Nonprofit sends letters to FDEP as department staff undertakes formal review of pre-construction materials
Eight days after the Florida Department of Environmental Protection (FDEP) began its formal 15-day review of pre-construction materials for the Lido Key Hurricane and Storm Damage Reduction Project, leaders of the Siesta Key Association (SKA) notified the department of a number of concerns.
In a June 12 letter signed by President Catherine Luckner and her husband, Robert, and SKA director, the nonprofit asked Gregory Garis, administrator of FDEP’s Beaches, Inlets and Ports Program, to halt the review “and prohibit construction [emphasis in the letter]” until the issues the SKA had raised could be resolved.
Department staff began its final, formal review after receiving all the materials it deemed necessary to fulfill the requirements of the permit awarded the City of Sarasota and the U.S. Army Corps of Engineers (USACE) in June 2018, FDEP spokeswoman Dee Ann Miller told The Sarasota News Leader.
If any concerns arose, Miller added, the department would notify the city and the USACE.
Plans call for the Lido initiative to begin on July 6, with the contractor placing sand on the southern part of Lido and heading north. A June 9 document the City of Sarasota released shows the tentative timeline is for all the sand to be on the beach by Aug. 28, with work to shape the replenished shoreline continuing through Oct. 2.
However, the SKA contends that numerous elements of the required materials are missing, based on the Luckners’ review of the Lido project file, which is available on FDEP’s website.
Altogether, the SKA’s letter cited 15 gaps in those materials. Robert Luckner told the News Leader on June 16 that FDEP staff had acknowledged receipt of the letter.
Subsequently, on June 17, the nonprofit sent a second letter to the state agency. That referenced new documents added to the Lido project folder on June 16, including one providing details about a May 27 session conducted between the project contractor, Cottrell Contracting Corp. of Chesapeake, Va., and the USACE.
Among the SKA’s new concerns, the Luckners wrote, is the fact that the latest materials do not indicate whether the company personnel assigned to the project have been trained to look out for sea turtles and manatees. The FDEP permit, they pointed out, calls for “[a]ll in-water operations, including vessels, [to be shut down] if a marine turtle or manatee comes within 50 feet of the operation.”
The letter added that the training “should be required and documented before construction approval [is granted by the state].”
Moreover, the Luckners continued, the December 2016 U.S. Fish and Wildlife Service Biological Opinion issued for the project calls for project team personnel to be dedicated to observations of West Indian manatees between March 16 and Nov. 14. The opinion adds that if conditions are such that manatees “cannot be observed [emphasis in the SKA June 17 letter]” within 50 to 100 feet, then “in-water activity shall not be conducted.” The Biological Opinion offers as examples weather problems and heavy currents.
Further, the Luckners stress, the Biological Opinion calls for “[m]ovement of work boats and barges [to be] minimized at night [their emphasis].” Yet, a PowerPoint presentation Cottrell Contracting provided to the USACE for the May 27 pre-construction conference says, “Once dredging begins, work will continue 24 hours per day 7 days a week,” the Luckners pointed out.
As they did in their June 12 letter, the Luckners wrote that “the ‘15-day review clock’ should be stopped and the [city and the USACE] requested to resolve these gaps [emphasis in the letter].”
The SKA has been engaged in litigation against the City of Sarasota since March 2017 in an effort to prevent the removal of sand from Big Sarasota Pass to renourish about 1.56 miles of the Lido shoreline. The organization contends that irrevocable damage will result to the pass, to Sarasota County’s Ted Sperling Park on the southernmost point of Lido Key, and to the northern part of Siesta Key, if the initiative proceeds as planned.
The U.S. Army Corps of Engineers (USACE), which designed the project, has remained steadfast that its modeling is reliable, and that it showed no negative consequences would result.
On June 15 — just three days after the Luckners sent their first letter — City Manager Tom Barwin announced at the end of the City Commission meeting that anyone who has visited Lido Beach recently will have noticed that fencing has gone up in the municipal lot south of the Lido Pavilion. “That is the first step to the beach renourishment program,” Barwin said. “So the mobilization is beginning … The project is really, truly moving forward.”
More details of the June 12 letter
Among the concerns cited in the SKA’s June 12 letter, the Luckners wrote that a groin maintenance plan should have been submitted to FDEP. The USACE plans two groins on South Lido to try to hold sand in place between subsequent renourishment initiatives.
In regard to that issue, the Luckners also pointed to the December 2016 Biological Opinion. That document called not only for the maintenance of the groins, the Luckners wrote, but it also stated that the groins would have to be removed if the structures caused adverse impacts.
Section 18 of the Biological Opinion says, “The Corps or Sponsor must submit a Groin Maintenance Plan to describe the activities that will be conducted for the life of the Project to address any obstruction by the groins on the natural sand transfer updrift and downdrift of the nesting beach. The plan must also include physical and biological criteria to determine if the groins are effective as proposed. The Groin Maintenance Plan must be reviewed and approved by (the U.S. Fish and Wildlife Service).”
