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Enviro-hassles

Colby Katz

The voice at the other end of the line was frantic and frustrated. "Benji, we've got a crisis," the speaker lamented. Emotional callers were all in a day's work for Benji Brumberg, who for the past three years had been the ombudsman for the Florida Department of Environmental Protection (DEP). He was, in essence, the complaint department. This call in October 2001, however, set in motion what was probably Brumberg's finest hour as the department's representative of the people in Tallahassee.

The caller was Jeff Glassberg, president of the North American Butterfly Association. For almost three years, Glassberg had been cajoling and beseeching the federal government to list the Miami Blue butterfly as an endangered species. Once covering all of Florida, the tiny and brilliant-azure butterfly had dwindled to a score living in Bahia Honda State Park on Big Pine Key. The feds, however, had placed a moratorium on listing any new species, saying they lacked the funds to complete the paperwork required for new enrollment.

To Glassberg, there could not have been a more apt and needy candidate for federal protection than the Miami Blue. "This is the only place in the U.S. where it's found," he recalls. "It's not a subspecies. It used to be common all over Florida; now it's down to one colony. There's nothing that fits the definition of 'endangered species' in the United States more than this butterfly."

The situation seemed dire. Miami Blue watchers had alerted Glassberg to what they said was a depletion of the state park's supply of nickerbean, a prickly, inhospitable (for humans, anyway) plant that serves as the species' sole host plant for breeding. State workers were also spraying the area with insecticides to combat mosquitoes, they said. "I started making calls to see what could be done," Glassberg says. "Some of the people said I should talk to the ombudsman. I got hold of Benji."

Brumberg's role in the complex, delicate, highly political mission of saving a butterfly would solidify his reputation as a master facilitator who was solidly green yet pragmatic and politically savvy enough to gain the confidence of those who hold the power.

"It's tough to get something done on the merits," Glassberg says. "Unless you're a big, powerful lobby, unless it's coming from some internal pressure, it's unusual for anyone to sit up and say, 'This is the right thing to do.' I think the main thing for Benji was knowing who to talk to and having the ear of people in state government -- and on the outside. On our own, there is a lot of bureaucratic resistance. With Benji, he was whispering in people's ears. Things got done."

In April of last year, though, at the height of his success, Brumberg quietly left his ombudsman job, and the position was eliminated. Amid a swirl of rumors that he'd ruffled too many feathers, Brumberg withdrew to the home he and his wife were building in Georgia and became as elusive as the Miami Blue. Until Brumberg recently sat for several lengthy interviews with New Times, he'd stayed mum about his years as ombudsman for the DEP, the agency charged with protecting the state's water, air, and soil from polluters.

Environmental activists assert that if ever the public has needed a strong ombudsman at that agency, it does now. Some say that Jeb Bush's administration -- and in particular the DEP, under the leadership of Secretary David Struhs -- has steadily shunted aside grassroots input in favor of big business and developers. Struhs has taken a business-minded approach to enforcement, which, critics say, has led to lax enforcement, backroom permit deals, and a cozy relationship between the biggest polluters and the DEP. The Florida Sierra Club went so far last summer as to call on the governor to fire Struhs.

Mark Ferrulo of the Florida Public Interest Research Group charges that the DEP, rather than working to protect the Florida environment, "is generally working on the behalf of the large, powerful special interests."

"They place business profits on the same, if not higher, level than environmental protection," Ferrulo says. "There are plenty of agencies and departments in the state that look out for businesses' bottom lines and so forth. So why is the one agency that should be out there to protect the environment doing the same thing?"


Until Brumberg hit the road last spring, the ombudsman's office had been the one entry point to the DEP for environmentalists like Glassberg. Brumberg brought to the position a canny ability to draw together vying interests, cut through red tape, and broker deals that everyone could live with. Never was that skill more apparent than during the Miami Blue emergency.

