Perico Mangroves Need Enforcement of the Rules that Protect Them

As citizens, we generally assume that government represents the public’s interest and will carefully ensure that the rules for permits will be applied. Mangroves are responsible for over 60 percent of marine life, and in past years were destroyed in the absence of such knowledge. Today, the scientific facts provide evidence of the importance of protecting our mangroves, especially the type Neal wants to destroy on Perico Island.

Concern over a Southwest Florida Water Management District (SWFMD) permit allowing Neal to destroy high-quality mangroves is what motivated myself and four environmental groups to challenge such unwarranted destruction. The hearing was held last week, from Tuesday to Thursday.

The City of Bradenton prohibits the destruction of mangroves but has no environmental review, so they delegate that review to SWFMD and take the position that if they approve a permit to destroy the mangroves it is okay. That does not seem logical since SWFMD is not required to be consistent with the local rules of the city. This was clearly established when the judge responded to a "Motion in Limine“ filed by Neal’s attorney to prohibit any of the city’s local codes of comp plan requirements from being heard at the hearing. I gave it my best shot, filing a response, but in a quick order the judge decided that I could not produce any evidence or witnesses on the city’s rules. Not a surprise, but it shows how disconnected the process is and how irresponsible the City of Bradenton is for relying on SWFMD to permit what their rules do not allow.

Federal rules require avoidance of mangroves. If four lots exist to build on in the vicinity, the mangroves are to be avoided. There are other federal issues such as essential fish habitat (EFH) and an aquatic resource of national importance (ARNI) focused on protecting these high quality mangroves. Three federal agencies recommended the permit not be granted and for good reason – the information submitted by Neal was not accurate, and stated:

"Based upon our site inspection of the project area on May 9, 2014, with your staff, the applicant, and his agent, NMFS disagrees with the agent’s statements regarding: (1) historical disturbances to mangrove wetlands within the proposed impact area including extensive mosquito ditching and spoil piles, (2) the notion ditches provide the primary tidal exchange to the mangrove wetlands, and (3) the mangrove wetlands are above mean high water and only inundated with extreme high tides in Anna Maria Sound. During our May 9, 2014, inspection, we observed high quality mangrove wetlands comprised of contiguous, mature red (Rhizophora mangle), black (Avicennia germinans), and white (Laguncularia racemosa) mangroves. The mangroves in question do not appear to be disturbed or adversely affected by extensive mosquito ditches and spoil piles. We observed no evidence of non-native vegetation typically found at disturbed sites and the presence of healthy intertidal red mangroves suggests these wetlands are frequently inundated.“

However, at the hearing, even though SWFMD is supposed to consider these comments, the judge would not allow them into evidence and SWFMD testified that they did not consider the federal agencies' comments. Neal’s attorney and SWFMD also pulled the federal agencies' document from their exhibit list at the last minute and never disclosed this change when they certified the record of all the documents. In my opinion, it was highly unethical to do so. This behavior, obscuring information that does not conform to the case you're trying to make, is not in the best interest of the public.

The hearing process allows for the challengers of the permit to do a site inspection. It was requested in October and not allowed by Neal until January. Initially we were only going to be allowed one person on the site, forcing me to file a motion to compel. Neal responded to allow three people. I had to file another motion to compel to include the others that were denied access for which the judge ordered in our favor for another site visit. During the site visit, our wetland expert found additional wetlands in what Neal called uplands and verified what the federal agencies observed - a high quality mangrove system with tidal flows contrary to what Neal indicated.

Neal proposed to use a mitigation bank to meet the rules allowing destruction of the mangroves if they could not be avoided or after impacts were minimized. Somehow SWFMD indicated Neal had minimized the impacts and could not avoid destroying more than 50 percent of the mangroves. However, the rules require the mitigation to be in the same drainage basin. Both SWFMD and Neal’s expert, Alec Hoffner from ECO, testified that they used the basin maps before, but in this case later determined the mitigation bank was in the same basin. But when we challenged the permit, all of a sudden it was determined they were not. The colors on the map with the red arrow is Perico and blue is mitigation basin. This seems pretty clear to me.

This triggers another rule evaluating cumulative impacts. Caught with this huge issue, Neal fabricated a report that basically states that even though the basin is not the same, they are connected and should be considered to be the same. No data is provided, just a few maps about birds and scallops. Our experts disagreed and stated that a mitigation bank more than 17 miles away will not mitigate the adverse impacts in the vicinity. Our experts also testified about the impacts of a proposed wall replacing mangroves impacting recreational values such as eco tours. Other facts are how bees use the pollen from black mangroves and can’t fly over four miles while remaining productive. Bee hives are located close to Perico at Geraldson’s Farm and honey from black mangroves is some of the best honey.

Here we go again. Experts from Neal and SWFMD once again failed to read the maps correctly. The mitigation cannot take place outside the Mitigation Service Bank Area. These maps were approved by a SWFMD permit. When SWFMD noticed Neal's permit they thought the service area was within Perico. It was not! Caught again with another violation of the rules, the mitigation bank service area had its permit changed after the permit was to be issued on October 15, 2014.

No disclosure was made about this permit change to those challenging the permit until the exhibits had to be provided in February, 2015. Since the permit slid under the radar, any objection had to be sent by November 1 or the permit would be final. This alone seems to clearly prove that SWFMD favors the developer over the public. Otherwise, they would have been honest and a change in the permit would have been noticed to the parties. The only way to find out is to scrub the permits on the website or some obscure public notice in a newspaper. Not even a daily newspaper.

Last minute changes to the plans include rip rap in front of the wall to meet an exemption for vertical seawalls. Vertical seawalls are prohibited in an estuary like Anna Maria Sound. Neal included comments that the wall had a minimum of 40 feet of mangroves and that the waves would not impact the wall.

Onsite, it was obvious that the mangroves did not exist, as plans described. In fact, areas wide as 25 feet would have had direct waves hit the wall that had no mangroves in front of them contrary to what Neal represented. Caught once again, the rip rap design was needed to meet a possible exemption. However, this does not prevent secondary (direct) impacts to the mangrove shore left in front of the wall and Anna Maria Sound. Our expert testified that in about 10 years, the whole mangrove shore would be gone even with the rip rap and all that would be left would be the wall. Much more damaging than what the developer indicated.

It is evident that statements by Neal recently about the permit meeting the rules just were not factual. The process and the hearing challenging these permits is like having both hands tied behind your back. It takes money and time and those resources cannot match the almost unlimited resources of a state taxing district like SWFMD and a multi-millionaire developer with deep political connections.

I not only represented myself but acted as a qualified representative for FISH and Manasota-88 who also challenged the permit. The hearing process allows a non lawyer to file motions, responses, petitions, subpoena and cross examine witnesses. Sierra Club and Suncoast Waterkeepers also intervened. Manatee Fish & Game helped with the cost of witnesses.

It was a historical event with five environmental organizations standing up to fight and protect our environment, and I was proud to be a part of it. Neal can build a house without destroying one mangrove. He chooses destruction instead. Profits over what the community values, as is evident by the objection to similar projects like Long Bar Pointe, which he supported for its developer Carlos Beruff, himself a SWFMD board member. We are optimistic even against the odds the permit will be denied. For the sake of our local environment, I sincerely hope we're right.