Environmental experts challenge developer’s claims during administrative hearing

A former Manatee County commissioner and several environmental experts testified Wednesday that the controversial Aqua by the Bay development should be denied a special wetlands permit because it does not achieve its stated goals of “preservation and enhancement” of mangroves, seagrasses and other environmentally sensitive areas on Sarasota Bay.

Their comments completed two days of conflicting testimony before Judge D. R. Alexander of the Florida Division of Administrative Hearings, who conducted the proceedings at the Sarasota office of the Southwest Florida Water Management District.

A day earlier, witnesses for the developers and the Florida Department of Environmental Protection claimed the disputed permit will ensure preservation of crucial wetlands in perpetuity.

Alexander returned to Tallahassee to issue a written ruling in the case. Before doing so, he must weigh evidence and opinions presented during the two-day hearing by the developers and the DEP, as well as counter-arguments proffered by petitioners challenging the permit the DEP intends to authorize.

In October, the Manatee County Commission unanimously approved a project by developers Carlos Beruff and Larry Lieberman called Aqua by the Bay, a community on 529 acres largely between El Conquistador Parkway and Sarasota Bay. The Cargor Partners plan calls for 2,894 residences and 78,000 square feet of commercial space in the bayfront area commonly called Long Bar Pointe.

As Long Bar Pointe LLP, the developers filed for a DEP permit to create and maintain a “mitigation bank” along two miles of shoreline. A mitigation bank is a site where a developer can receive credits for enhancing or restoring the environment. The credits can then be sold, typically for $100,000 or more each, to offset, or mitigate, wetlands impacts elsewhere in the region.

The application to the DEP calls for removing invasive Brazilian peppers from marshes, uplands and mangroves; planting native vegetation; and obtaining a separate permit from the Florida Fish and Wildlife Conservation Commission to install buoy markers in state waters outside the bank cautioning boaters to stay out of the seagrasses. Seagrasses can be damaged by boat propellers.

The developers would also reserve the right to apply for a separate DEP permit to trim more than 36 acres of mangroves to a height of 12 feet.

Construction would be barred in the mitigation area.

Suncoast Waterkeeper, the Florida Institute for Saltwater Heritage and former Manatee County commissioner Joe McClash petitioned to block the permit. They contend the conditions imposed in the permit could harm rather than protect vital fisheries, seagrasses and mangroves.

Testifying Wednesday, environmental consultant H. Clark Hull Jr. said that, according to his analysis, the developers’ mitigation bank application should have scored slightly more than four credits — not the 18.01 credits the DEP intends to award.

When he worked as an environmental scientist for the Southwest Florida Water Management District, Hull served on the state’s “rule development team” that wrote the manual for how the DEP is to determine mitigation bank credits.

For more than three hours, Hull, who inspected the Aqua property in a kayak, answered questions and dissected the DEP’s assessments, explaining why he would have scored the project lower. For example, he criticized the agency for awarding credits for the potential installation of the buoys, saying the signs would do “little, if anything, to prevent prop scarring in the shallow areas of the bank.” Less than 1 percent of those seagrasses now show any scarring, he said.

McClash, who testified as a recreational boater who frequently is in Sarasota Bay, said the submerged lands on the Aqua property are too shallow for boats to enter anyway.

Hull also criticized the agency for not taking fully into account the bank’s proximity to the future developed uplands of Aqua by the Bay and the effect that could have on properly maintaining the area.

He noted that the proposed permit does not specify how many Brazilian peppers are to be removed from the mangrove swamp. Hull also said the DEP should not have credited the developers for proposing to trim some mangroves by up to 12 feet, instead of the six feet for which they could request a permit.

Under subpoena by McClash, Sarasota Bay National Estuary Program executive director Mark Alderson and program scientist Jay Leverone testified that seagrasses in the bay have multiplied significantly in recent decades.

“Seagrass increases are an indicator of the health of the bay,” McClash told the judge.

Ralf Brookes, attorney for FISH and Suncoast Waterkeeper, said the bay’s expanding seagrasses do not need the “protection” reportedly provided by the mitigation bank.

Suncoast Waterkeeper board member Jack Merriam, a retired environmental manager for Sarasota County, testified that the proposed “pruning of mangroves” would restrict bird nesting and harm the appearance of the “natural vista.”

Over the next several weeks, the two sides will submit recommended rulings for Alexander to consider. He will take those recommendations into account as he writes his ruling and submits it to the DEP.

The county’s approval of Aqua by the Bay is already being challenged in Circuit Court.

McClash, Suncoast Waterkeeper and several area residents filed a lawsuit asking a judge to “quash” the County Commission’s decision. They say the public did not have adequate opportunity to see and comment on a revised version of the development plan that the commissioners approved.

*Long Bar Point, photo by Elizabeth Johnson