Final order from FDEP in Division of Administrative Hearings case due by June 22
The defendants in a Florida Division of Administrative Hearings (DOAH) case involving the proposed dredging of Big Sarasota Pass have asked the state to reject Siesta Key petitioners’ request for the elimination of two areas in the pass as sand sources for the renourishment of 1.88 miles of Lido Key Beach.
The City of Sarasota filed its response jointly with the Lido Key Residents Association (LKRA), while the Florida Department of Environmental Protection (FDEP) and the U.S. Army Corps of Engineers issued separate responses to the Exceptions the Siesta Key Association (SKA), Save Our Siesta Sand 2 (SOSS2) and three individuals on Siesta Key submitted to FDEP’s Office of the General Counsel in late May.
The responses comprise the last set of submissions in the DOAH case, which involves the Siesta petitioners’ efforts to prevent FDEP from issuing a 15-year permit to the City of Sarasota and the USACE for their planned Lido Renourishment Project using sand from Big Pass. FDEP spokeswoman Dee Ann Miller told The Sarasota News Leader this week that the due date for the final order in the case is June 22, as confirmed by the Office of the General Counsel. She explained in a June 6 email, “In an abundance of caution, the Department utilizes the most conservative [time clock] (which is 45 days). In this case, the Recommended Order was issued on May 8. The Final Order due date is 45 days from that date, which is June 22.” (See the related article in this issue.)
Miller was referring to Administrative Law Judge Bram D.E. Canter’s May 8 filing of his recommended order in the case. Canter presided over a five-day hearing in December 2017, which was conducted mostly in Sarasota.
Canter recommended that FDEP not allow dredging of sand from borrow area — or “cut” — B or from the easternmost 1,200-foot segment of Cut C between April and September. He based that on expert testimony during the DOAH proceeding that focused on the spawning of the spotted sea trout in those areas during those months each year.
When the SKA and SOSS2 filed their joint Exceptionson May 23, they referenced Canter’s recommended order and suggested that if FDEP proceeds to issue a permit to the City of Sarasota and the USACE, FDEP should stipulate that those two borrow areas be eliminated altogether.
Canter also had recommended a reduction in the amount of sand to be dredged from the pass. Instead of 1.7 million cubic yards — as FDEP’s intended permit would have allowed — he wrote that the amount should be limited to 1.3 million cubic yards. The attorneys for the SKA and SOSS2 pointed out in their joint Exceptionsthat the amount of sand in Borrow Area B is only 299,000 cubic yards, based on evidence submitted during the DOAH hearing. Additionally, they wrote, the easternmost 1,200 feet of Cut C contains only 20,000 cubic yards of sand. Altogether, then, the two borrow areas have 319,000 cubic yards of sand. Thus, the city and the USACE still would have the 1.3 million cubic yards of sand Canter called for in his order, the attorneys wrote.
Kent Safriet of the Tallahassee firm of Hopping Green & Sams represents the SKA, while Martha Collins of the Collins Law Group in Tampa is the attorney for SOSS2.
In their joint response, filed on June 4, the City of Sarasota and the Lido Key Residents Association noted their disagreement with the SKA and SOSS2 assertion that eliminating the two borrow areas “will not adversely impact the available sand to be dredged for use on Lido Key beach.” They argued, “This is an inappropriate statement for exceptions to the [administrative law judge’s] Recommended Order and should be rejected.”
John R. Herrin Jr. of the Fort Lauderdale firm GrayRobinson represents the city in this case, while Kevin S. Hennessy of the Bradenton firm of Lewis, Longman & Walker represents the LKRA.
‘Strained conclusion’ and ‘competent substantial evidence’
As it has throughout the DOAH process, the USACE made it clear in its response that it had “voluntarily entered a limited appearance” in the case as “[a]s a matter of comity to the Division of Administrative Hearings and the Florida Department of Environmental Protection …”
The USACE attorney — E. Christopher Lambert — then pointed to the Exceptions that the Lido Key Residents Association filed on May 23.
The attorneys for the LKRA argued that Canter was wrong to give so much weight to the expert testimony about the spawning of the spotted sea trout that R. Grant Gilmore Jr., president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc. provided in the DOAH proceeding.
Lambert agreed that in their Exceptions, the LKRA demonstrated “that there is no evidence of record supporting [Canter’s] finding that dredging proposed Cut B [or the portion of Cut C] will have an adverse impact on the spotted [sea trout].” Yet, he pointed out, the petitioners took “this strained conclusion and [made] the foundationless leap that removal of a portion of Cut C and all of proposed Cut B is the only way to mitigate any potential adverse impact to the potential spotted [sea trout] spawning area.”
Lambert added,“Petitioners cite to Dr. Gilmore’s equivocal testimony where he states that ‘[i]f the fish are very predictably spawning at this location right now, and the site has not been disturbed by humans ever, there is a chance that we could change that activity if we change the entire tidal scenario in association with this project.’ … This conditional statement is hardly evidence that suggests that dredging will permanently impact the use of the area for spawning.”
Furthermore, Lambert wrote, based on what he called their “erroneous conclusion,” the petitioners “are seeking to impose more drastic restrictions to the permit by eliminating dredging from a portion of proposed Cut C and all of proposed Cut B. As is clear, the record does not contain evidence of the impact of dredging activities on the spawning sites of spotted [sea trout].”
In his June 4 response, Kirk S. White, assistant deputy general counsel for FDEP, pointed out that the petitioners “do not contend that [Canter’s] findings are unsupported by competent substantial evidence” in regard to the spotted sea trout’s spawning season. Yet, White continued, the petitioners do contend that a portion of the DOAH hearing record “supports a contrary finding of permanent impacts to both seagrasses and spotted sea trout if Cut B or Cut C were dredged outside of spawning season.”
Even if their citations from the hearing record constituted “competent substantial evidence in support of an alternate finding or conclusion,” he wrote, that “is irrelevant unless there is a complete lack of competent substantial evidence for [Canter’s] findings.”
Thus, White concluded, the FDEP also concurred with the Exceptions the LKRA filed on May 23.
In response to the filings, SKA Vice President Catherine Luckner told the News Leaderin a June 5 email, “[T]hey all want to override the Judge in the very small effort he made to protect this area,” adding that that position is “Selfish.”
She also pointed out, “It’s a sad statement about our State when FDEP no longer seeks to protect the environment and Marine life when it’s the easiest thing to choose.”
As she has on a number of occasions, Luckner noted that Big Pass “is the last untouched inlet” on Florida’s west coast: It never has been dredged. “We know they don’t need the sand from those areas,” she added in her email, referring to Cut B and the portion of Cut C.