Attorneys for the SKA and SOSS2 point to unreliability of Army Corps of Engineers’ modeling for the project, among other issues of concern
The modeling the U.S. Army Corps of Engineers (USACE) and its consultants have performed for the Lido Renourishment Project “is unreliable as it is not properly calibrated, not validated, and has a 495% degree of error,” the Siesta Key Association (SKA) and Save Our Siesta Sand 2 (SOSS2) assert. Because of that and numerous other reasons provided in testimony last year by expert witnesses, they are recommending that a Florida Division of Administrative Hearings (DOAH) judge deny a Joint Coastal Permit to the USACE and the City of Sarasota to dredge Big Sarasota Pass to renourish a 1.6-mile stretch of South Lido Key.
The Florida Department of Environmental Protection (FDEP) “has not followed its own joint coastal permitting rules and statutes, and the adverse impact caused by this Project far outweighs the benefits proposed,” the April 2 brief says.
It was filed by Kent Safriet of the Tallahassee firm Hopping, Green & Sams, attorney for the SKA and Michael Holderness, a Siesta Key property owner; and Martha M. Collins of the Collins Law Group in Tampa, the attorney for SOSS2 and Siesta residents Peter van Roekens and Diane Erne.
Conversely, the attorneys for the City of Sarasota and the Lido Key Residents Association (LKRA) argue in their April 2 brief, “The preponderance of the evidence supports the legal conclusion that the City and [USACE] satisfied all applicable regulatory criteria for approval of the proposed permit, including submission of adequate engineering data, a demonstration that no adverse cumulative impacts would result, and a demonstration that the project is clearly in the public interest.”
John R. Herin Jr. of the Gray Robinson firm in Fort Lauderdale, who is the city’s attorney; and Kevin S. Hennessy of the Bradenton firm Lewis, Longman & Walker, the LKRA attorney, refer to the “credible expertise of the [USACE’s] expert witnesses,” as well as the “competent substantial evidence” in the form of plans and studies to support their position.
FDEP’s attorney, Kirk S. White, argues in his April 2 brief that the SKA and SOSS2 “did not present contrary evidence of equivalent quality, and the most persuasive evidence presented at [a December] hearing established that the project meets all the requirements for issuance of a Joint Coastal Permit.”
The last of the transcripts from the December 2017 hearing, which was conducted on the challenges SOSS2 and the SKA filed early in 2017 to prevent the issuance of the Joint Coastal Permit, were released on March 2. DOAH Judge Bram D.E. Canter gave the parties until April 2 to file their recommended orders for him to review. At the end of the December 2017 hearing, Canter indicated he would take up to 45 days after receipt of those recommendations to issue his ruling in the case.
As the SKA and SOSS2 brief explains it, the project “seeks to dredge Big Sarasota Pass and its ebb shoal, a natural pass, which has never before been dredged.” The pass and the ebb shoals at the entrance of the pass “are part of a complex system that allows the transfer and sharing of sand from Lido Key onto the beaches of Siesta Key,” the brief continues. “The large-scale dredging of sand from this complex system as contemplated in the [Joint Coastal Permit] will negatively impact the natural drift of sand onto the Siesta Key beaches, diminish storm protection for those living on Siesta Key and along Big Pass, and impact anyone who uses the shoals of Big Pass for swimming, boating and fishing.”
Conversely, Herin and Hennessy, writing for the city and the LKRA, say that the permit application “supports a finding that the shoal equilibrium; the ability of the shoal to maintain itself and nearby beaches in a steady condition, will not be disturbed by its use to nourish Lido Key.” In fact, they add, one of the expert witnesses for the SKA and SOSS2 had completed “prior work in the Lido Key area [that] supports a finding that there area millions of cubic yards of sand available in the shoal above its equilibrium size.”
The USACE project calls for removing more sand from the pass every five years, though the includes the construction of two groins on South Lido Key to try to hold sand in place between renourishment projects. The USACE proposal calls for a 50-year project life, but the FDEP permit would be good for only 15 years.