Brumberg responded immediately to Glassberg's plea, making arrangements to fly to Big Pine Key and marshaling the movers and shakers he'd become acquainted with since Jeb Bush had plucked him from Broward County in 1999. He brought with him Jack Moller, a hunter and conservationist who is also vice chairman of the Acquisition Restoration Council, a consortium that advises the state cabinet on what environmentally sensitive properties the state should buy and preserve. Moller was both politically connected and highly regarded within the Fish and Wildlife Conservation Commission, which was to play a key role. They were joined at Big Pine Key by Dennis Olle, vice chair of the Tropical Audubon Society. Along with park staff, they surveyed the trails, looking for the once-plentiful creature. There were a few sightings of small blue butterflies, but they couldn't be certain they were the Miami Blue.

The good news, Brumberg says, was that reports of mass defoliation of nickerbean had been exaggerated. He discovered the bad news when he got back to the park's headquarters and looked over its management plan. "The Miami Blue wasn't in the plan," Brumberg recalls, which meant the bug received no consideration at all in matters such as mosquito spraying and trail location. "They knew it was out there, I believe. But until Jeff Glassberg keyed it up for everybody and said, 'Guys, we've got our people running all over South Florida, and this is the only place they exist,' until that happened, I don't think anyone had focused on it."

Brumberg found himself grappling with a contentious mishmash of state and federal agencies and territory-conscious groups. He quickly confirmed that the Beltway bureaucrats of the U.S. Fish and Wildlife Service weren't going to step up to the plate. A turf-minded state bureaucracy, however, wasn't exactly in the position of savior either. The DEP, technically Brumberg's own agency, had no direct jurisdiction over animals; that responsibility rested with the Fish and Wildlife Conservation Commission. Park officials had an altogether different chain of command. Joining in the fray, two warring private groups were working separately to try to save the Miami Blue.

Brumberg orchestrated the "mother of all conference calls" in which representatives of all parties concerned could hash out the butterfly's fate. He told them, "Folks, we're not leaving until we have a solution that's organized, that cuts through all the crap and the permitting and nonsense. We're going to get this thing organized, permitted, and funded on this conference call." At that point, he says, "I shut up."

The breakthrough came when Ken Haddad, executive director for the Fish and Wildlife Conservation Commission, confirmed that his office could issue an emergency endangered listing for the Miami Blue, though the state had never used that authority before. After that, Brumberg recalls, there began a frenzy of "I'll give you that permit if you give me this permit," and "I'll fund this if you fund that." Even the local agent for U.S. Fish and Wildlife stepped up and offered to fund the captive-breeding program. "Even though the federal bureaucracy is wearing a very black hat here," Brumberg says, "the local guys have been wonderful."

The emergency listing went to the board of the Fish and Wildlife Conservation Commission, a body whose attention has always been on critters with "fur and claws and scales," Brumberg says. "I can imagine those eyes rolling: 'We're going to save a butterfly?' Well, they did." This past November, the board gave permanent endangered status to the Miami Blue, the first time an insect has ever been listed. "To me, that's very enlightened," Brumberg says. "They deserve kudos. They've seen past their hogs and deer and trophy fish, and they've got it -- they've got the picture. It's all linked together, that if you lose a species, it's one less color that our kids have to appreciate."


On a refreshing Saturday morning in late November, Brumberg is leaning back in a canvas folding chair on his backyard deck, a study in contradiction. His Fort Lauderdale home, in the Lauderdale Isles area, is sided with slabs of bark, and his cul-de-sac lot is bucolic. Meanwhile, the all-pervading rush of I-595 is a short way to the south, a symbol of unbridled development. He's "green," a fervent lover of parks and critters and an advocate of preserving public lands for more than just recreation. He's also a critic of spearfishing, overzealous mosquito spraying, and feral cats that devour native species. At the same time, though, he's a Republican -- not a party one normally associates with tree hugging -- and an unabashed Jeb Bush supporter. "Your readers may not like this," he offers, "but I find him singularly brilliant."

