U.S. Army Corps of Engineers cites lack of demonstration of any ‘irreparable harm’ that would occur and seeks $48,000 in bond per day while awaiting ruling
Seven days before the U.S. Army Corps of Engineers planned on the start of dredging in Big Sarasota Pass to renourish Lido Key Beach, the nonprofit Save Our Siesta Sand 2 (SOSS2) filed in federal court for an emergency Temporary Restraining Order (TRO) to prevent such activity.
SOSS2 and the U.S. Army Corps of Engineers (USACE) have litigation pending in the U.S. District Court for the Middle District of Florida, in Tampa. Although SOSS2 leaders had anticipated a decision by late winter or early spring, Chief Judge Steven D. Merryday has yet to rule in the case. SOSS2 filed it in January 2019, alleging that the USACE had failed to adhere to several federal laws — including the Clean Water Act — in making its plans for the removal of sand from Big Pass to renourish about 1.56 miles of Lido Key’s critically eroded beach.
In her last filing in 2019, SOSS2 attorney Jane West, whose eponymous firm is in St. Augustine, also stressed the need for the USACE to take into consideration the impact the last major red tide event had on the county’s coastal waters, including Big Pass.
In a memorandum in support of the motion she filed on June 30, attorney West asked for issuance of a TRO “to prevent any dredging until this court has the opportunity to decide on the merits of the case. A TRO is required to prevent irreparable harm to Big Sarasota Pass and destruction of relevant evidence.”
West also pointed out that the dredging and subsequent placement of sand on Lido Beach is expected to begin “in the middle of sea turtle nesting season which extends from May through October.”
In its January 2019 complaint against the USACE, SOSS2 asked the court to require that the federal agency perform an in-depth environmental analysis of the Lido project — an Environmental Impact Statement. In the summer of 2018, the USACE issued an updated Environmental Assessment and a Finding of No Significant Impact (FONSI) for the Lido initiative.
“Because the project is considered ‘major federal action’ under the National Environmental Policy Act,” an SOSS2 press release emphasized, “a comprehensive analysis of the effects must be thoroughly analyzed. However, 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, despite being specifically requested by Sarasota County in 2016,” the press release added with more emphasis.
(The USACE responded to the County Commission in late November 2016, writing that it stood by its previous assertions that no harm will come to Big Pass, Siesta Key or Sarasota County’s Ted Sperling Park on South Lido as a result of the Lido initiative.)
“The only EIS for this project is over thirty years old!” Mark Smith, chair of SOSS2, said in the release. “The dredging of Big Pass is in violation of the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act, and the Marine Mammal Protection Act,” Smith added. “We are asking for the TRO before irreversible damage is done to Big Pass and the surrounding ecosystem.”
“The Army Corps’ failure to comply with federal law in this case could be disastrous to those who love the Big Pass shoal, Sarasota Bay, Ted Sperling Park, and Siesta Key,” Smith said in the press release.
It was not until September 2013 that the USACE formally announced that its Lido Key Hurricane and Storm Damage Reduction Project would utilize about 1.3 million cubic yards of sand from Big Pass, which never has been dredged. Documents in the solicitation package the USACE published in December 2019 showed that 710,000 cubic yards would go on Lido Beach; the remainder of the sediment is expected to be lost in the water, according to materials the USACE filed with the Florida Department of Environmental Protection (FDEP).
FDEP issued the permit for the project to the USACE and its local sponsor, the City of Sarasota, in June 2018.
Cottrell Contracting Corp. of Chesapeake, Va., won the contract this year to undertake the Lido project, bidding $12,688,582. The dredge it plans to use, based on materials the company provided to the USACE and to FDEP, was underway, just south of Charleston, S.C., as of midday on July 1, MarineTraffic.com reported.
As of early afternoon on July 2, the dredge Rockbridge had stopped its passage south, according to MarineTraffic.com. It was positioned just north of Hilton Head, S.C.
On July 1, the USACE filed a response to the SOSS2 motion, pointing out, “Except for noting that project construction is currently anticipated to begin on July 6, 2020, [SOSS2] has proffered no further facts or opinion testimony to materially differentiate and/or advance its petition for emergency injunctive relief in relation to the already-submitted summary judgment briefing [SOSS2 filed with the court last year in its case].”
That motion added, “Plaintiff falls far short of demonstrating irreparable harm. Indeed, the Florida Department of Environmental Protection’s Joint Coastal Resources Permit for the Project includes numerous conditions to minimize and avoid adverse impacts on coastal resources. Plaintiff has not attempted to demonstrate that any harm to their asserted interests in coastal resources — much less imminent, irreparable harm — will result if project dredging proceeds while the Court considers Plaintiff’s motion for a preliminary injunction. [That language refers to the original SOSS2 complaint.] On that basis alone, the requested temporary restraining order should be denied,” the USACE response said.
When the News Leader contacted the City of Sarasota on June 30 about the TRO, Communications Specialist Jason Bartolone responded that he was uncertain whether City Manager Tom Barwin would be able to offer any comments. Barwin was at work on issues related to the implementation of a face mask ordinance that the City Commission approved on June 29, Bartolone noted. (See the related article in this issue.)
The News Leader also contacted Mayor Jen Ahearn-Koch, who responded that she wanted to check with City Attorney Robert Fournier to determine whether she should offer any response at this point. The News Leader had not heard more from her prior to its publication deadline this week.