Problems with the modeling
Safriet and Collins argue in their brief that the data the USACE relied upon “is sporadic at best,” adding, “The Corps did not actually collect any data for its engineering analyses.” Instead, they write, it assembled data that already existed and utilized that to conduct its analyses. “Where gaps existed,” they write, the USACE “made guesses or assumptions rather than obtaining actual data.” In fact, they continue, a USACE engineer admitted to a false statement made during a deposition taken in July 2017, yet the agency took no action to inform FDEP of that falsehood. “All the while,” the attorneys point out, the USACE “continued to publicly disseminate this false statement on its website to the public as justification for the Project.”
That refers to testimony by Jason Engle, a USACE engineer based at the agency’s Jacksonville District Office. The statement was that the dredging configuration the USACE used would not increase wave energy, which could exacerbate erosion on the northern part of Siesta Key, which faces Lido Key.
Judge Canter overruled an objection by Hennessy, the LKRA attorney, when Safriet questioned Engle about the false statement in the deposition during the December 2017 hearing.
While Engle was on the stand, Safriet showed him a USACE fact sheet regarding the proposed Lido Renourishment Project that which on the USACE website. One sentence, Safriet read, said, “Engineers have examined the model outputs and found no increases in wave energy off Siesta Key.”
“False statement, is it not?” Safriet asked Engle.
Hennessy objected, because Engle earlier had testified that he was not familiar with what the USACE had on its website. “What is the relevancy?” Hennessy asked.
Canter overruled Hennessy. “It’s relevant. It’s relevant,” Canter continued, “that we know — know what’s correct.”
Engle testified then that Dr. Kelly Legault was the primary author of that report and that she had run the model on which the statement was based.
“And you supervised her?” Safriet asked.
“Yes,” Engle replied.
“She came back to you with concerns and you all collaborated on them?” Safriet continued.
“Yes,” Engle said.
“Did you ultimately sign off on this report being submitted to [FDEP]?” Safriet asked.
“Yes, I did,” Engle replied.
The attorneys for the city and the LKRA point out in their brief that an expert witness of the SKA and SOSS2 who discussed the concerns that increased wave height would result from the dredging “conducted no studies supporting this opinion, and the modeling and studies in the Permit File, as well as the testimony of Mr. Engle [and an expert witness for FDEP], persuasively refute this contention.”
In their brief, Safriet and Collins also note that the USACE “truncated” some of its data that showed differences of more than 3 meters between its model and data produced by another modeling system called LIDAR. “The effect of omitting this data from the graphics would suggest that the [USACE] model is working better than it actually was,” they write. “It appears that … Engle was unaware his employees had manipulated the data in this fashion.”
They also point out that the USACE was using a CMS model that “it proclaims is a state of the art model.” However, they continue, the agency chose to use that two-dimensional model in this case “primarily because the Corps itself developed the model and claimed it is very difficult to get approval to have open source models [such as a three-dimensional system called DEFLT 3D] on a Corps computer. This is due not only to security reasons,” Safriet and Collins write, “but also because the Corps has no experience with such a model, as evidenced by testimony during the hearing.”
Todd Walton, a coastal engineer with than 40 years of experience who appeared as an expert witness for SOSS2 and the SKA, testified that the USACE’s CMS model is not state of the art, Safriet and Collins point out. Instead, a 3D model “is more state of the art [than] a 2-D model,” they add.
However, writing for the city and the LKRA, Herin and Hennessy argue that the USACE “specifically designed the CMS model to model coastal and inlet processes and its engineers are trained to review and evaluate potential impacts resulting from dredging of inlets like Big Pass. … The application of the CMS model for Big Pass to determine potential impacts in and around the inlet from the project is reasonable and adequate.”
The public interest
In their brief, Herin and Hennessy also write that FDEP “determined that the project is clearly in the public interest, is a benefit to public safety by providing storm protection to Lido Key upland structures; alleviates the potential for flooding resulting from storm surge; protects and enhances the existing dune habitat; all the while not adversely affecting public health, safety or welfare.”
Furthermore, they point out that FDEP “determined that aside from limited restrictions necessary during the dredging process, the project is not expected to adversely affect navigation or disrupt the recreational qualities of the beach.”
They add, “Contrary to their position taken at the hearing, the Petitioners failed to produce any evidence to suggest that the project will cause adverse impacts to Siesta Key.”