Adventures with Section 404(b)(1) Guidelines by Karsten Rist

Karsten Rist

Adventures with Section 404(b)(1) Guidelines.
In October of 1980 we moved from Plantation to Miami. I continued my involvement with Audubon which had started in Broward County and became active in the Tropical Audubon Society.
In July of 1987 developer Raul Planas filed a dredge and fill application for a large golf course development east of Old Cutler Road in the area of theoretical S.W.180th Street. The project, called Old Cutler Bay Estates included plans for a Jack Nicklaus designed golf course and proposed to destroy 197 acres of jurisdictional wetlands (areas with natural wetland features but altered by seasonal agriculture) adjacent to Biscayne National Park. Tropical Audubon, together with all the other conservation organizations in Dade County, opposed this massive project because of its impact on wetlands right next to a National Park. In May of 1989 the Department of Environmental Regulation of the State of Florida denied the application after the Miami Herald published a report detailing intense lobbying for permits and the crass use of political influence to manipulate the permitting process.
In the meantime the central issue of reasonable wetland protection had gained much crisper definition when an EPA biologist and two biologists from the Corps of Engineers inspected the site and flagged a “development line” which separated the viable, productive wetlands to the east from the degraded, Brazilian Pepper infested wetlands to the west. Regional Administrator Greer C. Tidwell (EPA) wrote Colonel Herndon of the Corps of Engineers: “I feel that filling waterward of our ‘development line’ would result in unacceptable adverse environmental impacts and would be contrary to Section 404(b)(1) guidelines.” On a file trip to the site the conservation committee of Tropical Audubon saw the red flags the biologists had left and we agreed that this line represented a reasonable and fair compromise. We resolved to focus our efforts on the defense of this development line.
After much correspondence and agonizing the developer filed a modified plan in August of 1989. The new plans reduced the impact on wetlands east of the development line to 21 acres of mangrove. Relieved at the now much reduced impact , DER issued its permit despite the vigorous objections of Tropical Audubon and the entire environmental community of Dade County. During the remainder of the year 1989 there were numerous meetings and consultations between the developer, the EPA, the National Marine Fisheries Service and the Fish and Wildlife Service. At times we received insider information about these meetings with the caveat: “but do not tell them where you got this information from.”. Foot by foot Planas changed his plans so that they finally impacted only 11.5 acres by his account. One of my best contacts and friends in this conflict was Eric Hughes who worked for the EPA in Atlanta as a biologist. In November of 1989 he called me and said; “Let’s have lunch together.” We did. Eric explained to me that the EPA had spent a lot of time and effort on the Old Cutler Bay Estates project and that the wetlands impact had been reduced substantially. They had bigger fish to fry and were ready to allow the project to go forward.
As I studied the maps it appeared to me that there was a significant discrepancy between the remaining area east of the development line as seen by the EPA and the same area as seen on our own maps. I showed these discrepancies to Kevin Sarsfield, who was then president of Tropical Audubon, and he agreed to help me measure the location of the flagged points of the development line as points on a straight east-west mosquito ditch. Our measurement showed that the developer’s map, produced by Post, Buckley, Schuh and Jernigan, the largest and most prestigious engineering firm in Dade County, misrepresented the location of the development line by 100 to 150 feet. We shared our discovery immediately with the EPA, the Corps and the Miami Herald. When the story was reported by the Miami Herald Raul Planas was quoted: “We believe that the Tropical Audubon Society has made a serious mistake in their calculations and measurements and we stand behind the work of Post, Buckley, Schuh and Jernigan registered engineers and certified surveyors.” Our findings resulted in yet another review of the project. Post, Buckley corrected its “mistake”. The EPA reaffirmed its original opposition to all development east of the development line.
By the November 1990 Planas had agreed to reduce the wetland impact of his project to eight acres and Colonel Malson of the Corps of Engineers in Jacksonville issued a press release announcing that he was prepared to issue the permit. It is noteworthy that the project had now such a high profile that the impending action appeared worthy of a news release. The controversy over the Old Cutler Bay wetlands had been the subject of news reports, comments and editorials in the Miami Herald more than twenty times.
Tropical Audubon and the conservation community of Dade County made every effort to urge the EPA to veto the permit. The use of its veto power by the EPA is rare. In the 18 year history of the section 404 wetland protection program, the EPA had vetoed only eleven projects. On December 3, 1990, Greer C. Tidwell, regional administrator of the EPA in Atlanta, informed the Corps that the EPA was ready to initiate veto proceedings. On December 15, 1990 Raul Planas announced that he would redesign the project. The new design stayed west of the development line. With EPA consent the Corps issued the permit on December 31, 1990.
The following year Old Cutler Bay Estates declared bankruptcy.
Based on our work on the Old Cutler Bay Estates project, Larry Thompson, southeast regional representative of the National Audubon Society in Tallahassee, submitted my name for National Audubon’s Conservationist of the Year award in 1992. I received the award at the national Audubon convention on June 17, 1992 in Washington. My only regret is that I did not ask Carol to come with me to the convention. I did not know before the event that it was really a big deal.

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