Plaintiffs and respondents make their expert witness lists known
The state administrative law judge who will hear challenges to the Lido Renourishment Project has given the attorneys in the case until Aug. 18 to propose potential new dates for the start of the proceeding.
On Aug. 3, Judge Bram D.E. Canter granted the request of the lead counsel for the Florida Department of Environmental Protection (FDEP), who sought a delay of at least eight weeks in the hearing because of the counsel’s need to undergo surgery on Aug. 4 for an injury.
The proceeding had been set to start on Aug. 22 at the Judge Lynn N. Silvertooth Judicial Center in Sarasota and conclude on Aug. 31.
In the meantime, parties in the case have been filing documents detailing who their expert witnesses will be, whenever the administrative proceeding is held.
In his Aug. 2 motion, Kirk S. White, assistant deputy general counsel for FDEP, wrote that the full recovery from his surgery would take at least eight weeks and necessitate “periodic doctor visits during this time.” White added, “The nature of the injury and repair schedule make attendance and performance of a two-week trial impossible.”
None of the other parties in the case filed a formal objection to the request for the delay, based on a Sarasota News Leader review of the docket in the state’s Division of Administrative Hearings (DOAH) records.
FDEP in late December 2016 made it known that it planned to issue a permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) that would allow the dredging of about 1.2 million cubic yards of sand from Big Sarasota Pass to renourish a stretch of approximately 1.6 miles on the critically eroded South Lido Key Beach. Subsequently, three nonprofit organizations filed challenges to the Notice of Intent to Issue the permit: Save Our Siesta Sand 2 (SOSS2), the Siesta Key Association (SKA) and the Florida Wildlife Federation (FWF). Both SOSS2 and the SKA have argued that the USACE’s project design has the potential for severe negative impacts on both the pass and Siesta Key itself. They have made it clear they have no objection to the placement of more sand on Lido, but they have urged city staff to seek an alternative to dredging Big Pass.
During the April 3 City Commission meeting, City Manager Barwin scoffed at the notion that the city would consider obtaining sand “from faraway places, including trucking it in [from] many, many miles [distant].”
That proposal, he added, “creates a whole slew of environmental issues in itself, not to mention cost issues,” which he characterized as “really, really significant.” He noted that they would be up to four times as expensive as the $19 million estimated at that time for the USACE Lido project; that figure rose to $21 million in a document the City Commission recently approved for submission to FDEP.
“And I haven’t noticed anyone stepping up to the plate and willing to help cover those costs yet,” Barwin pointed out during that discussion.
Then-Mayor Willie Shaw added that he had heard the suggestion that the city obtain sand from the Bahamas for South Lido.
“Let’s go to Trinidad!” then-Commissioner Suzanne Atwell joked.
The city has not committed any funds to the project other than money it receives from Sarasota County for beach renourishment initiatives; the federal government is expected to cover about 62% of the Lido expense.
With the original schedule calling for the hearing in August, all the parties in the case were working in July to finish depositions and to file their witness lists. During the Aug. 3 SKA meeting, Siesta property owner Michael Holderness — who is a joint plaintiff in the SKA challenge — told the audience that he felt the depositions had been going very well.
Director Bob Spicer noted that SKA Vice President Catherine Luckner had sat in on almost every one of the depositions the nonprofit’s attorney — Kent Safriet of the Tallahassee firm Hopping Green & Sams — had undertaken.
Regarding the expert witnesses for the hearing: The SKA’s list appears to be the longest among those filed, though overlap of names is evident in the documents the News Leader reviewed in the docket. The SKA lists 12 people. Among them are Robert S. Young, director of the Program for the Study of Developed Shorelines at Western Carolina University in Cullowhee, N.C.; that program is a joint venture with Duke University. Another expert on the list is Todd L. Walton Jr. of Tallahassee, a retired professional engineer.
In May 2015, SOSS2 hosted Young for a program about the proposed Lido project. In discussing the USACE’s modeling, Young explained his view that the federal agency “cannot predict with any degree of certainty” what would happen to Siesta Key if the sand were removed from Big Pass and the pass’s ebb shoal. He added, “This project will be a very, very big experiment that we will not be able to predict the results of.”