There was no pressure from the Bush administration to force him to leave, insists the 56-year-old Brumberg. He left of his own accord, and he remains an undaunted supporter of Jeb Bush. But in his own balance sheet of successes and failures as ombudsman, he confesses that the scale tips more to the latter -- despite winning such accolades as the Sierra Club's Distinguished Service Award last fall. Beyond all else, he bemoans the bureaucratic labyrinth Florida citizens face in accessing and affecting their own state government. "I feel frustrated that there was so much left to do," he says.

Though he has left state government for now, Brumberg clearly continues to play by the rules.

He comes off younger than his years, despite short, grayish hair and a slight middle-age paunch. His smile is cherubic and his voice soothing, and it's not hard to imagine them gently twisting someone's arm. He's obsessively fair-minded and consistently serves up his thoughts with an on-the-other-hand hook.

He grew up in Northeast Georgia, attended college in Connecticut, and earned an optometry degree at the New England College of Optometry in 1972. He moved to Broward County and worked as an eye doctor for the next 28 years. His interest in the outdoors led to a stint on the board of directors in the late 1980s of Save the Florida Panther, his first formal experience with trying to rescue a species from the brink.

Brumberg first met Bush after the latter had narrowly lost the 1994 gubernatorial race to Lawton Chiles. "I'd heard one of his talks and was very impressed. Between the first loss and the next election, I was out as a volunteer, introducing him to folks so they could get to know him better," Brumberg says. "He can be one of the guys in one minute and a profound intellectual in the next minute without missing a step. This is on many, many different subjects. I've seen him in good moments and bad moments. He's probably the most brilliant man I've ever known."

Bush, of course, won the 1998 race. Brumberg, already thinking about winding down his practice, the Dania Eye Center, broached the possibility of joining the administration in some environmental capacity. Bush tapped him for the then-moribund office of ombudsman in the DEP.

"I can tell you, no one had a preconceived notion for what I was doing," Brumberg said of his new role. "The profession really does not exist in state government." Both the concept and term of ombudsman originated in Scandinavia, where it was created to protect citizens from abuses by the king. It's come to mean simply a representative of the people.

The position was a good fit, though. "Structurally, it's a very similar job to being a doctor," he explains. "I think doctors often have the makings of a good ombudsman. What we do is listen for symptoms, make a diagnosis, and provide therapeutic alternatives." An ombudsman looks for symptoms of "social pathology," he says. "The only difference is that after hearing the symptoms, I often had to go back and learn the anatomy, because you have to learn that if you want to understand pathology."

For example, he once received a call from a gentleman claiming too many sand dollars were being harvested on Florida's west coast. Some individuals were gathering tens of thousands of them, the caller said. Brumberg knew little about the saucer-like creatures, what kind of population records were kept, the effect of red tide on them, the economics. "I was satisfied that populations were stable and growing, based upon the science," Brumberg says he concluded. "In this case, quite frankly, the public's concern was unworthy of me getting out the thunderbolts and hammer."

He and his staff of six would review every piece of mail sent to Struhs as a sort of triage, he says. They'd also get the first look at any environment-related mail sent to Bush.

Brumberg says he received only one bit of instruction from Struhs, who had formerly been head of Massachusetts' environmental protection agency and before that an official with the U.S. Environmental Protection Agency under the elder President Bush. "Benji, your job is to be objective," Brumberg recalls his boss saying. Neither Struhs nor the governor ever asked him to begin or discontinue any projects.

But "autonomy" in state government has its limits. "Unless you are independently wealthy and can pay your own paycheck, there really is no true independence," he says. "Because if you start throwing fire bombs at your administration, publicly, to the newspapers, you'd be gone right away. But that doesn't mean you roll over and play dead. What you try to do is build consensus, and you quickly realize that the way you change things in government, almost always, is on an incremental basis.

"I had relative independence. I was without a doubt the most independent and most pampered public official in Tallahassee -- because no one knows what the hell you do! 'Oh, he's an ombudsman. We better behave.' Very few public officials would unequivocally, in their own goodness of heart, welcome an ombudsman. We're the guys looking over everybody's shoulder. There's no issue, no issue, that I handled in three and half years that is an ombudsman issue. It's always, always, in somebody's else's turf. If you know anything about turf and public officials, therein lies the problem. An ombudsman has no authority."


