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Controversial long docks are blocked for now

STORY BY STEVEN M. THOMAS, (Week of April 26, 2012)

The controversial Osprey Estates project proposed for 15 acres north of the Barber Bridge has been stopped in its tracks by an outpouring of opposition from island residents who have filed three separate successful petitions for administrative review of the state decision to issue a permit for the development.

“We are expecting the case to take at least six months to be resolved,” says Patrick Gillespie, a Florida Department of Environmental Protection spokesman. “But it could take years. We won’t give them a permit until the judge makes a decision.”

According to a site plan submitted by property co-owner Oculina Bank, the project if built will include three 6,000-square-foot houses with docks protruding as much as 500 feet into the Indian River Lagoon. It will require filling 1.8 acres of mangrove wetlands and sinking hundreds of pilings in shallow waters along the western shore where manatee are known to graze on delicate sea grass beds.

Oculina Bank has been trying since 2009 to get the property, which is located in an aquatic preserve, approved for development. After several failed attempts, it seemed headed for success Feb. 10 when the DEP announced its intent to issue a permit.

But the plan raised red flags for environmentalists and boaters, and on March 28, Michael Casale, a systems designer with Clemens Bruns Schaub Architect & Associates P.A., filed a 12- page petition for an administrative hearing to challenge the project on ecological grounds.

His petition lists 41 objections, including the likelihood of harmful impacts to fish, birds and other wildlife, including manatees, degradation of water quality to substandard levels and loss of protected sea grass beds.

On April 4, Carolyn Stutt, trustee of the Mangrove Garden Foundation, and a group of John’s Island and Grand Harbor residents hired environmental  attorney Marcy LaHart and filed a similar petition alleging inaccuracies in the DEP’s assessment of project impacts and violations of state environmental protection statutes.

Shortly afterward, Gem Island resident E. Garrett Bewkes filed a third petition asking the Florida Division of Administrative Hearings to assign a judge to review the development and stop the DEP from permitting construction. “The destruction of sea grass, mangrove and marsh areas [that] will harm other plant and animal species and [cause] the overall marine ecology of the area to be adversely impacted,” he says.

All three petitions were accepted by the Division of Administrative Hearings as being reasonable and worthy of a hearing and the case was assigned to Judge D.R. Alexander for resolution.

“The next step will be the interrogatories,” says Stutt. “After that there will be a date set for depositions.”

After depositions, Alexander will set a date for hearing, which will take place in Indian River County and could last up to four days. Once he hears all the testimony and examines evidence submitted by the petitioners on one side, and by DEP and Oculina Bank on the other, the judge will either recommend the permit be issued, that it be denied or that it be issued with modifications.

To support their claims Osprey Estates will harm the environment in ways prohibited by state and federal law, petitioners and their attorneys have hired expert witnesses, including well-known Vero Beach Environmental consultant David Cox and Dr. Grant Gilmore, a senior scientist with Estuarine, Coastal and Ocean Science, Inc. (ECOS) and a leading expert on Florida fish biology.

One of the petitioner’s strongest arguments has to do with the length of the proposed docks, which appear to be in clear violation of the DEP’s own rules.

According to state code, “no dock shall extend waterward of the mean or ordinary high water line more than 500 feet or 20 percent of the width of the water body at that particular location, whichever is less,” but the site plan submitted with Oculina’s permit application shows the longest Osprey Estates dock obstructs more than 40 percent of the waterway. 

“Docks that length could pose a hazard for navigation,” says Ralph Monticello, director of Land Protection at Indian River Land Trust. “They could also interfere with manatee feeding areas.”

Docks also endanger sea grass beds where manatee feed by cutting off sunlight needed by the plants.

A study done by The Coastal and Estuarine Research Federation, a private, nonprofit, non-partisan organization founded in 1971, found sea grass density is reduced by more than 40 percent in shaded areas, and the proposed docks would shade more than 5,000 square feet.

Steven Gieseler, an attorney representing Oculina Bank, says the docks will not be as long as shown on the site plan. “Plans like this are a fluid thing,” he says. “The people opposing the project are not privy to the changing information we are privy to.

“Sometimes members of the public bring something to the DEP’s attention that they have overlooked. If they then come to us and say there is something that would make the project more amenable to getting final approval we look at it and see if the client is willing to go along with the change.”

“That is not a credible scenario,” says Cox. “Those guys at Central District [of the DEP] didn’t accidently overlook the length of these docks. They know the regulations controlling docks inside and out without even looking them up.

“That kind of irregularity in the review process makes it seem like the project has been given special consideration from the top down. I don’t have concrete evidence of that, but the fact that the DEP was ready to permit illegal docks before they were stopped by public outcry seems strange.”

A letter Gieseler sent to Jeffrey Maffett, president of the board of Oculina Bank, hints at the possibility of political influence at play. “As your own contacts have confirmed, Gov. Scott’s approach, when applied at the administrative level, will foster a climate consonant with approvals of projects like Osprey Estates.”

Many people regard Scott as a poor steward of the environment. In an action the Miami Herald called “foolhardy” and dangerous to the state in a December editorial, Scott in 2011 slashed Florida water management district budgets by 40 percent, cutting more than $700 million from the amount available to protect groundwater and waterways. He is also pushing to weaken water quality regulations that now require waterways be clean enough to swim and fish in, according to a wide range of environmental organizations.

“Scott’s cuts to water quality protection dwarf all of the cuts made over the past 20 years by all local and state agencies,” says Jim Egan, executive director of the Marine Resources Council.

“No one can understand it,” says Warren Falls, managing director of the Ocean Research and Conservation Association (ORCA) in Fort Pierce. “The waterways are why people move to Florida. Governor Scott is tearing down the very thing the tourism industry and the towns along the waterway are built on.”

“I am concerned the agencies which exist to protect the lagoon may be succumbing to pressures and that we who are most affected by their decisions have not been adequately informed about this project nor its consequences,” says Bonnie Veron, a 23-year island resident who opposes Osprey Estates.

The DEP declined to comment on why it was prepared to permit illegal docks, citing the ongoing administrative review, but said the project is in overall compliance with state guidelines.

“When someone wants to develop a property, we look at the entire parcel and try to determine how their objectives can be met with minimal impact to the environment,” says DEP External Affairs Director Lisa Kelley.

Project opponents are not convinced and say they will fight as long and hard as they have to stop Osprey Estates.

“We are not going to set a limit on how much we will spend to defeat this,” says Stutt. “There are 22 families in our group and we are prepared to see this through to a successful conclusion.”