County’s Comprehensive Plan policy regarding dredging does not relate to public projects, county attorney says

Statement could have impact on Siesta Key Association’s 12th Judicial Circuit Court complaint as nonprofit seeks to prevent removal of sand from Big Pass

A woman walks along the sandbar in Big Pass, just north of Siesta Key, in July 2017. File photo

Sarasota County has no jurisdiction over dredging in the Gulf of Mexico in regard to beach nourishment projects, County Attorney Stephen DeMarsh reported to the County Commission on July 10.

Commissioner Alan Maio raised the issue during his report as part of the board’s regular meeting that day. Maio pointed out that he has received “an awful lot of questions” — and he expected his colleagues had, as well — regarding the proposed dredging of Big Sarasota Pass to renourish an approximately 1.6-mile stretch of South Lido Key Beach.

On June 18, Secretary Noah Valenstein of the Florida Department of Environmental Protection (FDEP) issued a Joint Coastal Permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) that would allow them to remove up to 1.3 million cubic yards of sand from Big Pass for South Lido.

Maio added on July 10 that he had spent “dozens and dozens and dozens and dozens of hours with staff,” including DeMarsh and County Administrator Jonathan Lewis, on points raised in emails he has received. Maio also apologized to DeMarsh, adding that he “got pretty pushy” with DeMarsh during some of their talks.

“We have Comprehensive Plan language that says no dredging within our boundaries without our express permission,” Maio told his colleagues. In his discussions about that with DeMarsh, he continued, he learned that the policy does not apply to the Big Pass situation.

County Attorney Stephen DeMarsh. File photo

“In working with your staff,” DeMarsh responded, addressing all the commissioners, “and reviewing [county] Environmental Policy 4.6.1, it is our opinion and [staff’s] opinion that it only applies to private dredging operations and has never been applied to a public project to dredge.”

DeMarsh continued, “It has been my opinion that that environmental policy would not come into play in the event that there were beach nourishment projects requiring a sand source, and therefore dredging, in the Gulf of Mexico. It simply does not apply.”

That policy has been the foundation of a verified complaint that the Siesta Key Association (SKA) filed in the 12th Judicial Circuit Court early last year in an effort to stop the city and the USACE from using Big Pass as the source of sand for the Lido project.

That case had been in abeyance until a Final Order was issued at the conclusion of a Florida Division of Administrative Hearings (DOAH) proceeding in which the SKA and another Siesta-based nonprofit, Save Our Siesta Sand 2 (SOSS2), had challenged the FDEP’s Notice of Intent — published on Dec. 22, 2016 — that it would issue the Joint Coastal Permit for the Lido project. Valenstein also filed the Final Order on June 11, which made only a couple of substantial modifications to the permit. One of those restricted the amount of sand to 1.3 million cubic yards; the other prevents removal of sand from two borrow areas from April through September. The latter limitation was designed to protect the spotted sea trout, which spawns in those areas during that period each year.

Siesta Key Association President Gene Kusekoski addresses members on April 5. Rachel Hackney photo

The SKA announced just last week that it had a hearing scheduled for July 23 in 12th Judicial Circuit Court on a motion the City of Sarasota filed last year, seeking dismissal of the verified complaint.

After the July 10 County Commission discussion, The Sarasota News Leader was able to reach Gene Kusekoski, president of the SKA, to tell him about DeMarsh’s comments. Kusekoski did not provide any comments for publication prior to the News Leader’s deadline this week.

In mid-June, Kusekoski and Peter van Roekens, the SOSS2 chair, sent an email to Maio, reminding him that the County Commission voted unanimously to hire the Atkins consulting firm to undertake a peer review of the USACE project plans for Lido. After the Atkins report asserted that it was not possible to confirm that the county’s Ted Sperling Park — at the southernmost part of Lido Key — would be spared damage as a result of the city/USACE initiative, the commissioners then asked the USACE to conduct an Environmental Impact Statement on its project. The USACE declined to undertake such an in-depth analysis. (See the related story in this issue.)

Kusekoski and van Roekens underscored their support for the stabilization of the South Lido Beach in that email to Maio. However, they asked three questions:

  • “Will the County support us in the SKA Circuit Court case about violations of the County Comprehensive Plan?
  • “Will the County approve the easements required by the permit to store dredged sand and other material in Ted Sperling Park?” Ted Sperling Park is adjacent to the city’s project area.
  • “Will the County press for a Plan B that replaces the current Big Pass Shoal sand source?”

What about that $1 million for the CRA settlement?

During his July 10 report, Maio raised a second issue pertinent to the Lido project. “There’s a great deal of conversation,” he said, about the $1 million the board agreed to give the City of Sarasota for an emergency shoreline stabilization project the city plans on South Lido, after sea turtle nesting season ends on Oct. 31.

That was part of a series of proposals from the city to settle a dispute that had lingered for more than two years over a final payment city leaders say the county owes the Downtown Sarasota Community Redevelopment Area (CRA) Trust Fund.

The county’s $1 million would come out of Tourist Development Tax (TDT) revenue the county receives from the 5% tax on rental of tourist accommodations.

When the County Commission voted unanimously on May 8 to approve the list of proposals offered by the city, Maio took the opportunity to gain assurance from County Administrator Lewis that the city would not use the $1 million for the long-term USACE project.

“That’s absolutely correct, Commissioner,” Lewis responded on May 8.

During the July 10 commission meeting, Maio said he wanted to make certain that none of the $1 million would go “to pay for the legal fees [the city has been incurring], fighting citizens groups who are opposed to [the USACE project].” (See the related information inSiesta Seenin this issue.)

He also sought confirmation that the CRA settlement agreements have not been signed.

“That’s absolutely correct,” Lewis replied, adding that he could go one step further. “Those agreements will have to come back to you for approval before they’re signed.”

After Maio, DeMarsh and Lewis concluded their remarks, no other board member offered a comment on the issues.