Joe McClash is taking on the state environmental regulator to hold it accountable for protecting Sarasota Bay.
The former Manatee County commissioner filed a notice of appeal in the 1st District Court of Appeal in Tallahassee May 21, the first step aimed at reversing a mitigation bank permit.
The Florida Department of Environmental Protection issued the permit April 27 for 260.8 acres along 2 miles of coastline fronting on Sarasota Bay to Long Bar Pointe developers, Carlos Beruff and Larry Lieberman.
Sarasota Bay has been designated as Outstanding Florida Waters, one of some 40 waterbodies in the state afforded special protection because of its natural attributes.
With the appeal, McClash challenges the permit signed by the DEP Secretary Noah Valenstein that adopted an order from Department of Administrative Hearings Judge D.R. Alexander recommending the developers be allowed to operate the bank with 18.01 credits.
McClash said May 23 he decided to appeal after reviewing the ALJ decision, which fails to protect an intact ecosystem, leaves a 100-foot gap between two parcels, cuts half of the mangroves and allows buoys to be placed where they will attract boaters to “ruin seagrass.”
“I still feel strongly the administrative law judge erroneously applied facts not supported by the evidence,” he added.
The permit approved restoration and enhancement activities in the bank, allocating 7.38 credits for activities in seagrass-submerged bottomlands, 0.23 credits in salt marsh, 7.07 credits in mangrove swamps, 0.68 credits for trimmed mangrove hedge and 2.65 credits for coastal freshwater marsh.
Mitigation banks are financed by the sale of $100,000-$200,000 credits to area developers who seed to mitigate destruction of wetlands.
McClash, nonprofits Suncoast Waterkeeper and the Florida Institute for Saltwater Heritage, with an attorney and experts, challenged the Long Bar Pointe mitigation plan in a two-day hearing before Alexander in December 2017.
In his March 6 decision, Alexander concluded the DEP and the developer proved a substantial likelihood the project will be successfully implemented, dismissing the arguments of McClash and the nonprofits.
Alexander also ruled the challengers failed to prove legal standing to bring the case — that McClash’s concern for the regional ecosystem was too speculative and the nonprofits failed to identify impacted residents.
McClash said he “made a record” about how improperly assigned wetland mitigation credits will impact the region, adding there is legal precedent for a forward-looking standard on standing.
FISH and Suncoast Waterkeeper dropped out of the proceedings because of cost and legal issues.
“It would be too risky,” said McClash, a Suncoast board member. “It’s the way it is in this state, the rules favor the developer.”
McClash and other environmentalists have fought various iterations of the mitigation plan and a large-scale development planned for 529 acres between El Conquistador Parkway and the coastline.
In October 2017, the Beruff-Lieberman team changed plans at the last minute to withdraw a proposed controversial lagoon and seawall, and Manatee County commissioners approved 2,384 multi-family units, 510 single-family homes, and 78,000 square feet of commercial space, including 16 nine-10 story condominium buildings and an unknown number of three- to eight-story buildings.
Although the DEP has granted its permission to operate the mitigation bank adjacent to the development, the U.S. Army Corps of Engineers also must sign off.
Corps public information officer Nakeir Nobles said May 23 there’s been no request submitted by the Beruff-Lieberman entity since the Corps denied a similar plan in May 2017.
McClash plans to litigate the appeal pro se.