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SKA disagrees with Sarasota County attorney’s assertion that county has no jurisdiction over Big Pass

By Rachel Brown Hackney

Sarasota County has no jurisdiction over dredging in the Gulf of Mexico in regard to beach nourishment projects, County Attorney Stephen DeMarsh reported to the County Commission on July 10.

Commissioner Alan Maio raised the issue during his report as part of the board’s regular meeting that day. Maio pointed out that he has received “an awful lot of questions” — and he expected his colleagues had, as well — regarding the proposed dredging of Big Sarasota Pass to renourish an approximately 1.6-mile stretch of South Lido Key Beach.

On June 18, Secretary Noah Valenstein of the Florida Department of Environmental Protection (FDEP) issued a Joint Coastal Permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) that would allow them to remove up to 1.3 million cubic yards of sand from Big Pass for South Lido.

Maio added on July 10 that he had spent “dozens and dozens and dozens and dozens of hours with staff,” including DeMarsh and County Administrator Jonathan Lewis, on points raised in emails he has received. Maio also apologized to DeMarsh, adding that he “got pretty pushy” with DeMarsh during some of their talks.

“We have Comprehensive Plan language that says no dredging within our boundaries without our express permission,” Maio told his colleagues. In his discussions about that with DeMarsh, he continued, he learned that the policy does not apply to the Big Pass situation.

“In working with your staff,” DeMarsh responded, addressing all the commissioners, “and reviewing [county] Environmental Policy 4.6.1, it is our opinion and [staff’s] opinion that it only applies to private dredging operations and has never been applied to a public project to dredge.”

DeMarsh continued, “It has been my opinion that that environmental policy would not come into play in the event that there were beach nourishment projects requiring a sand source, and therefore dredging, in the Gulf of Mexico. It simply does not apply.”

That policy has been the foundation of a verified complaint that the Siesta Key Association (SKA) filed in the 12th Judicial Circuit Court early last year in an effort to stop the city and the USACE from using Big Pass as the source of sand for the Lido project.

That case had been in abeyance until a Final Order was issued at the conclusion of a Florida Division of Administrative Hearings (DOAH) proceeding in which the SKA and another Siesta-based nonprofit, Save Our Siesta Sand 2 (SOSS2), had challenged the FDEP’s Notice of Intent — published on Dec. 22, 2016 — that it would issue the Joint Coastal Permit for the Lido project. Valenstein also filed the Final Order on June 11, which made only a couple of substantial modifications to the permit. One of those restricted the amount of sand to 1.3 million cubic yards; the other prevents removal of sand from two borrow areas from April through September. The latter limitation was designed to protect the spotted sea trout, which spawns in those areas during that period each year.

The SKA announced in early July that it had a hearing scheduled for July 23 in the 12th Judicial Circuit Court on a motion the City of Sarasota filed last year, seeking dismissal of the verified complaint.

SKA Vice President Catherine Luckner said in a July 16 telephone interview, “Mr. DeMarsh is incorrect. … There’s lots of indications that [his statement is] not true.”

It makes no sense, she continued, that the county would  have no means of advocacy for one of its most vital resources — and one of its top tourist draws: its waterways. “If they have no oversight,” Luckner added of the commissioners “[they] really need to go back and [revise] the Comprehensive Plan.”

The SKA will proceed with the hearing as planned, she and her husband, Robert, stated.

Robert Luckner heads up the SKA’s Environmental Committee. Both Luckners have undertaken years of research relating to the USACE proposal to dredge Big Pass.

Robert Luckner further pointed to the section of Florida Administrative Law Judge Bram D.E. Canter’s May 8 Recommended Order in the DOAH case. That notes that Chapter 163 of the Florida Statutes … “requires all development undertaken by governmental agencies to be consistent with the local government’s comprehensive plan.” However, Canter continued, “Even an affirmative consistency comment from a local government to the State Clearinghouse does not settle the question of whether a project is consistent with the local government’s comprehensive plan under chapter 163. A consistency comment is similar to a permit applicant’s demonstration that it owns or controls land, which cannot open a permit proceeding to disputed issues regarding land title, nor result in a legally binding determination of land title.”

“The Florida State Clearinghouse coordinates the dissemination of coastal permit applications for comment regarding consistency with enforceable policies of the [Florida Coastal Zone Management Program],” Canter pointed out.

In an April 19, 2017 response to the City of Sarasota’s Motion to Dismiss the SKA’s verified complaint, SKA attorney Kent Safriet of Hopping, Green & Sams in Tallahassee wrote about the question of whether the city’s dredging of Big Pass would violate the county Comprehensive Plan policy County Attorney DeMarsh referenced on July 10. That question, Safriet contended, “will not and cannot be answered by [FDEP] (or DOAH) … In fact,” he continued, “[FDEP] specifically stated that it ‘maintains that “comp plan consistency” is not a requirement of the Joint Coastal Permit … . [Safriet’s emphasis].’”

What about that $1 million for the CRA settlement?

During his July 10 report, Maio raised a second issue pertinent to the Lido project. “There’s a great deal of conversation,” he said, about the $1 million the board agreed to give the City of Sarasota for an emergency shoreline stabilization project the city plans on South Lido, after sea turtle nesting season ends on Oct. 31.

That was part of a series of proposals from the city to settle a dispute that had lingered for more than two years over a final payment city leaders say the county owes the Downtown Sarasota Community Redevelopment Area (CRA) Trust Fund.

The county’s $1 million would come out of Tourist Development Tax (TDT) revenue the county receives from the 5% tax on rental of tourist accommodations.

When the County Commission voted unanimously on May 8 to approve the list of proposals offered by the city, Maio took the opportunity to gain assurance from County Administrator Lewis that the city would not use the $1 million for the long-term USACE project.

“That’s absolutely correct, Commissioner,” Lewis responded on May 8.

During the July 10 commission meeting, Maio said he wanted to make certain that none of the $1 million would go “to pay for the legal fees [the city has been incurring], fighting citizens groups who are opposed to [the USACE project].”

He also sought confirmation that the CRA settlement agreements have not been signed.

“That’s absolutely correct,” Lewis replied, adding that he could go one step further. “Those agreements will have to come back to you for approval before they’re signed.”