Many South Floridians might not know it, but we're locked in a water war with Georgia. It involves the Chattahoochee River, which runs through Atlanta, then enters Florida in the Panhandle, where it's renamed the Apalachicola. "Atlanta wants to suck up all the water for their growth, leaving a trickle to come to Florida," Brumberg says. "That's the water wars in a nutshell."

A trickling river spells doom for the ecosystem of Apalachicola Bay, where more than 80 percent of Florida's oysters are harvested. The 1,500 or so families who depend on oysters for their livelihood know that firsthand, having lived through a drought in 2001 that drastically drew down the river, which winds through 109 miles of relatively undeveloped land west of Tallahassee. The waterway's shores are home to two of the rarest kinds of evergreen trees in the world, and the river's backwaters are the nursery for a host of creatures, from shrimp and crabs to striped bass.

"The salinity had been at the highest levels it had ever been at in recorded history," says David McLain, executive director of Apalachicola Bay and River Keeper organization (ABARK). "The predators of our oysters are all saltwater creatures, and they began attacking our oysters. And red tide, which is a saltwater event, followed the salinity, and we had a mammoth fish kill, and we had to stop harvesting oysters for two, three months. There were people who had no other means of support other than oystering."

The ongoing Apalachicola war illustrates how difficult it is for average citizens to participate in DEP decisions that directly affect their lives. Brumberg and others contend that the state should be mustering as many citizen foot soldiers for the water war as it can. Volunteers, however, have been less than welcome by the DEP.

McLain came onboard with ABARK in August 2001, several months after a multistate proposal for water allocation had been floated by officials of Georgia, Florida, and Alabama, which borders part of the river. The proposal sprang from a three-state commission that broadly defined the states' intent to negotiate an equitable way to share water. The technical details of who got how much water was left to be hashed out by a few officials from each state. In Florida's case, Bush designated Struhs, a DEP attorney, and the head of the Northwest Florida Water Management District.

The proposal they'd come up with, however, was attacked by citizens' groups, which contended it was too lopsided toward the "State of Atlanta" and would leave a permanent drought flow in Florida, McLain says. He insisted on going further than rock-throwing, however, pushing instead for creating a new formula for water flow based on science and common sense. "I am fortunate to have experts on the advisory board, from hydrologists to marine biologists to land-use folks," he says. "We determined we needed the strength of people directly involved in and impacted by the formula." He took the new criteria to the County Commission for each of the six counties by the river and asked for and received their endorsement. Then in November 2001, he sent Struhs a package of information with the request that ABARK be involved in the future as stakeholders. He heard nothing.

He contacted Brumberg and told him he was getting the "slow roll" from Struhs. The ombudsman looked over McLain's documentation and became convinced ABARK's input was essential. "What I tried to do was insinuate ABARK and its opinions into the process because it's the right thing to do," Brumberg says. "You have the public clamoring to be heard, and basically some deals were done behind closed doors -- in specific contravention of the original agreement. Here, you had deals handed to the public as fait accompli." DEP officials told him, "You handle them." To which he'd reply, "I am: One of my jobs is to tee up issues for the public in the right place." His petitions landed on deaf ears.

In January 2002, Florida and Georgia put new proposals on the table, and Struhs announced that the parties were "just micromillimeters" away from coming up with an agreement. ABARK was aghast, McLain says, because both were basically committing Florida to a drought-level stream. By July 2002, ABARK members, with an assist from Brumberg, had convinced the DEP negotiators that the agreement as written was bad for Florida and that the organization had a stakeholder's interest in the process. "We were trying to make sure we have a united front," McLain says. "We said it would be in Florida's interest to have us in the 'Amen' pew."

Here's where the limits of ombudsman power become as obvious as mosquitoes in the Everglades.

As Brumberg worked to get citizen involvement in the water controversy, Bush's staff began separate negotiations with the governors of Alabama and Georgia. "I was not privy to how this went," McLain says. "I think the governor's staff took upon themselves some of the responsibilities [Struhs] had had." The governors announced a memorandum of understanding last May, but because the governor's staff lacked any expertise in water issues, McLain says, its terms were back to "a drought-flow regime."

