Judge grants delay of at least eight weeks in scheduling of hearing on nonprofits’ challenges to the proposed dredging of Big Pass

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By Rachel Brown Hackney

  The Florida Division of Administrative Hearings (DOAH) proceeding on challenges to the proposed dredging of Big Sarasota Pass will be held in December, the parties agreed on Aug. 14.

A Notice of Hearing that Judge Bram D.E. Canter issued in the case on Aug. 16 says the hearing will be conducted Dec. 12 through Dec. 15 and on Dec. 18 and 19 in Sarasota.

On Aug. 3, Canter granted the request of the lead counsel for the Florida Department of Environmental Protection (FDEP), who sought a delay of at least eight weeks in the hearing because of the counsel’s need to undergo surgery on Aug. 4 for an injury.

The proceeding had been set to start on Aug. 22 at the Judge Lynn N. Silvertooth Judicial Center in Sarasota and conclude on Aug. 31.

On Aug. 14, a filing in the docket said all the parties had concurred that during a telephone conference that day that the hearing “can be completed during the consecutive period between December 4th through December 19th, 2017,” the document says.

In a motion filed on Aug. 2, Kirk S. White, assistant deputy general counsel for FDEP, wrote that he “incurred an injury on July 26, 2017 and is scheduled for surgery on August 4, 2017.” White identified himself as the department’s lead attorney in the case.

He added, “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 pointed out that he was 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.

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.

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

  White, the assistant deputy general counsel for FDEP, said in his motion for the continuance that while the department “has co-counsel in this matter, his involvement to date has been limited. … 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 added 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 stated this spring. Yet, the USACE has said from the outset that the federal government would shoulder about 62% of the cost.

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