wetlands adviso ry committee made up of scientists, environmentalists, and developers.374 Ditches, cattle ponds and other artificial wetla would be exempt from protec tion under Garrritys plan.375 Under the plan, the EPC would also create a handbook to guide a pplicants through the permit process and requirements.376 The new plan is projected to save the county $367,859 annually, and it is intended to consolidate local, state, and federal approval making the permitting pro faster and more efficient.377 Another avid supporter of the wetlands progr am is Jadell Kerr, former directo the Wetlands Division of the EPC. He r support went beyond the EPC Board and Division discussions when she publicly critic ized the commissioners and their decisions in an online blog site ca lled Sticks of Fire.378 Kerrs June 24th comments posted on the
110 nt who lso acts as a political l 2007 Dr. Richard Garrity presented the hybrid plan to the EPC Commi the Board chambe rousing m, Dont Pave Em, and depositing 60 cents th e programs cost per citizen into a tip jar.383 Former EPC chief Roger Stewart was one of many outspoken wetland division supporters at the hearing. Stewart critic ized the commission for only allowing each speaker one minute to address the Board. Other ex-officials, including former Commissioners Chris Hart and Big Jim Selvey attended the hearing in support of Garritys plan. Garritys presentation included information on Hillsboroughs wetland types and functions, their ecological im portan ce, and the effects wetlands have on water quality within the county. He also presented the environmental benefits from the EPC blog and exposed by the press, first resulted in a two-week suspension and ended with a forced resignation. The EPC offered Kerr four months severance pa y with an agreem e not to sue the county, ending her 15-year career with the EPC.379 Richard Garrity insisted the resignation was mutual.380 In the blog, Kerr accuses Todd Pressman, sits of the Governing Board of SWFWMD, of being involved in the plan to eliminate Hillsboroughs wetland division. According to Kerr, Pressman a consultant to developer Ste phen Dibbs. She contends that Dibbs had a controversia development plan for a series of pipelines not likely to make it past the EPC, but would likely be approved by SWFWMD. Finally, she writes, these arrogant commissioners have to go.they are not lis tening to us. The Planning Commission is next, be on the watch.381 On July 26 ssioners. The St. Petersburg Times reported an overflowing crowd in rs speaking out in support of the wetlands division.382 The Times painted a picture of citizens storming in with t-shirts that read WETLANDS Save E384 385
111 buffers, tion lack of local permitting And reg-u-la-tors of county hire for pro-tec-tion of it did pray. best!" request. In fiscal year 2007 (October 1, 2006 through Septem ber 30, 2007), the EPC wetlands division proved its worthiness. The Division completed 438 wetland delineations, reviewed 20 applications for mangrove trimming, and reviewed 1,386 projects associated with development (som e impacting wetlands, some not) throughout unincorporated Hillsborough County and its m unicipalities. The Division received 43 applications to impact we tlands, with 22.15 acres of we tland impacts and 125.71 acres of wetland mitigation being authorized. To ensure compliance, 50 inspections were conducted, with 94 percent of mitigation sites found to be in compliance. The Division wetlands division including wetland treatm ent of stormwater and natural wetland more efficient manner of meeting Total Ma ximum Daily Loads of nutrients and other pollutants into county waters, protection from flooding and storm surges, and protec of critical habitats.386 The impacts of eliminating the EPC Division include less responsive investigation and enforcement, re duced compliance process, and total reliance on less effective state programs.387 The Board of Commissioners voted in an August 2007 meeting to keep the wetlands division, but with cutbacks and ch anges to wetland protection using Garritys hybrid plan (the plan). The commissioners at tempted to appease voices from both sides. St. Petersburg Times columnist, Howard Troxler publishe d a catchy carol in response to the commissioners decision to reduce the Division entitled, They Came Upon a Wetlands Clear: They came upon a wetlands clear, in Hillsborough County one day, "You fools!'" cried angry co-mis-si on-ers, "for aspha lt and condos are And so, they gutted the rules hen ceforth, at their monied buddies' 388
112 ent d o ith land use, specifically wetland intere st and reasonable use tests to determine irst prove that the proposed activity does not onable use is the proposed remains responsible for de lineation of wetlands within the county. al question by an rced by the responded to 660 citizen com plaints and issued 165 warning notices for alleged violations. 81 wetland violati on cases were escalated to administrative enforcement and 63 enforcement documents were executed. Furthermore, the EPC received only 47 percent of its budget from the countys gene ral revenue fund. The remaining 53 perc came from fees collected, grants, contacts and other funds.389 Since the foundation of the United Stat es and even the foundation of western civilization, farmers have used land for agricu lture and carpenters have used land to buil homes and businesses. Perhaps it is the natu ral order of things fo r todays landowners t argue their right to use priv ate property for seemingly reasonable purposes like farming and building. Many consider roads, homes, st ores, crops, and irrigation to be logical and practical uses of land. So, where do we draw the line w use? Hillsborough County uses public wetland use. Because wetlands offer public benefits like water quality, flood control, and aesthetic appeal, a landowner must f negatively impact the public interest. Then, they must prove that no other reas of their land exists for before a permit to impact wetlands is approved. If a permit approved, the county determines mitigation re quirements needed to offset impacts. The Division This may include delineations requested by the county or a landowner. Jurisdiction delineation is determined through a field a ssessment of the property in EPC environmental scientist.390 If an applicant applies for a permit for construction in a wetland area, adequate protecti on of environmental benefits must be enfo
113 andating use atible sal l d produce the greatest net return in a given period t r acquired perty 8. Division (e.g. perm it denial, suggesting reasonable alternat ives, or m mitigation).391 The county defines reasonable use of the land as an actual, present or activity on a parcel of land which is suitab le for the parcel of property and comp with adjacent land uses.392 The rules specify that reasonable use does not mean the highest and best use of property. This is an important distinction because a property use may be identified as a reasonable use without being the highest and best use of the property. The highest and best use of property is a method used in real estate apprai that identifies which use of a property wou of time.393 The highest and best use must co mply with all laws and regulations including county codes and ordinances.394 The Division considers eleven factors when determining if a proposed property use is reasonable: 1. current zoning of the property 2. whether the land would lose all economic value upon denial of the wetland impac 3. existing use of the property 4. a survey showing the parcels wetlands, setbacks, and buildable areas 5. any reasonable alternatives when the proposed activity is for access roads 6. documented efforts by the applican t to avoid impacting wetlands 7. wetland or other surface water regulations in effect at the time the owne the pro whether the purpose of the proposed activ ity is solely for an environmental restoration project or other envi ronmentally beneficial project 9. efforts of the landowner to obtain waiver s or variances from other development restrictions that would result in wetland or surfac e water impacts
114 or permanent.398 However, temporary or nominal impacts 10. whether th e impact is necessary for public health and safety 11. any other circumstances or information important to the development of the property (e.g. unusual topography or unique engineering requirements).395 It is the applicants burden to prove that they cannot get a ny other reasonab le use out of the property. The Divisions Mike Thompson admits this is a high bar for applicants.396 The decision to approve a wetland impact pe rmit and the methods for mitigation are two separate processes within the Division. M itigation is not used as a justification for approval of a wetland impact permit.397 Once the Division determines that an ac tivity represents reasonable use of the land, the Division then decides how to mainta in the environmental benefits provided by the wetland. The applicant must address the adverse impacts through mitigation whether the proposed impacts are temporary do not require the same level of mitigation as permanent impacts. The Division conducts engineering reviews before and after the project takes place. Reviews help to protect wetland and aquifer hydrology and to ensure water quality is maintained throughout the project.399 The EPC timeframe requires that wetlands staff will issue comments through either an approval letter or request for additional information within 30 days of receiving a complete application for wetland impact and mitigation proposals.400 The Division applies the Uniform Mitigation Assessment Method (UMAM) to assess the type of impact and proposed mitigation, including the preservation, enhancement, restoration, and creation of wetlands and an evaluation of the use of mitigation banks.401 The UMAM determines the func tional loss of impacted wetlands
115 EP ds and other surface waters to ensure state-wide mitigation consistency. The method ssment ted ntal d does to d wetlands must be fully restored or the functional loss must be mitigated.409 Opponents to and the f unctional gain of mitigated wetlands. The Florida Legislature directed the FD and the four WMDs responsible for the st ate ERP program to develop a UMAM for wetlan went into effect February 2, 2004 and is the sole method of mitigation asse used by state entities.402 Appendix D displays the forms used by governments throughout the state including the Hillsborough EPC to determine the UMAM for wetland impacts. Hillsborough County consider s quality and quantity of the impac and mitigated wetlands using a numerical scale that ranks various categories of wetland characteristics.403 When mitigation is required, the c ounty requires at least an acre for acre replacement of the same or better quality wetland providing the same environme benefits lost in the impacted wetland.404 Furthermore, the entire mitigation project must be within Hillsborough County.405 There are several mitigation exemptions in the county program. The applicant is exempt from mitigation requirements if the proposed activity will permanently impact 500 square feet or less of an artificially created ditch to develop a crossing (for a maximum of two crossings at least 500 feet apart).406 This exemption does not apply if the impacted ditches divert historical perennial or intermittent streams or creeks.407 Wetland impacts of one quarter acre or less in size are also exempt from mitigation requirements if the total impacted area on the pr operty is less than one half acre (an not impact endangered or threatened species ) and the property is used for agricultural purposes for at least five y ears from the date of impact.408 If the property is converted other uses within five years by the same landowner or a new landowner, the impacte
116 e s are p.410 ected y hey do ases I n nal ases, endangered or e this exem ption argue that developers can le ase a property for agricultural uses for fiv years, destroy wetlands on the land during that time, and develop when the five year u I exam ined wetland impact permit applications that were approved by the Division in 2007 and 2008 after the hybrid plan was approved, but before the singlefamily permits were streamlined with the state and federal process.411 My data coll from the case files is located in Appendix E. It could have been beneficial to also examine denied permit applica tions; however the cases I reviewed were pre-selected b the Division staff intended to represent typical permits resulting in mitigation. T not offer a representative sample of all perm it applications. In all of the nine c reviewed, the mitigation requirements resulted in a higher quantity of wetlands and a increase in ecological function, or functional lift. The Di vision calculates the functio lift by adding together the f unctional loss of impacted wetlands (a negative number) and functional gain of mitigated wetlands (a positiv e number). Six of the nine files resulted in permits allowing impacts to low quality wetlands (e.g. dominated by invasive or nuisance species, poor water quality, previous ly built ditch) and mandated higher quality wetland mitigation (e.g. improved water qualit y, desirable wetland vegetation, habitat to an increased number of wild life species). In three of the nine c threatened species were found within the impacted wetlands.412 The permits wer approved because nearby wetlands offered a habitat for the threatened and endangered species affected, the wetland impacts were only temporary, or the mitigated wetlands would provide a habitat within close proxi mity of the impacted wetland. The cases
117 t of pliance officer.413 Since 2005, the EPC has agreed e ons ies e applic ations submitted to the countys planning appeared to be thoroughly exam ined by Di vision staff including field examinations, series of scaled maps, and consistent dial ogue between the staff and the applicant. The current wetlands plan offers a number of benefits to taxpayers compared to the state and federal programs. The manager of the Permitting Section of the Division, Mike Thompson shared a number of these bene fits in an interview in October 2008. The Division has a strong compliance and enforcem ent department compared to tha SWFWMD or the Corps. As of August 2007, The Tampa Tribune reported that SWFWMD had only one desi gnated com in a Mem orandum of Understa nding (MOU) with SW FWMD to do the compliance on state permits.414 Since Hillsborough Countys wetland permit requirements are more strict than the stat es, the county would already be enforcing compliance for the projects receiving stateissued permits. While customer service improvements and regulation changes are some of the improvements Thompson noted, h argues that the unfortunate budget and staff cuts came at what was perhaps an ideal time. With an economic slowdown, the Division bega n to receive fewer permit applicati and is continuously finding ways to become more efficient.415 However, the compliance section has not seen a decrease in activity, as much of the big development activity of the past decade (especially 2002-2006) is still being mitigated.416 The Division has a relationship w ith SWFWMD, the Corps, Tampa Port Authority, and phosphate operations. The Di vision is responsible for commenting on applications for development activities affecting wetlands submitted to other agenc such as Hillsborough County (planning, zoni ng, etc.) the Tampa Port Authority, and municipalities. This may includ
118 departm f uld r ations o 8 The county is not taking over the entire state ERP program at this time be e ent for projects impac ting buffer zones set by the countys planning department, but areas not delineated as wetlands. It may also include applications submitted to another county department in which wetlands are indirectly impacted or the impacts fall within permit exemptions with the Division. Further, the Division submits comments to the Tampa Port Authority. In November 2007, the EPC agreed to delegate minor works activities such as docks, rip rap, and maintenance dredging to the Tampa Port Authority.417 EPC is working with SWFWMD to en sure consistency in delineation and UMAM processes through their MOU. Garritys hybrid plan dir ected the EPC to investigat e assumption of a portion o the state permitting program. In January 2008, the EPC applied to the FDEP for partial delegation of the Environmental Resource Permit program (ERP program). This wo also include delegation of Programmatic Ge neral Permit authority from the Corps fo single-family property reviews that impact wetlands. Single-family permit applic refer to any project impacting wetlands on a single-family property such as construction of a private dock and minor fill activities for reasonable use of the property. The application is currently in th e process of receiving state comments and county responses. The implementation of the states ERP progr am by Hillsborough County is estimated t start early 2009.41 cause single-family applicants account for approximately 10 percent or less of th total permit reviews within the county.419 The assumption will save time and will not cost the county taxpayers any extra m oney. The EPC and SWFWMD are simply combining the two permit programs making it a more efficient one-stop permit process for single-family applicants.
