Shelli Freeland Eddie relates comments she and city engineer heard from members of Congress about lack of federal funding thus far for Lido Renourishment Project
Sarasota Mayor Shelli Freeland Eddie convinced the majority of her colleagues this week to keep $2.5 million set aside as an “insurance policy” in the event the proposed dredging of Big Sarasota Pass were allowed to proceed and resulting damage needed to be mitigated.
Reporting on discussions she and City Engineer Alexandrea DavisShaw held in Washington, D.C., in December 2017 with representatives of the U.S. Army Corps of Engineers (USACE) and members of the U.S. House and Senate Appropriations committees, Freeland Eddie stressed her concern that moving the money back into the city’s general beach renourishment account could jeopardize federal funding for the planned replenishment of sand on South Lido Key.
“The $2.5 million was one of the bright lights in terms of showing the city’s additional investment in the project,” she said on Jan. 16.
On Feb. 21, 2017, the City Commission voted unanimously to set up what City Manager Tom Barwin characterized as an “insurance policy.” The action came almost exactly two months after the Florida Department of Environmental Protection (FDEP) announced its intent to issue the city and the USACE a permit to dredge about 1.2 million cubic yards of sand from Big Pass to renourish about 1.6 miles of critically eroded South Lido Key.
In January 2017, the Siesta Key Association (SKA) and Save Our Siesta Sand 2 (SOSS2) filed administrative law challenges in response to FDEP’s Dec. 22, 2016 announcement.
A third nonprofit organization, the Florida Wildlife Federation (FWF), joined them in opposing the plan to dredge the pass, which never has had sand removed from it.
Barwin voiced optimism during that February 2017 City Commission meeting that if the board established the emergency mitigation fund, the SKA and SOSS2 could be dissuaded from pursuing their challenges. He did not specifically address the FWF action.
“This is a good faith effort to respond to concerns which have been expressed,” he said, referring to the views of SOSS2 and SKA leaders that the dredging would damage not only the pass but also Siesta Key.
In mid-December 2017, Judge Bram D.E. Canter presided over a five-day Florida Division of Administrative Hearings (DOAH) proceeding during which the SKA and SOSS2 presented a series of expert witnesses. (Because of health issues involving its attorney, the FWF had to withdraw from the hearing.)
Among the issues the scientists addressed were their beliefs about the inaccuracy of the USACE modeling for the Lido project, the fact that the renourishment would be the largest ever undertaken in the state of Florida, and the potential negative impacts on seagrass, fish and other wildlife in the pass. Canter is expected to rule late this winter or early in the spring on whether FDEP should be allowed to issue the dredging permit.
Freeland Eddie said on Jan. 16 that she understood it probably would be 60 to 90 days before the DOAH decision would be rendered.
City Attorney Robert Fournier pointed to the fact that because the hearing already had been held, the reasoning for maintaining the emergency fund was moot.
Nonetheless, Freeland Eddie said, if Canter rules for the city and the USACE, the federal agency “will be able to go full-speed on our behalf,” based on the scoring of the city’s application for the project. “I’m praying that we are going to get a favorable decision.”
She did not mention that the SKA also filed a verified complaint in the 12th Judicial Circuit Court in January 2017, seeking to prevent the removal of sand from the pass. Judge Lon Arend ruled in April 2017 that the case would be held in abeyance until after Canter ruled in the DOAH proceeding.
‘A more vulnerable position’
During her and DavisShaw’s discussions with USACE representatives, congressmen and senators — including members of the Florida delegation — in December 2017, Freeland Eddie told her colleagues on Jan. 16, they learned that the continuing legal challenges to the Lido Renourishment Project have put the city “in a more vulnerable position …” It was made clear to her and DavisShaw, she pointed out, that no federal money has been allocated for the estimated $21.5-million project because the legal issues have remained unresolved.
“We scored very well” in terms of demonstrated need for the Lido project, Freeland Eddie pointed out again. “We would likely be funded,” she noted, if litigation were not pending.
In unveiling the Lido proposal in September 2013, the USACE project manager at the time — Milan Mora of the Jacksonville District Office — said the federal agency would cover about 62% of the cost. The rest of the money would come out of Tourist Development Tax (TDT) revenue Sarasota County allocates to the city for beach renourishment initiatives and from the state, in the form of a grant. The latter two amounts would be equal, based on city documents released as late as the summer of 2017.
