Wetlands expert suspended by DEP after she refuses to approve permit

Published June 6, 2012

Florida's top state wetlands expert has been suspended after she refused to issue a permit on a controversial project — one that she said her boss was willing to bend the rules to approve.

The project: 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 May 9 memo from Department of Environmental Protection wetlands expert Connie Bersok, is that the owners want the DEP to give them lots of wetland credits for land that isn't wet.

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."

Two days later, Bersok was suspended pending an investigation, her personnel file shows. She declined to comment for this article without DEP permission. DEP officials would not allow a reporter to speak with her. A spokeswoman would not discuss her case.

"It smells really bad to me," said Aliki Moncrief, a former DEP attorney who is now executive director of Environment Florida, an activist group.

The application that led to Bersok's suspension came from the Highlands Ranch Mitigation Bank, which has repeatedly tussled with permitting officials.

"They're scrappy, these guys," said Glenn Lowe, who lost his job with the St. Johns River Water Management District after he refused to give Highlands Ranch what its owners wanted. Former water district executive director Kirby Green said Lowe and other employees lost their jobs because Gov. Rick Scott's pro-business administration didn't like the way they treated Highlands Ranch.

Highlands Ranch manager Marc El Hassan, a Jacksonville developer, said no one from his company complained about Bersok or the water district employees who were fired.

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

"For every credit that's issued, somewhere else wetlands are being destroyed," explained Jeff Elledge, another water district employee who tangled with Highlands Ranch and lost his job. "If you give them more credits than they're worth, then you end up with a net environmental loss."

In a series of articles in 2006, the Times found serious problems with Florida's mitigation banks. Some got more than half of their wetland credits for land that was actually dry. A 2007 study done for the DEP reported that fewer than half of the banks reviewed had achieved their restoration goals.

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But mitigation banking is still a big business. Wetland credits in northeast Florida have sold for up to $100,000 each, Lowe said.

Highlands Ranch Mitigation Bank was created in 2008 when a private equity firm named the Carlyle Group, with what the Washington Post called "a reputation of opaque, insider-power connections," formed a joint venture with a Jacksonville company, Hassan & Lear Acquisitions. They spent $15 million on a 1,575-acre pine plantation in Clay County next to Jennings State Forest.

The mitigation bank application they filed with the water district — the first time El Hassan had tried his hand at the business — sought 688 credits. However, records show the bank would do little to restore wetlands beyond removing a road and taking out the furrows among the pines.

Lowe's agency approved a permit with only 193 credits, a difference worth millions. So, in 2010, the bank's owners took the unusual step of filing a legal challenge to their own permit. They lost. They tried getting the Legislature to change the rules. That failed, too.

But then the DEP's Littlejohn — the son of Florida Chamber of Commerce lobbyist Chuck Littlejohn, who has negotiated with the DEP on wetland issues — issued a memo ordering a change in the way credits were calculated. The first draft, Littlejohn said, was written for him by Eric T. Olsen, the attorney for Highlands Ranch, "who shared a list of concerns with me early on."

The Littlejohn memo prompted Highlands Ranch to seek a new permit, "hoping we would receive a better outcome for the whole site," El Hassan said.

With what El Hassan said were only minor changes to its plan, Highlands Ranch applied to the DEP for a permit that would yield more credits — 424 of them "with the vast majority of that increase given to the upland communities," Bersok wrote.

In reviewing this new application, Littlejohn said he was hearing "radically different opinions" from Bersok, DEP's top wetlands expert, and from Highland Ranch's expert, Mike Dennis, president of Breedlove, Dennis & Associates.

"I don't speak wetlands ecologist," said Littlejohn, who was a consulting engineer before joining the DEP a year ago. While Bersok has a lot of experience, he said, "I've known Mike for a long time." And when he thought about what Dennis told him, "it made sense."

So Littlejohn told Bersok that instead of requiring detailed plans for how Highlands Ranch would help the environment, he wanted her to set goals for the bank's progress.

He called it a "performance-based pilot" for all future banks, a concept that he said was approved by DEP Secretary Herschel Vinyard.

Bersok wrote that that approach violates a state law that requires "a reasonable assurance" that a mitigation plan will work before any permit is issued. And giving too much credit for dry land, she said, "could not be ecologically supported." She refused to go along and was suspended.

Last year, Bersok's supervisor wrote in an evaluation that Bersok "is a model representative for the department" who always "strives for fairness."

Despite Bersok's suspension, El Hassan said he's hopeful the permit will be issued soon — this time with the number of credits the owners need to make the bank work financially.

"Obviously, it's been longer and harder for us than we would have liked it to be," he said.

Staff researcher Caryn Baird contributed to this report. Craig Pittman can be reached at