Nonprofit argues that the U.S. Army Corps of Engineers has failed to undertake in-depth analysis of potential impacts, as required by federal standards
Editor’s note: This article was updated on Jan. 24 to correct the division of federal court in which the case was filed.
As it has planned since late last year, Save Our Siesta Sand 2 (SOSS2) has filed a complaint in federal court to try to prevent the City of Sarasota and the U.S. Army Corps of Engineers from removing any sand from Big Sarasota Pass to renourish an approximately 1.6-mile stretch of South Lido Key Beach.
“The Corps, through its issuance of [its Final Environmental Assessment/Finding of No Significant Impact for the project] 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 (“ESA”) and is in turn [in] violation of the Administrative Procedure Act (“APA),” the complaint says.
(The APA “governs the process by which federal agencies develop and issue regulations,” the Environmental Protection Agency (EPA) website explains.)
The SOSS2 complaint points out that under NEPA, the U.S. Army Corps of Engineers (USACE) “may authorize an activity” such as the Lido Renourishment Project “only if the USACE 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.”
In a Jan. 11 press release, Jane West, principal of her eponymous law firm in St. Augustine, contends that the USACE “failed to take a hard look at the consequences [the Lido] project will have on imperiled species as well as the impacts to the human environment, in particular the local economy of Sarasota County’s beaches in the wake of one of the state’s worst red tide outbreaks.”
West added, “This region’s marine species and local economy simply cannot afford to take another hit as a result of reckless permitting at the expense of our natural ecosystem.”
Peter van Roekens, chair of SOSS2, said in the release that the project “will negatively impact navigation of recreational and commercial watercraft transiting the only local navigational inlet without a drawbridge between Sarasota and the Gulf of Mexico. We must prevent this damage from happening,” he added, noting that the nonprofit organization is “filing this suit for hundreds of our members as well as for thousands of additional Siesta Key residents, visitors and business owners who have similar concerns.”
Getting to this point
On June 18, 2018, the City of Sarasota and the USACE received a permit from the Florida Department of Environmental Protection (FDEP) to remove up to 1.3 million cubic yards of sand from Big Pass as the first step in a 50-year-long initiative to stabilize the critically eroded Lido Key Beach.
Since it was formally incorporated in 2014, the nonprofit SOSS2 has argued that the plans could lead to harm to Siesta Key, as well as to sea life and navigation in the waterway, which lies between Lido Key and Siesta Key. After SOSS2 and the Siesta Key Association last year lost their joint challenge of FDEP’s intent to issue the permit for the project, SOSS2 began working on plans for the federal lawsuit.
In August 2016, the Sarasota County Commission asked the USACE to undertake an in-depth Environmental Impact Statement (EIS) on the proposal involving Big Pass. The USACE asserted, in response, that its analyses of the project showed that no harm would result for Siesta Key or Big Pass.
Last summer, SOSS2 gave the USACE one more opportunity to pursue an EIS, announcing that it would file suit if the federal agency refused to do so. The USACE offered no response to the nonprofit. As a result, on Sept. 28, 2018, SOSS2 provided the formal 60-day notice to the federal agency and FDEP that it would pursue a legal remedy in federal court.
The complaint was filed on Jan. 11 in the U.S. District Court for the Middle District of Florida in Jacksonville.
The USACE “does not comment on matters in litigation,” Susan J. Jackson, spokeswoman for the USACE in its Jacksonville District Office, told The Sarasota News Leader on Oct. 1, 2018, after SOSS2 provided the notice of intent to file suit.
In a Jan. 15 email to the Sarasota city commissioners, City Manager Tom Barwin attached a copy of the SOSS2 lawsuit. He pointed out that the USACE project has been “permitted, funded and [is] being prepared for bidding, to protect and stabilize the vulnerable Lido Key shoreline.”
Barwin added, “We are not a defendant in this filing but the case is related to an important project in the city which is expected to proceed late in the year.”
City Attorney [Robert] Fournier would “attempt to briefly address [the lawsuit]” during his comments as part of the regular City Commission meeting on Jan. 22, Barwin noted.
Barwin and Carl Shoffstall, president of the Lido Key Residents Association, have pointed to the significant sand loss on Lido Beach, urging SOSS2 and the Siesta Key Association to cease legal challenges to the long-term renourishment project.
An emergency stabilization initiative began on Lido late last year. In December 2018, Barwin noted that strong seas produced by a cold front was delaying progress of that work.
SOSS2 has stressed that it is supportive of the renourishment of South Lido Key Beach. However, SOSS2 Chair Van Roekens has pointed out on numerous occasions that the city never has had a “Plan B” — that the city has remained committed to the USACE’s proposal to use sand primarily from Big Pass, which never has been dredged. Even when members of the public and Siesta organizations began raising concerns years ago about the potential harm of taking sand from Big Pass — based on past, independent scientific research — the city has stood resolute in its support of the USACE.
