The hearing for whether the state environmental agency rightfully approved a mitigation bank permit concluded Wednesday, but a decision isn’t expected until next year.
Six witnesses for petitioners Suncoast Waterkeeper, Florida Institute for Saltwater Heritage and former Manatee County Commissioner Joe McClash were heard during the second day of testimony at the Southwest Florida Water Management District Sarasota office.
After the Florida Department of Environmental Protection gave a notice of intent to issue Long Bar Pointe LLLP, an offshoot of developer Carlos Beruff’s Medallion Home, a permit for a 260-acre mitigation bank to abut the Aqua by the Bay development late last year, the groups filed a petition against the department and company. They argue that aside from the mitigation bank right next to an approved development, the department issued too many credits and that the wetland and nearby seagrasses that the bank seeks to protect isn’t that damaged to begin with.
A mitigation bank is defined as a distressed wetland that, after acquiring the relevant permits, cleans up and has valued for credits, which can in turn be sold to other developers in the watershed area in order to offset their own wetland impacts. This bank was valued at 18.01 credits, but witness and Lutz-based environmental consultant H. Clark Hall Jr. said that he believed it was really worth four credits.
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“If it overvalues the mitigation, what appears to be a pound of mitigation is really underweight,” he said. “What that results in is a residual impact, which could be an adverse effect to fish and wildlife.”
The second day of the hearing was much like the first as there were many objections, but many of them were overruled by administrative law judge D.R. Alexander. Other witnesses for the petitioners included Jay Leverone and Mark Alderson with Sarasota Bay Estuary Program, Suncoast Waterkeeper board member Jack Merriam, McClash and Manatee County planner Stephanie Moreland.
Moreland’s testimony on future land use surrounding the mitigation bank added little to the pot, as she was not present for Aqua by the Bay’s eventual approval. She noted that she had seen 10 or 11 versions of the development, but didn’t know about the mitigation bank plans because she is not an environmental planner and did not know how many buildings Aqua would have near the bank (which could be up to 16 buildings at a maximum height of 95 feet and an unknown amount between 36 feet and 75 feet).
It eventually fizzled as Chris Tanner, Long Bar Pointe’s attorney, called into question the relevance of her testimony and said that the Aqua plans submitted for testimony weren’t current. McClash retorted that at the time of the original hearing date, which was set during Hurricane Irma in September, it was relevant. Aqua was eventually unanimously approved in early October, but is also the subject of a lawsuit itself.
Attorneys for the respondents tried to poke more holes in witness testimony as Merriam took the stand. He testified that he would be adversely affected if the bank permit was approved, mainly because he believed that installing informational buoys about the seagrasses would attract boaters and therefore cause scarring, and that there would be mangrove trimming.
Although the bank permit does not authorize mangrove trimming, a general permit could. But Merriam said he didn’t “think it prohibits mangrove pruning.” In cross examination, Long Bar Pointe attorney Amy Wells Brennan then asked Merriam if he had read the notice of intent to issue, if he thinks the permit authorizes mangrove trimming and how he would be affected by exotic species removal and native species planning.
Judge Alexander said that after the transcript is ready, which could take a few weeks, respondents and petitioners would have 30 days to review it and come up with proposed recommended orders. After that the judge will review each and give a recommendation to the FDEP secretary, who will make the final call.