Save Our Siesta Sand 2 asks federal court to allow it to supplement materials U.S. Army Corps of Engineers submitted for review in case involving proposal to dredge Big Pass

Nonprofit argues that Army Corps of Engineers should have included documentation of red tide effects as it completed final assessments for Lido Renourishment Project

Condominium towers on South Lido Key are easily visible across Big Pass on the evening of June 7, 2018. File photo

The U.S. Army Corps of Engineers (USACE) is fighting an effort by the nonprofit Save Our Siesta Sand 2 to file supplemental materials in a U.S. District Court case as the nonprofit seeks to prevent the dredging of Big Sarasota Pass.

Save Our Siesta Sand 2 (SOSS2) argues that the USACE omitted relevant materials from the administrative record in the federal case SOSS2 filed against the USACE in January. That administrative record, SOSS2 points out, is to contain all the materials the USACE used in making the determination that it should proceed with plans for the Lido Beach Renourishment Project. The USACE proposes the removal of sand from Big Pass for placement on about 1.6 miles of South Lido.

SOSS2 contends that the dredging of the pass will lead not only to permanent navigational problems in the channel but also to damage of Siesta Key property and the island’s economy.

As a result of the need to wait on the court’s ruling on the SOSS2 motion regarding the supplemental material, the nonprofit’s chair, Peter van Roekens, has reported that it likely will be early August — instead of this month — before SOSS2 can file for summary judgment in the case. SOSS2 plans to ask the federal court to rule that the USACE, in its proposal for the Lido project, has failed to comply with the standards set forth in several federal laws; therefore, Big Pass should not be dredged unless the USACE completes an in-depth environmental analysis of the proposed initiative.

The USACE and the City of Sarasota received a permit last summer from the Florida Department of Environmental Protection (FDEP) to proceed with the Lido initiative. (See the related story in this issue.)

Jane West. Photo from the Jane West Law website

In a motion filed on June 6 in the U.S. District Court for the Middle District of Florida, in Tampa, SOSS2 attorney Jane West of St. Augustine asked the court to let SOSS2 supplement the USACE materials with the following documents:

  • The Beach Erosion Control Study for Sarasota County, with an Environmental Impact Statement, that the U.S. Army Corps of Engineers issued in July 1984 and revised in October 1984.

(In response to the SOSS2 motion, the USACE acknowledged that the 1984 document should have been part of its administrative record and that it would provide that material to the court.)

  • The transcript and exhibits from Florida Division of Administrative Hearings Case No. 17-1449. This proceeding was conducted in December 2018, mostly in Sarasota, to hear challenges SOSS2 and a separate nonprofit, the Siesta Key Association, filed with the state after FDEP issued its Notice of Intent in December 2016 that it was going to provide the Joint Coastal Permit to the USACE and the City of Sarasota for the Lido project.
  • “Any and all documents” related to the ecological and economic impacts of the 2018 red tide outbreak in Sarasota County.

In her motion, West pointed out that, in August 2018, the USACE issued a Final Environmental Assessment and Finding of No Significant Impact for the Lido project. Through that action, she continued, the USACE “failed to adhere to the standards set forth” by the National Environmental Policy Act (NEPA), the Clean Water Act (CWA) and the Endangered Species Act.

“Under the National Environmental Policy Act (NEPA), the Corps may authorize an activity like the [Lido] Project only if it has fully analyzed the activity’s direct, indirect, and cumulative environmental impacts; informed the public and decision makers about those impacts before making its decisions; and based its authorization on reliable information and accurate scientific analysis,” West argued. “There is significant evidence suggesting the data upon which the Army Corps of Engineers relied is not the best available scientific or relevant, reliable information, as required.”

The extra materials SOSS2 is seeking to provide, she continued, would assist the court “in determining whether [the USACE] considered additional issues germane to the issuance of the dredging permit …”

First, she wrote, the red tide outbreak that began in October 2017 and worsened in the summer of 2018 “devastated the wildlife along Florida’s southwest coastline,” including those on the Sarasota County shoreline.

Workers clear dead fish from a county beach on Aug. 14, 2018. Image courtesy Sarasota County

West argued that the administrative record the USACE submitted does not address the impacts of red tide. Citing a judicial precedent, she wrote, “Evidence outside the record may be looked to … ‘when a case is so complex that a court needs more evidence to enable it to understand the issues clearly.’”