That proposal has since died, and McLain considers the demise of onerous agreements as a success of sorts. He's heartened that Struhs has, to some degree, accepted ABARK. Ultimately, though, autocratic power makes citizen advocacy groups and well-meaning bureaucrats irrelevant.

Brumberg bluntly describes his role in the affair as a failure, because the public he represented wasn't front and center. "Quite frankly, the way I would have run the process was from bottom up," he says. He would have marshaled the citizens and elected officials along the Apalachicola. "Then I'd put together an army and go to Columbus, Georgia, because they're with us. They're also on the back end of this when Atlanta sucks up all the water. Basically, we'd use a divide-and-conquer method. We'd then go to the outskirts of Atlanta and ask, 'Do you want this to turn into wall-to-wall homes?' This is a political war, and [DEP] is fighting it as a top-to-bottom process."


Brumberg, ever the conciliator, tends to keep his criticisms about state government -- and the DEP in particular -- broad.

"One of the things I learned is that most governmental employees" -- he pauses and puts a velvet glove on the fist -- "I think there's a certain amount of paranoia that comes with being a public employee. I can't really blame them. Most public employees do not make waves. When the policy comes from on high, whether it makes sense or doesn't make sense, it's basically, 'Yes, sir; how high would you like me to jump?'

"The worst thing for public officials is to have their names show up in a newspaper. Most bureaucrats want to be very silent. The minute things start to get rocky, they go into the bunker. Instead of addressing problems in a very public way... It's the gripe I had with the Florida Panther Technical Council. I tried and tried and tried to let the public back into the council, but they don't want the public looking over their shoulders."

Some Florida activists, however, have no qualms about pointing a finger at Jeb Bush and David Struhs for mishandling environmental regulation.

"The playbook is to privatize as many government functions as possible and to turn environmental protection into some kind of market system, which lets polluters off the hook," says Jonathan Ullman of the Florida Sierra Club. "What I've noticed about Struhs is that he allows a lot of corporate interests to determine what environmental protection means."

"The DEP is debilitated," says Susie Caplowe, a lobbyist for the Sierra Club. "It's like the science isn't there any more, because a lot of the people have left or they're forced into being silent."

The Bush administration's pattern is to leave environmental regulation in place -- avoiding the messy political battles -- but quietly thwart its intent.

Linda Young, regional director for the Clean Water Network in Florida, whose mission is to protect and restore the state's surface waters, has gone head to head with the DEP during the Struhs years. "What I saw change under Bush is that there was an immediate and obvious effort to eliminate and reduce public participation in decision-making," she says. "That has been a constant."

Take, for example, a large paper mill in Panama City owned by Stone Container. Located on the city's east side and near a bayou, the sprawling mill converted wood chips into pulp used for cardboard boxes and was a major employer in the Panhandle city. The mill also had a long history of environmental violations and had been operating without a permit for ten years because the DEP wouldn't issue one until the firm brought its effluent down to mandated levels. "As soon as Bush came in, they granted that permit immediately -- and they gave no public notice at all," Young says. She was "shocked and horrified" when she learned of it and shot a letter of protest to Struhs. He wrote back and stated, as Young tells it, "Well, it's unfortunate. It's done now, though, and we won't let it happen again. Let's move on."

He did indeed move on -- to more of the same, this time on the pristine wooded shores of the Ichetucknee River in Suwannee County. The river bubbles up from spring headwaters, and its shores are flanked by state park land, a few private homes, and roughly 900 acres of land owned by Suwannee American Cement Co. In 1999, the company applied for a DEP permit to build a tire- and coal-burning cement plant on the property, from which it would mine minerals for processing. Fearing for the river, citizen and conservation groups rose up against the plan. During a highly publicized photo-op in June 2000, Bush and Struhs paddled a canoe down the bucolic stream and afterward proclaimed that the company would not get its permit. Behind closed doors, however, Struhs brokered a deal with the company, and the permit was issued. The smoke-billowing plant now stands beside the waterway.