Young’s “General Statement of Opinion,” as noted in the July 13 witness disclosure Safriet filed for the SKA, says, “The dynamics of Big Sarasota Pass and the sand shoals within Big Sarasota Pass exert a primary control on shoreline dynamics of downdrift Siesta Key and the Siesta Key beaches ….”
The natural flow of sediment on the west coast of Florida is north to south, research has shown. Therefore, beaches south of an area of sand flow are called “downdrift” beaches.
The general statement of opinion provided for Walton points to his view that the project as designed “will adversely affect the public health, safety, or welfare and the property of others, and is not clearly in the public interest. The activity will adversely affect navigation or the flow of water [in the pass] or cause harmful erosion or shoaling.”
Walton also will discuss his view that the two groins planned on South Lido will interfere with the natural movement of sand offshore, the document notes. The USACE plans to construct those groins to try to hold sand in place between renourishments, which it expects to be needed every five years.
When then-USACE Project Manager Milan Mora unveiled the plans in September 2013, he called for a 50-year initiative; however, the FDEP permit would be good for only 15 years. Nonetheless, City of Sarasota Engineer Alexandrea DavisShaw has told the Sarasota County Commission that she believes renourishment undertakings will be needed no more often than every seven years, at the earliest.
Luckner and Holderness also are on the SKA’s witness list, along with four members of the FDEP staff, including Robert Brantly, administrator of the department’s Engineering, Hydrology & Geology Program; Lainie Edwards, administrator of the Beaches and Coastal Systems Section; and Greg Garis, who has been managing the project application on the FDEP’s behalf.
Edwards, Brantly and Garis are listed on the FDEP witness list, as well. FDEP says Brantly’s testimony “is expected to include [the] Department’s conclusion as to whether the [USACE] has provided reasonable assurance that the [project] will be capable, based on generally accepted engineering and scientific principles of performing and functioning as proposed,” along with discussion of the FDEP’s “conclusion as to sand compatibility.”
As for Edwards: The FDEP document says her testimony “is expected to address the Department’s conclusion as to whether the activity is, on balance … clearly in the public interest … according to criteria found [in the Florida Statutes and the Florida Administrative Code] and otherwise on balance meets regulatory and proprietary requirements.”
Also on its list, the FDEP names an expert on engineering and modeling — Shang-Yih Wang — whom it describes as “a potential rebuttal witness to Dr. Robert S. Young and Dr. Mark Edward Luther.”
Luther is on the SOSS2 witness list as president of Marine Science Associates Inc. in St. Petersburg. He has expertise in physical oceanography and the “hydrodynamic modeling of ocean and estuarine circulation and tidal inlet dynamics,” the SOSS2 document notes.
Another SOSS2 witness will be R. Grant Gilmore Jr., president of Coastal and Ocean Science in Vero Beach, whose expertise regards the impacts the dredging of Big Pass would have on the area’s marine ecology, the SOSS2 list says.
Along with SOSS2 Chair Peter van Roekens, Diane Erne — who lives in Whispering Sands — is a petitioner in the SOSS2 challenge.
On the other side
Additionally, documents name four USACE representatives who are expected to testify in the hearing. They range from Aubree G. Hershorin, a biologist in the Coastal Section of the Environmental Branch of the Planning Division at the USACE’s Jacksonville District Office, to engineer Jason Engle, also based in the Jacksonville office.
The USACE witness disclosure document says Engle will testify about the agency’s modeling of currents and waves, analyses of the amount of sand needed, the evaluation of currents and sediment transport in and around Lido Key, and the evaluation of sand borrow areas, along with the design of the groins.
Hershorin will testify about the National Environmental Policy Act (NEPA) analysis the USACE undertook on the use of sand from the Big Pass ebb shoal, along with the “general environmental impact assessment,” consultations the agency had about the proposal with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, and the seagrass mitigation plan, the USACE witness list notes.
Among the City of Sarasota’s witnesses will be Michelle R. Pfeiffer, senior project engineer with CB&I Environmental & Infrastructure in Boca Raton, which has been a consultant to the USACE on the project; and that firm’s senior marine biologist, Lauren Floyd. The document notes that Floyd assisted with the preparation of the seagrass mitigation and monitoring plan for the Lido Renourishment Project.