Administrative law judge sets August hearing dates for petitions opposing FDEP’s intent to issue permit for dredging of Big Pass to renourish Lido Key

Siesta Key Association had argued for keeping the hearing in abeyance, pending the outcome of the case it has filed in Circuit Court

An historic photo shows Lido Key to the north and Big Pass in January 2006. Image from the U.S. Geological Society via Google Earth

A Florida administrative law judge has denied a motion by the Siesta Key Association (SKA) and three Siesta Key residents to delay an administrative hearing on petitions they and two other organizations filed in January. Their action responded to the Florida Department of Environmental Protection’s Dec. 22, 2016 notice of its intent to issue a permit that would allow the dredging of Big Sarasota Pass to renourish South Lido Key.

Instead, Judge Bram D. E. Canter has set the dates of Aug. 22-25 and Aug. 28-31 for a hearing on the petitions of the SKA, Save Our Siesta Sand 2 (SOSS2) and the Florida Wildlife Federation (FWF) petitions. The proceeding will be conducted in Sarasota, his March 21 order says. However, no exact time or location is available at this point.

On March 14, FDEP filed a motion with the Florida Division of Administrative Hearings, asking that all three petitions be consolidated. The motion said that “would promote a just, speedy, and inexpensive resolution of the proceedings by using legal and scientific resources efficiently, by averting duplication in the preparation for and the conduct of hearings and by insuring a consistent result for all parties similarly situated in all cases.” The motion added, “There is no basis apparent at this time for any prejudice to any party to arise as a result of the consolidation of these cases.” Moreover, it said, none of the parties involved objected to the action. Canter granted the motion on March 15.

A USACE map shows the borrow areas in Big Pass. Image courtesy FDEP

The SKA motion to delay the hearing, filed on March 13, pointed out that on March 9, the SKA and Siesta resident David Patton filed a complaint in the 12th Judicial Circuit Court seeking an injunction to prevent the dredging until the City of Sarasota complies with the Sarasota County Comprehensive Plan and its own Comprehensive Plan in its joint proposal with the U.S. Army Corps of Engineers (USACE) to remove about 1.2 million cubic yards of sand from Big Sarasota Pass. The SKA and Patton had sought an abeyance of the administrative hearing until after the Circuit Court case had been decided, arguing that the administrative hearing might not be necessary if the court ruled in their favor.

In his March 28 order, Canter wrote that while the SKA and others have asserted that the county’s Environmental Policy 4.6.1 prohibits dredging, “there is some ambiguity in the policy because it also allows for nourishment projects, which usually involve dredging. The policy does not mention renourishment.”

Canter continued, “It is not unreasonable to believe that Sarasota County’s approval is needed for the proposed project, but the argument that the proposed project is inconsistent with Policy 4.6.1 is not obvious.”

That policy says the county shall “Prohibit dredge and fill activities in the Gulf of Mexico, bays, rivers, and streams of the county except to maintain previously dredged functional navigation channels and drainage canals.”

Big Pass, Robert Luckner pointed out to the County Commission in public remarks on Feb. 7, “has not ever been previously dredged.”

Furthermore, he told the board, the city’s Comprehensive Plan says city actions must be consistent with the county’s Comprehensive Plan. Therefore, Luckner explained, the city and the USACE cannot dredge any areas of Big Pass within the county unless the county grants them permission to do so.

Kent Safriet. Image from the Hopping Green & Sams website

The SKA’s attorney — Kent Safriet of Hopping Green & Sams in Tallahassee — included a state legal description of Sarasota County’s boundaries in the SKA Circuit Court complaint in making the SKA’s argument that areas of the pass slated for dredging are within the county’s boundaries.

In his order, Canter wrote, “It remains significant to the Administrative Law Judge that the SKA and the other parties who assert that County approval for the proposed renourishment project must or might be refused do not support their assertion with any allegation that the County has ever expressed this view.”

On Feb. 7, County Commissioner Charles Hines asked County Attorney Stephen DeMarsh to research Robert Luckner’s point about the county’s boundaries and report back to the board.

In response to a Sarasota News Leader question regarding any subsequent staff action, county spokesman Drew Winchester wrote in an April 4 email, “[T]here was no board assignment on this request, so the Office of the County Attorney has not provided a memo to the board.”

