Environmentalists lose DEP-Long Bar wetland challenge

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Protestors wave signs at 75th Street West and 53rd Avenue West in Bradenton in May 2017 — opposing the pending development Aqua by the Bay. Islander File Photo: Kathy Prucnell

A developer is a step closer to operating a wetland mitigation bank on Sarasota Bay — the first of its kind in Florida.

The next challenge may be with the U.S. Army Corps of Engineers.

A Florida Division of Administrative Hearings judge March 6 issued an order to the state Department of Environmental Protection recommending the approval of Long Bar Pointe LLLP’s 260.80-acre mitigation bank permit on the bayfront south and east of Cortez.

The parties had 15 days as of March 6 to submit written exceptions to the DOAH order, after which the DEP is expected to issue a final order on the permit.

The bank would form part of the 529-acre mixed-use development, Aqua by the Bay, approved by the county in October 2017.

The Carlos Beruff-Larry Lieberman partnership is seeking the DEP’s approval to operate a bank for mostly preservation activities on submerged lands, financed through the sale of 18.01 credits to other developers at $100,000-$200,000 per credit.

The credits would allow the destruction of wetlands elsewhere in the region.

The DEP conditionally approved the permit in December 2016 and the Florida Institute for Saltwater Heritage, Suncoast Waterkeeper and former Manatee County Commissioner Joe McClash followed with the challenge.

McClash said he plans to file exceptions to the judge’s decision — including exceptions to the conclusions by the judge that he lacked standing and the assignment of 7.38 credits for placing buoys in state-owned submerged lands — to preserve his right to further appeal.

Suncoast Waterkeeper, with a mission is to protect and restore the waters of Sarasota and Manatee counties, and FISH, a group of some 180 members dedicated to preserving the commercial fishing heritage of Cortez, are not expected to file exceptions or appeal.


The hearing, the decision

A two-day hearing in December 2017, which included seven witnesses for the environmentalists and two for the DEP/developer camp, preceded Administrative Law Judge D.R. Alexander’s decision.

In it, Alexander concluded the environmentalists failed to prove they had standing to challenge the permit.

The judge stated Suncoast Waterkeeper and FISH “failed to quantify the number of members” reasonably expected to be affected by the proposed activities, and he labeled McClash’s concerns for offsets for future credit purchases “too speculative and remote to give rise to standing.”

Alexander’s decision also states the developer provided “reasonable assurance” and “a substantial likelihood that the project will be successfully implemented.

“He missed the point,” Andy Mele of Suncoast Waterkeeper said about the judge’s decision, “which was, that this mitigation bank is a con.”

“In my opinion, he cherry-picked from the developer’s case, offered overwhelming deference to the agency and chose to see the worst in our case,” he added.

The two nonprofits and McClash have fought the mitigation bank, Aqua and prior iterations of the Beruff-Lieberman development, filing online petitions and claiming the 100-foot wide gap between two parcels in the mitigation bank will allow for a future boat channel to accommodate a marina previously denied.

The environmentalists say by approving the bank, Beruff will get paid to install a dozen potentially harmful seagrass warning signs, allow harmful mangrove trimming and remove invasive plants he’s already obligated to remove under county regulations.


State-permitted wetland mitigation banks

      Not only would the bank mark a first for Sarasota Bay, it’s apparently the first DEP-approved mitigation bank adjacent to an active development in the state.

There are currently about 80 mitigation banks in Florida, of which 23 are DEP-permitted banks. The remainder are permitted by state water management districts, according to spokeswoman Dee Ann Miller.

Only one bank, in Flagler County, is smaller at 66 acres, but has 33 credits issued.

Long Bar’s bank would be the first DEP permitted bank in an active development with “the fewest credits of any bank by far and the fewest credits per acre,” according to Suncoast Waterkeeper’s Stu Smith, who calls out these facts as “clear indications of political favor” toward Beruff.

In March 9 emails, Miller and Southwest Florida Water Management Water District’s public information officer Susanna Martinez Tarokh could not point to a permitted bank for a development like Aqua.

Tarokh said, however, “some banks are adjacent to pre-existing developments (Hillsborough River Phase 2) and some have adjacent post-existing developments (North Tampa).”


Another day

Pete Logan of Medallion Home, a representative for the Beruff-Lieberman partnership, said in a March 9 email “at this time” the group declined comment on the ALJ’s decision or the pursuit of a federal wetland permit for the mitigation bank.

In addition to the DEP permit, the Beruff-Lieberman partnership will need approval from the Army Corps of Engineers if it decides to sell mitigation credits to developers who intend to destroy federal-delineated wetlands.

The Beruff-Lieberman partnership was turned down by the Corps in May 2017 and September 2016.

Corps public information officer Nakeir Nobles said March 9 there is no application pending for a mitigation bank from the developer.

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