Following Siesta Key Association protest, FDEP modifies Lido Renourishment Project permit to eliminate construction of groins during sea-turtle nesting season

A revision of the permit issued without notice in late February countered a directive from the U.S. Fish and Wildlife Service

An engineering drawing in a Feb. 14 addendum to the USACE Lido solicitation package shows the location of two proposed groins on South Lido, near Ted Sperling Park. Image courtesy USACE

This spring, in monitoring Florida Department of Environmental Protection (FDEP) documents related to the Lido Key Hurricane and Storm Damage Reduction Project, leaders of the Siesta Key Association (SKA) found key changes in a revised state permit for the initiative, they told The Sarasota News Leader.

The most troubling section, they said, would allow construction of two planned groins on South Lido during sea turtle nesting season. The U.S. Fish and Wildlife Service had forbid that in the Biological Opinion the agency issued for the project in late December 2016. A Biological Opinion is a federal requirement for an undertaking such as the one on Lido.

Issued on Feb. 28, the revised FDEP permit also eliminated the need for the state to provide the USACE a written Notice to Proceed — the formal go-ahead for the project to begin. Instead, the updated permit called for the USACE to submit certain items to FDEP for review “[a]t least 30 days prior to the commencement of construction …”

Further on in the Feb. 28 document, Section 15 said, “Daily early morning surveys, beginning no earlier than sunrise, shall be conducted to all sandy beaches within the project area that are seaward of any existing coastal armoring structures or dune crest, and all areas used for beach access. No construction activity may commence until completion of the marine turtle survey each day.”

Additionally, the Feb. 28 permit pointed out, “Sand placement activities and groin construction may occur during the marine turtle nesting season (April 15 — October 31), except on publicly owned conservation lands such as state parks and areas where such work is prohibited by the managing agency or under applicable local land use codes and only subsequent to authorization of incidental take by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service [FWS] in accordance with Florida Statute 161.041(5), 3279.2431 (1).”

A sea turtle hatchling heads to the Gulf of Mexico. Photo courtesy Mote Marine Laboratory

The permit added that the groin construction could proceed during sea turtle nesting season “during daylight hours only” and after the U.S. Fish and Wildlife Service (FWS) issued “incidental take authorization.”

“Incidental take” refers to the killing of wildlife. FWS defines the term as “Take that results from, but is not the purpose of, carrying out an otherwise lawful activity.” According to the FWS glossary, an Incidental Take Permit is issued under the guidelines of the Endangered Species Act “to a non-federal party undertaking an otherwise lawful project that might result in the take of an endangered or threatened species.”

The revised, Feb. 28 permit was issued almost exactly three weeks before the U.S. Army Corps of Engineers (USACE) announced its Lido bid award.

The original FDEP permit, which Lainie Edwards, deputy director of FDEP’s Division of Water Resource Management, signed in June 2018, said, “If the [Biological Opinion] contains conditions that are not already contained herein, the Notice to Proceed will not be issued until the permit has been modified to include those additional conditions.”

Nonetheless, the permit did include the same language as the Feb. 28 version, in regard to groin construction during sea turtle nesting season.

In its Biological Opinion issued on Dec. 29, 2016, the FWS said that work could take place during both daylight and nighttime hours on the beach from Nov. 11 through April 30. However, it continued, “If the [USACE or the City of Sarasota] chooses to begin construction early (November 1), construction will only be authorized during daylight hours up [to] and through November 11, to avoid encountering nesting females and emerging hatchling sea turtles.”

The City of Sarasota was the co-applicant with the USACE for the FDEP permit for the Lido initiative.

In response to a question about the FWS stipulations, Amanda Parker, a spokeswoman for the USACE at its Jacksonville District Office, wrote the News Leader in early 2017, “USACE will account for this in the project schedule.”

‘Modifications undermine the Biological Opinion

After discovering the amended language in the Feb. 28 permit, the SKA sent a letter to Greg W. Garis, administrator of the Beaches, Inlets and Ports Program, which oversees the Joint Coastal Permit Program.

SKA President Catherine Luckner. File photo

“We believe that these particular modifications undermine the 2016 [FWS] Biological Opinion (BO) prepared for this project,” the March 20 letter said. Additionally, the letter noted, the revised Feb. 28 permit “was posted to the FDEP website without notice to the general public nor specific notice to SKA …”

The SKA and a second nonprofit, Save Our Siesta Sand 2 (SOSS2), petitioned FDEP in 2017 to modify the USACE’s design of the Lido Key project. Both have protested plans for the removal of up to 1.3 million cubic yards of sand from Big Sarasota Pass to renourish the 1.56-mile stretch of Lido Key Beach. They won only minor project modifications following a 2017 Florida Division of Administrative Hearings proceeding.