The USACE “is required to consider the effects on threatened and endangered species” — specifically the spotted seatrout, and manatees — “as well as designated critical habitat,” she noted, adding that those effects “should be considered in conjunction with the current negative effects from red tide.”

The red tide bloom finally subsided this winter.

West wrote that a nonprofit group, Save the Manatee, had reported that, as of November 2018, 203 manatees were believed to have died as a result of the red tide bloom. An “Unusual Mortality Event in dolphins in Southwest Florida,” she continued, also is believed to be related to the bloom.

She further emphasized that the dredging, as proposed, would excavate a borrow area “in close proximity to critical spotted seatrout spawning grounds. The spotted seatrout are currently catch-and-release only … in this area of the state,” she wrote, because of Florida Fish and Wildlife Conservation Commission (FWC) action responding to the effects of the prolonged red tide bloom.

Further, she noted, on Aug. 3, 2018, a survey by Visit Sarasota County found that 75% of the visitors who had planned to stay in local accommodations had canceled their reservations because of concerns about red tide.

In regard to another issue, West pointed to the economic impacts the dredging would have on Siesta Key. Not only would the island lose the “benefit from the sand accretion that occurs naturally as a result of Big Pass Shoal,” she wrote, but the dredging also would affect the Siesta Key economy because it would interfere “with businesses dependent on the natural and aesthetic qualities of Big Sarasota Pass …”

Siesta Beach is mostly deserted just after 9:30 a.m. on Aug. 16, 2018, after publicity about the red tide event became widespread. Image courtesy courtesy Sarasota County Government via Twitter

USACE’s response

In a motion filed on June 20, Mark Arthur Brown, an attorney with the U.S. Department of Justice, asked that the court deny “in its entirety” the SOSS2 motion regarding the supplemental materials.

Noting that the USACE was providing the court the 1984 Environmental Impact Statement (EIS), he added that its inclusion in the USACE administrative record boosts the number of pages to more than 25,000.

Then Brown explained that the USACE’s decision to proceed with the Lido project was supported by the Final Environmental Assessment and Finding of No Significant Impact released in August 2018, after their completion in July of that year. He added that the project previously was analyzed in the 1984 EIS.

“Judicial review of an agency action, such as this one,” Brown wrote, “is governed by the Administrative Procedure Act” of the U.S. Code. Under that act, he continued, “a reviewing court ‘shall … hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” However, he continued, “a court may not substitute its judgment for that of the agency.”

Mark Arthur Brown is a senior trial attorney with the U.S. Justice Department. Image from LinkedIn

The court has to rule for the agency, he argues, “if the agency’s decision is ‘rational, based on consideration of the relevant factors and within the scope of authority delegated to the agency by statute,’” citing a 1983 U.S. Supreme Court case and a 2008 U.S. 11thCircuit Court of Appeals decision.

Citing another U.S. Supreme Court case, from 1973, Brown added, “‘[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.’”

“If the record does not support the agency action, or if the reviewing court is unable to evaluate the challenged action on the basis of the record before it,” Brown wrote, “‘the proper course, except in rare circumstances,” is to require the agency to undertake additional investigation or explanation. With that statement, he cited another U.S. Supreme Court case, as well as a 1998 U.S. 11thCircuit Court of Appeals case.

Further, he cited a 2017 U.S. District Court case in the Middle District of Florida in arguing that an agency has unique knowledge of the content of the record it has considered in making a decision on a project. “‘[T]he judiciary defers to an agency’s certification of the administrative record and permits supplementing [that] record only if the plaintiff initially shows strong [evidence] of bad faith or improper behavior in the agency’s production of the administrative record.’”

Brown also argued that SOSS2 had failed “to articulate why the Court should consider” the transcripts and exhibits of the 2018 DOAH hearing.

As for the documents related to red tide: First, Brown pointed out, SOSS2 did not specify the materials it believes the court should consider. Further, he wrote, SOSS2 “does not provide justification” for supplementing the administrative record with “internet news articles … much less ‘any and all’ documents concerning this subject matter.”

Nonetheless, Brown pointed out, the Lido Renourishment Project “is not introducing organic material or other nutrients that might degrade marine water quality, [so] there is no reason to expect the Project to impact red tide conditions.”