Developer and U.S. Senate candidate Carlos Beruff wants to open a wetlands mitigation bank unlike any other in Florida.
A wetlands mitigation bank is supposed to look and function like a natural wetland. But Beruff's bank, to be created on land adjacent to his controversial Long Bar Pointe development in Manatee County, would not do that for one simple reason:
He wants to cut back 40 acres of native mangroves now growing on the property.
Why? "For the obvious reason," he told the Tampa Bay Times in July. "The view!"
Cutting the mangroves to create a better view for his development — originally envisioned as a 463-acre waterfront resort with a hotel and conference center, homes, condos, offices, stores and what Beruff called "a lifestyle marina" along Sarasota Bay — runs counter to what a mitigation bank is supposed to do, say opponents.
But Beruff, who has a history of using Florida's land use rules to his benefit, is already in line to get a permit for the bank from the Florida Department of Environmental Protection.
However, internal DEP memos indicate that the permit reviewer had a lot of qualms about it — and then his superiors took charge.
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A few years ago Beruff took a trip to Spain, where he says seeing Barcelona's famed "Las Ramblas" promenade inspired him to create something similarly grand.
His vision for Long Bar Pointe hinged on the marina, for which he wanted a 60-foot-wide channel dredged through 2,100 feet of sea grass. He also wanted to chop down 225 feet of mangroves. But he swore he would not be hurting the environment.
"You're never going to do something if it harms the environment," Beruff said in 2013. "That would never be allowed to happen."
Vocal public opposition to Beruff's marina drove Manatee commissioners in 2013 to reject a change to their comprehensive plan, prompting him to yank that part of the development. He lost an $18 million lawsuit against the county earlier this year.
Now, in the area where the marina would have been, Beruff is proposing his wetland mitigation bank.
Opponents contend the mitigation bank is just a ruse to allow him to dredge the channel to his development and chop up the mangroves. They point to a 150-foot wide gap in the waterfront side of the mitigation bank as the place where the channel could still go.
Mitigation banking is a growing, yet little known, private industry in Florida. In the past decade the industry has doubled in size, increasing from 45 banks to 90.
Since 1990, federal policy has required developers like Beruff to replace any wetlands they destroy, an expensive task that frequently fails.
Enter the mitigation banker. He or she buys land that used to be a swamp and restores it, or preserves existing swampland and removes invasive plants. Regulators then calculate how much those changes are worth in "credits" which the banker can sell, each one equal to an acre of pristine wetlands.
Developers can then skip the expense and headache of trying to make up for the destroyed wetlands and simply write a check to the banker, sometimes paying as much as $100,000 per credit.
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However their ability to fully replace existing wetlands can be questionable. A 2006 Times investigation ( tbtim.es/wetlands) found that at some banks, as many or more credits were given to dry land as to wet. A DEP-commissioned study found that many banks suffer from being surrounded by subsequent development that disrupts the flow of water through the property.
Cutting the height of the mangroves to provide a better water view for home buyers makes Beruff's mitigation bank unlike any other in the U.S., according to Donald Ross, the president of the National Mitigation Banking Association.
Ross, whose Florida-based Earth Balance company is a longtime leader in the mitigation industry, said he'd never heard of a mitigation bank where chopping the tops off mangroves was part of the plan.
He expressed confidence that the permitting agencies — the Florida Department of Environmental Protection and the Army Corps of Engineers — would sort out the problems.
However, in April the DEP — while not yet approving the mangrove trimming — announced it expects to greenlight Beruff's mitigation bank. Civic and environmental activists have challenged that decision in the state Division of Administrative Hearings.
One of the opponents, former Manatee County commissioner Joe McClash, contends Beruff used his longtime political connections with Gov. Rick Scott to muscle the permit through despite objections from the DEP's permit reviewer.
"It's what I define as political corruption," McClash contended. He suggested Beruff, a longtime campaign contributor, told Scott, "Here's a million dollars you don't need, now let me destroy these mangroves down here in Manatee County."
But DEP Secretary Jon Steverson denied Beruff, a former chairman of the Southwest Florida Water Management District, got any special favors, although he contributed $24,000 to Scott's two campaigns, and put another $75,000 into Scott's "Let's Get to Work" political action committee.
"He's treated just like everybody else," Steverson said, "and we make sure to follow the law with every single permit we issue."
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Generally, mitigation bankers try to get state and federal regulators to grant them as many credits as possible — scores of them, even hundreds. A small number is hardly worth all the effort involved in setting up the bank.
But Beruff and his partner, Larry Lieberman, got a mere 18.62 credits from the state. Originally the DEP's permit reviewer wanted to give them even less than that.
Part of the reason for that is, if Beruff and Lieberman succeed in getting their project built, it would be adjacent to a heavily developed area. Most mitigation banks are not.
The DEP permit reviewer, Matt Wilson, wrote in a March memo that, during a meeting with Beruff, he said the project was "somewhat unconventional" for being located next to "high-intensity mixed use" development. Such a location "poses a challenge to (the) sustainability and viability" of the site, a crucial point in state rules.
But then, according to the memo, his division director, Fred Anschauer, said it was up to the DEP to decide how to interpret those rules. Anschauer said he believed that the language "would apply to activities such as a paper mill or a landfill," but not Beruff's development.
The other problem, Wilson wrote, is that Beruff had proposed doing so little work at the mitigation bank that it was "little more than what would be expected to occur in the 'without bank' scenario."
Only 8 acres of mangroves would avoid being trimmed, the seagrasses in the area were already protected by state law and any removal of exotic plants from the rest of the property was already required by local ordinance, he noted.
A month later, Anschauer and another DEP official held a separate meeting with Beruff and his consultants, then informed Wilson that they had produced some new calculations to boost the number of credits, according to another memo from Wilson.
Wilson wrote in the memo that he disagreed with the new numbers. The DEP announced 10 days later it would approve the permit. Last month the corps of engineers posted a public notice that it is now considering a federal permit for Beruff's bank.
Beruff has a history of working the legal angles on his development projects. In July the Times reported that he avoided paying $235,000 in taxes on land he plans to build on by claiming it's agricultural and leasing it out to ranching operations or for timber.
Times senior news researcher Caryn Baird and staff writer Steve Bousquet contributed to this report. Contact Craig Pittman at firstname.lastname@example.org. Follow @craigtimes.