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Development on shore of lagoon may be revived

STORY BY STEVEN M. THOMAS, (Week of June 20, 2013)

A small local bank and a large state agency are trying to revive the zombie-like Osprey Estates development in an environmentally sensitive area on the mainland shore of the Indian River Lagoon, a mile or so north of the Barber Bridge.

Oculina Bank and the Florida Department of Environmental Protection (FDEP) have filed appeals to Administrative Law Judge Bram D. E. Canter’s April ruling to kill the project.

FDEP’s dogged advocacy for the private development raises questions about why a taxpayer-funded agency charged with protecting the environment continues to burn time and money pushing a subdivision that clearly violated state regulations in the form originally approved by the agency.

Environmental attorney Marcy LaHart, who represents a group of island residents opposed to the project, said the appeals, called exceptions, “have no merit whatsoever.”

But the exceptions will be ruled on by FDEP Secretary Herschel Vinyard, a political appointee of Governor Scott who, it has been alleged, holds his office in violation of the federal Clean Water Act, and may not be an impartial arbiter.

At the end of May, state Senator Darren Soto, D-Orlando, launched an investigation of the unexplained firing of two FDEP attorneys involved in enforcing environmental regulations and the forced resignations of two other attorneys doing the same work.

In a letter to Vinyard, Soto said he is “deeply concerned” about the abrupt firings. 

“The increasingly cozy relationship between regulatory authorities and those they’re supposed to be watching have been ongoing concerns, and I want assurances that these latest terminations were not due to external influences,” Soto said in a May 29 statement released by his office.

FDEP, which by its own definition exists to “protect, conserve and manage Florida's natural resources and enforce the State's environmental laws,” has spent more than 14 months battling at taxpayer expense to get Oculina’s for-profit project approved.

Vero Beach 32963 asked FDEP spokesman Patrick Gillespie last week how it benefits the citizens of Florida for the agency to spend staff time and money defending a private developer’s project and trying to overcome a highly-qualified judge’s decision that the project would harm the Indian River County environment, but Gillespie declined to answer the question.

Oculina Bank has tried to get the subdivision approved in the midst of ecologically critical wetlands south of Grand Harbor since repossessing the 15-acre site from a failed developer in 2008.

But the plan raised red flags for environmentalists and boaters, and island residents Bill and Carolyn Stutt filed a petition alleging inaccuracies in FDEP’s assessment of project impacts and violations of state environmental protection statutes.

Gem Island resident E. Garrett Bewkes filed another petition asking the Florida Division of Administrative Hearings to assign a judge to review the development and stop FDEP from permitting construction.

The most blatant violation of its own rules evident in FDEP’s initial intent to allow the project had to do with the length of the proposed 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 extending more than 500 feet into the lagoon, obstructing more than 40 percent of the waterway. 

LaHart said it is rare for administrative law judge’s decisions to be overturned, but Christopher Byrd, one of the recently fired FDEP attorneys, believes the agency has been compromised by changes instituted by Governor Scott.

Gillespie said FDEP’s unexplained advocacy for the bank project is not motived by political pressure.

Vinyard’s ruling on the appeals filed by Oculina and his own agency is due by Aug. 21.

If he rules in the bank’s favor, LaHart and her clients can challenge his decision in the district court of appeals.