The March SKA letter also stressed that the Biological Opinion restricted “access to the construction site to only wet sand below the [Mean High Water Line] versus the FDEP permit requirement to restrict use to the ‘maximum extent possible [emphasis in the letter].’ FDEP must not allow this inconsistency to stand without a justified change by the FWS.”

Signed by SKA President Catherine Luckner, the letter asked the FDEP to revise the permit to add the Biological Opinion conditions that FWS issued in December 2016.

Another revised permit

On April 10, FDEP issued a new version of the Lido permit to the City of Sarasota and the USACE. That allows groin construction only from Nov. 11 through April 30 during daylight and nighttime hours. If the USACE or the City of Sarasota “chooses to begin construction early (November 1),” the permit says, that construction can occur only “during daylight hours up and through November 11, to avoid encountering nesting females and emerging hatchling sea turtles.”

Further, the document says, from May 1 through Oct. 31, “[N]o groin construction equipment may be placed and/or stored on the beach.”

This is part of Section 15 of the Feb. 28 version of the FDEP permit for the Lido project. Image courtesy State of Florida

This is the same portion of Section 15 of the FDEP permit, as shown in the April 10 revision. Image courtesy State of Florida

Moreover, in accord with the SKA request, the revised permit points out, “During the portion of the nesting season (April 24 through April 30) and hatching season (November 1 through November 11) on-beach access to the construction site shall be restricted to the wet sand below [the Mean High Water Line].”

The April 10 revised permit adds, “Staging areas for groin construction equipment must be located off the beach during the early (April 15 through April 30) and late (November 1 through November 11) portions of the nesting season. Nighttime storage of groin construction equipment not in use must be off the beach to minimize disturbance to sea turtle nesting and hatching activities.”

FDEP also paid for a public notice in the Sarasota Herald-Tribune, showing the changes in the version of the permit released on April 10.

An explanation and a response

In response to News Leader questions this week about the Feb. 28 permit changes and the resulting modifications in the April 10 version, FDEP spokeswoman Dee Ann Miller replied in an April 13 email.

“The modification in February was to make the permit consistent with an Interagency Agreement between us and the Corps,” she wrote. “It made no substantive changes to the authorized work.”

Miller continued, “The modification issued in April is to make the permit consistent with the Federal Biological Opinion, which limits construction of the groins to outside of marine turtle nesting season. (As per Rule 62B-41.0055, [Florida Administrative Code regarding] a permit issued prior to an Incidental Take Authorization or Biological Opinion, the Department shall modify the permit to make them consistent.)”

When the News Leader asked the SKA for a response, President Luckner offered this statement on April 13: “SKA appreciates the decision on April 10, 2020 by the Florida Dept. of Environmental Protection (FDEP) to follow all guidelines stated in the (2016) US Fish and Wildlife Biological Opinion for this project.

“The revised permit,” she continued, “aligns the Joint Coastal Permit with the (2016) US Fisheries and Wildlife Biological Opinion requirements,” and FDEP will retain oversight “for all environmental impacts of this permit.”

This is an engineering drawing contained in the solicitation package published on Dec. 17, 2019 on a federal website for the Lido Key Hurricane and Storm Damage Reduction Project. Image courtesy USACE

Luckner added, “SKA hopes the City of Sarasota and [the USACE], as well as the Lido Key Residents Association, will not oppose these important protections for nesting sea turtles.”

The Lido Key Residents Association (LKRA) also participated in the 2017 Division of Administrative Hearings proceeding, in support of the USACE and the City of Sarasota. Additionally, it is engaged in a lawsuit the SKA filed against the City of Sarasota in the 12th Judicial Circuit Court in March 2017 to try to prevent the dredging of Big Sarasota Pass.

After losing in Circuit Court, the SKA appealed the judge’s ruling to the Florida Second District Court of Appeal. The novel coronavirus pandemic has delayed filings in the appeal court case, the SKA reported to its members in a recent email blast.

The News Leader also attempted to get a response from the USACE about the latest version of the FDEP permit. David J. Ruderman, a spokesman for the agency’s Jacksonville District Office, wrote in an April 13 email, “Haven’t heard anything about a permitting change, but I will ask around and find out if it will affect the project timeline.”

Ruderman earlier had told the News Leader that the Lido project could get underway in May or June. The News Leader had heard nothing further from Ruderman prior to its deadline for this issue.