Exceeding a deadline
Prior to the City Commission vote in February 2017, then-Commissioner Susan Chapman asked what would be a reasonable amount of time to let the litigants know about the emergency fund. City Attorney Fournier responded that he would suggest 60 to 90 days. Then Chapman made the motion to approve the setting aside of the money for potential mitigation, with the 90-day stipulation.
However, it was not until the City Commission met this week that the fund again appeared on an agenda.
Kelly Strickland, the city’s director of financial administration, appeared before the board on Jan. 16 to request that the “insurance policy” money be transferred back to the city’s beach renourishment account, which comprises the TDT revenue.
Strickland further pointed out that the $2.5 million could not be used for any purpose except beach renourishment-related actions.
Although Freeland Eddie said she had “no doubt” that the city would refrain from spending any of the $2.5 million, she voiced concern about the appearance of moving the money back into the beach renourishment account. “There are so many states vying for the same pot of [federal] dollars.”
“I agree with what the mayor said,” Vice Mayor Liz Alpert announced.
If the city did receive the FDEP permit, Alpert continued, and the dredging began, “I’d rather have this [money] sitting there, ready, in case we do need to use it for the mitigation.”
“I share the concerns, as well,” Commissioner Hagen Brody added. “I don’t want anything to influence the administrative law judge that just sat through this whole hearing [in December].”
Then Deputy City Manager Marlon Brown reiterated Fournier’s comments — that the emergency fund was established with the hope that it would induce the SKA and SOSS2 to back away from their legal challenges. “This money is strictly for beach renourishment, so it can’t be moved to any other project. We only have one beach in the city of Sarasota,” he added, and that is Lido Beach.
Putting the money back into the beach renourishment account simply would give the city more flexibility about its use, Brown pointed out.
“They can use whatever they want in deciding we’re not worth funding,” Freeland Eddie responded, referring to the USACE and members of Congress. “I don’t want us to do anything that gives them any reason to say, ‘Well, you know, maybe we should consider somebody else [for funding].’”
She added that the emergency money was mentioned in the application for the project permit.
Fournier pointed out that the $2.5 million was not set aside until well after the city and the USACE submitted the Lido project application to FDEP, which took place in March 2015. Nonetheless, he said, “I don’t have any reason to dispute what the mayor said” about the mitigation money’s influence on members of Congress. “How they found out about it, I’m not sure.”
“We have mentioned [it to the USACE],” Freeland Eddie replied. “They are aware.”
Brody made the motion to deny the staff request to move the money back into the overall beach renourishment fund. Commissioners Jan Ahearn-Koch and Willie Shaw opposed the motion, resulting in a 3-2 vote.
SKA and SOSS2 responses
In response to a Sarasota News Leader request for a comment on the City Commission action, Peter van Roekens, chair of SOSS2, wrote in a Jan. 17 email, “One house and its seawall on Big Pass would not be covered by $2.5 million; talk about being underinsured by many orders of magnitude. Given the data from the recent DOAH hearing, the City would find they could not purchase insurance on the open market to cover the potential risk to Siesta Key.”
SKA Vice President Catherine Luckner responded in a Jan. 16 email, “Sadly, [the $2.5 million] would not fully approach the portion of responsibility should there be post-project damages.”
For example, she pointed out, in its formal Biologic Opinion, which is part of the FDEP file on the permit application, the U.S. Fish and Wildlife Service “has stated there must be funds to remove the groins structures should they create other problems for wildlife.” That action, she pointed out, would “be costly.”
Two groins have been proposed on South Lido to help hold the sand in place between subsequent renourishments of the beach the USACE plans over a 50-year period.
Moreover, Luckner noted, “Post project funds (NOT part of the [USACE] responsibility) must be set aside by the City and State. No one has discussed the funds required for follow-up monitoring as a condition of any Permit.”
Still, Luckner wrote, “The Mayor was wise in her approach. A next step would be to use the money to purchase a Warranty Bond or an Insurance Policy” to pay for the environmental damage [the SKA expects from the project] and reconstruction.”
“If anyone wanted to file a civil suit as a result of harm from the project,” she continued, “the only group vulnerable for liability is the Lido Key Resident Association. Municipalities and [the USACE] are exempt under [Florida law].”
Judge Canter granted the request of the Lido Key Residents Association to intervene in the DOAH proceeding. Its members are directly affected by the erosion on the beach, the organization’s attorney told Canter; they have been alarmed that major structural damage could result from storms.