119 o d and floods during th e growing season. Phosphate miners are controversial players in the wetlands disc ussion in Hillsborough County. Aside from impacting the quantity and quality of wetla nds through new mining projects, reclamation of previously mined areas for wetlands restoration is risky. The Florida Institute of Phosphate Research, an independent state research agency, reports that soil radium, phosphor-gypsum, and radon (a known cause of lung cancer) are by-products of phosphate mining and the fertilizer process, so public health must be considered when reclaiming old phosphate mines. 420 If wetlands are restored on old phosphate mines, the wetlands may become a part of the local watershed impacting public and environmental health with phosphor-gypsum, radium, a nd phosphorous seepage into the ground and flood waters.421 Through the years, developers have demons trated that they have no use for the EPCs wetlands management division, seek ing loopholes, fighting the division in its entirety, and lobbying local and st ate legislators to eliminate the Division. Can we blame them? Their professional goals are to make money building homes and businesses for residents, and wetlands protection costs them money. With more than 29 percent of the The citizens of Hillsboro ugh County are very much interested in the role the EPC plays in defining wetlands and wetland use. Each citizen brings a different perspective t the table from environmental activists of the local Sierra Club to environmental lawyers who represent big name developers. At th e same time, farmers perhaps have a unique relationship with wetlands. The purpose of their professional life is to produce food an other crops for human consumption. Farmers feed people, provide cotton for clothes, and raise cows that produce milk. Wetlands are a nuisance to farmers. Wildlife eats their crops and the low-lying l
120 state consisting of wetlands, developers have e finding land that is free of any and all wetland impacts.422 Environmentalists also sp eak out toward the Divisionbut for more landscape protection, not less. Hillsborough Countys EPC and the Board of Commissioners act to appease the many anding very different actions. We should ask ourselves if the EPC has me tions for wetlands protection or if there is County a tough tim voices dem t our expecta a better and more practical appro ach. Perhaps there is, but Hillsborough currently offers the state and nation a work ing example of a reasonably well-thought out local wetlands program.
121 nds for governme nt intervention in the use of wetlands. Most Americans agree th quality, vival is rowth, nd Chapter 8 Conclusion Over the course of American history, our culture has developed a better understanding of the functions and values of wetland ecosystems. This understanding led to greater dema at wetlands need some level of pr otection because they enhance water wildlife support and flood cont rol. Advances in scientif ic research and geographical studies have impacted our perspectives of these unique ecosystems. The more we learn as a culture, the more our demands shift. Food, water, and oxygen are irreplaceable necessities of life that no level of technology can replace. Simply put, human sur dependent on nature, including wetlands. While our capitalistic cultu re promotes g development and the mass production of cons umer items, our innate needs for clean water, food and air balance consumer demands. Our relationship to nature impacts how we address environmental problems. The wetlands conversation within a locality is dr iven by the connection residents have with these ecosystems. Humans have a tendenc y to connect with su rrounding natural areas through topophilia, ones bond to their direct environment and biophilia, humanitys innate love for living things. Our percepti on of wetlands influences our views on wetla policy. Some perspectives lean toward pers onal freedoms while others favor sustainable stewardship. Wetlands are generally harder natural areas to protect. They are often
122 c tland regulation and protection in response to inadequacies of the fed n and opportunity to ing ient e e t their viewed as swampy grasslands or mosquito-r idden bogs with little aesthetic appeal. Floridas wetlands are especially flat and heavily vegetated, and may even lose aestheti battles juxtaposed against a nicely designed office building and subdivision. Yet, state governments develop we eral governments Section 404 progr am and demands of concerned citizens. Several county and municipal governments have responded to residents asking for wetland policies that best meet the unique need s of their locality; requests the state cannot always meet. Government actions are deeply rooted in public opinions. The county government is generally the first place a co mmunity turns to with local concerns or complaints. While some counties in Flor ida do not provide any wetland regulatio protection, many have some type of wetland rules and several have wetland protection divisions. Some counties offer their resi dents little more than the comment on state permit applications. Ot her counties include wetlands rules and enforcement within their master plans. An increasing number of c ounties are consider or already use a wetlands permit program separate from the state program. Hillsborough Countys Wetland Division seems to be moving toward an effic program that offers a clear-cut permit pro cess to applicants. Hillsborough EPCs hybrid plan demonstrates an efficient wetland impact permit process. While they are perhaps th most vocal opponents to county wetlands pr otection, farmers, developers and phosphate companies are not the only ones seeking perm its from the county. Residents may find themselves applying for a permit to fill a wetland as small as a tenth of an acre to achiev desired use of their property. Furthermore, single-family residents may find out tha
123 nd that size would not need state approval. To the state, any wetland under a ha lf acre is not worth the time and resources necessary to protect it. One could argue that an ideal county wetland program would meet the local residents expectations and fulfill all state a nd federal requirements, creating a completely consolidated permit process. This would a ppease applicants, particularly farming and development communities and it has the potential to meet the environmental demands sought out by environmentalists and residents who are looking to enjoy Florida as it is: a series of swamps, lakes, rivers, and beach es. A fully consolidated program may be possible if the Army Corps and Florida DE P provided funding equivalent to that otherwise used to review applications and enforce permit compliance within the county seeking state and federal wetlands permit program assumption. With more time and financial resources one could dig deeper in the local wetlands discussion. I would like to interv iew more people involved with the Corps, FDEP, and Hillsborough EPC to study the perspectives of various staff members. Interviewing local environmental organiza tions and residents including farmers and developers would be very time-consuming, but could tell us more about local opinions and the role individuals and or ganizations play in County d ecisions. A juxtaposition of the history of Hillsborough Countys and Br oward Countys wetland program and permit process would offer insight on the effec tiveness of consolidated wetland permit programs. Such research may also lead to studying the success of wetlands mitigation projects approved by Hillsborough County within the last decade. The success of application to fill that seemingly useless muck-filled hole is denied. If the program in Hillsborough County was not in place, filling a wetla
124 wetlands mitigation projects approved by Hills borough County could also be compared to those approved by either the State or the Corps.
