If federal agency refuses, nonprofit indicates it is prepared to file suit in federal court to stop project
Save Our Siesta Sand 2 (SOSS2) formally has requested that the U.S. Army Corps of Engineers “conduct a full analysis of the contemplated Lido Key beach renourishment project in the form of an Environmental Impact Statement (commonly referred to as an ‘EIS’),” the Siesta Key-based nonprofit announced on Aug. 14.
A newsletter SOSS2 released the same day said the request “provides the Corps one last chance to consider the consequences of dredging” before SOSS2 initiates new legal action.
Jane West, whose eponymous law firm in St. Augustine is representing SOSS2, noted in an Aug. 14 news release from the nonprofit that she already is preparing to file suit in federal court. In its Aug. 14 newsletter, SOSS2 pointed out, “We believe that we will prevail in this suit,” adding that that “is beyond the grasp of local politicians who continue attempts to minimize the risks that the Project poses to the economic and environmental integrity of Siesta Key.”
After the conclusion in June of a proceeding in the Florida Division of Administrative Hearings (DOAH), the Florida Department of Environmental Protection (FDEP) issued a Joint Coastal Permit to the U.S. Army Corps of Engineers (USACE) and the City of Sarasota to dredge Big Sarasota Pass for the sand to renourish about 1.6 miles of South Lido Key Beach.
“We would have thought that given the devastating impacts of red algae outbreaks in South Florida, the agency tasked with protecting Florida’s environment (FDEP) would step up to the plate and seek this comprehensive environmental review to understand the full scope of the impacts of this dredging project,” West said of the EIS in the news release. “But without FDEP’s pressure to obtain an EIS, we don’t expect the Corps to do the right thing here — which we view as a legal obligation …”
The same day SOSS2 issued its announcement, the Jacksonville District Office of the USACE released an updated Environmental Assessment (EA) and Finding of No Substantial Impact (FONSI) for the Lido project, as required before it and the City of Sarasota can proceed with the planned dredging of 1.3 million cubic yards of sand from Big Pass. City Manager Tom Barwin has indicated that city leaders hope the Lido initiative can be completed before turtle-nesting season begins in the spring of 2019.
In the FONSI, Jason A. Kirk, the USACE’s district engineer in Jacksonville, wrote, “Based on the information analyzed in the EA, reflecting pertinent information obtained from other agencies and special interest groups having jurisdiction by law and/or special expertise, I conclude that the proposed action will have no significant impact on the quality of the human environment.”
Yet, the Aug. 14 SOSS2 news release points out that the proposed dredging project “is one of the largest contemplated in the State of Florida. It spans a 5-decade time frame and seeks to dredge up to 6.5 million cubic yards of sand from Big Sarasota Pass over the life of the project.”
Peter van Roekens, chair of SOSS2, said in the news release, “We have seen numerous instances where FDEP and the Army Corps have caused serious and irreparable environmental damage despite what their models predicted.” He noted that he was “speaking for many thousands of Siesta Key residents, visitors and business owners who feel the same way.”
The formal SOSS2 request
Addressing Col. Alan M. Dodd, district commander of the USACE in Jacksonville, SOSS2 attorneys West and Gennaro Scibelli of Jane West Law pointed out in their formal request for the EIS, “SOSS2 is concerned that the [dredging] Project will have significant environmental impacts in and around the Project area, and that the Project will negatively impact navigation of recreational and commercial watercraft passing through the areas affected by the Project.”
They added, “It is widely understood among the scientific community that the hydrology, circulation and mixing of the Sarasota Bays is poorly understood, yet critical to the environmental and socioeconomic health of the waterways used by residents of Lido Key, Siesta Key and the greater Sarasota area. Science and engineering has yet to accurately predict the impact of dredging, pass management, and Renourishment efforts. Alteration of these dynamics has great potential to cause deleterious and unintended impacts on both adjacent and more distant shorelines and marine ecosystems.”
“Additionally,” West and Scibelli wrote, “SOSS2 is concerned that the Corps has failed to consider all potential environmental and economic effects that will result from the Project and, in turn, has failed to conduct an Environmental Impact Statement as required by the National Environmental Policy Act [NEPA].”
The EIS is necessary, they contended, because the Lido Renourishment Project “qualifies as a ‘major federal action’” under NEPA guidelines.
