FDEP secretary grants permit for dredging of Big Sarasota Pass to renourish Lido Key Beach

Sarasota city manager says goal is for the project to be begin in spring of 2019

(Editor’s note: This article was updated on the morning of June 22 to clarify that the Siesta Key Association and Save Our Siesta Sand 2 did not indicate in their Exceptions to the Recommended Order that they agreed to any removal of sand from Big Sarasota Pass.) 

A photo taken near a condominium tower on South Lido Key shows sandbags installed to try to protect property. Photo contributed by Bruce Armstrong

Two days after U.S. Sen. Marco Rubio of Florida toured severely eroded areas of South Lido Key Beach, Florida Department of Environmental Protection (FDEP) Secretary Noah Valenstein granted the Joint Coastal Permit the City of Sarasota and the U.S. Army Corps of Engineers (USACE) need to dredge Big Sarasota Pass to renourish a 1.56-mile stretch of South Lido.

However, Valenstein did stipulate that the removal of sand from Cut — or borrow area — B of Big Pass and the easternmost 1,200 feet of Cut C may not occur from April to September.

He further stipulated that the permit authorize the removal of up to 1.3 million cubic yards of sand, instead of more than 1.7 million cubic yards, as FDEP would have allowed when it issued its December 2016 Notice of Intent to allow the project to proceed.

Valenstein’s June 18 Final Order points out that the city and the USACE “did not model the effects of dredging 1.732 million [cubic yards] of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million [cubic yards] of sand.”

The two new permit conditions were included in the Recommended Order Florida Administrative Law Judge Bram D.E. Canter issued on May 8,after reviewing testimony and evidence in a five-day Florida Division of Administrative Hearings (DOAH) case held in December 2017, mostly in Sarasota. During that proceeding, the Siesta Key Association (SKA), Save Our Siesta Sand 2 (SOSS2) and three individuals who reside on Siesta Key challenged FDEP’s plans to issue the permit to the city and the USACE. They presented expert witnesses who explained what they have contended will be negative consequences for Siesta Key and Big Pass itself if sand is removed from the waterway and its ebb shoal.

A 2018 satellite photo shows Lido Key north of Siesta Key, with Big Pass separating the islands. Image from Google Earth

Canter referenced the expert testimony of one of the SOSS2/SKA witnesses — R. Grant Gilmore Jr. — as the basis for his decision on the borrow area restrictions. Gilmore, who is president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc., explained that he had discovered — through a field trip to the pass in the summer of 2017 — that spotted sea trout spawn in two areas of the waterway. Gilmore pointed out that such spawning sites are not common. As Canter noted in his Recommended Order, Gilmore testified that the areas are used repeatedly and “are important to the conservation of the species.”

Those trout spawn from April through September, Canter added.

The Lido Key Residents Association (LKRA) — which was allowed to intervene in the case — submitted Exceptionsto Canter’s order, saying Canter was wrong to give weight to Gilmore’s testimony.

“Dr. Gilmore’s field investigation consisted of a single, one hour visit wherein he utilized a hydrophone to detect sounds in the water,” the LKRA argued. “In that one hour, Dr. Gilmore testified that he heard spotted [sea trout] spawning in certain areas, the sounds being more intense in some areas as opposed to others. … Dr. Gilmore did not testify that he saw any spotted [sea trout], his identification of their location and spawning activity was solely based on judging what he was hearing,” the LKRA contended.

“Dr. Gilmore presented no evidence to suggest that there were spotted [sea trout] spawning sites within the entirety of proposed Cut B,” it added.

Regardless of the stipulations in the Final Order, a June 19 city news release said, “Subject to any future litigation delaying this critical project, work is expected to begin by Spring 2019 and be completed by next hurricane season.”

In that release, City Manager Tom Barwin noted of the Final Order, “After losing approximately 15 feet of shoreline during Hurricane Irma and the deceptively destructive Subtropical Storm Alberto last month, this is uplifting news.” He continued, “In addition to the city’s infrastructure being increasingly vulnerable to saltwater intrusion, we are now experiencing high risks of property damage and business interruption.”

The release also pointed out that an agreement between the city and the USACE “will be executed soon. The U.S. Army Corps of Engineers will oversee the dredging portion of the project while the City will be responsible for monitoring it.”

U.S. Sen. Marco Rubio (R-FL) stands to the left of Sarasota City Commissioner Willie Shaw and City Manager Tom Barwin on Lido Beach on June 16. Photo from the City of Sarasota via Twitter

Accompanied by city commissioners and Barwin on June 16, Rubio referenced the $13.5 million in funding the USACE announced for the Lido Renourishment Project on June 11. “Our job now is to get that money going,” Sen. Rubio added. “This time next year, there should be a beach out there.”

