Brief filed this week responds to Florida administrative law judge’s recommended order in case involving project planned for Lido Key
Editor’s note: This article was updated on May 29 to correct the name of the organization of which R. Grant Gilmore Jr. is president.
The Siesta Key Association (SKA) and Save Our Siesta Sand 2 (SOSS2) are using the recommendation of a state administrative law judge as the basis to ask the Florida Department of Environmental Protection (FDEP) to eliminate two areas of Big Sarasota Pass as potential dredging sites for the renourishment of South Lido Key.
In exceptions filed on May 23, the SKA and SOSS2 point to facets of the May 8 recommended order issued by Judge Bram D.E. Canter regarding a December 2017 Florida Division of Administrative Hearings (DOAH) proceeding held mostly in Sarasota. Canter called for FDEP to modify the permit the U.S. Army Corps of Engineers (USACE) and the City of Sarasota have sought for the Lido project.
In the May 23 filing, SKA attorney Kent Safriet of Hopping Green & Sams in Tallahassee and SOSS2 attorney Martha M. Collins of the Collins Law Group in Tampa noted Canter’s recommendation that dredging be allowed only between April and September in proposed Borrow Area — or “Cut” — B and in a 1,200-foot segment of Borrow Area C. Canter cited a field investigation undertaken by R. Grant Gilmore Jr., president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc. that showed the spotted sea trout spawns in those areas between April and September.
Canter noted that the trout’s spawning sites are not common, they are used repeatedly and “are important to the conservation of the species.” Therefore, unless FDEP were willing to modify the permit for the Lido Renourishment Project to accommodate the spawning, Canter wrote, “it is recommended that the proposed [FDEP] actions be DENIED [emphasis in the document].”
City Manager Tom Barwin told The Sarasota News Leader that the city readily would agree to the permit modification.
Regarding Cut B, Safriet and Collins pointed out in their brief, “[L]imiting the dredging of a critical spawning area only to a time period when the spotted [sea trout] are not spawning does not protect and preserve the critical area for spawning in the future.”
Second, citing further findings of fact that Canter included in his order, they wrote that “the seagrasses present in the easternmost 1,200 feet of Cut C [provide] critical refuge and habitat for post-larval [sea trout]. The finding of fact, however, ignores that the dredging of that area will permanently destroy the seagrass. Thus, the damage here is not what time of the year the seagrasses are dredged and permanently destroyed but the fact that they will be permanently destroyed and never again be habitat or refuge for post-larval [sea trout].”
Therefore, they continued, the easternmost 1,200 feet of Cut C should be eliminated from the dredging plans, along with Cut B.
In his decision, Judge Canter also referenced the December 2017 testimony of Robert Young, a Western Carolina University professor and director of the Program for the Study of Developed Shorelines. Canter recommended that no more than 1.3 million cubic yards of sand be removed from Big Pass, as Young had told the court that the FDEP permit actually would allow the dredging of up to 1.7 million cubic yards of sand. Such an extensive project, Young said, would result in an even bigger initiative than a recent one undertaken by the City of Miami.
In their brief, Safriet and Collins further pointed out that the amount of sand in Borrow Area B is only 299,000 cubic yards, based on evidence submitted during the DOAH hearing. Additionally, they wrote, the easternmost 1,200 feet of Cut C contains only 20,000 cubic yards of sand. Altogether, then, the two borrow areas have 319,000 cubic yards of sand. Thus, the city and the USACE still would have the 1.3 million cubic yards of sand Canter called for in his order.
The brief, which runs six pages, references the Florida Statutes in saying, “An agency may ‘reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction, as long as the agency’s interpretation is as or more reasonable than the [administrative law judge’s].’”
SKA Vice President Catherine Luckner had told the News Leader that the SKA board would meet this week to determine its next steps, knowing it had only 15 days within which to file exceptions.
The final decision on the issuance of the permit will rest with FDEP Secretary Noah Valenstein, City Attorney Robert Fournier has explained. First, though, the opposing parties in the case — including the city, the USACE and the Lido Key Residents Association — will have 10 days to file any objections to the exceptions from the SKA and SOSS2, Fournier added in an email to the city commissioners.
“After this has happened, the Florida Department of Environmental Protection can be expected to enter a Final Order. That Final Order will be subject to appeal within thirty (30) days to the District Court of Appeal,” Fournier added in his May 8 email.
Fournier told the News Leader he believed an appeal could be filed with the First District Court of Appeal, which is located in Tallahassee — home to FDEP — or it could be filed with the Second District Court of Appeal in Lakeland, which handles cases originating in Sarasota County.
Following the May 8 filing of Canter’s recommended order, Peter van Roekens, chair of SOSS2, told the News Leader that if FDEP proceeds with plans to issue a permit, even if the permit is modified, “we’ll go to federal court.”
He reiterated that comment during a May 16 update to members of the Siesta Key Chamber of Commerce.
He also pointed out to Chamber members that Collins, the SOSS2 attorney, had made it clear to the SOSS2 board that if an appeal were filed to the Court of Appeal, that would not stop the dredging of the pass if the FDEP secretary issued the permit to the city and the USACE. Instead, van Roekens said, the removal of sand could proceed while the appeal was wending its way through the judicial system.
Getting to this point
In January 2017, the SKA, SOSS2 and three individual plaintiffs who reside on Siesta Key challenged FDEP’s December 2016 Notice of Intent to issue a permit to the USACE and the City of Sarasota for the project designed to replenish sand on a 1.6-mile stretch of South Lido Key. The witnesses underscored the potential for harm to the pass, the wildlife that lives in those waters and Siesta Key itself, if the pass were dredged.
Big Sarasota Pass never has had sand removed from it, the SKA and SOSS2 have pointed out. Research undertaken in the 1990s, when the City of Venice proposed to dredge the pass for a renourishment project, showed that the ebb shoal provides significant protection to Siesta Key in the event of major storms.
In the meantime, Lido Key residents and business owners continue to express alarm to the Sarasota city commissioners and City Manager Barwin about the worsening erosion on the beach.
In a May 16 email, the manager of Suntide Island Beach Club on Benjamin Franklin Drive emailed Mayor Liz Alpert, pleading for help. Michael Beitzinger wrote, “My maintenance person built stairs this morning and as you can see the stairs are now just a pile of sand bags. [He included photos with the email.] The [drop-off] is anywhere from 3 – 5 feet. The entire edge is dangerous due to erosion underneath. I do not want to risk one of our guests getting hurt by standing too close to the edge or trying to get down to the water so I have closed our beach by putting up caution tape along the entrance edge.”
When Suntide was built in the 1950s, he pointed out in another email, the width of the beach was more than 200 feet. “I hope you will continue to support the [renourishment] project that has been proposed,” he wrote Alpert, “and we can all rest a little easier that our properties will be protected and the beach will be restored to its original beauty.”