Nonprofit expects to file in July for summary judgment in the case
The Lido Key Residents Association is seeking to intervene in the federal lawsuit Save Our Siesta Sand 2 filed against the U.S. Army Corps of Engineers early this year in an effort to prevent the dredging of Big Sarasota Pass.
On May 21 in the U.S. District Court for the Middle District of Florida, in Tampa, the Lido Key Residents Association filed a motion saying that the Federal Rules of Procedure state that “‘upon timely motion, the court must permit anyone to intervene who claims an interest relating to the property or transaction that is the subject of [an] action,’” so the party can protect its interest.
Save Our Siesta Sand 2 (SOSS2) argues in its complaint, which it filed in January, that the U.S. Army Corps of Engineers (USACE) has not been thorough enough in its assessments of the potential damage to Big Pass and Siesta Key if it removes up to 1.3 million cubic yards of sand from the pass and the pass’ ebb shoal to renourish about 1.56 miles of South Lido Key Beach.
In August 2018, in releasing its Final Assessment and its Finding of No Significant Impact (FONSI) for the joint project with the City of Sarasota, the USACE maintained that no harmful effects would result to the waterway or the barrier island.
In June 2018, the Florida Department of Environmental Protection (FDEP) issued the necessary permit to the city and the USACE for the undertaking.
Although the permit is valid for 15 years, the USACE has planned a 50-year life of the initiative in an effort to keep the Lido shoreline stabilized; renourishments are expected approximately every five years, even though the USACE also plans to construct two groins on South Lido to try to keep sand in place between subsequent placements of sand.
SOSS2 asserts that the USACE has violated a number of federal policies by refusing to conduct a comprehensive Environmental Impact Statement (EIS) of the proposed project. During a May 22 report to members of the Siesta Key Chamber of Commerce, SOSS2 Chair Peter van Roekens noted that one fact of the proposed dredging “that people don’t often think about” is that if sand is removed from the shoal, the hydraulics of Big Pass will be changed, leading to the filling in of the channel. That means, he continued, that boats no longer would be able to use the pass to reach the Gulf of Mexico. That, in turn, he said, would produce more vessel traffic on the Intracoastal Waterway and lead to an increasing number of openings of the two drawbridges that connect Siesta to the mainland.
Residents and business owners long have complained that the drawbridge openings lead to even greater problems with traffic congestion during the height of tourist season.
The next big step in the lawsuit is coming up in July, Van Roekens added. That is when SOSS2 anticipates filing for summary judgment in the case, asking that the presiding judge rule that the USACE must complete an EIS before proceeding with removal of any sediment from Big Pass. A summary judgment decision precludes a full trial.
The Lido Key Residents Association’s arguments
In its May 21 motion, the Lido Key Residents Association (LKRA) points out that FDEP “has designated Lido Key beach as a critically eroded beach …”
The LKRA is a not-for-profit corporation founded in 1980 that represents 950 commercial entities, property owners and residents of Lido Key, the motion continues. “Seventy-one percent of its members are beachfront property owners,” the motion adds.
“LKRA’s governing documents provide that its general nature, purpose and objectives include promoting the maintenance and improvement of the residential quality of Lido Key and its parks and beaches, to safeguard property rights and promote the general welfare of Lido Key, and to act in concert with other associations and organizations within the City of Sarasota to improve the general welfare of the entire area,” the motion points out.
The LKRA is entitled to intervene in the case, the motion argues, “because its members are the direct beneficiaries” of the planned renourishment project. “LKRA’s substantial interests in the project will be directly affected by a determination of this Court,” the motion says. “LKRA’s very real concerns in favor of the Project are the equivalent, yet antithetical to [SOSS2’s] speculative concerns in opposition to the Project,” the motion adds.
Moreover, the motion argues, sand previously placed on Lido “has eroded and accumulated in Big Sarasota Pass and its ebb shoal, or moved on and substantially built up Siesta Key beaches. On many stretches of the Lido Key beachfront,” the motion points out, “the only existing protection for upland structures [is] small bulkheads or seawalls. There is virtually no remaining sandy beach to absorb and dissipate wave and storm energy. Upland structures are essentially fully exposed to flooding, loss and damage from storm surge and high waves.”
The motion was filed almost exactly seven weeks after City of Sarasota staff reported the conclusion of an emergency renourishment project on Lido Key Beach, including a large portion of the area where the long-term initiative is proposed. More than 200,000 cubic yards of sand from New Pass was placed on the beach, adding 40 to 80 extra feet, City Manager Tom Barwin reported.
Nonetheless, without the long-term USACE project “to restore the beachfront,” the LKRA motion contends, “continued erosion will have catastrophic effects on residents, homes, property, and public welfare in an important beachfront and vacation area. Delay or denial of the proposed Project will cause the loss of beach and nesting habitat for sea turtles, shorebirds, and other local wildlife.”
If SOSS2 prevails in its federal case, the motion argues, the renourishment project “will be delayed or canceled …”
Furthermore, the motion says, if SOSS2 wins the federal case, “LKRA has no viable alternative to seek nourishment of Lido Key Beach. Accordingly, the only way for LKRA to protect its interest is through intervention in this lawsuit.”
The motion was filed by Kevin S. Hennessy and Richard P. Green of the Lewis, Longman & Walker law firm in St. Petersburg.
The LKRA was allowed to intervene in a complaint against the City of Sarasota that the nonprofit Siesta Key Association (SKA) filed in March 2017 in the 12th Judicial Circuit Court in Sarasota.
The SKA has argued that the city has failed to comply with its own policies and Sarasota County regulations in planning for the Lido project. That case is headed to a day-long hearing on Aug. 16.
SOSS2’s latest efforts
During remarks to members of the Siesta Key Chamber of Commerce on May 22, as part of a quarterly meeting, SOSS2 Chair Van Roekens talked about the latest actions in the federal lawsuit, which Chief Judge Steven Merryday of the U.S. District Court for the Middle District of Florida earlier this year designated for “Track One” proceedings.
The USACE filed its response to the SOSS2 complaint on April Fool’s Day, van Roekens told the Chamber members, essentially calling SOSS2’s arguments, “Hooey,” as he put it.
The USACE then had more than a month, he continued, to provide the entire administrative record to SOSS2 that the USACE had filed in pursuit of the FDEP permit. “They sent us over 3,000 documents,” he said, “many of which had attachments. We had one week to review that, and my incredible board and advisers and experts got through it.”
SOSS2 filed its response, van Roekens said, and the USACE had until May 23 to agree with or dispute the SOSS2 assertions about any materials its group found missing from the administrative record.
“By the end of the year,” he said, “our case should be decided, and we believe we have a strong case.”
Nonetheless, van Roekens pointed out, “The Corps has a lot of muscle behind it.”
He extended his appreciation to the Chamber for its strong financial support of SOSS2’s actions, as well as to condominium associations and individuals on Siesta Key — and even visitors — who have contributed funds to the legal fight. “We believe we will win this case.”