If the USACE will not undertake an EIS, they added, they seek the preparation of “a supplemental Environmental Assessment … to specifically address the fact that the Corps has not accounted for the substantial adverse effects of the Project on critical spawning grounds for spotted seatrout within the Project Area, as detailed in the Final Order by FDEP” in the 2017 DOAH case.
In the DOAH proceeding, held mostly in Sarasota late last year, SOSS2 and the Siesta Key Association challenged FDEP’s December 2016 Notice of Intent to issue the permit to the City of Sarasota and the USACE for the Lido project.
The Final Order FDEP Secretary Noah Valenstein issued on June 18, along with the Joint Coastal Permit for the renourishment initiative, said no dredging would be allowed in Borrow Area B and the easternmost 1,200 feet of Borrow Area C in Big Pass between April and September, because expert testimony SOSS2 and the Siesta Key Association provided in the DOAH proceeding illustrated that the spotted seatrout spawns in those areas during that period.
Last summer, Van Roekens, the SOSS2 chair, took R. Grant Gilmore Jr., president the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc., into Big Pass on a boat one night. There, Gilmore used equipment to record sounds of the spotted seatrout spawning in specific areas. SOSS2 attorney Martha Collins of the Collins Law Group in Tampa offered to play the recording during Gilmore’s testimony as part of the December 2017 DOAH proceeding, but the presiding administrative law judge declined the opportunity to listen to it.
West and Scibelli further noted in their letter to the USACE that an Environmental Assessment resulting in a FONSI “is only appropriate if the project has no significant impact.” They added, “Due to the sheer size of the [Lido] Project, the 50-year duration, the Project’s potential impacts on the human and natural environment, the controversy regarding those impacts, and the Project’s close proximity to Siesta Key, an EIS should be prepared in accordance with federal code and regulations.”
The updated EA says, “NEPA regulations do not define controversy. Controversy itself is not an effect. ‘Controversy’ refers to reasonable dispute over the nature or extent of effects. Some controversy is expected and would be ordinary, but a ‘highly controversial’ dispute would more likely be an extraordinary circumstance.”
The document adds, “NEPA case law … does clarify that opposition is not equal to controversy.”
The updated Environmental Assessment and FONSI
Kirk, the USACE district engineer, pointed out in the FONSI, “Benefits to the public [of the Lido project] will include the restoration of habitat for protected species, fish, and wildlife; protection of upland structures from storm damage; and enhanced opportunity for recreation.”
“State water quality standards will be met,” Kirk pointed out, and measures will be implemented to “eliminate, reduce, or avoid adverse impacts” to fish and wildlife.
As USACE representatives have worked throughout the process to win the necessary state permit for the project, Kirk maintained, the agency’s modeling has demonstrated that Siesta Key will not suffer any harm from the project.
“The USACE has completed numerous sand placement projects throughout the country, including several in Sarasota County and other counties along the Gulf Coast of Florida,” the updated EA says. The USACE’s modeling software for those projects, it adds, “is a well-documented method for simulating waves, currents, water levels, sediment transport, and morphologic change at coastal inlets and entrances. However, the project allows for adaptive management through extensive monitoring” following the placement of sand on Lido. “If monitoring shows any change in inlet dynamics from what was anticipated as a result of the modeling effort,” the updated EA says, “future sand placement events can be modified to address any concerns.”
“Sediment transport” refers to the north-to-south drift of sand along the west coast of Florida. “Morphology” is the “form and structure of an organism or any of its parts,” Merriam-Webster explains.
Further, the updated EA says, “The environmental effects associated with the Dredging Alternatives are primarily temporary in nature, and most affected resources would return to pre-construction conditions either immediately after dredging (with respect to resources such as aesthetics and noise) or within one or two years (with respect to sea turtle nesting and benthic resources).”
“Benthic” refers to the depths of a body of water, Merriam-Webster notes.
The USACE project entails the creation of an 80-foot beach berm through the placement of sand from Big Pass, the EA explains. The proposal also calls for construction of two groins to try to hold the sand in place between subsequent renourishments “at approximately 5-year intervals for 50 years of Federal participation.”
The USACE originally proposed three groins, the EA notes, adding that construction of the third one “may be deferred” because of changes to the design involving the other two.