Section 19 of the Biological Opinion states, “The groins must be removed if [they are] determined not to be effective and or causing a significant adverse impact to the beach and dune system as outlined in the Groin Maintenance Plan.”
In the Physical Monitoring Plan submitted as part of the pre-construction documents, the Luckners noted, neither of those issues was addressed.
One other point relates to the groins. The Luckners wrote that the pre-construction documents “are notably quiet concerning [those] construction plans.” Yet, the USACE specifications for the Lido project include “a number of responsibilities for the contractor” in regard to that facet of the project, the Luckners added.
For example, they continued, the Environmental Protection Plan Cottrell Contracting submitted to FDEP says only that a traffic plans will be “submitted as needed” for what the SKA characterizes as “the delivery of the hundreds of large granite blocks” necessary for construction of the groins. The Luckners also noted, “The heavy delivery truck traffic will impact the roads on Lido Key and St. Armands … during [tourist] ‘season.’”
Ruderman, the USACE spokesman in Jacksonville, told the News Leader several weeks ago that the construction of the groins likely would start in January 2021. However, City Manager Barwin reported in his June 5 newsletter that that work is expected to begin in November or December, following the official Oct. 31 end of turtle-nesting season.
The SKA’s June 12 letter further pointed out that the traffic on the beach as the groins are built “will be extensive and noisy during [tourist] season,” but no information about that aspect of the project has been disclosed, either.
Another concern the Luckners have identified is that the FDEP permit calls for the contractor handling the turbidity monitoring “to be independent of the design contractor [emphasis in the letter] …” However, they wrote, the contractor — Dial Cordy and Associates of Jacksonville — “does not appear … to be independent.” They added, “Dial Cordy was a design contractor [for] this project in 2001,” when the USACE issued its original environmental assessment of the Lido initiative.
Further, they noted, the firm prepared the Aug. 21, 2002 Final Fish and Wildlife Coordination Act Report for the Lido project, and a study it undertook served as the primary basis for the Seagrass Mitigation and Monitoring Plan for the project, which was issued in December 2016.
A third issue to which the SKA pointed was the lack of documentation that the seagrass mitigation plan has been completed.
Early this month, David Ruderman, spokesman for the USACE at its Jacksonville District Office, told the News Leader that the seagrass survey was underway. He also noted that the mitigation had been “planned to occur this summer, but was delayed due to COVID-19-related delays/complications.”
The June 12 SKA letter pointed out the FDEP permit called for the mitigation site to be planted prior to start of construction.
A two-page document in the FDEP’s Lido project folder includes details about the mitigation area in Manatee County’s Perico Preserve, which that county created out of former farmland. The document says that a survey was conducted on Aug. 15, 2019, regarding the approximately 3.2-acre site.
The document was signed on Aug. 29, 2019 by a Florida professional surveyor and mapper.
Additionally, the SKA continued to assert its belief that the City of Sarasota must have Sarasota County permission to create the mitigation area outside the county’s territorial boundaries. The Luckners base their view on language in Chapter XX, Section 54-656.7(d) of the Sarasota County Code.
Last year, City Engineer DavisShaw told the City Commission that an appropriate seagrass mitigation area could not be found within the county’s coastal waters.
“Without [the county] permit,” the Luckners wrote, “the project is in violation of this local land use code and may therefore be a violation of FDEP Specific Condition 15.”
The section of the FDEP permit they were referencing says, “Sand placement activities may occur during the marine turtle nesting season (April 15 – October 31), except on publicly owned conservation lands such as state parks and areas where such work is prohibited by the managing agency or under applicable local land use codes …”
Pending litigation
Further, as it has in the litigation it continues to pursue against the City of Sarasota, the SKA reasserted in the June 12 letter its belief that the city needs to obtain a Sarasota County permit before any dredging starts in Big Pass. The Luckners once more based their view on part of Article XX, Section 54, of the County Code.
The letter pointed out that that issue is before Florida’s Second District Court of Appeal.
“Until this [litigation] is resolved,” the Luckners wrote, “SKA requests that you consider the proposed dredging … to be in violation of the Specific [FDEP permit] Condition 15 exclusions [again, emphasis in the letter].”
“The City has thus far delayed for over 90 days any answer to this appeal,” the letter added.
John R. Herin Jr. of the Miami law firm Fox Rothschild, who is the outside counsel for the city in the lawsuit, and Kevin S. Hennessy of Lewis, Longman & Walker in St. Petersburg, attorney for the Lido Key Residents Association (LKRA) — which was allowed to intervene in the litigation in the Circuit Court — won approval of the Appeal Court to postpone the filing of their responses to the SKA brief submitted to the court in February.
Both Herin and Hennessy referred to problems associated with working conditions as a result of the COVID-19 public health emergency. They asked the court to allow them until June 8 “to file their Answer Briefs.”
The court did not respond until May 26. On that date, a note in the online docket said that the extension had been granted, “and the answer brief shall be served within 30 days. However, further motions for extension of time are unlikely to receive favorable consideration.”