125 Endnotes United States 1780s to 1980s (W ashington, nited States 1986 to 2000) emain in the ous United o 2004. (Washington, D.C.: U.S. Department of Interior, Fish and Wildlife 6) that there was a net gain of 191,750 acres of wetlands between 1998 and t this number did not take into account the quality of these wetlands. ds Losses 4. to the Association of State W etlands Managers, programs include wetland itigation, wetland water qualit y standards, monitoring and assessment, toration, tax incen tives, coordination and public /private partnerships. .org/swp/statemainpa ge9.htm>, updated April 4, 2005. Paradise 1 Thomas E. Dahl, Wetlands Losses in the D.C.: U.S. Department of the Interior, Fish and Wildlife Service, 1990), 1. Thomas Dahl reports in: Status and Trends of Wetlands in the Conterminous U 1997. (Washington, D.C.: U.S. Department of In terior, Fish and Wild life Service, that 105.5 million acres of the original 221 million acres of wetlands r conterminous United States. This figure represents a 52.27% loss from 1780 to 1997. Thomas Dahl reports in: Status and Trends of Wetlands in the Contermin States 1998 t Service, 200 2004, but tha2 Dahl, Wetlan3 Ibid., 10. 4 According regulation and m voluntary res
126 aracteristics and B oundaries (Washington, erican Midwest: A Historical Geography of Changing hicago: The University of Chicago Press 1997), 14. tification, Delineation, oca R aton: Lewis Publishers, 1999) 127. 2425 (Washington, D.C.: United States Geological Survey, 1996) < http://water.usgs.gov/nwsum/WSP2425/definitions.html >. 7 117 million acres converted of the es timated 221 million acres in 1780s, Dahl, Wetlands Losses 5. 8 National Research Council, Wetlands: Ch D.C.: National Academy Press, 1995), 1. 9 Hugh Prince, Wetlands of the Am Attitudes (C10 Environmental Protection Agency, R ecognizing Wetlands: An Informational Pamphlet, . 11 Ralph W. Tiner, Wetland Indicators: A Guide to Wetland Iden Classification, and Mapping (B12 Ibid., 18. 13 Ibid., 21. 14 Ibid., 23. 15 Ibid., 66. 16 Ibid., 66. 17 Ibid., 19. 18 Ibid., 77. 19 Ibid., 128 20 Ibid., 81. 21 Ralph W. Tiner, Technical Aspects of Wetlands: Wetland Definitions and Classifications in the United States, in National Water Summary on Wetland Resources USGS Water Supply Paper
127 Deepwater Habitats of the United States (W ashington, D.C.: U.S. Department of the f Engineers, Wetla nds Delineation Manual Part II: Technical III: Char acteristics and Indicators of Hydrophytic rdin, Classification 3. ment of Agriculture, National Food Security Act Manual 4th ed., Title 180, s Department of Agriculture, 2003). Discovering the Unknown Landscape : A History of Americas Wetlands . arch Council, Wetlands, Characteristics, and B oundaries 42. of literature and prominent views will be addressed in Chapter Four of ing W ashington Irvings T he Legend of Sleepy Hollow and the Old Beowulf 22 Tiner, Wetland Indicators 267; Lewis M. Cowardin, et al. Classification of Wetlands and Interior, Fish and Wildlife Service, 1979). 23 National Research Council, Wetlands: Characteristics and Boundaries 3. 24 Tiner, Wetland Indicators 21. 25 Ibid, 21. 26 US Army Corps o Guidelines (26)(b)(3), and Part Vegetation, Hydric Soils, and Wetland Hydrology (49)(b)(2). 27 Cowa28 U.S. Depart 514.2(G) (Washington, D.C.: United State29 William J. Mitsch and James G. Gosselink, Wetlands, 3d ed. (New York: John Wiley & Sons, Inc., 2000), 571. 30 National Research Council, Wetlands: Characteristics and Boundaries 34. 31 Ibid., 35. 32 Ann Vileisis, (Washington, D.C.: Island Press, 1997), 16333 National Rese34 These works this thesis includ English story of
128 ), raham Whitney, From Coastal W ilderness to Fr uited Plain: A History of al Change in Temperate North America, 1500 to the Present (New York: niversity Press, 1994), 2. rd O., Consilience: The Unity of Knowledge (New York: Alfred A. ), 325. ilience 128-29. cology of Emotion (New York: Routledge, 7-8: Paleolithic pe ople believed in a continuum of all things ood 35 Max Oelschlaeger, The Idea of Wilderness (New Haven: Yale University Press, 1991 8. 36 Gordon G Environment Cambridge U37 Wilson, Edwa Knopf, 199838 Wilson, Cons39 Kay Milton, Loving Nature: Toward an E 2002). 40 Ibid., 150. 41 Oelschlaeger, Idea of Wilderness 5-9. 42 Paul Shepard, Coming Home to the Pleistocene, ed. Florence R. Shepard (Washington D.C.: Island Press, 1998), living and non-living; not a separation of human and natu re; and no separation of g and evil, or subject and object. 43 Ibid., 43-47. 44 Oelschlaeger, Idea of Wilderness 31-41. 45 Ibid., 31-4146 Ibid., 41-67. 47 Ibid., 51-52. 48 Ibid., 32-37.
129 f Wilderness 76-90. can Wetlands as Cultural Symbol: Places of Wetlands in lture, in P.E. Greeson, J.R. Clark, and J.E. Clark [eds.], Wetland Functions State of Our Understanding (Minneapolis: American Water Resources 1979), 529. Wilder nes s; or Getting Back to the Wrong ton & Company, 1996), 69-90. Jackson Turner, The Frontier in American History (New York: Henry Holt 1920). sublime 49 Carolyn Merchant, Reinventing Eden: The Fate of Nature in Western Culture (New York: Routledge, 2004), 12. 50 Ibid., 14. 51 Ibid., 17. 52 Ibid., 18. 53 Ibid., 20-21. 54 Ibid., 26. 55 Ibid., 11-38. 56 Oelschlaeger, Idea o57 Ibid., 76-90. 58 Peter Fritzell. Ameri American Cu and Values: The Association,59 William Cronon, The Trouble with Nature, in Uncommon Ground: Rethinking the Human Place in Nature ed. William Cronon (New York: W.W. Nor60 Fritzell, American Wetlands, 530.61 Ibid., 530. 62 Frederick and Company63 William Cronon, The Trouble with Wilderness , 69-90. The concepts of and frontier are elaborat ed in this text.
130 The Historical Root s of Our Ecological Crisis, in Environ mental Ethics: rks ed. David Schmidtz and Elizabeth Willott ersity Press, 2002), 7-14. he Trouble with Wilderness, 69-90. 0. : A Study of Environmenta l Perception, Attitudes, and Values Cliffs: Prentice-Hall, Inc., 1974), 4. The Hear t of Man: Its Genius for Good and Evil (New York: Harper & 52. Wilson, Biophilia (Cambridge: Harvard Univ ersity Press, 1984), 22. e Heart of Man, 113-4. 1955). 64 Lynn White What Really Matters, What Really Wo (New York: Oxford Univ65 Cronon, T66 Ibid., 69-967 Yi-Fu Tuan, Topophilia (Englewood 68 Erich Fromm Row, 1964),69 Edward O. 70 Tuan, Topophilia 4. 71 Ibid., 59. 72 Ibid., 246-773 Ibid., 12. 74 Fromm, Th75 Ibid, 116; idea also pres ented in Erich Fromm, The Sane Society (New York: Holt, Rinehart and Winston76 Fromm, The Heart of Man 117. 77 Wilson, Biophilia, 43. 78 Ibid., 86. 79 Ibid., 116. 80 Stephen R. Kellert, Kinship to Mastery: Biophilia in Human Evolution and Development (Washington, D.C.: Island Press, 1997), 122.
131 32-43. icit ooks, 2005), 56. : 1254-1269. 81 Ibid., 163. 82 Ibid, 69-72; Wilson, Biophilia, 93. 83 Tuan, Topophilia 14. 84 Ibid., 15. 85 Ibid., 16. 86 Ibid.,87 Ibid., 46. 88 Ibid., 63-4. 89 Ibid., 99. 90 Ibid., 248. 91 Wilson, Biophilia 121. 92 Ibid., 120-1. 93 Ibid., 125. 94 Ibid., 126. 95 Ibid., 131. 96 Howard Gardner, Frames of Mind: The Theory of Multiple Intelligences (New York: Basic Books, 1983). 97 Richard Louv, Last Child in the Woods: Saving Our Children from Nature Def Disorder (Chapel Hill: Algonquin B98 Thomas Dahl, Wetlands Losses 5. 99 R.J. Naiman, J.M. Melillo, and J.E. Hobbie, Ecosystem Alteration of Boreal Forest Streams by Beaver (Castor Canadensis ). Ecology 67.5 (1986)100 Vileisis, Discovering the Unknown Landscape, 19-24.
132 Rutgers Univ ersity Press, 1998), 91. rtram, The Travels o f William Bartram Mark van Doren, ed. (New York: Nash, Wilderness and the s, 13-14. The Legend of Sleepy Hollow (Indianapolis: The Bobbs-Merrill 906). rvation from Round 62. ance, May Mann Jennings, Flor ida Genteel Activist (Gain esville: toneman Douglas: Voice of the River, an The 113 Kevin M. McCarthy, St Johns River Guidebook (Sarasota: Pineapple Press, 2004), 76. 101 Ralph W. Tiner, In Search of Swampland : A Wetlands Sourcebook and Field Guide (New Jersey:102 William Ba Dover, 1928). 103 John James Audubon, The Birds of America (New York: Johnson Reprint Corp., 1971). 104 Oeschlaeger, The Idea of Wilderness 1991; Roderick American Mind (New Haven: Yale University Press, 1967). 105 Vileisis, Discovering the Unknown Landscape 60. 106 Mitsch and Gosselink, Wetland107 Vileisis, Discovering the Unknown Landscape 60. 108 Washington Irving, Company, 1109 John Muir, A Thousand Mile Walk to the Gulf William Frederic Bade, ed. (Boston: Houghton Mifflin Company, 1916). 110 Aldo Leopold, A Sand County Almanac: With Essays on Conse River (New York: Ballantine Books, 1966), 2111 Linda D. V University of Florida Press, 1985). 112 Marjory Stoneman Douglas, Marjory S Autobiography (Englewood: Pineapple Press, 1987); Marjory Stoneman Douglas, Everglades: River of Grass (Sarasota: Pineapple Press, 1997).
133 al, ), 33. onterm inous al., USGS Water Supply Paper 2425 nds Losses 16-17. ss and Lynn Dodge, Clean Water Act (Chicago: A merican Bar 05), 5. onno lly, Federal W etlands Regulation: An rstanding Section 404 ed. Kim Diana al. (Chicago: Amer ican Bar Association, 2005), 3-4. ndaries 17. Gosselink, Wetlands, 611. and Wildlife Service, F ish and Wildlife Coordination Act /fwca.htm> accessed March 31, 2008. 114 Zora Neale Hurston, Their Eyes Were Watching God (New York: Harper Perenni 2000), 129. 115 Ibid., 158. 116 Ibid., 162. 117 Marjorie Kinnan Rawlings, The Yearling (New York: Simon & Schuster, 1967118 Ibid, 33. 119 Vileisis, Discovering the Unknown Landscape 127. 120 Thomas E. Dahl and Gregory J. Allord, History of Wetlands in the C United States, in Judy D. Fretwell, ed. et 121 Dahl, Wetla122 Joel M. Gro Association, 20123 Ibid., 5. 124 Douglas R. Williams and Kim Diana C Overview, Wetlands Law and Policy: Unde Connolly, et125 Gross and Dodge, Clean Water Act, 5-6. 126 Ibid., 6-7 127 National Research Council, Wetlands: Characteristics and Bou128 Mitsch and129 U.S. Fish
134 ation Fund Act in Federal Wildlife and S. Congress, National Environmental Protection Act of 1969 ov/Nepa/regs/nepa/n epaeqia.htm> accessed March 31, 2008. ters of nd Policy: Understanding Section 404 ed. Kim ar Association, 2005), 59. Gosselink, Wetlands, 640. Gosselink, Wetlands, 643; Chertok and Sinding, Federal Jurisdiction over tlands Law and Policy: Understanding Section 404 ed. Ki m Diana Chicago: Amer ican Bar Association, 2005), 60. 144 Ibid., 11. 145 Ibid., 11. 130 Anonymous, Land and Water Conserv Related Laws Handbook (Albuquerque: University of New Mexico Center for Wildlife Law, 1965) accessed March 31, 2008. 131 U.
