Lido Key Residents Association argues administrative law judge was wrong to give weight to expert witness testimony on sea trout spawning in Big Pass

Organization seeks elimination of proposed restriction for one sand borrow area

Erosion has worsened on South Lido Key, residents say. Photo contributed by Bruce Armstrong

The Lido Key Residents Association is arguing that a Florida administrative law judge erred in giving weight to a witness’ expert testimony when the judge recommended that dredging in two areas of Big Sarasota Pass be prohibited during certain months, The Sarasota News Leaderhas learned.

In a May 23 filing, the organization says dredging should not be restricted in the larger of two sand borrow areas the judge cited.

The organization’s exceptions joined those submitted jointly by the Siesta Key Association (SKA) and Save Our Sarasota Sand 2 (SOSS2) as the only sets filed in the Florida Division of Administrative Hearings (DOAH) case, according to documents the Florida Department of Environmental Protection (FDEP) provided at the request of the News Leader. The deadline for the exceptions was May 23.

In the meantime, the City of Sarasota is making progress on an emergency renourishment of South Lido Key that tentatively is planned for this fall, the chief city engineer has told theNews Leader.

Issued on May 8, Judge Bram D.E. Canter’s recommended order called for removal of sand from two specific areas of Big Pass to be prohibited from April to September. Canter cited the expert testimony of R. Grant Gilmore Jr., president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc., as the basis for that decision. Gilmore told the court during the December 2017 Florida Division of Administrative Hearings (DOAH) proceeding that he had conducted a field study in the pass in the summer of 2017. During that outing, Gilmore reported, he learned that spotted sea trout spawn in certain areas of Big Pass.

In his recommended order, Canter noted Gilmore’s assertions that such spawning sites are not common, they are used repeatedly and they “are important to the conservation of the species.” He wrote that if FDEP were unwilling to modify the permit to prevent dredging in Cut — or Borrow Area — B and in the easternmost 1,200 feet of Cut C from April through September, then he would recommend the project permit not be issued to the City of Sarasota and the USACE.

Sarasota City Manager Tom Barwin told the News Leader that the city would accept Canter’s recommendation.

An illustration shows a spotted sea trout. Image from Wikipedia

Cut B has about 299,000 cubic yards of sand, based on the SKA/SOSS2 exceptions filed on May 23, while the easternmost 1,200 feet of Cut C has approximately 20,000 cubic yards of sand.

The Lido Key Residents Association (LKRA) argues that Canter’s finding “is not supported by competent substantial evidence.”

“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 exceptions say. “His review of the area was cut short because the boat he employed to survey the area was limited by the conditions of the channel. … 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 document contends.

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

“Dr. Gilmore … testified [only] that dredging the easternmost portion of Cut C may disrupt the nursery sites,” the document points out. “Accordingly from Dr. Gilmore’s testimony, avoiding adverse impacts to those nursery sites would provide reasonable assurance that the project would have no adverse impact on the spotted [sea trout],” it says. Therefore, Canter’s finding that the dredging of Cut B “will likely disrupt or destroy a spawning site is not based upon competent substantial evidence, or the preponderance of the evidence,” the document points out. “No evidence was presented,” it says, “‘to establish a substantial basis of fact from which the fact at issue can be reasonably inferred,’” citing a 1960 Florida Supreme Court decision as the basis for asserting that Canter was wrong to rely on Gilmore’s testimony.

R. Grant Gilmore Jr. Image from the website

“In fact,” the document continues, “modifying the permit … to restrict dredging of the easternmost portion of Cut C [only] during spotted [sea trout] spawning season would adequately address Dr. Gilmore’s concerns over the project.”

The LKRA is represented by the Bradenton law firm of Lewis, Longman & Walker.

The SKA and SOSS2 last year challenged FDEP’s decision to issue a permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) to remove about 1.3 million cubic yards of sand from Big Pass to renourish a 1.6-mile segment of South Lido Key Beach. Both Siesta nonprofits contend that the dredging not only would destroy wildlife but also could lead to significant damage to Siesta Key itself, as the pass’ ebb shoal has been cited as a major form of protection to the island in the event of storms. The nonprofits have pressed for more than four years for the city and the USACE to find another sand source for the Lido project, which was unveiled in September 2013 with Big Pass as the dredging site.

