Siesta Key Association disagrees with Sarasota County attorney’s interpretation of county policy regarding public dredging projects

Nonprofit to proceed with July 23 hearing in Circuit Court

A 2018 satellite photo shows Lido Key north of Siesta Key, with Big Pass separating the islands. Image from Google Earth

Regardless of the Sarasota County Stephen DeMarsh’s assertion last week that a county Comprehensive Plan policy is not intended to cover public dredging initiatives, the Siesta Key Association (SKA) will continue pursuit of a 12th Judicial Circuit Court case related to that policy, its vice president told The Sarasota News Leader this week.

“In working with your staff,” DeMarsh explained to the commissioners on July 10, “and reviewing [county] Environmental Policy 4.6.1, it is our opinion and [staff’s] opinion that it only applies to private dredging operations and has never been applied to a public project to dredge.”

SKA Vice President Catherine Luckner told the News Leader in a July 16 telephone interview, “Mr. DeMarsh is incorrect. … There’s lots of indications that [his statement is] not true.”

DeMarsh had added on July 10, “It has been my opinion that that environmental policy would not come into play in the event that there were beach nourishment projects requiring a sand source, and therefore dredging, in the Gulf of Mexico. It simply does not apply.”

He was responding to comments from Commissioner Alan Maio during the board’s regular meeting that day.

SKA Vice President Catherine Luckner. File photo

It makes no sense, Luckner told the News Leader, that the county would have no means of advocacy for one of its most vital resources — and one of its top tourist draws: its waterways. “If they have no oversight,” Luckner added of the commissioners “[they] really need to go back and [revise] the Comprehensive Plan.”

The SKA will proceed with a July 23 hearing as planned on its verified complaint in the 12th Judicial Circuit Court in Sarasota, she and her husband, Robert, said in a joint interview with the News Leader.

Robert Luckner heads up the SKA’s Environmental Committee. Both Luckners have undertaken years of research relating to the proposal to dredge Big Pass to renourish a critically eroded segment of South Lido Key Beach, which is in the city of Sarasota.

The Circuit Court hearing has been scheduled to consider a motion the City of Sarasota filed last year to dismiss the SKA’s complaint. In April 2017, Judge Lon Arend put the case in abeyance until after the conclusion of a Florida Division of Administrative Hearings (DOAH) proceeding set for later that year. The hearing, which was conducted in December, focused on challenges the SKA, Save Our Siesta Sand 2 (SOSS2) and three individual property owners on Siesta Key filed in response to the Florida Department of Environmental Protection’s December 2016 Notice of Intent to issue a Joint Coastal Permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) for the beach renourishment project on South Lido Key. The city and the USACE propose dredging up to 1.3 million cubic yards of sand from Big Pass and its ebb shoal.

On June 18, Noah Valenstein, secretary of the Florida Department of Environmental Protection (FDEP), filed the Final Order in the DOAH case and issued the Joint Coastal Permit to the city and the USACE.

FDEP and comprehensive plans

This segment of the Sarasota County Comprehensive Plan includes Environmental Policy 4.6.1. Image courtesy Sarasota County

During the interview this week with the News Leader, Robert Luckner pointed to the section of Florida Administrative Law Judge Bram D.E. Canter’s May 8 Recommended Order in the DOAH case. That notes that Chapter 163 of the Florida Statutes … “requires all development undertaken by governmental agencies to be consistent with the local government’s comprehensive plan.” However, Canter continued, “Even an affirmative consistency comment from a local government to the State Clearinghouse does not settle the question of whether a project is consistent with the local government’s comprehensive plan under chapter 163. A consistency comment is similar to a permit applicant’s demonstration that it owns or controls land, which cannot open a permit proceeding to disputed issues regarding land title, nor result in a legally binding determination of land title.”

Sarasota County will manage the area of Lido Beach shown in this graphic. Image courtesy Sarasota County

“The Florida State Clearinghouse coordinates the dissemination of coastal permit applications for comment regarding consistency with enforceable policies of the [Florida Coastal Zone Management Program],” Canter pointed out.

In an April 19, 2017 response to the City of Sarasota’s Motion to Dismissthe SKA’s verified complaint, SKA attorney Kent Safriet of Hopping, Green & Sams in Tallahassee wrote about the question of whether the city’s dredging of Big Pass would violate the county Comprehensive Plan policy County Attorney DeMarsh referenced on July 10. That question, Safriet contended, “will not and cannot be answered by [FDEP] (or DOAH) … In fact,” he continued, “[FDEP] specifically stated that it ‘maintains that “comp plan consistency” is not a requirement of the Joint Coastal Permit… . [Safriet’s emphasis].’”

County funding assistance to the city

In a related matter, on July 15 Sarasota Mayor Liz Alpert emailed City Manager Tom Barwin, asking, “If the County is supposed to maintain the two city-owned Lido beaches, shouldn’t they also have to contribute to the cost of their renourishment?”

She was referring to a new parks interlocal agreement the County Commission unanimously approved last week and the City Commission unanimously approved this week. It transfers five parks from county management to the city upon the start of the new fiscal year, Oct. 1. (See this week’s article on the city’s millage rate vote.)

As Carolyn N. Brown, director of the county’s Parks, Recreation and Natural Resources Department explained to the County Commission last week, the county will take over management of Lido Beach from the dune to the Gulf of Mexico, as well as North Lido Beach.

Sarasota Mayor Liz Alpert. File photo

On July 16, Barwin responded to Alpert. “Good question,” he wrote. The county did provide funding to help the city to help with the last two renourishments on those beaches, he noted, and it has committed $1 million out of Tourist Development Tax — or, “bed tax” — revenue for the emergency project the city plans this fall, after turtle nesting season ends.

“As you know,” Barwin continued, “the bed tax is supposed to cover renourishment. If and when we get the [USACE] project going we should be in a much better position to pre plan and organize the regular renourishment plan and budgets. My take on the inter-local [parks agreement] is that it speaks more to the facilities themselves, like the pavilion, parking lot, etc.”

Late last month, the USACE declined to provide a timeline for the long-range Lido Beach Renourishment Project for which FDEP has issued the Joint Coastal Permit.

On June 29, spokeswoman Susan J. Jackson, in the USACE District Office in Jacksonville wrote the News Leader in an email, “Due to ongoing litigation, we have nothing further for you.”

Although neither the SKA nor SOSS2 had announced plans to appeal the FDEP Final Order in the DOAH case, the order said that any party to the proceeding had the right to seek judicial review, pursuant to Section 120.68 of the Florida Statutes, “by the filing of a Notice of Appeal … with the clerk of the Department in the Office of General Counsel …” The Notice of Appeal had to be filed within 30 days from the date of the Final Order, which was June 18.

During City Commission budget discussions in late June, City Manager Barwin had mentioned the likelihood that the city’s proposed agreement with the USACE for the long-term Lido Renourishment Project would be on one of the board’s July agendas. That did not prove to be the case.

In response to a News Leader query on July 19, FDEP spokeswoman Dee Ann Miller wrote that no appeals of the Final Order were filed.