In issuing both these permits, the DEP used a little sleight of hand that followed the letter of the law but not its intent, Young says. "They issued a notice of intent to deny the permit," she says. "So publicly, in the newspaper, it said they'd deny the permit. Then they turned around and secretly issued it. Then when you ask them how they can do this without publishing a notice, they say, 'We published a notice, an intent to deny. That was your chance to challenge it.' Well, you have to show how you're adversely affected by something to challenge a permit. If they're going to deny it, you're not adversely affected by it!" She laughs bitterly at the notion. "I can't count all the times I've seen the DEP, under the Bush administration, just flat out deny citizens the right to be involved, not give public notices. They have a very consistent attitude about public participation and trying to keep the public out of the process as much as possible."

Developers are already embracing the new game. For example, the St. Joe Development Co., which has built huge tracts of housing in the Panhandle, is pushing for the construction of an airport in Bay County, north of Panama City. The airport, which would lie smack in the middle of marshland, is needed, company officials say, to attract homebuyers for its future development on the county's pastoral westside waterfront.

"Already, even before the applications go in and it gets to the point where they issue permits," Young says, "the company has this whole laundry list they maintain called the 'net environmental benefits' of this new airport that's going to pave over 2,000 acres of wetlands and destroy an entire estuary."

The administration has worked to silence public input by denying that individuals or groups have a valid standing in opposing permit requests by companies. In one case, Young, through an administrative court process, challenged a permit by a paper mill owned by Georgia Pacific in Palatka. The mill owners sought a permit to build a pipeline to dump its wastewater directly into the St. Johns River instead of into Rice Creek, a small tributary that led to the larger river. The DEP -- the very agency charged with environmental protection -- joined the company in a motion claiming that Young had no standing because she had no personal ties to the St. Johns River.

Young thinks that as the environmental community in Florida has become more adept in court, special interests are learning new defensive maneuvers. "The public would be outraged if they came out and said, 'OK, we're going to change the law so we don't have to protect water.' This is their way of getting around it."


Brumberg says that as ombudsman, he sought balance. "There are people who would like to pave over the whole state, on one hand, and those who'd like people to leave the state and have no more anything," he says. "In any society, you have to have someone on the extreme ends on both sides because the extreme positions tend to make a better balance."

So where does Jeb Bush stand on that spectrum?

"Yes, the governor is a developer, but I think it's too easy to classify him as an extremist," Brumberg answers. "That's not fair. I know the governor has an environmentally sensitive side to him. I've seen it. There's a balanced approach there, in my opinion. Maybe my approach is a little more green and maybe his is a little more toward the economics."

In a proper setting, Brumberg contends, the secretary of the DEP should be a "natural antagonist" toward other state agencies, such as the Department of Transportation. "Having less than an arm's-length relationship with them isn't necessarily in the best interest of the environment," he says. "But it's certainly in the best interests of the governor and the administration to have" -- he slowly moves his hands down in front of him as though to shush someone -- "quietude, quietude."

"I was the anti-quietude," he declares, a rare boast and one he tempers with confessions of failure. Scientists at the University of Florida in Gainesville have had spectacular success in breeding the near-extinct butterfly in captivity, and some will soon be transplanted to hospitable parks around the state. But even in his moment of highest achievement with the Miami Blue, he adds a postscript of disappointment.

He relates the story of his last meeting in the spring of 2003 with the various officials who were key in saving the Miami Blue. "Everybody was real happy sitting around the table," he recalls -- until Brumberg reeled off for them a litany of other endangered butterflies in Florida. There was the Florida Leafwing and the Martial Scrub-Hairstreak and another that's found only on the tops of cedar trees in the St. Augustine area. "Now that we've got the Miami Blue taken care of, what about these?" Brumberg posed to his eye-rolling colleagues. "Sure, they're not as endangered as the Miami Blue, but do we wait until we get down to 30 and the next guy gets the call?"

Perhaps the more important question to ask now is: Who's going to pick up the phone?


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