Judge recommends approval of Aqua by the Bay mitigation bank permit. Environmentalists aren’t finished

An administrative law judge has recommended that the state move forward with issuing Long Bar Pointe LLLP a mitigation bank permit near the Aqua by the Bay site.

This finding comes after a two-day hearing in December in which opponents told Judge D. R. Alexander that the Florida Department of Environmental Protection wrongly issued the permit.

Petitioners Suncoast Waterkeeper, Florida Institute for Saltwater Heritage and former Manatee County Commissioner Joe McClash believed that the 260-acre piece of land is too healthy to fit the definition of a mitigation bank — a piece of disturbed wetlands that the landowner buys, clears of exotic vegetation and has assessed for credits.

These credits, worth thousands of dollars, are sold to nearby developers to offset wetland impacts on their own projects. The proposed mitigation bank on the shoreline is valued at 18.01 credits and includes seagrasses, coastal freshwater marsh, salt marsh, mangrove swamps and trimmed mangrove hedge.

The environmental groups also took issue with the landowner’s intent to trim the mangroves on the site, which they believe is the opposite of what a mitigation bank is intended for.

This mitigation bank permit itself does not allow mangrove trimming or buoy installation, the latter Long Bar Pointe would use to inform boaters about protecting the seagrasses. The landowner would have to apply for a Florida Fish and Wildlife Uniform Waterways Markers in Florida Waters permit before the bank permit could be issued.

Long Bar Pointe also has a Conceptual Mangrove Trimming Plan, which will allow them to cut up to 30 percent of the mangrove acreage to a minimum of 12 feet. They cannot trim mangroves in swamps wider than 500 feet from the shoreline, and they must develop a Final Mangrove Trimming Plan.

The site is adjacent to the contentious Aqua by the Bay project, a proposal approved by Manatee County commissioners in October of 2,384 multi-family and 510 single-family homes with 78,000 square feet of commercial space off of 75th Street West and El Conquistador Parkway along Sarasota Bay.

McClash had argued that as an individual, his interests would be affected by the permit being issued. Alexander found that “concerns will not result in a direct injury or place Mr. McClash in an immediate danger of sustaining a direct injury as a result of the agency action. His concern is with future permit impacts, which are too speculative and remote to give rise to standing under chapter 120.”

The judge also ruled that Long Bar had established “prima facie,” meaning “at first sight”: it is correct until proven otherwise.

“In summary, Long Bar has proved reasonable assurance that all relevant criteria for the issuance of an (Environmental Resource Permit) and establishment of a mitigation bank have been satisfied,” Alexander wrote in the recommended order issued March 6.

McClash told the Bradenton Herald that they intended to submit exceptions of what facts in the recommended order they believe were incorrect, which they are allowed to do within 15 days of the decision. In part, they think that the credits issued for the seagrasses was not right, as they reside in sovereign state lands, and that the presence of buoys would bring in more boats and increase the chance of propeller scarring on the seagrasses.

“It kind of sets the stage for the appeal, if the state doesn’t do what it should do,” he said.

They still believe that the state department of environmental protection should not have recommended issuing the permit in the first place, but if the decision had gone in their favor McClash said it would still be a fight.

“It’s a process. It was not unexpected,” he said. “It’s not something that would have been over either way.”

This story was originally published March 10, 2018 at 12:55 PM with the headline "Judge recommends approval of Aqua by the Bay mitigation bank permit. Environmentalists aren’t finished."