Save Our Siesta Sand 2 files for summary judgment in Big Pass case, arguing that Army Corps of Engineers has defied federal law in pursuit of Lido project

Timeline in federal court case calls for final party documents to be filed by Dec. 6

(Editor’s note: The subhead for this article originally had the incorrect date, though the date within the story was correct.)

A 2018 satellite photo shows Lido Key north of Siesta Key, with Big Pass separating the islands. Ted Sperling Park is at the southern end of Lido. Image from Google Earth

Because the U.S. Army Corps of Engineers (USACE) has defied numerous federal laws in refusing to undertake an in-depth environmental analysis of its proposed Lido Key Beach Renourishment Project, it must not be allowed to pursue that project, a Siesta Key-based nonprofit argues in its latest motion filed in federal court.

On Aug. 29, Save Our Siesta Sand 2 (SOSS2) formally filed a motion for summary judgment in the case it brought against the USACE in January. SOSS2 asks the U.S. District Court for the Middle District of Florida, in Tampa, to prohibit the USACE from pursuing the Lido project under the guidelines of the permit the USACE received in June 2018 from the Florida Department of Environmental Protection (FDEP). Moreover, SOSS2 asks the court to require the USACE and FDEP to “reinitiate consultation” on that permit.

A full Environmental Impact Statement (EIS), “which is typically required for this type of project, has not been completed in this area or surrounding areas since 1984,” SOSS2 attorney Jane West wrote in the motion.

And in its refusal to undertake an EIS, she contends, the USACE has defied the National Environmental Policy Act (NEPA), the Environmental Species Act (ESA) and the Clean Water Act (CWA), among other federal laws.

The USACE plans to take up to 1.3 million cubic yards of sand from Big Sarasota Pass to stabilize about 1.6 miles of South Lido Key Beach. The FDEP permit the USACE received — with its co-applicant, the City of Sarasota — is valid for 15 years. USACE documents and public statements have made it clear that project managers believe the Lido renourishment will have to be done again every five years, even with construction of two groins on South Lido to try to hold sand in place between projects.

This graphic in the USACE’s Final Environmental Assessment, published in July 2018, shows the original plan for three groins on South Lido Key. The third, southernmost groin was eliminated from consideration several years ago. Image courtesy USACE

SOSS2 is asking the court “to prevent further degradation of rural communities and shared environmental resources that are the heart of … Siesta Key and Sarasota,” West added.

“The Big Sarasota Pass ebb shoal is unique due to its shallow depths, making it a popular site for recreation at low tides during calm sea conditions,” West wrote. “A quintessential example is boaters who enjoy anchoring their boats and playing in the very shallow water on the shoal.”

“Furthermore,” West pointed out, “the consistency of Siesta Key Beach’s superlative status as a tourist destination has not been considered at all by the Corps, especially in light of scientific literature which suggests that dredging Big Sarasota Pass will increase wave action and erosion at beaches and private property on Siesta Key.”

Moreover, West stresses the importance of the “coastal barrier” the shoal provides the Key. In its Beach and Shore Protection Act, she continued, the Florida Legislature “asserted that Florida’s beaches and coastal barrier dunes are among the state’s most valuable natural resources and that these resources should be protected from ‘imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access.”

R. Grant Gilmore Jr. Photo from his online biography

Additionally, West pointed out that spotted seatrout spawn in Big Pass from April through September. “Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species,” she added, citing the expert opinion of researcher R. Grant Gilmore Jr., president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc.

“The proposed project would destroy a spotted seatrout spawning areas,” West contends, “creating a strong negative in the balancing of public interest factors. There is no proposed mitigation for adverse impacts to spotted seatrout for the Project. … The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin is over 16 miles away and therefore not suitable as a refuge for post-larval spotted seatrout,” West added.

In the summary judgment motion, West — whose eponymous firm is in St. Augustine — argues that the USACE’s decision not to create an Environmental Impact Statement (EIS) on the Lido project “was arbitrary and capricious and a violation of the [federal government’s] Administrative Procedure Act (APA) …” She wrote, “While the standard of review under APA is narrow, the court must nonetheless engage in a searching and careful inquiry of the record. … An agency decision may be deemed arbitrary and capricious if the agency fails to consider all relevant factors … or if the agency has ‘offered an explanation for its decision that runs counter to the evidence before the agency’ or has failed to articulate ‘a rational connection between the facts found and the choice made.’” West was citing a 1993 U.S. Supreme Court decision.