135 ng ar Association, 2005), odge, Clean Water Act, 82-83; Keller, Regulated Activities, in and Policy 131-132. odge, Clean Water Act, 83. sumed authority of Sect ion 404 permits within their states. Johnson, Individual Permits, in Wetlands Law and Policy: g Section 404 ed. Kim Diana Connolly, et al. (Chicago: American Bar . 146 Mitsch and Gosselink, Wetlands, 643. 147 Michael Keller, Regulated Activities, in Wetlands Law and Policy: Understandi Section 404, ed. Kim Diana Connolly, et al. (Chicago: American B 105. 148 Ibid., 107-130. 149 Gross and D Wetlands Law 150 Gross and D151 Ibid., 87. 152 Mitsch and Gosselink, Wetlands, 643. 153 According to the U.S. Environmental Prot ection Agency, last updated on February 22, 2006; ; only Michigan and New Jersey had as154 Stephen M Understandin Association, 2005), 191. 155 Ibid., 192. 156 Ibid., 192-3157 Ibid., 192-7158 Ibid., 196. 159 Ibid., 197.
136 etlands Law and Policy: Understanding Section 404 ed. Ki m Diana 23. earch Council, Compensating for Wetland Losse s Under the Clean Water ardner, Mitigation, in Wetlands Law and Policy: Understanding Section o: Am erican Bar Association, 2005), 258. 259. 178 Ibid., 86. 160 Mark T. Pifher, The Section 404 (b)(1) Guidelines and Practicable Alternatives Analysis, in W Connolly, et al. (Chicago: Amer ican Bar Association, 2005), 2161 Ibid., 223. 162 Ibid., 235-240. 163 Ibid., 241. 164 Ibid., 241. 165 Ibid., 241. 166 National Res Act (Washington, D.C.: National Academies Press, 2001), 13. 167 Royal C. G 404, ed. Kim Diana Connolly, et al. (Chica g168 Ibid., 13. 169 Ibid., 13. 170 Ibid., 14. 171 Pifher, The Section 404 (b)(1) Guidelines, in Wetlands Law and Policy172 Ibid., 259. 173 Ibid., 267. 174 Ibid., 642. 175 Ibid., 642. 176 Gross and Dodge, Clean Water Act, 86. 177 Ibid., 86.
137 search Council, Compen sating sch and Gosselink, Wetlands, 680. d the Protection of or CLE International Conference on 23, rticles>. m : Rowman & Littlefield Publishers, Inc., 1995), 4-5. nmental P olicy Act the Clean Air Act the ct the Resource Conservation and Recovery Act the 1980 Comprehensive 179 Mitsch and Gosselink, Wetlands, 680-1. 180 Ibid., 681.181 Gardner, Mitigation, in Wetlands Law and Policy 262. 182 Ibid., 262.183 Gross and Dodge, Clean Water Act, 88. 184 Joel B. Goldsteen, The ABCs of Environmental Regulation 2nd ed. (Rockville, MD.: Government Institutes, 2003), 81. 185 National Re186 Ibid., 1-10. 187 Mit188 Ibid., 680. 189 Gross and Dodge, Clean Water Act, 89. 190 Steven J. Eagle, Unresolved Issues in Regulatory Takings an Private Property Rights, paper prepared f Regulatory Takings: New thought s on the State of the Law , Tampa, Florida, Feb 2007
138 ining Control and Reclamation Act of 1977 and the Endangered Species The Property Rights Movement, in Land Rights 20-24. rd and Donald J. Boudreaux, The Political Economy of State Takings d., owman & Littlefield Publishers, Inc., 1995), 261. St atutes, Title 12, Chapter 8, Article 2.1, nd Kim Diana Conno lly, Federal W etlands Regulation: An derstanding Section 404 ed. Kim Diana (Chicago: Amer ican Bar Association, 2005), 1. Gosselink, Wetlands, 645. gathered from: Ducks Un lim ited, Conservation Fact Sheet: North lands Conservation Act, eet%2 nd Williams, Federal Wetlands Regulation, in Wetlands Law and Policy 6. the Surface M Act of 1973 193 Marzulla, 194 Ibid., 26. 195 Jody Lipfo Legislation, in Land Rights: The 1990s Property Rights Rebellion Bruce Yandle, e (Lanham: R196 Ibid., 261.197 Oregon Laws, Chapter 1, 2005; Arizona 2007. 198 Douglas R. Williams a Overview, in Wetlands Law and Policy: Un Connolly, et al199 Mitsch and 200 All figures American Wet accessed on September 20 2008. 201 Mitsch and Gosselink, Wetlands, 645. 202 Ibid., 645. 203 Connolly a
139 1. tlands Law and d Dodge, Clean Water Act, 86. n Oppenfeld, State Roles in the Im plementation of the Section 404 Wetlands Law and Policy: Understanding Section 404 ed. Kim Diana r ican Bar Association, 2005), 345. ns (W ashington, D.C.: U.S. 204 Ibid., 6-7. 205 Mitsch and Gosselink, Wetlands, 645. 206 Ibid., 80. 207 Ibid., 80-8208 Ibid., 81. 209 Chertok and Sinding, Federal Jurisdiction over Wetlands in We Policy 76. 210 Ibid., 77. 211 Gross an212 Dahl, Status and Trends, 2006, 16. 213Gross and Dodge, 86214 Leopold, A Sand County Almanac, 238. 215 Ibid., 239. 216 Ibid., 240. 217 Ibid., 243. 218 Ibid., 244.219 Rolf R. Vo Program, in Connolly, et al. (Chicago: Ame220 Jon A. Kusler, Strengthening State Wetland Regulatio Fish and Wildlife Service, November 1978), 134. 221 Ibid., 7-8.
140 5), 6. LI), State Wetlan d Program Evaluation, Phase I-IV ted s/initiative/>. Wetland Pro gram Evaluation, Phase I-IV Evaluation: Phase IV, October 2007, 5. 6. July 2002, reas/wmb/StateFedb.cfm>. 12. p 70. ated June 5, 2005. 222 Thomas Dahl, Floridas Wetlands: An Update on Status and Trends 1985 to 1996 (Washington D.C.: U.S. Department of the In terior, Fish and Wildlife Service, 200223 Environmental Law Institute (E 2005-2007. 224 Environmental Protection Agency, State, Tr ibal and Local Initiatives, last upda April 18th, 2008 , last upd
141 lian Conservation Corps and the National Park Service, 1933inistrative History (W ashington, D.C.: U.S. Department of Interior, Service, 1985), 16. Ann Arbor, 2007, 53. licy Anal ysis and Governm ent Accountability i ssion Publications, .L.) Project ment g 1997), 292. 252 Ibid., 292; Florida Statute 403.818, 1984. 239 John C. Paige, The Civi 1942: An Adm National Park240 Vileisis, Discovering the Unknown Landscape 173. 241 Cynthia Barnett, Mirage: Florida and the Vanish ing Water of the Eastern U.S. University of Michigan Press242 Ibid., 53. 243 FDEP, State Lands History. 244 Ibid. 245 Florida Office of Program Po (OPPAGA), Florida Monitor: Game and Fr esh Water Fish Comm http://www.oppaga.state.fl.us /reports/agency/gfwc.html. 246 FDEP, State Lands History. 247 Ibid. 248 Florida Division of Lands, Environmen tally Endangered Lands (E.E Proposal and Land Acquisition Files, 1968-1983, Florida Department of State, State Library & Archives of Florida, Group # 000500, Series/Col lection #: .S1620. 249 Ibid. 250 Barnett, Mirage 73. 251 Richard Hamann and John Tuck er, Legal Protection, in Ecology and Manage of Tidal Marshes: A Mode l from the Gulf of Mexico Charles L. Coultas and Yuch-Pin Hsieh, ed. (Delray Beach, FL: St. Lucie Press:
142 hening State Wetland Regulations 134-135. Outline of Statu tory ec 404 (g)(1) 1) fixed term not exceeding 5 years; Sec 404 (h)(1)(A)(ii) must be able to be terminated for cause, Sec 404 (h)(1) ust apply and assure compliance with the monitoring and enforcement ire State must assure that the public, and other States with waters which may be permitting State 253 Frayer and Hefner, 23. 254 Ibid., 23. 255 Ibid., 24. 256 U.S. Environmental Protection Agency, Sta te, Tribal, Local, and Regional Roles in Wetlands Protection, , last updated February 22, 2006. 257 Kusler, Strengt Requirements for State 404 Programs: 1. State must establish a program for regulating the discharge of dredged or fill material S 2. program must apply to water s of the U.S. Sec 404 (g)(1) 3. program must be an individual and general permit program; Sec 404 (g)( 4. State must have authority to i ssue permits; Sec 403, Sec 404 (h)(1) 5. permits must apply for a 6. permits 7. State m requirements of Section 308 of the Act, or inspect, monitor, enter and requ reports to at least the same extent as required in Section 308 Sec 404 (h)(1)(B) 8. affected by such a permit receive noti ce of each permit application and be provided with an opportunity for public hearing before the rules on the applica tion. Sec 404 (g)
143 ral on of any of the stantially impaired thereby. Sec 404 (h)(1)(F) 4 r lated planning and review processes. Sec 404 atic General Permit (SPG P IV) State of Florida: Permit t July 24, 2006 . ands Programs EPA, > last updated Feb 22, mire, FDEP, e-mail to Allyson Bennett, October 6, 2008; and Douglas Fry, il correspondence to Allyson Bennett, October 6, 2008. er and Jeanne Christie. Common Questions: State Wetland Regulatory ternational Institute for W etland Science and Policy, Jun 26, 2006, 6. 9. State m ust assure that the Administrator of E.P.A. receives no tice of each gene permit and individual permit application; Sec 404 (j) 10. State must be able to deny a permit if E.P.A. objects to the permit, or if the Secretary of the Army determines that anchorage and navigati navigable water could be sub 11. State must be able to abate violations of permits or the permit program; Sec 40 (h)(1)(G) 12. State must assure that the program a nd permits are coordinated with othe Federal and Federal-State water-re (h)(1)(H). 258 FDEP, State Programm Instrumen259 Von Oppenfeld, State Role s in the Implementation of the Section 404 Program, in Wetlands Law and Policy 325. 260 Ibid., 336. 261 Ibid., 337. 262 Core Elements of Comprehensive Stat e and Tribal Wetl
144 tment of Environm ental Protection, Review of Streamlining Efforts, ements, and Workload Issues Related to Department of Environmental vironmental Resource Permitting Report No. IA-03-14-2006-016, April partment of Envi ronm ental Protection (FDEP), Summary of the Wetland rietary Programs in Florida October 1, ew.pdf >. nnett. nsolidation Llewellyn, Assistant Director, n to the Senate Comm ittee on Enviro nment and Public Works, Subcommittee on y, August 2, 1995. nne Christie, May 6, 2008. 279 Ibid., 15-16. 265 Florida Depar Operational Agre Protection En 2006, 15 . 266 Florida Statute 373.4144, 2005. 267 Florida De and Other Surface Water Regulatory and Prop 2007, 13 < http://www.dep.state.fl.us/water /wetlands/docs/erp/overvi268 Stoutamire, e-mail to Allyson Be269 Fry, e-mail to Allyson Bennett. 270 FDEP, Co271 Ibid. 272 Janet G. Llewellyn, Testimony provided by Janet G. Division of Environmental Resource Permitti ng, Florida Department of Environmental Protectio Clean Air, Wetlands, Private Propert y, and Nuclear Safet273 Jim Stoutamire, e-mail to Jea274 ELI, State Wetland Program Evaluation: Phase II June 2006. 275 ELI, Phase II 9. 276 Ibid., 30. 277 Ibid., 6. 278 Ibid., 6.
