DEP's handling of controversial wetland permit now subject of investigation

Article Courtesy of The Tampa Bay Times

By Craig Pittman

Published June 17, 2012

State officials are now investigating the way top Department of Environmental Protection officials have handled a controversial permit, according to newly released documents.

The investigation into what the state's deputy chief inspector general called "possible improprieties" was sparked by a complaint from the state's top wetlands expert.

That expert, Connie Bersok, was suspended last month after she refused to approve the permit for the Highlands Ranch Mitigation Bank. She was also put under investigation.

DEP officials have repeatedly said Bersok was not put on paid leave and investigated for three weeks because of her refusal. Newly released documents show it was because her bosses feared she was telling outsiders about her refusal.

"Who, if anybody, did you talk to about Highlands Ranch Mitigation Bank?" DEP Capt. Gary Wiser asked as his first question during a 34-minute interrogation of Bersok.

Wiser asked if she had talked to environmental activists or reporters, and explained, "Some of the suspicion was that you gave the media information."

Bersok testified she did not. She has declined to speak to the Times.

The DEP was trying to shut her up, contended Aliki Moncrief, a former DEP attorney who is now executive director of Environment Florida, and one activist that Wiser asked Bersok about by name. She praised Bersok for standing up to DEP officials who, she said, were "taking the rules designed to protect wetlands and throwing them out the window."

That investigation cleared Bersok, and now her complaint has led to a second investigation, this one focused on how Bersok's bosses — including DEP Deputy Secretary Jeff Littlejohn — have been handling the Highlands Ranch permit.

"Your concerns are serious," Deputy Chief Inspector General Dawn Case wrote her on Monday.

Bersok had complained to the inspector general last month about what she viewed as rule-bending by her superiors over the Highlands Ranch permit. She wrote a memo on May 9 explaining why she was refusing to sign the permit. That same day, she also called the DEP's inspector general, Candie Fuller, to complain.

The DEP would not make Fuller or any other DEP officials available 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 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 in Clay County next to Jennings State Forest.

Although records show Highlands Ranch planned to do little to restore wetlands, 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, but lost. It attempted to get the Legislature to change the rules, but that failed too.

But then Littlejohn, an engineering consultant who had recently been hired by the DEP, 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.

Highlands Ranch then sought a new state permit with 425 credits, figuring that Littlejohn's memo would pave the way to success. But Bersok kept raising questions and objections. She calculated Highlands Ranch was due only 177 credits.

In December, Littlejohn met with Highland Ranch's lobbyist, Ward Blakely, and in his notes wrote, "Connie dug in, doesn't believe we should be reviewing the application." He also noted Blakely's complaint that Bersok's questions seemed "punitive."

Littlejohn told Bersok to take a new approach, one suggested by Highland Ranch's environmental consultant. Instead of requiring detailed plans for how Highlands Ranch would help the environment, as previous mitigation banks were required to do, he wanted her to set goals for the bank. That way Highlands Ranch would get a lot more credits to sell, but it would first have to prove it had changed the landscape enough to earn them.

Littlejohn called it a "performance-based pilot" for all future banks, a concept he said was approved by DEP Secretary Herschel Vinyard. After the Times began writing about the controversy, DEP attorneys produced an opinion that Littlejohn's idea is "legally permissible."

Bersok went along with Littlejohn's order, but continued raising objections to giving hundreds of credits for land that was mostly dry, and without what she called "a reasonable assurance" that its restoration plans would work.

Bersok, who on her evaluation last year was called a "model representative for the department," has been working on wetland mitigation issues for years, and helped write the method used statewide for assessing credits.

However, by April, her division director, Mark Thomasson — another recent DEP hire — was ready to oust her because of her work on Highlands Ranch.

On May 11, Thomasson wrote, he planned to tell her she was getting the boot — and that's when he saw her May 9 memo saying she wouldn't approve the permit.

At that point, Thomasson wrote, he complained to Littlejohn, who called in the inspector general. On May 31 — three days after the Times' first article on Bersok's suspension — Thomasson wrote a memo explaining why he accused her of conduct unbecoming a DEP employee.

"I became suspicious that Ms. Bersok may have been inappropriately using state equipment to leak information to third parties to support a permit challenge," he wrote.