“Under the National Environmental Policy Act [NEPA],” West wrote, the USACE, like any other federal agency, “is required to prepare an EIS ‘to the fullest extent possible,’ before taking any ‘actions significantly affecting the quality of the human environment …’ An EIS accounts for various factors, including ‘the environmental impact of the proposed action,’ ‘any adverse environmental effects which cannot be avoided should the proposal be implemented,’ and ‘alternatives to the proposed action.’”

The NEPA, the Clean Water Act (CWA) and other federal regulations, West stressed, “all require federal agencies to assess, stop or minimize, and mitigate the harmful effects of the permitted action on the human environment. However, these laws are only effective if they are followed.”

In issuing an Environmental Assessment/Finding of No Significant Impact for its Lido project, West wrote, “the Corps defied the dictates” of the NEPA, the CWA and the APA.

Procedure for the case

Chief Judge Steven Merryday of the U.S. District Court for the Middle District of Florida. Image from

On March 1, Chief Judge Steven D. Merryday of the U.S. District Court for the Middle District of Florida, in Tampa, ordered that the SOSS2 lawsuit be classified as a “track two case.” That means Merryday will make a ruling on the basis of a review of the documents the nonprofit and the USACE file; no hearing will be scheduled for presentation of evidence or testimony. The original schedule called for SOSS2 to file for summary judgment by July 1. However, because the nonprofit petitioned the court to allow supplemental materials to be filed in the case, the schedule was extended.

Merryday ultimately ruled against the inclusion of those extra materials.

On Aug. 22, Merryday issued an order that gave the USACE until Sept. 20 to submit its response to the SOSS2 motion for summary judgment, as well as to file a cross-motion for summary judgment.

The amended timeline calls for the last document in the case to be filed by Dec. 6. That motion will be from the USACE.

Laying out the facts

In a memorandum of law supporting the summary judgment motion, SOSS2 attorney West explained that Big Pass never before has been dredged. The waterway, she pointed out, is “a primary navigational access point between the Gulf of Mexico and Sarasota,” and its ebb shoals.

“It is readily conceded that the artificially created man-made beach on Lido Key does need renourishment to preserve the questionably approved infrastructure that currently exists; however,” she wrote, “preserving the man-made Key should not come at the sacrifice of the natural ebb shoal in Big Sarasota Pass — a shoal that has historically protected Siesta Key from erosive wave energy.”

West called the combined Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) that the USACE issued on the proposed project in August 2018 “incomplete and inadequate,” adding that it “is based on old, outdated information that fails to consider even minimal baseline considerations …”

This is a detailed engineering drawing of Borrow Area B in the USACE bid package issued in May, which ultimately was cancelled in August. Image courtesy U.S. Army Corps of Engineers

The EA/FONSI, she added, also does not take into account how the dredging of the pass and shoal would affect the marine environment.

In offering more detail about Lido Key, West explained that it was created in the 1920s through efforts to fill in “a group of small detached mangrove islands.” She pointed out, “The Gulf shoreline of Lido Key has experienced erosion since its formation, despite shoreline armoring and beach nourishment.”

“Since 1964,” West continued, “dredged material from New Pass has been placed on Lido Key to reduce the rate of erosion.” Although the USACE had considered removing sand from Big Pass “for many years,” she added, the USACE never acted upon that for numerous reasons.

For example, she wrote, a USACE study prepared in 1962 “concluded that the need for safe access for recreational craft between the Gulf and the Sarasota Bay area could be best and most economically fulfilled by improvement of New Pass and inside connecting channels.”

Jane West. Photo from the Jane West Law website

The USACE determined that maintaining “a stable entrance channel” in Big Pass “was more difficult and expensive,” West pointed out.

In 1985, she continued, Sarasota County staff prepared a report on decommissioning New Pass “and adding Big Sarasota Pass as a Federal Navigation Channel project but that was never acted upon. … The advantage of New Pass dredging for maintenance nourishment for Lido Key appeared to be the deciding factor in the decision not to decommission New Pass.”

(Throughout her brief, West cited numerous reference sources for such statements.)

Survey records regarding Big Pass “indicate its existence dates back to 1883,” West continued. It has “maintained the same orientation and morphology for the past 100 years.” (Morphology is a branch of biology that deals with the form and structure of animals and plants, Merriam-Webster explains.