City staff has estimated the total cost of the project at approximately $22 million, with the rest of the funding to be split evenly between county Tourist Development Tax revenue set aside for the city for beach renourishment/maintenance initiatives and a state grant.

“I don’t think our beach at Lido has looked as bad as it does since 1977,” Commissioner Willie Shaw said during the June 18 City Commission meeting.

Since Canter filed his Recommended Order, Barwin has sought to persuade the SKA and SOSS2 from pursuing further legal challenges.

In the news release, he said, “I again urge the handful of people litigating this matter to forego additional litigation and work with us to become environmental and shoreline protection leaders in the state of Florida. I remind all this permit requires unprecedented monitoring and future adjustments as warranted. Significant resources — $2.5 million — also have been set aside to address any unforeseen effects.”

He added, “While we do not expect to use those funds, [the money] serves as an insurance policy of sorts. It’s time residents, boaters and businesses all work together on this challenge and opportunity.”

“We’re pleased that Lido has gotten funds,” SKA President Gene Kusekoski told the News Leader in a June 20 telephone interview, referring to the USACE’s June 11 announcement. “They are our neighbors and they are in crisis. … Our one and only objection is the source of sand.”

The SKA has been especially concerned, Kusekoski continued, about dredging in Cut C. “Once you dig that trench, you change the dynamic of the pass and God knows what’s going to occur.”

Kusekoski also took exception to the fact that Barwin continues to indicate that only a small number of Siesta residents are opposed to removal of sand from Big Pass. An SKA survey in 2017 showed 88% of the nonprofit’s members were resolutely against the project, Kusekoski noted, and they represented about one-third of the island’s residents.

SKA Vice President Catherine Luckner pointed out in a June 20 email to the News Leader that the SKA filed a Verified Complaint in March 2017 in the 12th Judicial Circuit Court as a second means of halting the dredging of Big Pass. “The purpose of the SKA Verified Complaint is to encourage the City of Sarasota to engage [Sarasota] County to develop a Best Practices project,” Luckner stressed.

“We hoped [the complaint] would encourage the City of Sarasota as a ‘good neighbor’ to work with the County regarding coastal management,” she added in the email.

A channel marker stands in Big Pass between Lido and Siesta keys. Rachel Hackney photo

“SKA will continue to work for a best practices project, through donations, researching and engaging governmental representatives, serving the public interest of natural resources [and focusing on the] recreational and financial stability of our unique and beloved coastal community,” she concluded her statement.

Peter van Roekens, chair of SOSS2, told the News Leader in a telephone interview, “We’re going to do everything we can to make sure Siesta is not harmed.”

Digging into the cubic yards

In Exceptions the SKA and SOSS2 filed jointly in response to Judge Canter’s May 8 Recommended Order, they asked that Cut B and the area of Cut C be eliminated completely from consideration for dredging. They pointed out that only 319,000 cubic yards of sand is in those two areas combined.

In a joint response, the city and the Lido Key Residents Association (LKRA) objected to the request. They wrote, “This is an inappropriate statement for exceptions to the [administrative law judge’s] Recommended Order and should be rejected.”

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

The Final Order notes in its summary of the Recommended Order that the Big Pass ebb shoal “has been growing and now has a volume of about 23 million cubic yards (cy) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key.”

The summary adds, “The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key.”

Details of the decisions

The Final Order explains, “Section 120.57(1)(l) [of the Florida Statutes] prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the [administrative law judge] ‘unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence.’” Furthermore, the order says, “A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses,” as made clear by judicial precedents.

The Final Order reiterates those portions of the law in providing details about its review of the Exceptionsfiled in the case. The only exception with which FDEP agreed was filed by the Lido Key Residents Association (LKRA).

The order notes that the LKRA took exception to Canter’s finding that FDEP “is required to consider and prevent adverse impacts to non-listed species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted [sea trout] spawning area,” Canter wrote, “that is a strong negative in the balancing of public interest factors” in determining whether the permit should be issued.

The LKRA claimed that finding of fact “is actually a legal conclusion.”

The Final Order says that FDEP “concludes that [that portion of the Recommended Order] is a mixed finding of fact and conclusion of law.” Valenstein added that he agreed with the LKRA’s legal analysis that the Florida Statutes require FDEP “to consider and balance seven factors, including ‘whether the activity will adversely affect conservation of fish and wildlife,’” but that the law does not require FDEP “to ‘prevent’ all adverse impacts.” Therefore, FDEP granted that portion of the LKRA Exceptions.