145 to 1980s U.S. Department of Interior, Fish and Wildlife Service, 1991), 18. 19. rdin, Classification of Wetlands 10. r and Hefner, Florida Wetlands: Status and Trends 18-21. ends, 2005. 20. 30-31. rever Land Acquisition Program, ep.state.fl.us/lands /acquisition/F loridaForever /, last updated Aug 14, 2008. Florida Forever Land Acquisition Program. h Court Cases May Shape Florida d Resource Perm itting Program as it is th e proposed plan for all five WMDs and is 280 Ibid., 20-21. 281 Ibid., 20-21. 282 Ibid., 29. 283 W.E. Frayer and J.M. Hefner, Florida Wetlands: Status and Trends, 1970s (Atlanta:284 Ibid., 285 Cowa286 Fraye287 Dahl, Status and Tr288 FDEP, Summary of the Wetland, 20. 289 Ibid., 290 ELI, Phase II291 FDEP, Florida Fo http://www.d292 Ibid. 293 FDEP294 FDEP, State Lands History. 295 Craig Pittman and Matthew Waite, Two Hig Wetlands, in St. Petersburg Times Feb 21, 2006. 296 Florida Statute 373.019 (25). 297 While the panhandle still uses the old wetland resource program, I will focus on the Wetlan
146 Wetland Resource Permitting Program. I 36. MD, Summary of Environmental Resou rce Permitting Responsibilities by />. MD, Florida Forever Work P lan: Annual Update 2008 January 2008, 1. used by the WMD that holds jurisdiction ove r Hillsborough C ounty, the area of interest for this thesis. 298 FDEP, Wetland Resource Permitting Program, last updated August 6, 2006. 299 Ibid. 300 Ibid. 301 Ibid. 302 Ibid. 303 ELI, Phase II 36. 304 FDEP305 Ibid. 306 Ibid. 307 ELI, Phase I308 Ibid., 36. 309 FDEP, Wetland Resource Permitting Program. 310 Ibid. 311 SWFW FDEP, 1-2 last updated Aug 29, 2008.
147 and, 2 wo men beat Wal-Mart WETLANDS, in St Petersburg Times, 11A, May 22, 2005. Pittman and Matthew Waitte, They wont say no Series: VANISHING of Dreams (Gainesville: University Press of selink, Wetlands, 648. ca Catalanello and Craig Pittman, words im peril 3-million acres, St. n Bennett, County Wetlands Survey, 30 out of 34 counties that responded to reported som e form of wetlands protection at the county level some with 3.441(1)(a). 314 Craig Pittman and Matthew Waitte, We tlands data drying up Series: VANISHING WETLANDS, in St Petersburg Times, Neighborhood Times, 1, May 22, 2005. 315 Craig Pittman and Matthew Waitte, To save wetl Series: VANISHING316 Craig WETLANDS, in St Petersburg Times, 1A, May 22, 2005. 317 Ibid. 318 Craig Pittman and Matthew Waitte, The y can build roads, but not good wetlands Series: VANISHING WETLANDS, in St Petersburg Times, 1A, May 22, 2005. 319 Ibid. 320 Ibid. 321 Gary Mormino, Land of Sunshine, State Florida, 2005). 322 Mitsch and Gos323 Rebec Petersburg Times March 31, 2007, 1B. 324 Ibid. 325 See Appendix C, Question 3 Responses. 326 Ibid. 327 Allyso the survey actual permitting programs and others with planning or code restrictions. 328 Florida Statute 37
148 a Department of Environm ental Protection, Summary of the Wetland and Other ough County, Basis of Review for Authorization of Activities Pursuant r 1-11 Wetlands 3, updated July 17, 2008. er 1-11 of the EPC Enabling Act a nd Rules, http://www.epchc.org/rules.htm Thompson, Manager of EPC We tland Division Perm itting Section, phone October 3, 2008. burg Times March 4, 1987, 6B. imes etlands Plan Mired in Questions, in St. Petersburg ctober 26, 1987, 1. DeLoache, Wetlands Mi tigation or Manipulation, in St. Petersburg Times Oppose We tlands Rules at Hearing, in St. Petersburg Times May 16, 1989, 3B. 329 Florid Surface Water Regulatory and Propriety Programs in Florida October 1, 2007, 15. 330 Dahl, Floridas Wetlands: Status and Trends 8. 331 See Appendix C332 Ibid. 333 EPC of Hillsbor to Chapte334 Chapt335 Mike interview with Allyson Bennett on336 Kimberly D. Kleman, Voters Okay Tax to Buy Environmentally Sensitive Land, in St. Peters337 Adam Nossiter, Farmer May be Ordered to Restore Wetlands, St. Petersburg T March 6, 1987, 3. 338 Ibid. 339 Frank DeLoache, Success of W Times O340 Frank March 16, 1987, 2. 341 Ibid. 342 Ibid. 343 Landowners, Lawyers
149 ill Stay the Same, in St. Petersburg T imes June 22, Times Karp, Panel Votes to Keep Wetlands Under EPC, in St. Petersburg Times a House Bill 597, 2007. orough County Environm ental Protection C ommission, 2007 State of the ent Report. bune July 24, 2007, 6. am, Planners Hold Off Incr easing Wetland Setbacks to 50 Feet, in St n Sickler, Hillsborough to Scrap Wetlands Oversight, in St. Petersburg 344 Ibid. 345 Jennifer Orsi, Wetlands Rule W 1989, 3B; Commission Stands Firm on Wetlands Protection, in St. Petersburg June 25, 1989, 2. 346 David July 16, 1996, 3B. 347 Ibid. 348 Ibid. 349 Ibid. 350 Florid351 Rebecca Catalanello and Craig Pittman, Words Imperil, in St. Petersburg Times 352 Ibid. 353 Hillsb Environm354 Revamped Oversight of Wetlands Coul d Get Board Out of Hot Water, in The Tampa Tri355 Ibid. 356 Ibid. 357 Kevin Grah Petersburg Times Feb 6, 2007. 358 Michael Va Times June 22, 2007, 8B.
150 Residents F eel etlands Protection has Hidden Attacker, in id. arian, Florida TaxWatch Knocks Wetlands Agency, in St. Petersburg Times Dean, A Builder Defends Wetlands, in The Tampa Tribune, July 26, ly July el Van Sickler, Wetlands Deal May Produce Ripples, in St. Petersburg Tim es, 8, 2007, 9B. 359 Mike Salinero, County OKs Wetlands Divi sion Move Infuriates Activists, in The Tampa Tribune June 22, 2007, 1. 360 Manfred Liebner, Elimination of We tlands Division Makes Betrayed, in The Tampa Tribune, June 30, 2007, 17. 361 Ibid. 362 Wetlands Sellout, in St. Petersburg Times June 23, 2007, 14A. 363 Michael Van Sickler, Campaign to Kill W St. Petersburg Times July 6, 2007. 364 Ib365 Ibid. 366 Bill V August 16, 2007, 1B. 367 Ibid. 368 Ibid. 369 William L. 2007, 13. 370 Ibid. 371 David Campo, County Doesnt Need EPC Protections, in The Tampa Tribune, Ju 26, 2007, 13. 372 Kevin Graham, Tampa Supports New Plan for EPC, in St. Petersburg Times 20, 2007, 4B. 373 Micha August 1
151 7, 1. al, in St. Petersburg Times ched, in Town Hall Newslette r /22/selling-out-our-wetlands-forcomment-90289> mental Agencys Leader Steps Down, in St. Petersburg Times July 7, 2007, Angry Crowd Defends Wetlands, in St. Petersburg Times July 27, arlton, County Officials to the People: Shut Up, in St. Petersburg Times July Ex-Officials Add Voices to EPC Fight, in St. Petersburg Times, July nt Program EPC of h County, July 16, 2007, 6-07.pdf>. 374 Mike Salinero, Wetlands Compromise, in The Tampa Tribune, August 17, 200375 Sickler, Wetlands De376 Salinero, Wetlands Compromise, in The Tampa Tribune. 377 Hillsborough County, Wetlands Compromise Rea August 2007, 4. 378 Jadell Kerr, blog,
152 roxler, Don We No w Our Sunshine Carol, in St. Petersburg Times 5, 2007, 1B. n paragraph derived from: Hillsboroug h County Environmental Protection 2007 State of the Environment Report .epchc.org/annualreport.htm> last accessed October 20, 2008. mmission of Hillsb orough County (EPC), EPC g Guide, October, 2008, 34 . 7. n Assessment Methodology, Flo rida Statute 373.414(18) Rules of the Envir onmental Protect ion Commission of Hillsborough County: Chapter 1-11, Wetlands, October 20, 2008, 4 . 388 Howard T December 2389 All data i Commission
153 0 Bill Coats, Limited Filling of Wetlands Okayed, in St. Petersburg Times, January 18, 2008, 3B. 411 Tampa Bay Regional Water Treatment Plan t, January 2008; Roadway Yellow Express Tampa Terminal Expansion, July 2007; Van Dyke Road Widening Project, May 2008; Hidden Creek East, March 2007; Whispering Woods Subdivision, August 2008; Forest Glen Subdivision, February 2008; Palza 301, October 2007; Ravinia, October 2007; Emerald Bay Professional Park, November 2007; see Appendix E. 412 Species include: snowy egret, little blue heron, tri-colored he ron, white ibis, and eastern indigo snake; see Appendix E. 413 Mike Salinero, Agencys End Could Imperil Wetlands, in The Tampa Tribune, August 12, 2007. 414 Mike Thompson interview. 415 Ibid. 416 Ibid. 417 EPC, Basis of Review 2. 418 Mike Thompson interview. 419 Ibid. 405 Ibid., 5. 406 Ibid., 7. 407 Ibid., 7. 408 Ibid., 8. 409 Ibid., 8. 41
154 420 Florida Institute of Phosphate Resear ch, Â“Public and Environmental Health,Â” . 421 Greg Martin and Steve Reill y, Â“Phosphate Risks Abound,Â” in Florida: The State of Phosphate last accessed November 19, 2008. 422 Dahl, FloridaÂ’s Wetlands: Status and Trends 8.
