City’s outside counsel says city may withdraw as co-applicant with the U.S. Army Corps of Engineers for the state permit for the project
Editor’s note: This article was updated on the afternoon of April 28 to clarify a comment by John Herin Jr. regarding the city’s expectation that the U.S. Army Corps of Engineers will be undertaking the project.
A 12th Judicial Circuit Court judge ruled this week that it was premature for the Siesta Key Association (SKA) to seek a court remedy for what it alleges is a City of Sarasota violation of Sarasota County’s Comprehensive Plan related to the city’s proposal to dredge Big Sarasota Pass to renourish South Lido Key Beach.
A judge with the state’s Division of Administrative Hearings has scheduled a proceeding in late August on challenges the SKA, Save Our Siesta Sand 2 (SOSS2) and the Florida Wildlife Federation have filed in response to the December 2016 Florida Department of Environmental Protection (FDEP) announcement of an intent to issue a permit for the project.
After the matter has been settled in the administrative hearing forum, 12th Judicial Circuit Court Judge Lon Arend ruled on April 24, the SKA may seek a remedy in Circuit Court, if necessary. When the SKA’s attorney, Kent Safriet of the Tallahassee firm Hopping Green & Sams, asked whether Arend would consider an emergency injunction if the conclusion of the administrative hearing process cleared the way for the issuance of the Joint Coastal Permit (JCP), Arend indicated he readily would do so. In fact, if Safriet learned that the permit would be forthcoming, Arend added, Safriet could contact the court about the scheduling of an emergency hearing.
Arend’s ruling on April 24 formally granted an abeyance to the City of Sarasota, which had sought to have the SKA’s verified complaint against the city dismissed. The city’s outside counsel — John R. Herin Jr. of the GrayRobinson law firm, based in Fort Lauderdale — had sought the abeyance as an alternative if the judge decided not to grant the city’s Motion to Dismiss the case.
As the approximately 40-minute hearing was concluding on April 24, Herin appeared to surprise Safriet and the SKA members who were present when he announced that the city was considering withdrawing as a co-applicant to FDEP for the Joint Coastal Permit.
Herin’s statement came after Safriet asked about the possibility of Arend’s issuing an emergency injunction, and Arend responded, “Absolutely.”
Arend had added, “It is not my intention to stop your ability to go forward [with a case in the 12th Judicial Circuit] or my intent for [Herin] to continue to argue the Motion to Dismiss.”
Herin first said he wanted to inquire of Safriet why the city was the only party named as a defendant in the verified complaint filed on March 9 by the SKA and Siesta Key resident David N. Patton.
In March 2015, the city and the U.S. Army Corps of Engineers (USACE) submitted an application together to FDEP, seeking not only to dredge about 1.2 million cubic yards of sand from Big Pass to renourish about 1.6 miles of South Lido but also to construct two groins on Lido Key to try to hold sand in place between subsequent renourishment projects. The USACE has proposed that the latter take place about every five years over a 50-year period. (The FDEP Joint Coastal Permit, however, would be for 15 years.)
The city is a co-applicant for the FDEP permit, Herin pointed out to Arend. “The city has advised me that I have the authority to report to this court and the [Division of Administrative Hearings] judge and to [FDEP] that we’re going to withdraw [the city’s] name as a co-applicant on that permit, and, therefore, in our opinion, moot this matter, because we no longer will be the entity responsible for this project.”
“You are going to do that?” Safriet asked Herin.
“We are considering that,” Herin replied.
The city wants to know, Herin told the judge, that if it does withdraw as co-applicant, it then can file for mootness with the court, and the SKA and Patton would agree that the complaint no longer was valid.
Safriet suggested that Herin go ahead and take the action that day, so the legal challenge could be moved to federal court.
“We could have avoided this whole hearing had you withdrawn as the applicant in the first place,” Safriet told Herin.
“We’re still considering that,” Herin replied. The city contends that the USACE needs to be party to the legal challenge the SKA is pursuing, he added.
“Nothing happens until you make the decision,” Arend replied.
The SKA reaction
In a press release it issued after the hearing, the SKA pointed out that its goal has been to safeguard Big Pass. “We asked the Court to enforce [a Florida statute pertaining to environmental matters] in hopes of the City and County working together for a ‘best practices’ plan, one that protects natural resources and meets the needs of critical erosion on Lido.”
The release added that the city failed in its effort to get the case dismissed this week and was “forced to accept” the abeyance order.
In an April 27 telephone interview, Herin told The Sarasota News Leader, “We believe that the judge was correct.”
