Save Our Siesta Sand 2 files for summary judgment in Big Pass case, arguing that Army Corps of Engineers has defied federal law in pursuit of the project
By Rachel Brown Hackney
Because the U.S. Army Corps of Engineers (USACE) has defied numerous federal laws in refusing to undertake an in-depth environmental analysis of its proposed Lido Key Beach Renourishment Project, it must not be allowed to pursue that project, a Siesta Key-based nonprofit argues in its latest motion filed in federal court.
On Aug. 29, Save Our Siesta Sand 2 (SOSS2) formally filed a motion for summary judgment in the case it brought against the USACE in January. SOSS2 asks the U.S. District Court for the Middle District of Florida, in Tampa, to prohibit the USACE from pursuing the Lido project under the guidelines of the permit the USACE received in June 2018 from the Florida Department of Environmental Protection (FDEP). Moreover, SOSS2 asks the court to require the USACE and FDEP to “reinitiate consultation” on that permit.
A full Environmental Impact Statement (EIS), “which is typically required for this type of project, has not been completed in this area or surrounding areas since 1984,” SOSS2 attorney Jane West wrote in the motion.
And in its refusal to undertake an EIS, she contends, the USACE has defied the National Environmental Policy Act (NEPA), the Environmental Species Act (ESA) and the Clean Water Act (CWA), among other federal laws.
The USACE plans to take up to 1.3 million cubic yards of sand from Big Sarasota Pass to stabilize about 1.6 miles of South Lido Key Beach. The FDEP permit the USACE received — with its co-applicant, the City of Sarasota — is valid for 15 years. USACE documents and public statements have made it clear that project managers believe the Lido renourishment will have to be done again every five years, even with construction of two groins on South Lido to try to hold sand in place between projects.
SOSS2 is asking the court “to prevent further degradation of rural communities and shared environmental resources that are the heart of … Siesta Key and Sarasota,” West added.
“The Big Sarasota Pass ebb shoal is unique due to its shallow depths, making it a popular site for recreation at low tides during calm sea conditions,” West wrote. “A quintessential example is boaters who enjoy anchoring their boats and playing in the very shallow water on the shoal.”
“Furthermore,” West pointed out, “the consistency of Siesta Key Beach’s superlative status as a tourist destination has not been considered at all by the Corps, especially in light of scientific literature which suggests that dredging Big Sarasota Pass will increase wave action and erosion at beaches and private property on Siesta Key.”
Moreover, West stresses the importance of the “coastal barrier” the shoal provides the Key. In its Beach and Shore Protection Act, she continued, the Florida Legislature “asserted that Florida’s beaches and coastal barrier dunes are among the state’s most valuable natural resources and that these resources should be protected from ‘imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access.”
Additionally, West pointed out that spotted seatrout spawn in Big Pass from April through September. “Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species,” she added, citing the expert opinion of researcher R. Grant Gilmore Jr., president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc.
“The proposed project would destroy a spotted seatrout spawning areas,” West contends, “creating a strong negative in the balancing of public interest factors. There is no proposed mitigation for adverse impacts to spotted seatrout for the Project. … The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin is over 16 miles away and therefore not suitable as a refuge for post-larval spotted seatrout,” West added.
In the summary judgment motion, West — whose eponymous firm is in St. Augustine — argues that the USACE’s decision not to create an Environmental Impact Statement (EIS) on the Lido project “was arbitrary and capricious and a violation of the [federal government’s] Administrative Procedure Act (APA) …” She wrote, “While the standard of review under APA is narrow, the court must nonetheless engage in a searching and careful inquiry of the record. … An agency decision may be deemed arbitrary and capricious if the agency fails to consider all relevant factors … or if the agency has ‘offered an explanation for its decision that runs counter to the evidence before the agency’ or has failed to articulate ‘a rational connection between the facts found and the choice made.’” West was citing a 1993 U.S. Supreme Court decision.
“Under the National Environmental Policy Act [NEPA],” West wrote, the USACE, like any other federal agency, “is required to prepare an EIS ‘to the fullest extent possible,’ before taking any ‘actions significantly affecting the quality of the human environment …’ An EIS accounts for various factors, including ‘the environmental impact of the proposed action,’ ‘any adverse environmental effects which cannot be avoided should the proposal be implemented,’ and ‘alternatives to the proposed action.’”
In issuing an Environmental Assessment/Finding of No Significant Impact for its Lido project, West wrote, “the Corps defied the dictates” of the NEPA, the CWA and the APA.
Procedure for the case
On March 1, Chief Judge Steven D. Merryday of the U.S. District Court for the Middle District of Florida, in Tampa, ordered that the SOSS2 lawsuit be classified as a “track two case.” That means Merryday will make a ruling on the basis of a review of the documents the nonprofit and the USACE file; no hearing will be scheduled for presentation of evidence or testimony.
The timeline calls for the last document in the case to be filed by Dec. 6. That motion will be from the USACE.