Response to Tampa Bay Times' Coverage of Mitigation Banking

| May 2012

On May 28, the Tampa Bay Times ran an article about the state's mitigation bank program that accused the department (DEP)  of bending the state's environmental rules, suspending an employee because she refused to issue a permit and failing to protect the environment. Nothing could be further from the truth. In addition to a letter to the editor submitted by the department to the newspaper on May 30, the following is the department's full response to that article and the subsequent column and editorial published in the Times.

Personnel Action

Ms. Bersok was not suspended because she refused to issue a permit. She was placed on paid administrative leave pending an internal investigation by the department's Inspector General. It is not the department's policy to discuss employee personnel matters in the newspaper or with the general public.

Status of Permit Application

The permit has not been issued. In fact, the department has not completed its review of the Highlands Ranch Mitigation Bank permit application. Any decision made about this permit will be based on sound science and within the confines of Florida law and the environmental rules that govern the department's action.

Mitigation Banking

Mitigation banking is the restoration, creation, enhancement or preservation of a wetland or a combination of wetlands and uplands as intact ecosystems, which can offset impacts to similar nearby ecosystems, due to road construction or other development. The goal is to replace the functions and values of the wetland habitats that are lost with equal or better wetland habitat that is located within a larger ecosystem.

As a part of Florida's Environmental Reorganization Act of 1993, the Florida Legislature directed the department and the water management districts to adopt rules governing mitigation banking throughout the state. The department's mitigation banking rule went into effect in February 1994.

Mitigation banks are permitted by the department or one of the water management districts based on the location of the bank. Once permitted, the bank operator can sell "credits" which represent the wetland ecological value equivalent to the complete restoration of one acre. Credits have been released based on fixed dates on a calendar, rather than the actual environmental result.

Mitigation Bank Permitting

For years, environmental groups, staff at the department and water management districts, and even the Tampa Bay Times, have questioned the effectiveness of the state's existing mitigation banking system.

According to a University of Florida report issued in 2007, the principal shortcomings of the existing system were related to credit release schedules that relied too heavily on future restoration actions, rather than the actual ecological results. In fact, the system that has been in place for many years has allowed for the release of mitigation "credits" before the wetlands restoration is fully completed.

The department's proposed new approach to mitigation bank permitting holds the bank operator more accountable to the required environmental result and allows for the release of credits only after environmental restoration is completed and verified to be successful. Instead of scheduling the release of mitigation credits based primarily on restoration activities or fixed dates on a calendar, we are developing success criteria based on the achievement of ecological milestones. This approach provides more certainty that when wetland impacts happen, those impacts are being fully offset through our mitigation bank permitting program.

Permit Evaluation

In 2009, the St. Johns River Water Management District issued a mitigation bank permit to Highlands Ranch to construct and manage a more than 1,500-acre wetland mitigation bank in Clay County. That permit was challenged by the applicant, who was dissatisfied over the number of credits they received.

As identified in the 2007 report and in the 2006 series of articles published by the Times, there have historically been widely different interpretations of credit scoring between the department, water management districts and consultants. This is unfair to the public and to the environment.

Because the department recognized the inconsistencies in the current system, we agreed to review the modified mitigation bank project at Highlands Ranch.

The 2007 report also recommended that credit release schedules be linked more with ecological results than construction activities, and we agree. The department followed proper procedure during the transfer of the project, and worked to process the application using an environmental results-based approach. As noted above, our focus during the review of the application is on the development of comprehensive, specific and measurable ecological conditions.

Final agency action on the application is still pending.

If the permit is issued, potential credits identified in the permit will not be guaranteed. It will be up to the bank operator to prove to the department that they can achieve these environmental results and only then will the credits be released.

The Department's Commitment

The department is committed to upholding Florida's stringent environmental standards, while at the same time, evaluating our processes for efficiencies and consistency. Despite the Times' mischaracterization of the department's actions and environmental policies, the department and its employees are committed to doing the right thing by the rules and statues that govern its actions, by Florida taxpayers and by the environment.