A 1994 study undertaken by D.G. Aubrey and Robert Dolan noted, “Siesta Key’s stability and low erosion rates are linked, both directly and indirectly, to the Big Sarasota Pass ebb shoal’s capacity to shelter the key from high wave and storm forces, as well as to the sand transport that occurs in conjunction with the shoal, the pass, and the key. If [proposed] dredging … by the U.S. Army Corps of Engineers is carried out, this will modify the wave and storm protection an alter the sediment supply to the onshore beaches.”
At the time, Aubrey was president of his own consulting firm and a senior scientist at Woods Hole Oceanographic Institution. Dolan was a professor in the Department of Environmental Sciences at the University of Virginia.
Their report was written as the USACE pursued plans to undertake a 2.1-million cubic yard renourishment project for beaches in the Venice area. That proposal ultimately was defeated through a legal challenge.
New Pass is an alternative source of sand over the 15-year life of the permit FDEP issued the city last summer for the long-term Lido project. New Pass also is the source of the sand for the emergency undertaking.
Arguments in the SOSS2 complaint
Along with the plans to remove sand from Big Pass, the SOSS2 complaint points out, the USACE proposes to build two groins near the southern terminus of Lido Key, in an effort to try to keep new sand in place between renourishment initiatives. The USACE told FDEP that it expected to place more sand on the beach approximately every five years.
The SOSS2 complaint explains that portions of the project location “lie within the Sarasota Bay Estuarine System, which establishes the boundaries of the Sarasota Bay National Estuary Program (NE), established by Congress in 1987 to restore and protect estuaries of significant importance …” Those project areas also are classified as Outstanding Florida Waters, the complaint says.
“The majority of waters in the project area are categorized as Class III, which designates that they are suitable for recreation and the propagation and management of fish and wildlife,” the complaint points out. “This entire area has been significantly impacted over the course of this past year by devastating red tide algae outbreaks,” the complaint adds.
Yet, the complaint continues, the USACE’s Final Environmental Assessment/Finding of No Significant Impact (EA/FONSI), issued in July 2018, “fails to include any mention of red tide” or the how the project will affect the “compromised marine environment …”
“An accurate and complete assessment of baseline conditions is mandatory in order for the Corps to draw any conclusions as to the significance of the effects of the Project on the human environment,” the complaint argues. “As [Sarasota County is a] premier tourist destination that is highly dependent on a pristine coastal ecosystem,” the USACE should consider the potential economic impacts of the project, the complaint says.
The Biological Opinion for the project, prepared by the U.S. Fish and Wildlife Service, also does not include any information about red tide, the complaint points out. “Issuing the EA/FONSI without such baseline information or analysis is arbitrary and capricious and in violation of the law,” the complaint stresses.
(The Biological Opinion was released in late December 2016. The red tide event on the southwest coast of Florida began in October 2017, Tracy Fanara, a red tide researcher with Mote Marine Laboratory, told members of the Siesta Key Association last September.)
Furthermore, the compliant contends, “The [Environmental Assessment] for the Project is incomplete, is based on old, outdated information, and fails to take into consideration even minimal standards,” such as baseline conditions. Moreover, as the project will take place in “pristine waters, there is very little existing information available about the impacts of dredge and fill activities in this location,” the complaint says.
Additionally, the USACE’s “own past analysis calls into question the justification of this Project,” the complaint adds. In a 1984 EIS undertaken before a renourishment project on Lido, the complaint points out, the USACE stated, “‘… Hurricane protection features were not economically justified for any of the study area shoreline.’ Now, over thirty years later, the Corps appears to have completely contradicted itself by authorizing a Project named the ‘Hurricane and Storm Damage Reduction Project,’” the complaint says.
Under the guidelines of the Council on Environmental Quality, the complaint points out, “[I]f there are significant new circumstances or information on relevant to environmental concerns and bearing on the proposed action or its impacts, a supplemental EIS must be prepared for an old EIS so that the agency has the best possible information to make any necessary substantive changes in its decisions regarding the proposal.”
The Council on Environmental Quality was established by the National Environmental Policy Act (NEPA), within the Executive Office of the President, “to ensure that Federal agencies meet their obligations under NEPA,” the Council website explains. “President Nixon signed NEPA into law on January 1, 1970,” the Council’s homepage says. “NEPA was the first major environmental law in the United States and is often called the ‘Magna Carta’ of Federal environmental laws. NEPA is our basic national charter for protection of the environment,” the homepage statement adds.