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Judge upholds suspended wetlands expert, blasts DEP for permitting controversial project

Highlands Ranch’s website features a photo of wetlands. The problem, according to the state Department of Environmental Protection’s top wetlands expert, is that much of the land isn’t wet.
Published Apr. 13, 2013

A judge has ruled that the state Department of Environmental Protection was wrong to ignore its top wetlands expert and issue a permit for a controversial project that she had warned would damage the environment.

The ruling shows "good science is being protected," said Tom Reese, the St. Petersburg attorney for the Florida Wildlife Federation, which challenged the permit.

The permit the DEP issued would have resulted in the loss of 300 acres of wetlands, considered vital to soaking up floodwaters and recharging the aquifer, he said.

The 83-page ruling concerns a permit the DEP issued for the Highlands Ranch Mitigation Bank in Clay County, a project so controversial it led to the suspension of the DEP's top wetlands expert, Connie Bersok.

Highlands Ranch's plans call for turning a North Florida pine plantation into a business that attempts to make up for wetlands that are wiped out by new roads and development. At stake: millions of dollars in wetland credits that can be sold to government and developers.

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.

After being told by Deputy Secretary Jeff 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 the permit. She testified under oath that she was not.

Although Bersok was reinstated, she was taken off the Highlands Ranch permit review. DEP officials approved the permit the way the owner wanted. During the environmental group's legal challenge, Bersok's testimony about what happened offered "the most credible and reliable application of reasonable scientific judgment," the judge ruled.

"Connie is a good scientist," Reese said. "She would not succumb to political pressure."

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."

DEP officials said they could not comment on the case while Secretary Herschel Vinyard Jr. is still considering what to do about it. An attorney for Highlands Ranch did not respond to a request for comment.

Highlands Ranch is a wetlands mitigation bank. It's supposed to work like this: A would-be banker buys pasture or forest that used to be a swamp and restores the wetlands. Regulators calculate how many wetland credits the banker has earned. The banker can sell those credits to customers who need to make up for filling in a swamp, usually for development.

The Highlands Ranch bank was 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.

Although records show Highlands Ranch's owners planned to do little to restore wetlands on the plantation, its owners sought 688 credits from the St. Johns River Water Management District.

The district approved only 193 credits, a difference worth millions in a market where credits have sold for up to $100,000 each. Highlands Ranch filed a legal challenge and lost. It attempted to get the Legislature to change the rules. That failed too.

So Highlands Ranch hired a lobbyist from Jacksonville named Ward Blakely who had previously worked with Vinyard. Then 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 then applied for a new permit from DEP that would supersede the one from the water district and would be worth 425 credits. But Bersok — who helped write the standards the state uses for credits — kept raising questions that Blakely complained were "punitive."

She calculated Highlands Ranch was due only 177 credits, so Littlejohn told Bersok to try a new approach suggested by Highland Ranch's consultant. This time she came up with 280 credits, still short of what the owners wanted.

The permit that Bersok's bosses issued last August gave Highlands Ranch the 425 credits its owners had sought. It also waived the requirement that they show they are financially capable of building what they promised.

Both of those decisions were wrong, according to Judge E. Gary Early of the state Division of Administrative Hearings. The company should not have been allowed to duck its financial responsibilities and the project should get no more than the 280 credits Bersok came up with.

Craig Pittman can be reached at craig@tampabay.com

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