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Citizens take action to block permit for long docks in lagoon

STORY BY STEVEN M. THOMAS, (Week of March 15, 2012)
Photo: Proposed docks extend up to 500 feet into river.

A group of concerned citizens from John’s Island, Grand Harbor and other lagoon-side communities has filed a motion with a state agency seeking to delay – and ultimately block – approval of a plan by Osprey Estates, a development on the mainland shore just north of the Barber Bridge, to build three 6,000-square-foot homes with docks protruding as much as 500 feet into the estuary.

Should the project proceed, several acres of tidal wetlands will be filled and hundreds of pilings will be sunk in shallow water where manatees are known to graze on sea grass beds.

“We are concerned about the preservation of precious tidal wetlands,” says Carolyn Stutt, who helped organize the group of more than 20 families that joined together to file the motion. “If this is approved it will set a precedent that will endanger other critically important natural areas. This project is not good for the lagoon.”

“The area in question is a sensitive ecological site which ought to be conserved for the health of the Indian River Lagoon and thereby the residents and visitors of Vero Beach,” says Michael Casale, an island resident who has filed a similar motion.

“The two main issues with really long docks [like those proposed for Osprey Estates] are shading and the possibility of poisonous chemicals the wood pilings are treated with leaching into lagoon water,” says Jim Egan, executive director of the Marine Resources Council. “I have seen studies that show wooden docks like that create a dead zone around them.”

Shading is a critical issue because of potential impact on sea grass beds that are a foundational component of lagoon ecology, providing food and shelter for many marine animals.

Manatees rely on the lush underwater meadows for much of their diet and the grasses act as a nursery for fish. Females lay their eggs in the lagoon and hatchlings live, feed and hide from predators in the greenery until they are mature enough to venture into open waters.

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.

Egan says loss of wetlands is another concern with a project like this. “The Indian River Lagoon has less wetland associated with it than any other major estuary on the East Coast of the United States, so there is a serious impact if we lose any along the shore.”

“Seventy-five percent of the seafood we eat starts life among mangroves and in wetlands,” says Carolyn Stutt.

Oculina Bank, which owns the Osprey Estates property in partnership with Ohio Valley Bank, is seeking approval from the Florida Department of Environmental Protection to develop the 15-acre site.

On Feb. 10, the DEP issued notice of intent to grant a permit for the project. The public was informed of the DEP’s intent via a small-print newspaper announcement on Feb. 22.

That public notice gave details of a complex process by which anyone objecting to the project could file a petition for administrative review of the DEP decision, but petitions had to be filed by March 7.

The short timeframe did not allow the Stutts and their partners enough time to complete the highly-specific petition process so they hired an ecological consultant to review the project and a lawyer to submit a "petitioners' motion for enlargement of time to request administrative hearing."

If accepted by the state, that motion will get them 45 more days to write and file a convincing formal request for review.

“The motion goes to the Division of Administrative Hearings,” says Marcy LaHart, the environmental attorney who represents the group organized by the Stutts. “I would say the motion has a 100 percent chance of succeeding. It would be a blatant violation of due process for them to disregard it.”

If the group is given more time to file a petition as LaHart expects, that will result in a hearing before an administrative law judge knowledgeable about environmental litigation.

“The hearing could last three or four days with expert witnesses testifying,” says Carolyn Stutt.

At the end, the presiding judge will either recommend the permit be issued, that it be denied or that it be issued with modifications.

“I hold the Indian River Lagoon as one of the remaining treasures of the Treasure Coast, to be treated as such and conserved and preserved for our own good and the good of future generations,” says Casale.

“I am also 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 had difficulty finding the information needed to file a successful petition for administrative review.

A letter from an attorney working for Oculina Bank in the permit effort suggests the City of Vero Beach was pressured into backing the project by hinting the site might be more densely developed than now planned if the Osprey Estates project is blocked.

The same letter cites the change of administration in Tallahassee as an important factor in making the development more viable now than in 2009 when it was first proposed.

“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,” wrote Steven Geoffrey Gieseler in a letter addressed Jeffrey Maffett, president of the Board of Directors of Oculina Bank.

Scott is regarded as a poor steward of the environment by many, but a DEP spokesperson says the project has been revised and now meets environmental standards.

“I expect to hear this week sometime if our request for additional time to file a petition has been granted,” says LaHart.