Proceeding has been set to start on Aug. 22 in Sarasota
UPDATE: The Administrative Law Judge granted the FDEP motion to delay the hearing on Aug. 3.
The Florida Department of Environmental Protection (FDEP) is seeking a delay of at least eight weeks in the holding of an administrative law hearing on three nonprofits’ challenges of the department’s intent to issue a permit for the dredging of Big Sarasota Pass, The Sarasota News Leader has learned.
That hearing has been scheduled for Aug. 22-25 and Aug. 28-31 in Sarasota, with Administrative Law Judge Bram D.E. Canter presiding.
In a motion filed on Aug. 2, Kirk S. White, assistant deputy general counsel for FDEP, writes that he “incurred an injury on July 26, 2017 and is scheduled for surgery on August 4, 2017.” White identifies himself as the department’s lead attorney in the case.
He adds, “Full recovery from the surgery will take at least eight weeks and will require periodic doctor visits during this time. The nature of the injury and repair schedule make attendance and performance of a two-week trial impossible.”
He points out that he is attaching a note from his doctor as Exhibit A.
In the meantime, Canter has denied a second motion from the Florida Wildlife Federation (FWF), which was seeking an order from Carter that would keep FDEP from issuing the permit for the proposed Lido Renourishment Project. Carter also denied the nonprofit’s first motion, filed in late June.
On July 25, the FWF filed its new motion, which said “undisputed facts and the existing controlling laws” made it clear that the proposal of the U.S. Army Corps of Engineers (USACE) and the City of Sarasota to use about 1.2 million cubic yards of sand from Big Pass to replenish South Lido Key Beach “is inconsistent with the enforceable policies of Florida’s Coastal Management Program (FCMP).”
Taking a tack the Siesta Key Association has pursued in the 12th Judicial Circuit Court, the FWF said in its second motion that the proposed dredging of a new navigation channel in Big Pass would violate Environmental Policy 4.6.1 in Sarasota County’s Comprehensive Plan. The FWF argued that the county has not approved the removal of sand that would create the new channel; therefore, FDEP would be violating a section of the Florida Statutes that “mandates that all development undertaken by government agencies shall be consistent with the elements of adopted local government comprehensive land use plans.”
The motion added that the county’s Environmental Policy 4.6.1 says in part that “[a]ll new environmentally sound navigation channels and beach nourishment projects require approval by the Board of County Commissioners and must be determined to be in the public interest. The dredging of new navigation channels other than those just described shall be prohibited.”
Big Pass never has been dredged, a point both the Siesta Key Association and a second nonprofit fighting the proposal — Save Our Siesta Sand 2 — have made numerous times since the USACE unveiled its plan to renourish South Lido Key Beach. Big Pass was identified as the sand source in a September 2013 presentation the USACE project manager at that time made to a Sarasota County advisory board.
Moreover, the FWF contended, the lack of compliance of the USACE and the City of Sarasota with the county’s Comprehensive Plan also “constitutes a failure of the Corps and the City to comply with the ‘clearly in the public interest’ requirement of Florida’s [Clean Water Act] water quality standard” set forth in the Florida Administrative Code.
The FWF also pointed out that it “has 25 current dues paying members who reside in Sarasota County,” where the Lido project is proposed.
Judge Canter pointed out in his Aug. 2 order that the FWF did not raise the Comprehensive Plan issue in its petition for the administrative hearing and, moreover, that it is unreasonable to believe that FDEP would be “able to empower itself to make comprehensive plan consistency determinations for proposed development in the coastal zone, outside of and different from the consistency proceedings established in [state law].”
On Dec. 22, 2016, FDEP issued a Notice of Intent to provide a permit to the USACE and the City for the Lido project. Subsequently, the FWF, Save Our Siesta Sand 2 (SOSS2) and the Siesta Key Association (SKA) filed administrative challenges of the decision. All three nonprofits point to the potential for severe damage to Siesta Key and the environment in the vicinity of the sand borrow areas if the project is allowed to proceed.
However, the USACE has stood by the modeling and research it undertook for the proposal, saying Siesta residents need fear no harmful consequences from the dredging of Big Pass.
Pursuit of the continuance
Reached by the News Leader on Aug. 2, SKA Vice President Catherine Luckner responded to FDEP’s request for the hearing delay by saying, “We are making good headway with things that need to be improved in the whole design of this project.”
She and her husband, Robert — a member of the SKA’s Environmental Committee — have been the lead researchers for the nonprofit in its fight to prevent the dredging of Big Pass.
Luckner declined any further comment.
Peter van Roekens, the SOSS2 chair, told the News Leader he preferred not to make any statement on the FDEP motion for the continuance.
John Herin Jr. of the GrayRobinson law firm in Fort Lauderdale, who serves as the City of Sarasota’s outside counsel in the case, told the News Leader in an Aug. 2 email, “the City is taking no position on the Motion for Continuance. It will be up the [administrative law judge] to grant or deny the Motion.”