154 Bibliography Anonymous. Land and Water C onservation Fund Act in Federal Wildlife and Related Laws Handbook (University of New Mexico Center for Wildlife Law, Albuquerque) accessed March 31, 2008. Association of State Wetlands Managers , April 4, 2005, accessed March 14, 2008. Audubon, John James. The Birds of America New York: Johnson Reprint Corp., 1971. Blake, Nelson M. Land into Water, Water into Land: A History of Water Management in Florida Tallahassee: University Press of Florida, 1980. Barnett, Cynthia. Mirage: Florida and the Vanish ing Water of the Eastern U.S. Ann Arbor: University of Michigan Press, 2007. Bartram, William. The Travels of William Bartram Mark van Doren, ed. New York: Dover, 1928. Catalanello, Rebecca and Craig Pittman. words imperil 3-million acres, St. Petersburg Times March 31, 2007, 1B. Chabreck, Robert A. Coastal Marshes: Ecolog y and Wildlife Management Minneapolis: University of Minnesota Press, 1988. (32) Christie, Jeanne and Jon Kusler. Common Questions: State Wetland Regulatory Program The International Institute for Wetland Science and Policy, Jun 26, 2006.
155 Connolly, Kim Diana, Stephen M. Johnson, and Douglas R. Williams. Wetlands Law and Policy: Understanding Section 404 Chicago: American Bar Association, 2005. Cowardin, Lewis M., Francis C. Golet, and Edward T. LaRoe. Classification of Wetlands and Deepwater Habitats of the United States Washington, D.C.: U.S. Department of the Interior, Fish and Wildlife Service, 1979. Cronon, William, ed. Uncommon Ground: Rethinking the Human Place in Nature New York: W.W. Norton & Company, 1996. Dahl, Thomas E. Floridas Wetlands: An Update on Status and Trends 1985 to 1996 Washington D.C.: U.S. Department of the Interior, Fish and Wildlife Service, 2005. ---. Wetlands Losses in the United States 1780s to 1980s Washington, D.C.: U.S. Department of the Interior, Fish and Wildlife Service, 1990. ---. Status and Trends of Wetlands in the Conterminous United States 1986 to 1997 Washington, D.C.: U.S. Department of Interior, Fish and Wildlife Service, 2000. ---. Status and Trends of Wetlands in the Conterminous United States 1998 to 2004 Washington, D.C.: U.S. Department of Interior, Fish and Wildlife Service, 2006. Dodge, Lynn, and Joel M. Gross. Clean Water Act. Chicago: American Bar Association, 2005. Douglas, Marjory Stoneman. Marjory Stoneman Douglas: Voice of the River, an Autobiography. Englewood: Pineapple Press, 1987. ---. The Everglades: River of Grass Sarasota: Pineapple Press, 1997. Ducks Unlimited. Conservation Fact Sheet: North American Wetlands Conservation Act. .
156 Eagle, Steven J. Unresolved Issues in Regul atory Takings and the Protection of Private Property Rights, paper prepared for CLE International Conference on Regulatory Takings: New thought s on the State of the Law . Tampa, Florida, February 23, 2007, . Environmental Law Institute. State Wetland Program Evaluation: Phase I January 2005. ---. State Wetland Program Evaluation: Phase II. June 2006. ---. State Wetland Program Evaluation: Phase III. March 2007. ---. State Wetland Program Evaluation: Phase IV October 2007. ---. The Federal Context for In -Lieu-Fee Mitigation, July 2002, . Florida Department of Environmental Protection, Consolidation of State and Federal Wetland Permitting Programs September 30, 2005. ---, Florida Forever Land Acquisition Program, , last updated August 14, 2008. ---. State Lands History , last updated June 5, 2005. ---. Summary of the Wetland and Other Surface Water Regulatory and Proprietary Programs in Florida October 1, 2007. ---. Wetland Resource Permitting Program, , last updated August 6, 2006. ---. Uniform Mitigation Assessment Methodology, Florida Statute 373.414(18).
157 Florida Division of Lands. Environmentally Endangered Lands (E.E.L.) Project Proposal and Land Acquisition Files, 19681983, Florida Department of State, State Library & Archives of Flor ida, Group # 000500, Series/Collection #: .S1620. Florida Institute of Phosphate Researc h, Public and Environmental Health, . Florida Office of Program Policy Analysis and Government Accountability (OPPAGA). Florida Monitor: Game and Fresh Wa ter Fish Commission Publications, . Florida Statutes. Frayer, W.E. and J.M. Hefner. Florida Wetlands: Status and Trends, 1970s to 1980s Atlanta: U.S. Department of In terior, Fish and Wildlife Service, 1991. Fretwell, Judy D., John S. Williams, and Phillip J. Redman (editors), National Water Summary on Wetland Resources, USGS Water Supply Paper 2425 Washington, D.C.: United States Geological Survey, 1996. Fritzell, Peter. American Wetlands as Cultural Symbol: Places of Wetlands in American Culture, in P.E. Greeson, J.R. Clark, and J.E. Clark [eds.], Wetland Functions and Values: The State of Our Understanding. Minneapolis: American Water Resources Association, 1979. Fromm, Erich. The Heart of Man: Its Genius for Good and Evil New York: Harper & Row, 1964. ---. The Sane Society New York: Holt, Rinehart and Winston, 1955. Fry, Douglas. e-mail correspondence to Allyson Bennett, October 6, 2008.
158 Gardner, Howard. Frames of Mind: The Theory of Multiple Intelligences New York: Basic Books, 1983. Garrity, Richard. Background on EPCs Wetlands Management Program EPC of Hillsborough County, July 16, 2007, . Glaser, Lawrence K. Provisions of the Food Security Act of 1985, Agriculture Information Bulletin No. 498. Washington, D.C.: National Economics Division, Economic Research Service, United States Department of Agriculture. Goldsteen, Joel B. The ABCs of Environmental Regulation 2d ed. Rockville: Government Institutes, 2003. Greeson, P.E., J.R. Clark, and J.E. Clark [eds.]. Wetland Functions and Values: The State of Our Understanding. Minneapolis: American Water Resources Association, 1979. Grunwald, Michael. The Swamp: The Everglades, Flor ida, and the Politics of Paradise New York: Simon & Schuster, 2006. Hamann, Richard and John Tucker. Legal Protection, in Ecology and Management of Tidal Marshes: A Model fr om the Gulf of Mexico Charles L. Coultas and YuchPing Hsieh, ed. Delray Beach, FL: St. Lucie Press, 1997. Hillsborough County. Wetlands Compromise Reached, in Town Hall Newsletter August 2007.
159 Hillsborough County Environmental Protection Commission. Basis of Review for Authorization of Activities Pu rsuant to Chapter 1-11 Wetlands 3, updated July 17, 2008. ---. 2007 State of the Environment Report. last accessed October 20, 2008. ---. Rules of the Environmental Protection Co mmission of Hillsborough County: Chapter 1-11, Wetlands, October 20, 2008, 4, . Hurston, Zora Neale. Their Eyes Were Watching God. New York: Harper Perennial, 2000. Irving, Washington. The Legend of Sleepy Hollow Indianapolis: Th e Bobbs-Merrill Company, 1906. Kellert, Stephen R. Kinship to Mastery: Biophilia in Human Evolution and Development Washington, D.C.: Island Press, 1997. Kellert Stephen R. and Edward O. Wilson, ed. The Biophilia Hypothesis Washington, D.C.: Island Press, 1993. Kusler, Jon A. Strengthening State Wetland Regulations Washington, D.C.: U.S. Fish and Wildlife Service, November 1978. Kusler, Jon and Jeanne Christie. Common Questions: State Wetland Regulatory Program The International Institute for We tland Science and Policy, Jun 26, 2006. Leopold, Aldo. A Sand County Almanac: With Essays on Conservation from Round River. New York: Ballantine Books, 1966. Llewellyn, Janet G., Director, Division of Water Resources Management, Florida DEP. Letter to Mr. Frank Heath, September 4-5, 2007.
160 ---. Testimony provided by Janet G. Llewe llyn, Assistant Director, Division of Environmental Resource Permitting, Flor ida Department of Environmental Protection to the Senate Committee on Environment and Public Works, Subcommittee on Clean Air, Wetlands, Priv ate Property, and Nuclear Safety, August 2, 1995. Louv, Richard. Last Child in the Woods: Saving Our Children from Nature Deficit Disorder Chapel Hill: Algonquin Books, 2005. Lyon, John Grimson. Practical Handbook for Wetland Identification and Delineation. Boca Raton: Lewis Publishers, 1993. Martin, Greg and Steve Reilly. Phosphate Risks Abound, in Florida: The State of Phosphate. last accessed November 19, 2008. McCarthy, Kevin M. St Johns River Guidebook Sarasota: Pineapple Press, 2004. Merchant, Carolyn. Reinventing Eden: The Fate of Nature in Western Culture New York: Routledge, 2004. Meyer, William B. When Dismal Sw amps Became Priceless Wetlands, in American Heritage 45.3 (1994): 108-16. Milton, Kay. Loving Nature: Toward an Ecology of Emotion New York: Routledge, 2002. Mitsch, William J. and James G. Gosselink. Wetlands, 3d ed. New York: John Wiley & Sons, Inc., 2000. Mormino, Gary. Land of Sunshine, State of Dreams Gainesville: University Press of Florida, 2005.
161 Muir, John. A Thousand Mile Walk to the Gulf William Frederic Bade, ed. Boston: Houghton Mifflin Company, 1916. Naiman, R.J., J.M. Melillo, and J.E. Hobbie. Ecosystem Alteration of Boreal Forest Streams by Beaver ( Castor Canadensis ). Ecology 67.5 (1986): 1254-1269. Nash, Roderick. Wilderness and the American Mind New Haven: Yale University Press, 1967. National Research Council. Compensating for Wetland Losse s Under the Clean Water Act Washington, D.C.: National Academies Press, 2001. ---. Wetlands: Characteristics and Boundaries Washington, D.C.: National Academy Press, 1995. Oelschlaeger, Max. The Idea of Wilderness New Haven: Yale University Press, 1991. Paige, John C. The Civilian Conservation Corps and the National Park Service, 19331942: An Administrative History Washington, D.C.: U.S. Department of Interior, National Park Service, 1985. Pittman, Craig and Matthew Waite. Two High Court Cases May Shape Florida Wetlands, in St. Petersburg Times Feb 21, 2006. ---. Wetlands data drying up Se ries: VANISHING WETLANDS, in St Petersburg Times Neighborhood Times, 1, May 22, 2005. ---. To save wetland, 2 women beat Wal-Mart Series: VANISHI NG WETLANDS, in St Petersburg Times 11A, May 22, 2005. ---. They wont say no Series : VANISHING WETLANDS, in St Petersburg Times, 1A, May 22, 2005.
