Siesta organizations preparing to file exceptions to the order, with final decision on permit up to FDEP secretary
A Florida administrative law judge has recommended that the Florida Department of Environmental Protection (FDEP) issue a modified permit that would allow the U.S. Army Corps of Engineers and the City of Sarasota to dredge Big Sarasota Pass to renourish a 1.6-mile stretch of South Lido Key Beach.
In his recommended order — issued May 8 — Judge Bram D.E. Canter noted expert witness testimony during a December 2017 Division of Administrative Hearings proceeding to require that FDEP prohibit the dredging of sediment Borrow Area B and the easternmost 1,200 feet of Borrow Area C from April through September. That would protect the spotted sea trout, which spawns in Big Pass during that period.
He cited a field investigation conducted by R. Grant Gilmore Jr., president of the Vero Beach consulting firm Coastal and Ocean Science Inc. as the basis for that recommendation. During testimony in December 2017, Canter pointed out, Gilmore explained that he discovered spotted sea trout] were spawning in the pass and that such spawning sites are not common, they are used repeatedly and “are important to the conservation of the species.”
Those trout spawn from April through September, Canter added.
In his recommended order, Canter explained that Borrow Area — or “cut” — C “extends through the ebb shoal of Big Sarasota Pass and partly into the pass, while Cuts B and D are within the ebb shoal.”
“If this modification is not made,” Canter wrote, “it is recommended that the proposed [FDEP] actions be DENIED [emphasis in the document].”
Sarasota City Manager Tom Barwin told The Sarasota News Leader on May 8 that the city readily would accept the permit modification Canter recommended.
As he had indicated during the hearing, Canter also called for the FDEP permit “to clarify that it authorizes the removal of up to 1.3 million cubic yards of sand. Expert testimony about FDEP’s proposed permit made it clear that the city and the U.S. Army Corps of Engineers (USACE) would be able to dredge as much as 1.7 million cubic yards of sand from the pass.
Robert Young, a Western Carolina University professor and director of the Program for the Study of Developed Shorelines, testified on Dec. 14, 2017 that such an extensive removal of sand would result in an even bigger initiative than a recent one undertaken by the City of Miami.
Young was an expert witness for Save Our Siesta Sand 2 (SOSS2) and the Siesta Key Association (SKA), who had challenged FDEP’s intent to issue the permit for the project. They and three residents who live on Siesta Key are the petitioners in the case.
Canter noted in his order that one of FDEP’s witnesses testified that the proposed permit “authorizes the removal of up to 1.732 million cy [cubic yards] of sand. The record does not support that testimony.” Further, Canter wrote, the city and the USACE “did not model the effects of dredging 1.732 million cy 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 cy of sand.”
Canter added, “Although the total volume of sand in the three [borrow areas] is 1.732 million cy, it is reasonable for the dimensions of the cuts … to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations.”
Additionally, Canter referenced testimony by coastal engineering expert Todd Walton Jr. — on behalf of the SKA and SOSS2 — who had developed a formula for estimating ebb shoal volume equilibrium, “or the size that an ebb shoal will tend to reach and maintain,” as Canter put it.
Walton calculated the ebb shoal equilibrium for the Big Pass ebb shoal as between 6 million and 10 million cubic yards of sand, Canter continued. “The ebb shoal … is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume,” Canter added. Thus, the volume of sand proposed to be removed is only about 6% of that total. “Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project,” Canter wrote.
After FDEP issued its Notice of Intent to issue the permit — in December 2016 — the SKA and SOSS2 and the three private individuals filed their challenges to the proposal. Since September 2013 — when the USACE unveiled its plan to take Big Pass sand to renourish South Lido Key — Siesta residents and business owners have fought to preserve the waterway as one that never has been dredged in the state. Citing research presented during a previous effort by the City of Venice to dredge the pass — about two decades ago — they have argued that the island would suffer harm from the project. However, they have supported the need for renourishment on Lido Key.
In a statement to the news media following the filing of order, City Manager Barwin said, “We appreciate the effort and in-depth study Judge Bram Canter put into this decision. It’s a well thought-out, detailed, fact-based ruling.
Barwin added, “With another hurricane season upon us, Sarasota is facing a looming crisis. I urge the Siesta Key petitioners to discontinue the time-consuming and costly litigation and work with us to protect all of Sarasota County’s shorelines over the ensuing decades.” (See Siesta Seenin this issue.)
As he has vowed in the past, Barwin said, “We intend to monitor this project closely and use this as an opportunity to use a thoughtful, environmentally sensitive approach to maintaining our shorelines in the face of rising sea levels.”
Canter pointed out in the order that the FDEP permit “requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations.”
Canter also noted that the petitioners “complain that the City and [USACE] have offered no financial assurance that the proposed project will perform as designed. However, there is no statute or rule requirement for federal entities or jurisdictions to provide [FDEP] with financial assurance to obtain a joint coastal permit.”
Upon Barwin’s recommendation last year, the City Commission set aside $2.5 million as an “insurance policy” that could cover unexpected damage to Siesta Key as a result of the project. The City Commission in January considered adding that money back into its account for beach renourishment efforts, but, on a 3-2 vote, chose to keep the funds separate for the time being as a show of good faith.