Amanda Parker, a spokeswoman for the USACE in its Jacksonville District office, responded to the News Leader in an Aug. 3 email regarding the potential delay: “We continue to move forward with the Florida Department of Environmental Protection in this process to bring critically needed sand to Lido Key’s eroded beaches.”
White, the assistant deputy general counsel for FDEP, says in the motion that while the department “has co-counsel in this matter, his involvement to date has been limited. Co-counsel has been a practicing attorney for approximately one year and has never tried a case in any forum to date. Notwithstanding inexperience of current co-counsel, insufficient time exists for co-counsel to become fully apprised of the complexities of this case to adequately represent the [state’s] interests in this matter.”
White adds that state officials “appreciate that time is of the essence regarding re-nourishment of Lido Key. Several factors including funding, turtle season, contractor availability, and finalization of permit documents however point to the possibility that an eight-week continuance may not make a difference in terms of when this project would begin even if this trial were to proceed as scheduled.”
The President’s Budget for the 2018 fiscal year did not include any funding for the Lido Renourishment Project, a USACE spokeswoman told the News Leader this spring. Yet, the USACE has said from the outset that the federal government would shoulder about 62% of the cost.
In a document the City Commission approved on July 17 for submission to FDEP, the board reaffirmed its commitment to the Lido project. That indicated that city staff hopes the work will begin in the 2019 fiscal year, with the federal share of the estimated $21-million expense pegged at $13,020,000. The remainder of the money would be split evenly between Tourist Development Tax revenue allocated to the city for renourishment projects and a state grant, according to the backup agenda material provided to the City Commission.
FWF’s efforts to get the case dismissed
In its earlier motion for a summary order — filed on June 30 — the FWF argued that the state never submitted Water Quality Standards for Florida to the U.S. Environmental Protection Agency (EPA), as required by the federal Clean Water Act.
The FWF contended that the state could not issue the permit for the Lido project because the USACE has to show that its dredging proposal complies with those water quality standards, which were supposed to have been approved by the EPA.
The FWF pointed out that Article VI, Clause 2, of the U.S. Constitution — known as the Supremacy Clause — makes it clear that the Clean Water Act regulations “constitute the supreme law of the land.” Therefore, the FWF motion said, it is the duty of all Florida officials, including DOAH Administrative Law Judges, FDEP officers, and FDEP employees, the [USACE], and [USACE] employees to perform every official act so as to not violate the supreme law of the land.”
In an order issued on July 13, Judge Canter denied the motion for summary order, writing that the Florida Statutes do not grant any authority for such an order. However, he did point out that FDEP — in responding to the FWF motion — was “incorrect in asserting that, because the Legislature has declared that beach renourishment projects are in the public interest, section 373.414(1) [of the Florida Statutes] has already been satisfied. Whether a project is clearly in the public interest under section 373.414(1) requires consideration and balancing of seven factors listed in the statute. Undisputed public benefit projects, such as roads, bridges, and governmental facilities can be determined to be contrary to the public interest under section 373.414(1) because of their negative effects under some of the public interest factors. Beach renourishment is no different,” Canter added.
Arguments against the motion
Responding to the second FWF motion in a joint filing on July 31, FDEP, the City of Sarasota and the Lido Key Residents Association — which Canter has allowed to intervene in the case — referenced Canter’s July 13 order about the lack of authority under the Florida Statutes “‘for issuance of a summary recommended order.’” The response added that the FWF’s second motion “is no different in that regard, as it appears to be based on legal argument (mainly beyond the authority of this proceeding), and not on evidence to be presented at final hearing.”
Furthermore, the response said, “FWF’s Motion is a classic example of ‘bootstrapping’ legal arguments frowned upon by the courts of this State. FWF lays out a tortuous trail for this court to follow, starting with the Federal Clean Water Act. Then FWF moves on to the Federal Water Quality Standards; from there it goes to the Federal Coastal Zone Management Act; and arriving at the Florida Coastal Zone Management Program. Once there, FWF jumps to Chapters 163 and 380 [of the Florida Statutes and stops] temporarily at Policy 4.6.1 of the Sarasota Comprehensive Plan. The trail does not end there: from
Policy 4.6.1, FWF finally lands at Chapter 161, [Florida Statutes], and asks this court to issue an Order dismissing this matter.”
The response also argued that the FWF motion “ignores the State’s process for issuance of coastal zone consistency through the issuance of a FDEP permit for a federally permitted activity …”
In its response to the second FWF motion, the USACE pointed out that the application process it has used in this case “is consistent with established practices that FDEP uses in its permitting process to issue water quality certification …”
The USACE also reasserted a point it has made in earlier filings in the administrative law case: It is not required to obtain concurrence from the Sarasota County Commission that the project is consistent with the county’s Comprehensive Plan.” That is because of the Supremacy Clause of the Constitution, the response said.