162 ---. They can build roads, but not good we tlands Series: VANISHI NG WETLANDS, in St Petersburg Times 1A, May 22, 2005. Prince, Hugh. Wetlands of the American Midwest: A Historical Geography of Changing Attitudes Chicago: The University of Chicago Press, 1997. Rawlings, Marjorie Kinnan. The Yearling New York: Simon & Schuster, 1967. Reilly, John W. The Language of Real Estate 5th ed. Chicago: Dearborn Real Estate Education, 2000. Ribuat, Jean. The Whole and True Discouerye of Terra Florida: A Facsimile Reprint of the London Edition of 1563 Florida Facsimile and Reprint Series. Gainesville: University Press of Florida, 1964. (72,78,84) Schmidtz, David and Elizabeth Willott, eds. Environmental Ethics: What Really Matters, What Really Works New York: Oxford University Press, 2002. Shepard, Paul. Coming Home to the Pleistocene, ed. Florence R. Shepard. Washington, D.C.: Island Press, 1998. Shofner, Jerrell H. "Roosevelt's `Tree Army' th e Civilian Conservation Corps in Florida" in Florida Historical Quarterly 65 (April 1987) 433-456 Smith, John. The General Historie of Virginia, New-England, and the Summer Isles London, 1624; reprint, Readex Microprint Corporation, 1966. Southwest Florida Water Management Department. Florida Forever Work Plan: Annual Update 2008 January 2008. ---. Summary of Environmental Resource Permitting Responsibilities by FDEP. .
163 ---. Weekly Notification of Permit Applications Received , for the week of August 29, 2008. St. Petersburg Times Stoutamire, Jim. E-mail to Allyson Bennett, October 6, 2008. ---. E-mail to Jeanne Christie, May 6, 2008. Stowe, Harriet Beecher. Palmetto Leaves Gainesville: University Press of Florida, 1873. The Tampa Tribune. Teal, John and Mildred Teal. Life and Death of the Salt Marsh New York: Ballantine, 1969. Thompson, Mike. Manager of EPC Wetla nd Division Permitting Section, phone interview with Allyson Bennett on November 3, 2008. Tiner, Ralph W. In Search of Swampland: A Wetlands Sourcebook and Field Guide New Jersey: Rutgers Univ ersity Press, 1998. ---. Wetland Indicators: A Guide to We tland Identification, Delineation, Classification, and Mapping Boca Raton: Lewis Publishers, 1999. Tuan, Yi-Fu. Topophilia: A Study of Environmenta l Perception, Attitudes, and Values Englewood Cliffs: Prentice-Hall, 1974. Turner, Frederick Jackson. The Frontier in American History New York: Henry Holt and Company, 1920. U.S. Army Corps of Engineers. Wetlands Delineation Manual Part II: Technical Guidelines (26)(b)(3) and Part III: Characteristics and Indicators of Hydrophytic Vegetation, Hydric Soils, and Wetland Hydrol ogy (49)(b)(2) .
164 U.S. Congress. National Envir onmental Protection Act of 1969, accessed March 31, 2008. U.S. Department of Agriculture. National Food Security Act Manual 4th ed., Title 180, 514.2(G). Washington, D.C.: United Stat es Department of Agriculture, 2003. U.S. Environmental Protection Agency. Recognizing Wetlands: An Informational Pamphlet, . ---. State, Tribal and Local Initiatives, last updated April 18, 2008, . ---. State, Tribal, Local, and Regional Role s in Wetlands Protection, last updated February 22, 2006, . U.S. Fish and Wildlife Service, Fish and Wildlife Coordination Act accessed March 31, 2008. U.S. Geological Survey and U.S. Department of the Interior. Wetlands of the United States: Their Extent and Their Value to Waterfowl and Other Wildlife A Century of Wetland Exploitation Aug 3, 2006. . Vance, Linda D. May Mann Jennings, Florida Genteel Activist Gainesville: University of Florida Press, 1985. Vileisis, Ann. Discovering the Unknown Landscape: A History of Americas Wetlands Washington, D.C.: Island Press, 1997.
165 Whitney, Gordon Graham, From Coastal Wilderness to Fr uited Plain: A History of Environmental Change in Temperate North America, 1500 to the Present. New York: Cambridge University Press, 1994. Wilson, Edward O. Biophilia Cambridge: Harvard University Press, 1984. ---. Consilience: The Unity of Knowledge New York: Alfred A. Knopf, 1998. Yandle, Bruce, ed. Land Rights: The 1990s Prop erty Rights Rebellion Lanham: Rowman & Littlefield Publishers, 1995.
167 Appendix A Cover Letter for County Survey The following cover letter was sent with th e survey displayed in Appendix B to county officials in the 67 counties of Florida. September 18, 2008 Dear County Official: I am a graduate student in the College of Ar ts and Sciences, Florida Studies Program at the University of South Florida, St Petersbu rg. I am conducting a brief survey of county wetlands regulations and protection in Florida. The survey is a part of a research project focused on local wetland protection and data colle cted in this survey may be used in my masters thesis. The results from this stat ewide survey may also be published in an academic journal article. Your responses w ill remain anonymous a nd they will help to shed light on wetlands protection in the state of Florida. However, your participation in this survey is completely voluntary. I hope you will participate, so I have provide d a stamped and addre ssed envelope for you to return your responses by regular mail at your convenience. If you have any questions about this project, feel free to contact Allyson R. Bennett at: email@example.com Thank you for your time. Sincerely, Allyson R. Bennett Florida Studies Program USF St Petersburg
168 Appendix B County Survey The following survey was sent to county officials in the 67 counties of Florida. 1. Does your county government provide any protection or regulate in any way the use of wetlands? __________________________________________________________________ if yes, please continue to question 2; if no, please move on to question 7 2. How would you rank your countys wetland use regulations compared to the wetland regulations of the state and fede ral government? Compared to the state and/or federal governments regulations, my countys wetland use permitting regulations provide: Less protection Similar protec tion More protection for wetlands for wetlands for wetlands 1 2 3 4 5 Please describe any specific ways that your county regulations differ from the regulations set by the stat e and federal government. __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ _____________________________________________ 3. What year did your county fi rst pass wetland use regulations? _______________________________________________________________
169 Appendix B (continued) 4. The Hillsborough County Commission has vot ed to greatly reduce their county wetlands regulation division, a nd at the same time, they have applied to have the state delegate its wetland permitting au thority to Hillsborough County. Is your county considering applying to take over the states responsibility for wetland use permitting? Not at all Some Discussion Possibly Likely Near Certainty 1 2 3 4 5 5. In the last 5 years, what would you sa y is the average number of wetland use permit applications your county processes each year ? Please circle one: Less than 50 50 150 150 250 more than 250 6. In a brief self-assessment, please list what you think are the pros and cons of your countys wetland regulations/protection. PROS CONS
170 Appendix B (continued) 7. If you answered no to question 1: How likely do you think it is that your count y will create wetlands protection rules in the next 2-3 years? Not at all likely Somewhat likely Very likely 1 2 3 4 5
171 Appendix C County Survey Responses The following tables represent the respons es to the survey displayed in Appendix B provided by 34 counties in Florida Question 1: Response Number of Counties Yes 30 No 4 Question 2: Response Number of Counties 1 Less protection for wetlands 4 2 1 3 Similar protection for wetlands 11 4 7 5 More protection for wetlands 6 Question 2 Response Question 2 explanations 4 Have established a specific number of feet (30 feet buffer); DEP doesnt have any buffer, nor do they protect shorelines or wetland vegetation. You can mow the plant down to the ground level, as long as the roots arent disturbed. 1 The County regulations defer to st ate regulations. We do not permit wetlands. If the FDEP permits dredge and fills we do not object. 4 Require buffers surrounding wetlands
172 Appendix C (continued) Question 2 Response Question 2 explanations continued 3 4 The County recognizes the actual wetland as a primary zone w/ restrictions in accordance w/ stat e and federal law. Further, we reserve jurisdiction to approve/d eny dredge/fill activities through development order approval process. In addition to the primary zone we have a secondary protec tion zone or buffer of 25 feet which must be preserved and account ed for in development plans. 3 Minimum setbacks are measured from landward edge of upland buffer. 4 Protects isolated wetlands; requires wetland buffers for isolated & contiguous wetlands; requires bu ilding setbacks from wetlands; buffers are to remain natural; wetlands shall not be moved 3 The County has created a tiered appr oach to wetlands high quality and low quality. High quality can not be altered; low quality can with permits from state 3 We primarily rely on SWFWMD regulations for the protection of wetlands. 5 2 degree impacts; buffers at 30 feet ; protection of is olated wetlands; protection of environmental sensi tive lands (ESA); MERS: Marine, Estuarine, Riverine Setbacks 3 N/A 3 County provides similar protecti on to wetlands in those rare instances where an activity proposed in a wetland is not regulated by a state agency. 5 We have same delineation & mitigation methodology. However, we have more restrictive code regarding the ability to impact wetlands N/A We do not have wetlands use permits; no activity allowed in wetlands; setbacks required; exception state permitted mining 5 All wetlands protected with a no -net loss concept. No UMAM. Max disturbance is 5% if there is no other reasonab le alternative 3 We have additional septic tank setback requirement along the river 2 We rely on state and federal rules and do impose additional restrictions 5 county-wide minimum standards, implementing ordinance for unincorporated areas & cities without their own ordinances, regulate or require mitigation for docks, seawalls, ramps, buffers, exempt wetlands <1/2 but otherwise regulate isolated wetlands and surface waters; also address vegetation removal where other agencies do not; tend to requi re additional avoidance & minimization than other agencies.
