Proposal for mitigation bank near Aqua by the Bay set to go before judge

The administrative hearing on whether Florida’s environmental agency rightfully approved a mitigation bank permit near Aqua by the Bay will go before a judge Tuesday — but it won’t include what a federal agency had to say about it.

The Long Bar Pointe Mitigation Bank project is a 260-acre culmination of mangrove swamp and submerged seagrasses off the coast of Sarasota Bay and south of El Conquistador Parkway and directly adjacent to the proposed 529-acre Aqua development. It was given an OK late last year by the Florida Department of Environmental Protection, after Long Bar Pointe LLLP had scrapped its initial application because it erroneously included land it didn’t own.

Early this year, Suncoast Waterkeeper Inc., Florida Institute for Saltwater Heritage Inc. and former Manatee County commissioner Joe McClash filed a petition against FDEP’s decision. The respondents are Long Bar Pointe, an offshoot of developer Carlos Beruff’s Medallion Home, and FDEP.

A mitigation bank is a distressed wetland that the landowner can clean up and assess for “credits,” which in turn are sold to other developers that need to offset their own wetland impacts. The process can be costly and time-consuming, but the price per credit can be up to $200,000, depending on the land type.

This bank was calculated to generate up to 18.01 credits, including seagrass submerged bottomlands, salt marsh, mangrove swamps, trimmed mangrove hedge and freshwater marsh. The project intends to remove invasive exotic vegetation and install signs to warn boaters about the seagrass, as well as regularly maintain it over the long term.

That same project submitted to the U.S. Army Corps of Engineers was denied twice, most recently in May. In a five-page letter from the Corps, seven points of contention were outlined, including whether the wetlands were disturbed enough as required by bank definition and that proposed trimming would not ecologically benefit the health of the ecosystem.

While the state mitigation bank permit does not give the landowner the right to trim mangroves, a general permit can. A conceptual mangrove trimming plan was included in with the mitigation bank permit. The bank would be right up against recently approved Aqua by the Bay, which proposes to construct 2,384 multi-family and 510 single-family homes as well as 78,000 square feet of commercial space. There are an unknown number of buildings between 36 feet and 75 feet planned, and up to 16 buildings at a maximum height of 95 feet.

The county commission’s approval of the development is also subject of a lawsuit filed by Suncoast Waterkeeper, McClash and six others.

In October, administrative law Judge D.R. Alexander granted Long Bar Pointe and FDEP’s request to exclude federal mitigation bank statutes as well as the Corps’ review of the project.

“(The) Department is not bound by the Corps’ actions, and thus the documents are not relevant to the issue of whether the permit at issue in this proceeding should be issued or denied and cannot form the basis of relief in this matter,” Alexander wrote in the motion.

Long Bar Pointe’s witnesses include ECo Consultants’ Alec Hoffner and Medallion Home president Pete Logan, and the department will call anyone on the petitioners’ side who feels they will be affected by their decision, according to court documents The petitioners have subpoenaed Jay Leverone and Mark Alderson with the Sarasota Bay Estuary Program as well as Manatee County planner Stephanie Moreland.

While the petitioner has a laundry list of reasons why the number of credits should be reduced or the permit should be denied altogether, Long Bar Pointe and FDEP will argue whether the three petitioners have standing to challenge. The hearing is scheduled for 9 a.m. Tuesday at the Southwest Water Management District office in Sarasota. Two more days are set aside in case the hearing goes longer than a day.

This story was originally published November 30, 2017 at 1:43 PM with the headline "Proposal for mitigation bank near Aqua by the Bay set to go before judge."