Herin wrote in the city’s Motion to Dismiss that the SKA was wrong to argue in its verified complaint that state law makes it necessary for the city and the USACE to obtain approval of the Sarasota County Commission to dredge Big Pass before FDEP can issue the Joint Coastal Permit.
The SKA and Patton point out that Big Pass never has been dredged, and sand borrow areas lie within the county’s boundaries — as SKA attorney Safriet has illustrated. The county’s Comprehensive Plan prohibits dredging of waterways within the county unless the action is necessary for maintenance purposes. Therefore, the SKA and Patton contend that the city has to win county approval before any sand can be taken from Big Pass. The city’s own Comprehensive Plan calls for it to abide by the county’s plan as appropriate in cases where the city has no guidelines of its own to govern a specific situation, SKA leaders have pointed out.
As he argued in court on April 24, Herin told the News Leader on April 27 that the SKA has no reason to make its Comprehensive Plan argument until after a Joint Coastal Permit has been issued.
In its press release, the SKA also noted that a ruling in its favor would have saved time and “significant money.”
Shortly after Safriet began his argument in court, Arend asked, “Why is it not premature for me to get involved” before a Joint Coastal Permit is issued?
“Conservation of judicial resources,” Safriet replied. The administrative hearing in August, he pointed out, involves about half-a-dozen parties and “a whole lot of experts” who will be offering opinions. “There’s a lot of expense in that.”
Safriet argued that it would make more sense for the judge to decide whether the city needs the county’s permission for the project, as designed, before the administrative hearing begins. If the county refuses to give its approval, Safriet continued, “the city can go back to the [USACE] with the drawing board …” Furthermore, Safriet pointed out, if the city and USACE found an alternative to dredging Big Pass, the legal challenges might all be dropped.
“The city has made it clear,” Safriet stressed: “They are not going to the county. We’ve asked them to go to the county. they won’t.” He added that it could take nine months for a final decision to result from the administrative challenges. The city’s position, Safriet said, is “just a delay tactic [and a means to] rack up expenses [for the opponents of the dredging of Big Pass].”
Herin maintained that the SKA should follow the guidelines of state law and challenge the permit through the administrative process first.
“This is state land, this is state sand, state waters, and without that Joint Coastal Permit, this project can’t move forward,” Herin told Arend. Therefore, the court should cede jurisdiction to the Division of Administrative Hearings, he added.
The co-applicant issue
Immediately after the hearing, The Sarasota News Leader asked Herin how quickly the city intended to act in withdrawing as co-applicant for the Lido project. “I would say within the next day or two,” he responded.
During the telephone interview with the News Leader on April 27 — the deadline for the publication’s issue this week — Herin said, “The city’s still discussing whether or not it’s going to [withdraw].” Those talks have been taking place with representatives of FDEP and the USACE, he added.
In response to News Leader questions about Herin’s statements in court regarding that potential action, Susan J. Jackson, a spokeswoman for the USACE at its Jacksonville District Office, wrote in an April 26 email, “We don’t want to speculate on what may happen with the city.” She added, “Our team is looking into it, but it seems that we have more questions than answers at the moment.”
When the News Leader asked City Attorney Robert Fournier about the city’s possible withdrawal as co-applicant for the Joint Coastal Permit, he replied in an April 24 email: “[T]he decision [to consider that] was made in a call between Mr. Herin, the City Engineer and I in March after prior consultation with the attorneys for the Army Corps.”
The city engineer is Alexandrea DavisShaw, who has worked with USACE staff in Jacksonville on the $19-million proposed Lido project. Then-USACE Project Manager Milan Mora reported that the federal government would pay for about 62% of the cost of the renourishment initiative when he unveiled the plan during a county advisory council meeting in September 2013. The remaining funds would be split between an FDEP grant and county Tourist Development Tax revenue allocated to the City of Sarasota for beach renourishment, based on the current city budget.
During the April 27 telephone interview, Herin explained, “Ninety-nine percent of the time [the USACE does not] have a co-applicant” for a project it undertakes. If the city withdrew as co-applicant in this situation, he pointed out, it still would serve as the local sponsor of the initiative.
The reason city leaders chose to file as a co-applicant, Herin continued, was to “provide additional flexibility.” He pointed out that if for some reason the USACE were unable to obtain the funding from Congress for the initiative, then, by being a co-applicant, the city would have the flexibility to go forward with the work on its own.
Yet, Herin stressed, “The city’s expectation is the project will receive federal funding and will be performed by the [USACE].”
Jackson of the USACE told the News Leader earlier this spring that the project team members do not anticipate learning until mid-May whether funding for the Lido project will be included in the 2018 federal budget.