More legal challenges possible
In a telephone interview with the News Leader about 12:30 p.m. on May 8, Carl Shoffstall, president of the Lido Key Residents Association — which was allowed to intervene in the case — said he was having a glass of wine with lunch. “We’re ecstatic. We are ecstatic,” he added. “We’re in dire straits,” he said of the level of beach erosion on Lido.
Still, Shoffstall acknowledged the potential for the Siesta Key plaintiffs to pursue further legal avenues. “It’s not over by a long shot.”
He also emphasized that the beach renourishment project never has been a case of “us against them,” referring to Siesta Key residents.
SKA President Catherine Luckner explained to members of that organization during their regular meeting on May 3 that after Canter issued his order, the parties would be given the opportunity — under state guidelines — to file exceptions to that order.
Section 28-106.217 of the Florida Administrative Code says that in cases such as this one, “Parties may file exceptions to findings of fact and conclusions of law contained in recommended orders with the agency responsible for rendering final agency action within 15 days of entry of the recommended order.”
The FDEP secretary would be the person to make a final decision on the permit for the city and the USACE, Luckner noted. “We have some good feelings about this individual being conservation-oriented,” she added.
Gov. Rick Scott named Noah Valenstein the FDEP secretary on May 23, 2017. Valenstein impressed Sarasota residents when he addressed an Argus Foundation audience on Feb. 6, the News Leaderhas been told.
In a May 10 statement to the News Leader, Luckner wrote, “Having reviewed options with our legal team, the SKA Board of Directors will soon develop our course of action on behalf of Siesta Key, the Bay Island Siesta Association, our coastal properties and the environment.”
She said the board remains firm on one point it has made in the past: The USACE should be required to undertake an in-depth Environmental Impact Statement (EIS) to prove that the Lido project would not cause any harm to the pass or Siesta Key. Although the Sarasota County Commission voted 5-0 in July 2016 — at the SKA’s request — to ask that the USACE undertake an EIS, the USACE declined to do so.
In a separate telephone interview on May 8, Peter van Roekens, chair of SOSS2, said, “We’re disappointed that the project was not denied outright by the judge.” However, he continued, “We’re grateful that the judge did acknowledge that there is a detrimental impact to the pass” if the initiative is undertaken during the sea trout spawning season.
“We’ll see what happens,” van Roekens added. If FDEP proceeds with plans to issue a modified permit, he said, “we’ll go to federal court.”
Explaining his decision
As the foundation of many facets of his ruling, Canter cited the lack of studies to support the SKA’s and SOSS2’s arguments during the December 2017 hearing.
With the exception of Gilmore’s research, Canter pointed out, “Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife.” Further on in the order, he noted that the SKA and SOSS2 pursued no studies or calculations to support their assertion “that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key …”
For example, he referenced testimony about the models produced by the CMS system the USAE used in preparing its permit application for FDEP. “Together with other data and analyses,” Canter wrote, “the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts.”
SOSS2 and the SKA “contend that the CMS model was not properly calibrated or verified,” Canter continued. “Calibration involves adjustments to a model so that its predictions are in line with known conditions.”
Although expert witness Walton felt the USACE’s calibration level was not high enough in its correlation to water levels and currents, based on 2006 measurements, Canter noted, Walton’s opinion “is not generally accepted in the modeling community.”
In her May 10 statement to the News Leader, SKA Vice President Luckner pointed out that, for a beach renourishment project planned several years ago on Longboat Key, the USACE contracted with the same engineering firm it used for the Lido initiative. However, in preparation for the Longboat undertaking, the USACE approved the use of a more modern, three-dimensional modeling system called Delft3D, which was developed in The Netherlands, she noted. A study published in 2015, reporting on analysis of that Longboat project five years later, shows the “project is working in every way for Longboat Key,” Luckner wrote; it has caused no harm to areas in the vicinity of the renourishment. Yet, the USACE elected not to use that software for the Lido project, she added.
Canter further cited the fact that the petitioners “conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy.”
As an SOSS2 newsletter distributed on May 9 put it thusly, “[Canter] has rejected our analysis of the many flaws in the [USACE] modeling data.” The newsletter added, “We provided testimony in court and in our recommendation to the judge that the modeling had error rates as high as 495% for the prediction of sand transport, the model used was not the state of the art model and the input data used was over a decade old.”
‘Findings of fact’
Among the Findings of Fact Canter outlined in his order is that Lido Key is “a 2.6-mile-long, manmade barrier island constructed in the 1920s,” and 2.4 miles of the shoreline has been designated “critically eroded” by FDEP.
Canter also pointed out that the Big Pass ebb shoal “has been growing and now has a volume of about 23 million cubic yards … 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.”
Moreover, he wrote, “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.”
The FDEP permit would be for 15 years, even though the original USACE manager of the proposed project called for a 50-year life, with dredging every five years to put more sand on Lido Key. The project includes the plan for two groins on South Lido to try to keep sand in place between those renourishment initiatives.