173 Appendix C (continued) Question 2 Response Question 2 explanations continued 1 We provide protection by enforcing state and federal regulations. If impacts are proposed, the permit applied for at the county will remain rejected pending approved st ate/federal permits be provided to staff. 1 County does not have regulations, but we have the County Comprehensive Plan which sets the County's standards. 3 Pursuant to County regulations, we do not duplicate jurisdictional entities as to protection or permitting 3 4 County protects by requiring a min. 40 foot buffer (state req. 25 foot); County Board of CC can require additional mitigation acreage 3 N/A N/A 3 We rely on state & federal agencies to permit & require mitigation for impacts. We protect we tlands through a county code, open space preservation requirement, a nd Comprehensive Plan Policy 4 Co. requires a professional envir onmental evaluation on all parcels which may contain wetlands before a clearing and/or building permit is issued. Also, Co. protect s cutthroat seep areas which is not an ecological system typically delineated by state or federal standards. N/A 5 Our program has more stringent wetland impact reduction criteria, no exemptions, and no threshold for wetland impacts requiring mitigation. 4 County requires wetland buffers from all wetlands. In no case is the buffer less than 30 feet. While more recent state legislation preempted the County for mitigation standards, the County requires mitigation in cases where the state does not. The County employs avoidance and minimization criteria along with land use approvals. 1 All wetland issues are forwarded to the FDEP or WMDs. Our land Development Code does not support the permitting of wetlands but developers must first obtain a permit from the state prior to impacts. Conservation over wetlands are required for large developments but not for a single family home owner 5 Any impact, regardless of average size is regulated
Appendix C (continued) Question 3: Year/response Number of Counties 1984 1 1988 4 1989 5 1990 3 1991 4 1993 3 1996 3 2003 1 2004 2 Opted out of wetland permitting in 1996 1 Unknown 2 Date of First County Wetland Use Regulations 0 0.5 1 1.5 2 2.5 3 3.5 4 4.5 5 198419881989199019911993199620032004 Number of Counties Year Established Question 4: Response Number of Counties 1 Not at all 22 2 Some Discussion 6 3 Possibly 0 4 Likely 1 5 Near Certainty 0 Delegation was received from FDEP & SFWMD on July 19,2001. ACOE delegation is being discussed. 1 174
175 Appendix C (continued) Question 5: Response Number of Counties Less than 50 or no county jurisdiction 15 50-150 5 150-250 2 More than 250 1 No Answer 6 Question 6: PROS CONS At least we have one (30 foot buffer) Buffer too small, need at least 75 foot buffer If the state agency approves, we approve Sometimes the state agency approves things that should not be approved Protect wetlands from development None Allows for assessment of proposed developments impact on specific sites Not strict enough Dredge and fill with state and federal permits must still be approved by County 25 foot buffer adds protection Not well understood by all Not popular with developers Establishes standards for upland buffers Does not recognize UMAM (F.S. 373) or how to evaluate functional value Requires buffers Requires setbacks Wetlands to remain natural Many to be placed in CE before permit approval even without wetland impacts Relies too heavily on DEP/SJRWMD Need more protection for isolated wetlands Buffers do not need to be included in CE Allows some use of altered wetlands Provides greater protection for high quality wetlands Puts county into same wetland interpretation with no qualified staff Do not duplicate state regulations Not very progressive 2 degree impacts avoided 30 foot buffers (no averaging) protection of lands exempted by SWANCC decision N/A N/A
176 Appendix C (continued) PROS CONS Countys wetland protection regulations are invoked so infrequently that they provide no significant change to the overall wetland landscape in the County Greater wetland protection overall Doesnt consider wetland quality Do not allow disturbance of wetlands at all except mining We do not have penalties Do not have environmental review board Best protection Easy to enforce No UMAM uncomplicated permitting Limits development No duplication of permitting Less confusion in permitting process Better working relationship with consumers Easier to substantia te the requirements due to accountability of state data May not be as restrictive as some want Minor wetlands below state thresholds may be damaged No local oversight Complete delegation No local oversight No accountability Regulate dredge, fill, construction, mowing, & other vegetation removal Require buffers (minimum 25 or 50 feet depending on area) Require mitigation for almost all impacts to wetlands, buffers, & surface waters Have more effective enforcement provisions than state and federal Open exemption for bona fide agricultural use (sometimes exploited) Buffers not big enough Not specific enough about what is sufficient avoidance and minimization No provision for criminal enforcement Less processing time all work is through state/federal agencies Truthfully, not many Waiting time for county permit approval is very long Staff has no say in what should be allowed and what should not State/federal agencies are severely overextended, therefore there is still a lack of wetland protection Staff has no jurisdiction to levy fines for wetland violations (and there are a lot of violations for people who either dont know better or just dont think they will get caught
177 Appendix C (continued) PROS CONS Set comprehensive plan language Allows us to write comments on developments Set comp plan language allows for regulations to be written in the future No local regulations Developers do not n ecessarily need to adhere to County level seems like never any time to start writing the regulations No duplication of review or permits Timeliness of permits thru state and fed offices We have not done any development in wetlands areas More stringent than state Unqualified Count y personnel re: wetland science in Planning Dept. In the event of a wetland violation, Board of CC has power to order wetland restoration or creation by agent responsible for violation Density credit transfer from wetlands to uplands allowed on project sites Opportunity to enforce sequence of avoidance, minimization & mitigation in reviewing new development projects No specific prohibiti on of out-of-county mitigation in wetland ordinance N/A Wetland can be protected through county preserve requirement Wetlands can be protected by Lee Plan if meets Environmentally Sensitive Criteria Can only provide input to state & federal agencies with regards to wetland impact can not approve or deny impacts Protects rare habita ts (i.e. cutthroat seep) Does not hold up development process as much as state Offers alternatives to filling wetlands Accounts for impacts to watersheds, not just wetlands No Co. Dept. is tasked with wetland verifications Some changes to LDRs and Comp Plan are still needed Numerous exemptions allow piece-meal taking of wetlands N/A Strict wetland impact elimination criteria Protection of larger wetland systems No upland buffer requirements
178 Appendix C (continued) PROS CONS Avoidance & minimization is more restrictive through land use approvals Wetland impacts are viewed critically no incentive for impacts Wetland buffers and conservation easements adjacent to all onsite wetlands State agencies tend to be permitters and dont consider upland land use conflict Compliance issues are demanding from a staffing perspective County is prompted(?) by state UMAM reqs. Less workload No angry citizens forwarded to the state Single home owners might fill a wetland & the county cant do anything Natural beauty is diminished Habitat loss lake degradation Sets a trend for neighbors to follow Stricter than state & fed Requires majority of any mitigation to remain in Broward County State delegation streamlines the process for applicant N/A Question 7: Response Number of Counties 1 Not at all likely 5 2 3 3 Somewhat likely 1 4 1 5 Very likely 0
Appendix D UMAM Form s Used by Hillsborough County EPC 179
Appendix D (continued) 180
Appendix D (continued) 181
182 Appendix E Wetland Impact Permit File Review The following tables represent my analysis of wetland impact permit review files with the Hillsborough County EPC Wetlands Management Division: File: Tampa Bay Regional Water Treatment Plant File: Roadway Yellow Express Tampa Terminal Expansion 1. Date 1/10/08 7/19/07 2. Size of area 0.48 fill; 0.2 cleared Temporary: 1.36 Permanent: 0.40 3. Characteristics of wetland/ quality & functions Isolated wetlands; Palustrine, invasive exotics, components of wetland scrub and freshwater marshes; brushland, shrub/scrub, dominant vegetation: Brazilian pepper and Chinese tallow tree, isolated, low quality, minimal wildlife, primary function: water storage Wetland connected to system that runs east and west of project; surrounded by development, frog, reptile birds, wild hog habitat, desirable wetland vegetation, limited adjacent habitats 4. Intended action/s Expand capacity of plant from 66 mgd to 120 mgd impact through filling and clearing Resurface existing pavement 5. Permit received? Y ~ $4,900 fee for application Y 6. Mitigation required? Y: 1.07 acres creation and 0.02 acres restoration directly connected to impacted area Y 2.6 acres 7. Other comments Modification of previous permit
183 Appendix E (continued) File: Van Dyke Road Widening Project File: Hidden Creek East 1. Date 5/12/08 3/07 10/07 (7 months) 2. Size of area 0.15 + 0.32 0.57 acres impacted 3. Characteristics of wetland/ quality & functions Thermal regulation of stormwater, herbaceous fringe of cypress system, maintained ditch, wading bird foraging, amphibian breeding, forested wetland, low quality because ditch maintenance activity Natural levee and floodplain forest on bank of Dug Creek Dug Creek empties into Little Manatee River; receives some light industrial runoff, wildlife habitat: small mammals, fish, invertebrates, amphibians; threatened: Eastern indigo snake; desirable vegetation 4. Intended action Widen road to reduce traffic congestion Fill and asphalt, roadways within subdivision road widening 5. Permit received? Y Y 6. Mitigation required? Y 1.6 acres cypress wetland creation area; functions: wading bird foraging and amphibian breeding; large mammal refuge, possible fish habitat $188,252 cost Y 1.7 + 0.78 + 0.68 7. Other comments 0.30 functional loss, 0.37 functional gain = 0.06 functional lift
184 Appendix E (continued) File: Whispering Woods Subdivision File: Forest Glen Subdivision 1. Date 8/15/08 2/08-7/08 2. Size of area Permanent: 0.04 + 0.05 0.072 3. Characteristics of wetland/ quality & functions Edge of forested wetland (.04) and upland cut ditch (.05); functional loss: 0.014; wading birds, slash pine and laurel oak canopy Forested creek, excavated pond, hardwood swamp, amphibian, birds, smmed mammals, including End./Threat: snowy egret, little blue heron, white ibis, tricolored heron 4. Intended action Redesign roadway layout in single-family residential community project Filling wetland for roadway and stormwater system construction associated with proposed subdivision development 5. Permit received? Y Y 6. Mitigation required? Y 0.25 acres upland preservation: functional gain 0.032 Y 0.12: red maple, herbaceous marsh, functions: flood conveyance, wildlife habitat, water quality improvement, End./Threat habitat and other animals 7. Other comments $12,500 mitigation cost
185 Appendix E (continued) File: Plaza 301 File: Ravinia 1. Date 10/07 10/07 2. Size of area Proposed 0.22, approved 0.12 0.08 3. Characteristics of wetland/ quality & functions Excavated pond with trees; majority nuisance vegetation, laurel oak and red maple canopy with native fern understory, small mammals and wading birds Cypress swamp and lake: laurel oak, cabbage palm, slash pine natural creek: invasive nuisance: elderberry, blackberry, Caesar weed also hardwoods 4. Intended action Building commercial Cross channelized creek for access to entire tract of a tributary to Rocky Creek 5. Permit received? Y Y 6. Mitigation required? Y creation 0.1 shallow herbaceous; enhancement 0.1 wetland hardwood forest Y0.25 acres creation mixed hardwood wetlands contiguous to lake: habitat to birds, amphibians, snakes, small mammals 7. Other comments $11,220 mitigation cost File: Emerald Bay Professional Park 1. Date 11/07 2. Size of area 0.25 herbaceous, 0.11 cypress swamp, 3. Characteristics of wetland/ quality & functions Bahia grass, St. Augustine grass, pond cypress, laurel oak, Brazilian pepper, pine trees, Threatened bird species, amphibians, small-medium mammals 4. Intended action Commercial/office space construction 5. Permit received? Y 6. Mitigation required? Y 0.41 acres creation = $21,700; functions: migrating birds habitat, flood attenuation, herbaceous roadside cut ditch: plant native vegetation monitor/maintain for 5 years; also forested cypr ess area north of existing boardwalk 7. Other comments