In a Sept. 14, 2016 memo to the commission, Matt Osterhoudt, then-interim director of the county’s Planning and Development Services Department, wrote that the county’s Comprehensive Plan was not applicable to the city/USACE project. He added that the county’s Comprehensive Plan “applies to development proposals through implementation of the Sarasota County Code of Ordinances,” and the code provisions “relating to coastal systems are either: (1) not applicable to incorporated areas; or (2) have provisions exempting municipal, state, and federal projects.”

During the April 3 regular meeting of the City Commission, City Manager Tom Barwin called Judge Canter’s order “a good thing,” as it has cleared the way for the administrative hearing.

On March 29, Assistant County Attorney David Pearce notified Osterhoudt — now director of the Planning and Development Services Department — that Canter had issued the order denying the SKA motion. Osterhoudt, in turn, informed County Administrator Tom Harmer, who passed along the information to the County Commission the same day, county emails show.

The SKA position

During a March 31 telephone interview with the News Leader, SKA Vice President Catherine Luckner voiced disappointment with the judge’s order on the motion for abeyance.

Catherine Luckner. File photo

Referring to the August hearing, she added, “We have plenty of time [to prepare for that].” Nonetheless, she said, the SKA had hoped to avoid the expenditure of time and money on that hearing unless it was necessary after the Circuit Court case was concluded.

In its March 13 motion, the SKA pointed out, “A favorable ruling by the circuit court for [the SKA and Patton] will necessitate the current proposed project be dramatically revised to eliminate Big Pass as a dredging location.” Furthermore, the motion said, a favorable ruling likely would make the administrative law hearing unnecessary.

“As such,” the motion continued, “proceeding with the Administrative case that will involve numerous expert witnesses testifying regarding the current design of the project could be a large waste of resources of the Court and the numerous parties in this case and the other two related cases,” involving the FWF and SOSS2.

Arguments against the SKA motion

On March 24, John Herin Jr. of the GrayRobinson law firm in Fort Lauderdale — who is serving as the City of Sarasota’s attorney in the Lido action — filed a response to the SKA’s motion for abeyance in the administrative law case.

Herin wrote that the Doctrine of Primary Administrative Jurisdiction “dictates that administrative challenges to state agency actions — particularly where the state agency has the power and responsibility to resolve the contested facts in a proceeding [under the Florida Statutes] and, using its special expertise, can fashion an appropriate cure — take precedence over any related civil court litigation.”

Herin cites a 2001 Florida Supreme Court case as the basis for that argument.

He added that the SKA’s motion “is not the proper manner to assert a comprehensive plan consistency challenge.” The sole method to do that, he continued, is by “filing an original action in circuit court,” according to state law.

After receiving Canter’s permission to intervene in the case, the Lido Key Residents Association (LKRA) — on March 27 — also filed a response to the SKA motion. It concurred with Herin’s assertion that an administrative law hearing “is the forum designed to hear disputes regarding the permitting and approval process for this Joint Coastal Permit and accordingly has primary jurisdiction to hear challenges regarding the proposed Permit, not the Circuit Court.”

It further says, “The authority regarding the permitting process … is vested with [FDEP under provisions of the state statutes and the Florida Administrative Code].”

Waves crash against the wall of the pool area at a condominium complex on South Lido Key during a January storm. Photo contributed by Rob Wright

The LKRA response also contends that the SKA’s argument that the county can prevent the City of Sarasota and the USACE from dredging Big Pass because of the county Comprehensive Plan policy “misapprehends the separation of jurisdiction and purpose of the coastal permitting process from a county comprehensive plan or local development regulation.”

It points out that the county has been an active participant in the FDEP permit review process “for the past two years [but] it has not claimed on the record that any county comprehensive plan approval or consistency is required for the proposed Project.”

And while the SKA in its motion raises the possibility of “‘wasted effort and cost,’” the LKRA response adds, “such risk is the applicants’ choice,” whereas the LKRA’s members “are the people whose lives and property are faced with the substantial risk of harm and delay in the issuance of the permit” as a result of the SKA’s filing the complaint in Circuit Court.

The LKRA’s attorney is Kevin S. Hennessy of Lewis, Longman & Walker in Bradenton.