Editorial: Breaking rules, hurting environment

Florida’s Department of Environmental Protection broke the rules aimed at preserving the state’s wetlands to benefit a well-connected landowner.
Florida’s Department of Environmental Protection broke the rules aimed at preserving the state’s wetlands to benefit a well-connected landowner.
Published April 15, 2013

Regulators who break the rules cannot be trusted with enforcing them. The Florida Department of Environmental Protection broke the rules protecting the state's wetlands to benefit a well-connected landowner, then punished the one employee who challenged her bosses on it and tried to do her job. Gov. Rick Scott should remove DEP Secretary Herschel Vinyard Jr. and at least one of his deputy secretaries, because Floridians can no longer trust the agency to protect the environment and fairly enforce the rules.

A state administrative law judge was unequivocal last week in backing the decision by the state's top wetlands expert. Connie Bersok opposed the Highlands Ranch application to receive 688 wetland mitigation credits — only to be suspended from her job and moved off the case before her bosses embraced the company's pitch for how to interpret state rules so it could receive more mitigation credits. Bersok calculated that the Highlands Ranch property, a 1,575-acre pine plantation in Clay County, contained just 280 credits and noted the company had failed to submit any explanation of how it might improve the land to qualify for additional credits.

The difference in rules enforcement meant millions for Highlands Ranch, whose owners have included the influential Carlyle group, a private equity firm that once counted former President George H.W. Bush among its team. A single credit can sell for as much as $100,000 under the state's growth-friendly scheme that is supposed to ensure the aquifer and its drinking water supply remain protected. But as earlier Times reporting has shown, the effectiveness of wetland mitigation remains dubious.

First, the company tried but failed to get the 2011 Legislature to further undermine the state's mitigation effort. Then it hired a lobbyist and appealed directly to DEP's top leadership, who were shockingly complicit. They accepted from a Highlands Ranch attorney the first draft of the eventual changes to how mitigation credits would be calculated. The Florida Wildlife Federation eventually brought the case to the state's administrative court.

Judge E. Gary Early's found no one at DEP who could explain the methodology the department used to eventually grant Highlands Ranch 425 credits. He noted that Deputy Secretary Jeff Littlejohn and others drafted the new plan out of public view in violation of the state's rulemaking process as established under Florida's Administrative Procedure Act — designed to ensure that state executives carry out the Legislature's intent in implementing laws.

Under the same law, it technically falls to the DEP secretary to enter the administrative judge's final order. The order should be implemented and the wetlands should be protected. Bersok, who has been reinstated, should be honored. Vinyard and Littlejohn should clean out their desks. The integrity of Scott's environmental agency is at stake, because regulators who discipline staff trying to enforce the rules, and then rewrite those rules with the help of the special interests who will benefit, cannot be trusted.