$48,000 a day in bond sought by USACE
As required by law for entities bringing suit against a federal agency, SOSS2 attorney West notified the USACE on June 29 of her intent to file for the TRO, the News Leader learned.
Mark Arthur Smith, the senior trial attorney with the U.S. Department of Justice who has represented the USACE in the case, responded to West in an email that afternoon. “Given the potential economic, environmental, and logistical costs of delay, I anticipate that Federal Defendants would request the Court to condition any injunction on Plaintiffs’ posting a substantial bond pursuant to Federal Rule of Civil Procedure 65(c),” Brown wrote.
Later, West informed SOSS2 leaders that that proposed bond would be $48,000 per day, according to copies of email exchanges provided to the News Leader this week.
Because SOSS2 is a nonprofit organization and working in the public interest, West can ask Judge Merryday to waive the bond, the News Leader learned.
Along with its July 1 response to the TRO motion, the USACE filed two declarations. First, Benjamin G. Cottrell V, president of Cottrell Contracting, attested that, starting in June, the company “took several steps to execute its work under the [Lido] contract. It conducted shore bird surveys, set up staging areas, conducted … [a] pre-construction survey, established its initial construction baseline, and transported equipment to the Project area.”
Cottrell also awarded contracts to other firms that will handle facets of the project, the declaration continued, and it spent more than $700,000 “for specialized mechanical beach equipment as well as over $450,000 for pipeline to be utilized on Lido Key Beach. This pipeline has been delivered to the site and is currently being assembled.”
Additionally, Benjamin Cottrell attested to the fact that if the job were delayed, the company would have to lay off 20 workers for the duration of the postponement.
Finally, Cottrell attested to the fact that the standby rate for the dredge would be $48,000 per day.
A separate declaration from the USACE project manager, Bryan T. Merrill, who is with the Jacksonville District Office, pointed out, “The Corps could incur significant costs if construction is delayed,” with the total depending upon the length of time. “If the length of the delay were significant,” the document added, “the Corps might issue a suspension of work to the Contractor. The USACE would be responsible for any costs resulting from the suspension of work, he added, “and the Contractor would be required to take all reasonable steps to minimize the incurrence of costs allocable to the project during the period of suspension.”
Moreover, the document said, if the construction cannot be completed by June 1, 2021, “[A] new seagrass survey of the borrow area would be required.” Further, it said, “Turtle nests have already been relocated in preparation for the beach renourishment.”
“Significantly,” Merrill’s declaration continued, “Lido Key would not enjoy the benefits of the project until construction is complete. The project is estimated to provide $5,060,000 in average annual benefits and average annual net benefits of $3,020,200, as estimated in the 2011 Lido Key, Sarasota County, Florida Chief’s Report.”
Details of the motion
In her June 30 motion, West provided background on the complaint SOSS2 filed against the USACE in early 2019. Among her points, she reiterated the following from that complaint: “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. 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.”
With the new motion, West continued, SOSS2 sought the court’s approval to submit additional material for the case record for “the limited purpose of assisting the court in determining whether [the USACE] considered three issues germane to the issuance of the dredging permit at issue: (1) the red tide algal [Karenia Brevis] outbreak of 2018 that devastated the wildlife along Florida’s southwest coastline, including in Sarasota County. Impacted species included the Spotted Sea Trout, Manatee and other marine species; and (2) the economic impacts the dredging will have on neighboring Siesta Key, which will no longer benefit from the sand accretion that occurs naturally as a result of Big Pass Shoal, which the defendant seeks to use as borrow area.”
West added, “The Corps relied on a dataset that was outdated and not representative of current conditions. Missing factors, such as the red tide impacts and economic impacts are factors that should have been considered in order to provide a thorough decision regarding the approval of the permit. Failure to evaluate these impacts that are representative of current conditions is arbitrary and capricious.”
In the memorandum she submitted in support of the June 30 motion, West also pointed out that if the Lido Hurricane and Storm Damage Reduction Project were allowed to go forward, it “will generate impacts in the wider region, as Big Pass functions as part of the Sarasota Bay Estuary and as such, its modification will impact water quality well beyond the immediate area of the project.”
“Portions of the identified Project location lie within the Sarasota Bay Estuarine System, which establishes the boundaries of the Sarasota Bay Estuary Program (NE),” West continued. “The Sarasota Bay Estuary System is one of 28 estuaries of national significance that are threatened by pollution, land development, or overuse, protected by the National Estuary Program (NEP),” West wrote. “The NEP was established by Congress in 1987 to restore and protect estuaries of national significance. The Sarasota Bay Estuarine System has also been designated as one of the Outstanding Florida Waters (OFW) by the Florida Department of Environmental Protection.”
FDEP finds no problems with pre-construction materials
In the meantime, the 15-day formal review of the final pre-construction documents submitted to FDEP for the Lido project found no issues that needed to be resolved, FDEP spokeswoman Dee Ann Miller told the News Leader in a June 29 email.
“Our 15-day review period ended June 19th,” Miller wrote. “The Department received all preconstruction deliverables in accordance with the Permit.”
Siesta Key Association (SKA) Director Robert Luckner told the News Leader via email on June 30 that FDEP last week informed him and his wife, SKA President Catherine Luckner, that the department was accepting the pre-construction documents as complete.
On June 12 and June 17, the SKA sent two letters to FDEP, pointing to concerns the Luckners had about lack of documentation in the materials regarding specific facets of the FDEP permit.