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State role in Osprey Estates fight puzzling

STORY BY STEVEN M. THOMAS, (Week of November 22, 2012)

The Florida Department of Environmental Protection is fighting a determined rear-guard action against a series of legal challenges to Osprey Estates, a 16-acre residential development in an aquatic preserve north of the Barber Bridge that appears to violate DEPs own rules and regulations.

Project opponents say DEP’s stubborn defense of the project is hard to understand.

“I think the agency’s cooperation with the developer has a lot to do with the fact Rick Scott is governor,” says attorney Marcy LaHart.

LaHart represents a group of barrier island residents who say Osprey Estates would destroy wetlands and pose hazards to navigation on the Intracoastal Waterway.

Since August, she has forced DEP and developer Oculina Bank to alter the project plan repeatedly by showing it violated state rules and statutes. Alterations include two recent changes to Oculina’s mitigation scheme.

The bank first proposed making up for wetland damage at the site by allowing public access to the aquatic preserve over Gifford Dock Road, which it claimed to own.

When LaHart and her expert witnesses cast doubt on Oculina’s ownership and claim of increased public access at a discovery hearing in August, the bank dropped that mitigation plan and offered a completely new one, which was promptly accepted by DEP.

The fallback plan was to donate $25,000 to the Marine Resources Council to pay for removing invasive species and restoring mangroves in a portion of the Pelican Island National Wildlife Refuge.

That scheme turned out to be as faulty as the first one. First, the bank apparently did not give the Marine Resources Council a clear picture of what it was mitigating.  MRC board member Dr. Richard Baker says the organization “would not have gotten involved with Oculina if they had known the history of the case.”

Second, the plan was also illegal, according to LaHart.

In a “Petitioners’ Motion In Limine” filed on Nov. 5, she cites Florida Statute 373.4135, section of St. Johns River Management District’s Applicant’s Handbook and U.S Fish and Wildlife’s policy on compensatory mitigation, all of which restrict, discourage or prohibit the use of government land for development mitigation.

Four days later, DEP lawyers filed a response, denying the validity of LaHart’s arguments, but someone at the agency or bank apparently feared she was right because they changed the mitigation plan again before Administrative Law Judge Bram D. E. Canter could rule on the filings.

The new plan, still in effect at this date, is to buy mitigation credits from an entity known as CGW Mitigation Bank that sells environmental good karma to developers who damage wetlands, getting them off the hook with the government.

“It seems every time we find a weakness in what they are proposing, they put a band aid on it and the DEP approves it,” says project opponent Gary Bewkes.

“Here at the 11th hour, just prior to an administrative hearing, Oculina Bank and the DEP have yet again changed the proposed mitigation which is supposed to offset the environmental harm that will be caused by the destruction of the Osprey Estates wetlands,” says environmentalist Carolyn Stutt, a John’s island resident who is part of the group that hired LaHart. “Our experts believe this third attempt to conjure up mitigation is flawed and will fail.”

“The new mitigation they are proposing doesn’t do anything to help the preserve,” LaHart says.

Even if the judge accepts the latest mitigation scheme, LaHart believes her main environmental arguments against the project are intact and will prevail.

Oculina has been trying since 2009 to get the shoreline property approved for development that would include three 6,000-square-foot houses with docks protruding far out into the Indian River lagoon. After several failed attempts, the bank 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, manatees and other wildlife, degradation of water quality to substandard levels and loss of protected sea grass beds.

On April 4, Stutt and a group of John’s Island and Grand Harbor residents hired 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 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 he said would cause “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.”

The most noticeable flaw in the original plan was the length of the three docks.

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 the permit application showed the longest Osprey Estates dock would extend more than 500 feet into the lagoon and obstruct more than 40 percent of the waterway. 

Despite that apparently blatant violation, DEP was ready to issue an environmental resource permit and sovereign submerged land authorization until petitions were filed to block the action.

“Those guys at Central District [of the DEP] didn’t accidently overlook the length of these docks,” David Cox, an environmental consultant hired by LaHart, said last spring. “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 DEP was ready to permit illegal docks before they were stopped by public outcry seems strange.”

A letter sent by Steven Gieseler, an attorney representing Oculina Bank, to bank board President Jeffrey Maffett 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.”

LaHart says DEPs numerous revisions of its intent to issue “show that it did a substandard job to begin with” when it reviewed the original plan.

DEP Press Secretary Patrick Gillespie said in an e-mail there has been no political pressure on the agency in the Osprey Estates matter and that “it is common practice for the Department to consider revisions, especially during the administrative hearing process.”

After several continuances, the case is now scheduled to go before Judge Canter at the Indian River County Court House on 16th Ave. on Nov. 27.

The hearing is expected to last several days as project opponents, bank representatives, expert witnesses and attorneys make their arguments.

Once Canter has heard all the testimony and examined all the evidence he will either recommend the permit be issued, that it be denied or that it be issued with modifications.
Gieseler, Oculina’s attorney, did not respond to a phone message seeking information for this article or to questions about the case sent to his office via e-mail.