In March 2015, the city and the federal agency submitted their permit application to FDEP for the Lido proposal. They also plan the construction of two groins on South Lido to try to keep the new sand in place between subsequent renourishments, slated to occur every five years over the 15-year life of the permit.

Digging in more deeply

The LKRA exceptions also note, “Dr. Gilmore could not opine on what impacts may occur to spotted [sea trout] from dredging activities because he has no knowledge of any impacts to spotted [sea trout] in areas where dredging occurs. He admitted that he could have ventured to New Pass, a known dredged inlet with fish activity, to determine if the spotted sea trout were active and spawning in that area but he did not,” the document says.

Moreover, “Gilmore admitted that the spotted [sea trout] are commercially and recreationally fished throughout the entire southeastern United States,” the document notes. He “also admitted that the spotted [sea trout] are known to spawn in other inlets around the state of Florida, where dredging occurs routinely,” it says.

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

The exceptions also point out that Canter wrote in his findings of fact that FDEP is required to “consider and prevent” adverse impacts to species such as the spotted sea trout. “However,” the LKRA document says, “this is a misrepresentation of the law. … [T]he statute requires that the Department … consider and balance whether the proposed project will adversely affect the conservation of fish and wildlife against six other factors.” That, the exceptions say, “is further grounds for rejecting [Canter’s] conclusion of law.”

According to the timeline Sarasota City Attorney Robert Fournier has explained to the City Commission, the parties will have 10 days from May 23 to file any objections to the exceptions in the DOAH case.

In the joint exceptions they filed last week, the SKA and SOSS2 asked that FDEP modify the permit the city and the USACE are seeking, so the permit would prevent any dredging in the two areas of Big Pass Canter cited in his recommended order.

FDEP Secretary Noah Valenstein is expected to issue the Final Order regarding the permit. That could take up to 90 days, the News Leaderhas been told by parties in the case.

SOSS2 Chair Peter van Roekens already has made known that organization’s intent is to continue its legal challenge in federal court, if necessary. The SKA has not made public what its next step might be if the final order allows the dredging of the pass, even if the permit modifications it has sought are granted.

In January 2017, the SKA filed a verified complaint in the 12thJudicial Circuit Court as another means of stopping the removal of sand from the pass. Judge Lon Arend put that case on hold until after the FDEP order was issued following the DOAH proceeding.

In the meantime …

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

With Subtropical Storm Alberto already having passed through the Gulf of Mexico, before the hurricane season officially begins on June 1, Lido Key residents have been anxious about the rate of erosion on their beach. A number of them have pressed their concerns in emails to Sarasota city commissioners and City Manager Barwin, as evidenced by a review of the city’s public email folder.

While city leaders await the final decision in the DOAH case, they have been pursuing an emergency renourishment project on Lido Key. Chief City Engineer Alexandrea DavisShaw responded this week to a News Leaderinquiry about the status of that project, which would use sand from New Pass. “Our consultant has been working on getting the information in to FDEP and finalizing the design,” she wrote in a May 29 email. “Then our Purchasing Division will put the project out for bidding and we except it to be under construction in [October],” she added.

On April 2, the City Commission approved spending $390,094.50 on a contract with APTIM of Boca Raton. That firm is handling the design and construction work for the project. The entire undertaking is expected to cost about $3 million, DavisShaw told theNews Leaderthis spring. City Manager Barwin reported in late February that it would encompass about 200,000 cubic yards of sand.

Under a longstanding agreement, the city and the Town of Longboat Key alternate removal of sand from New Pass for beach renourishment projects. The town last used sediment from the pass for a project it completed in the summer of 2016.

On Feb. 26, Barwin described the new city proposal as “a kind of emergency repair to the Lido shoreline,” similar to the project the city undertook to replenish sand Tropical Storm Debby washed away from Lido in June 2012.

Barwin suggested during the April 2 City Commission session that this latest emergency project could “buy us two to three years”as the city awaits the conclusion of legal challenges to its proposed initiative with the USACE.