Judge hears opening testimony on mitigation bank for Aqua by the Bay

Opponents of a mitigation bank near the proposed Aqua by the Bay development got their day in court Tuesday, challenging whether the Florida Department of Environmental Protection got it right in approving the permit.

The first day of testimony was full of objections, and careful cross examination of three witnesses — two for developer Long Bar Pointe LLLP and the DEP, and one for Suncoast Waterkeepers, Florida Heritage for Saltwater Heritage Inc. (FISH), and former Manatee County Commissioner Joe McClash.

There were no clear knockouts or even a knockdown on the first of three days allotted for the hearings. At stake is a 260-acre mitigation bank, an area of seagrass and mangrove swamp south of El Conquistador Parkway, adjacent to the proposed 529-acre Aqua development.

State administrative law judge D. R. Alexander said Tuesday he hopes to wrap up the hearing on Wednesday.

The DEP and the developer assert that all relevant procedures were followed in granting the permit. Environmental groups say that the number of mitigation bank credits is excessive and not supported by any environmental benefit.

“Why are these environmental groups protesting a mitigation bank?” asked attorney Ralf Brookes, who was representing FISH and Waterkeepers. “The problem is a mitigation bank is used to create development credits.”

One of the troubling aspects of the mitigation bank is that it awards development points for seagrass, he said.

“It doesn’t create seagrass that isn’t already there,” Brookes said.

Toward the end of Tuesday’s hearing Brookes called John Stevely, Florida sea grant extension agent emeritus who was inducted in the Manatee County Agriculture Hall of Fame in 2015, to the stand to testify.

Sarasota Bay’s seagrass beds are already thriving and healthy, Stevely testified, adding that he didn’t understand how a mitigation bank would improve matters.

“If it’s not broke, don’t fix it,” Stevely said.

Furthermore, Stevely said marking the area with seagrass buoys could attract boaters from the open waters of Sarasota Bay into seagrass beds, damaging them.

A mitigation bank is a distressed wetland that the landowner can clean up and assess for credits, which can be sold to other developers to offset their own wetland impacts.

Developer Carlos Beruff proposes to build 2,384 multi-family, 510 single-family homes and 78,000 square feet of commercial space at his nearby Aqua by the Bay development.

Alec Hoffner, senior scientist with E Co Consultants of Palmetto, served as an expert witness for the developer.

A mitigation bank would benefit Sarasota Bay through the removal of invasive and exotic species, including a large portion of the 31 acres of Brazilian peppers in the area. In their place, native species would be planted, Hoffner said.

The mitigation bank would have no adverse environmental impacts, Hoffner said.

Asked about the potential trimming of mangroves to 12 feet so that future residents of Aqua by the Bay have a view of Sarasota Bay, Hoffner said that should not affect the health of mangroves.

McClash asked if Hoffner had seen birds nesting in 12-foot mangroves.

“I have seen birds nesting in mangroves less than 12 feet,” Hoffner said.

Tim Rach, program administrator for the DEP, also testified on Tuesday.

Chris Tanner, attorney for the developer, asked Rach if the mitigation bank would have any adverse environmental impact.

None, said Rach.

The developer must comply with terms of the mitigation bank to be able to draw their credits, and the DEP inspects to ensure compliance, Rach said.

DEP requires the developer to have financial assurance, should it fail to live up to its mitigation bank responsibilities, Rach said.

“Do you have an opinion whether this project meets the statute?” Marianna Sarkisyan, senior attorney for the DEP, asked Rach.

Rach said it does.

“The primary purpose of this mitigation bank is preservation,” Rach said.

The hearing resumes at 9 a.m. Wednesday in the Southwest Florida Water Management Office building at 6750 Fruitville Road, Sarasota.

This story was originally published December 5, 2017 at 9:56 PM with the headline "Judge hears opening testimony on mitigation bank for Aqua by the Bay."