1. News

DEP secretary denies controversial wetlands permit, vindicating agency expert

Published Jun. 15, 2013

Florida's top environmental regulator has denied a permit for a controversial wetlands project, saying it failed to offer a reasonable assurance that it would work.

The decision late Friday by Department of Environmental Protection Secretary Herschel Vinyard Jr. in effect upholds the warnings of the DEP's top wetlands expert, Connie Bersok, who was relieved of duty, investigated and taken off the case last year.

The permit was for the Highlands Ranch Mitigation Bank, created in 2008 when a politically influential private equity firm named the Carlyle Group formed a joint venture with a Jacksonville company, Hassan & Lear Acquisitions. They spent $15 million buying a 1,575-acre pine plantation next to Jennings State Forest.

The company planned to turn the plantation into a business that attempts to make up for wetlands wiped out by new roads and development. At stake: millions of dollars in wetland credits that can be sold to governments and developers when their roads, houses and other projects wipe out marshes, swamps and bogs.

The problem, according to a memo last year from Bersok, was that the owners wanted the DEP to give them lots of wetland credits for land that isn't wet, using a method that no one else used.

Highlands Ranch originally sought a permit from the St. Johns River Water Management District, but wasn't satisfied with how many credits that permit approved. A legal challenge failed, as did an attempt to get the Legislature to change the rules.

Highlands Ranch hired a lobbyist named Ward Blakely who had previously worked with Vinyard. Then DEP Deputy Secretary Jeff Littlejohn, an engineering consultant who had recently been hired by Vinyard, issued a memo ordering a change in the way credits were calculated. The first draft, Littlejohn said, was written for him by the attorney for Highlands Ranch.

The company applied for a new permit from DEP that would supersede the one from the water district and be worth 425 credits. But Bersok — who helped write the state standards for credits — raised questions that Blakely complained were "punitive."

After being told by Littlejohn to ignore the rules she had followed on other permits, Bersok wrote, "I hereby state my objection to the intended agency action and refusal to recommend this permit for issuance."

Bersok was put on leave and under the microscope. Documents from the investigation that followed show her bosses were worried she was blabbing to reporters and environmental activists about flaws in the permit. She testified under oath that she was not.

Bersok was reinstated, but taken off the Highlands Ranch permit review. DEP officials approved the permit, giving the owners all the credits they had asked for.

The Florida Wildlife Federation filed a legal challenge. In April, a judge with the state Department of Administrative Hearings ruled the permit should be rejected by the DEP.

Bersok's testimony about what happened offered "the most credible and reliable application of reasonable scientific judgment," the judge ruled.

The judge noted that no one at DEP could explain how they came up with the numbers used in the permit and blasted Littlejohn and the DEP for creating a new approach "developed by the department and Highlands Ranch, without opportunity for public participation or input."

Vinyard, in his 113-page decision, ruled that the way the permit was written, it "did not provide reasonable assurance of successful implementation" as required by state law, and its application was denied.

Highlands Ranch's owners can challenge Vinyard's decision by taking it to circuit court. A spokeswoman said that so far they had not seen the order.

Craig Pittman can be reached at