Long Bar Pointe, the Carlos Beruff-Larry Lieberman limited partnership seeking a mitigation bank on the bayfront near Cortez has backed down.
The company planning a development adjacent to the mangrove-lined property on Sarasota Bay dropped its two-year quest for a permit from the Florida Department of Environmental Protection.
But is the partnership giving up entirely on plans to operate a 263-acre mitigation bank as part of a mixed-use development on Sarasota Bay southeast of Cortez?
Or will Beruff-Lieberman come back with another plan?
Attorney Ed Vogler II, who filed the Sept. 2 notice withdrawing the DEP application from consideration in a Department of Administrative Hearings proceeding, answered with a question.
“What do you think?” he said.
He deferred comment to Long Bar Pointe president Pete Logan, who did not return calls Sept. 9 seeking comment.
State and federal wetlands permits are required before mitigations banks can operate to provide ecological enhancements, restoration and preservation and, as of Sept. 9, Long Bar Pointe had not dropped its bid for a federal permit.
The Long Bar Pointe mitigation bank — proposed on mostly submerged lands and dense mangrove wetlands — was to run alongside a proposed mixed-use development, Aqua By the Bay.
Under review by Manatee County for the past several years, the developers’ latest plan calls for development of 3,200 homes and 78,000 square feet of commercial space, though an August 2016 submission proposes 2,894 homes.
State administrative proceeding ends
Environmental groups and former Manatee County Commissioner Joe McClash brought an administrative case forward after the DEP announced April 28 its intent to issue Long Bar Pointe the mitigation bank permit.
But, based on Long Bar Pointe’s withdrawal, administrative law judge Bram E. Canter relinquished jurisdiction to the DEP. In turn, DEP will close its file, DEP attorney Marianna Sarkisyan wrote in a Sept. 8 email.
Cape Coral attorney Ralf Brookes filed the challenge for McClash and two environmentally concerned nonprofits, Suncoast Waterkeepers and Cortez-based Florida Institute of Saltwater Heritage.
Brookes claimed the developers failed to meet the state law for mitigation bank restoration.
“This is definitely a relief to the environmental community at this time,” McClash said Sept. 6.
McClash and other environmentalists — more than 771 signed an online petition — asked the DEP to reject the permit.
The petitioners called the Beruff-Lieberman plans for a mitigation bank “a ploy” to dredge a channel and build a hotel-marina along 2 miles of mangrove-lined shoreline and seagrasses, including fish nurseries and marine habitat.
Federal review
Long Bar Pointe filed in June for a U.S. Corps of Engineers’ wetlands permit.
An initial determination on the proposed project is expected by the end of the month.
During a Corps’ public comment period, McClash and others wrote in opposition.
McClash believes the developers withdrew the state mitigation bank bid after hearing unfavorable reviews from a Corps-led team of investigators, representing the U.S. Environmental Protection Agency, the National Oceanic and Atmospheric Administration and other agencies, following an Aug. 18 site visit.
The Corps filed the EPA and NOAA reviews Sept. 7 with the DEP.
The EPA criticized the mangrove trimming and the 100-foot-wwide gap in the bank.
NOAA took aim at lack of ecological lift and proposed adjacent mixed- development, likely to endanger rather than protect seagrasses and fisheries.
FISH director Jane von Hahmann — also a former county commissioner — agreed with the federal reviewers, saying DEP wasn’t “taking into account the whole picture.”
Von Hahmann said she was hopeful the developers have “given up” plans for the mitigation, but believes they’ve “absolutely not” decided to call it quits on its mixed-use development.
History
The Long Bar Pointe controversy is not something new.
Manatee County commissioners first rejected Long Bar Pointe plans in August 2013.
In October 2014, Long Bar Pointe filed suit in 12th Circuit Court against Manatee County, claiming its coastal policies were unconstitutional, lost the case and was assessed $2,644.97 in county litigation costs.
The developers appealed to the 2nd District Court of Appeal — where briefs have been filed and oral arguments requested.
In August 2015, they filed a new application for the 529-some acre development, renaming it Aqua.
Controversy to come?
“The (Corps) doesn’t have the politics like the state,” McClash said, referencing Beruff’s former position on the Southwest Florida Water Management District governing board.
Swiftmud granted an agricultural permit for three 15-foot-deep ponds on 18 acres at the proposed mixed-use development.
With residential and commercial zoning requested for the development, Von Hahmann and McClash don’t understand how the agricultural permit fits into Aqua’s plans.
Swiftmud received Long Bar Pointe’s permit application for the ponds Aug. 12.
McClash objected the morning of Aug. 30, asking for full disclosure of the plans due to the land lacking farmland uses.
By the end of the day Aug. 30, McClash received a response indicating Swiftmud’s approval.
“I have never seen the agency act so fast,” he said.
Feds discourage Long Bar plan
The U.S. Environmental Protection Agency and the National Oceanic and Atmospheric Administration have sided for the environment and against Long Bar Pointe LLLP’s proposed mitigation bank.
The U.S. Army Corps of Engineers, with a team of federal regulators including the EPA and NOAA, conducted an Aug. 18 visit at the proposed bank site on Sarasota Bay, several miles east and south of Cortez.
Though the Corps hasn’t made its permit determination, the other federal agencies are discouraging the proposal.
Virginia Fay of NOAA’s Habitat Conservation Division said the bank as proposed “should not be authorized” in an Aug. 30 letter.
The proposed separation of the water feature “is inextricably linked to future development activities,” she wrote.
She added concerns for essential fish habitat, including juvenile nurseries for shrimp, snapper, grouper, yellowtail and lane snappers, and for migratory species, including sharks.
An Aug. 29 memorandum from the EPA criticized plans to trim wide stretches of mangroves to 12 feet in height and questioned a 100-foot gap separating the bank into two parcels.
Mangrove trimming would be “precedent setting” and “the EPA cannot concur with this practice for mitigation bank purposes,” the memo stated.
The Corps reported the federal regulators comments Sept. 7 to the Florida Department of Environmental Protection.