Siesta Key Association to return to Circuit Court on July 23 to try to stop dredging of Big Sarasota Pass

Judge to hold hearing on City of Sarasota motion to dismiss nonprofit’s complaint, filed in 2017

The Silvertooth Judicial Center is located on Ringling Boulevard in downtown Sarasota. File photo

A July 23 hearing has been scheduled in the 12th Judicial Circuit Court in Sarasota to hear a motion by the City of Sarasota to dismiss a verified complaint the Siesta Key Association (SKA) filed last year to try to stop the dredging of Big Sarasota Pass to renourish South Lido Key Beach.

The hour-long proceeding is scheduled to begin at 2:30 p.m., with Judge Andrea McHugh presiding in the Judge Lynn N. Silvertooth Judicial Center in downtown Sarasota.

After a hearing on April 24, 2017, 12th Judicial Circuit Court Judge Lon Arend ruled that the SKA complaint should be held in abeyance until after a Florida Division of Administrative Hearings (DOAH) case was conducted on challenges that the SKA and Save Our Siesta Sand 2 (SOSS2) had filed. Both nonprofits took the DOAH tack to try to stop the dredging after the Florida Department of Environmental Protection (FDEP) issued a Notice of Intent in December 2016 to issue a permit for the Lido Renourishment Project. The City of Sarasota and the U.S. Army Corps of Engineers (USACE) had applied to FDEP in March 2015 for the permit to use about 1.3 million cubic yards of sediment from the pass to place sand on a severely eroded, 1.6-mile stretch of South Lido Key Beach and to construct two groins on the beach to try to hold sand in place between renourishment initiatives.

More sand placement has been anticipated every five years over the 50-year period for which the USACE has designed the project.

Now that the permit has been issued,” the SKA says on its website, “resuming these legal actions is our only recourse [emphasis by the SKA]. Meanwhile, the project can proceed, so this case must be decided before the end of turtle nesting season on November 1, 2018, when actual sand placement can begin.”

Circuit Court Judge Andrea McHugh. Image from the 12th Judicial Circuit Court website

McHugh’s first involvement with the 12th Circuit Court case, as noted in court records, came on May 2, 2017, when she presided at a hearing on a motion by the Lido Key Residents Association to become an intervenor. On June 2, she granted that motion.

Both SOSS2 and the SKA have pointed to the fact that Big Pass never has been dredged and that research has shown that the removal of sand from the Big Pass’ ebb shoal would endanger Siesta Key in storms. Moreover, they have argued that the dredging would threaten wildlife and destroy some species that live in the waterway. Both organizations have offered full support of a Lido renourishment project with sand from another source.

The SKA complaint contends that the USACE and the City of Sarasota “have not obtained the [Sarasota County Commission’s] approval of the Project as required by Policy 4.6.1 of the County Comprehensive Plan.” That policy, SKA Environmental Committee member Robert Luckner explained to SKA members on Jan. 12, 2017, prohibits dredging in the Gulf of Mexico in areas under county control, “except to maintain previously dredged functional navigation channels and drainage canals.”

The complaint also points out that the city’s “own Comprehensive Plan recognizes that the City must comply with the County’s Comprehensive Plan.”

Additionally, the document cites the Florida statutes in making its argument that the activities authorized by the FDEP permit, in regard to portions of county territory, would have to be consistent with the county’s Comprehensive Plan.

In a motion filed April 5, 2017 by outside counsel John R. Herin Jr. of the GrayRobinson firm in Fort Lauderdale, the city argued that the SKA is wrong in alleging that the city and the USACE must “obtain ‘comprehensive plan’ approval from Sarasota County before FDEP can issue the [Joint Coastal Permit] …” He wrote, “[C]omprehensive plans are not regulatory environmental documents [as specified in the Florida Statutes but] are planning goal and guidance documents …”

John R. Herin Jr. of Gray Robinson has represented the city in the case. Image from the GrayRobinson website

Herin also noted that Sarasota County is not a party to the Circuit Court proceeding, “and the Verified Complaint is devoid of any allegations that the County has ever expressed the view that its approval is required to proceed with the [proposed re-nourishment] Project [emphasis added]. Nor is there any evidence supporting the inference in the Verified Complaint that Sarasota County must or might refuse such an approval.”

Taking issue with assertion of the city manager

The revival of the SKA complaint follows FDEP Secretary Noah Valenstein’s June 18 filing of the Final Order in the DOAH case, in which he primarily supported the recommendations of the administrative law judge who presided over the hearing. FDEP also granted the permit to the city and the USACE.

City Manager Tom Barwin has pleaded, in public statements and written commentary, for the SKA and SOSS2 to cease legal challenges to the Lido Renourishment Project.

However, recent email blasts from the Siesta Key Chamber of Commerce and the Siesta Key Condominium Council show that Barwin angered Siesta residents when, in a June 19 city news release, he referenced “the handful of people litigating this matter.”

A well-known mainlander also lodged a public disagreement with Barwin’s statement. Jono Miller, retired director of the Environmental Studies Program at New College of Florida, wrote a guest column published in the Sarasota Herald-Tribune last week, pointing out that opposition to the dredging of Big Pass is far more widespread than Barwin has indicated.

Both the Siesta Key Chamber of Commerce and the Siesta Key Condominium Council reprinted the column in email blasts to their members.

Jono Miller. File photo

Miller wrote, “That ‘handful [of people]’ includes members of Save Our Siesta Sands 2 and the Siesta Key Association. The Siesta Key Chamber of Commerce and the Siesta Key Condo Council also oppose the project. None of their leaders are aware of any Siesta Key organization that supports dredging Big Pass.”

Frank Jurenka, president of the Condominium Council, has said that organization represents 90 associations on the barrier island; it acts on behalf of thousands of condominium owners.

“I don’t own property on either [Siesta or Lido key],” Miller continued in his column, “and my personal objections to the project exist independent of any impacts on Siesta Key. After 48 years of observing and studying local barrier islands, I think dredging Big Pass will result in both anticipated and unanticipated problems we can measure, as well as missed opportunities we will never be able to appreciate. Many of us remember the first time a city tried to take sand from Big Pass. A 2013 Herald-Tribune article summarized the result as follows, ‘In the mid-1990s, a similar plan that would have pumped sand from Big Pass to the city of Venice was abandoned after the risks became known.’”

Leave a Comment