Protect Florida's Wild and Scenic Myakka River from Seawalls
Here is the letter I received from Jono Miller, who has been protecting the Myakka River for years. He has led me on many canoe and kayak trips down the river.
Ally of the Myakka:
I need your help. More accurately, the Myakka River needs your help.
Nine hundred and sixty-six days ago I attended a meeting on the banks of the Myakka River to discuss a situation with a landowner. The landowner was concerned that the natural meandering movement of the river was threatening their driveway and some buried infrastructure (water line, sewer line, cable) that had been located on the river side and not (as one might expect) on the side of the driveway away from the river.
The property owner told me their concern had been elevated because Hurricane Irma had covered their property with water roughly three years earlier. I sensed he equated the depth of the water with the erosive power of the river, which is an appealing, but unfounded, assumption.
Now, when I say property owner, that’s not entirely accurate. I was meeting with a representative of the owner. The owner is the Catholic Diocese of Venice and the Diocese owns the vast majority of the eastern shore of the Myakka River between I-75 and Snook Haven. [Most of the western shore is Sarasota County's Sleeping Turtles Preserve South.] Part of the Diocese property is used for the Our Lady of Perpetual Help Retreat Center, and although the Diocese hasn’t completely respected Sarasota County’s regulations regarding what can be done in the River Protection Zone, overall, the retreat center shoreline, which totals over a mile, looks pretty natural.
That’s a good thing because the Myakka River in Sarasota County is the only State-designated Wild and Scenic River in Florida. The 34 miles in Sarasota County represent just one percent of the state’s river miles.
Standing there in July of 2020, I had to agree the river was pretty close to the entrance drive. However, I didn’t agree there was some imminent danger. I had been paddling by that spot for over forty years, and while I don’t have a photographic memory, I didn’t recall seeing significant erosion in the vicinity. A review of my photo collection revealed I had fortuitously taken a shot of the bank before Irma just a few feet from the area where the river was closest to the road, and there wasn’t much visible change after Irma. And when I compared historic aerial photography from 1948 with contemporary images, it was clear that this was not a rapidly eroding shoreline, despite being on the outside of a river bend. The fact is that it is probably more accurate to say the driveway encroached on the river than vice-versa.
In a way, it was strange that I had been invited to that meeting on the riverbank. I wasn’t there as a professional environmental consultant or as a paid employee of some government entity involved in permitting – I was there as an unpaid volunteer. The explanation is that in 2020 I had been serving as a member of the Myakka River Management Coordinating Council for more than a third of a century, many years as the Chairman.
The Council had been established in 1985 by the Wild and Scenic River legislation that had been drafted by Republican State Senator Bob Johnson. The Council has no official, explicit role in shoreline permitting issues, but it is supposed to facilitate coordination and it can issue non-binding advisory opinions.
Fast forward to 2021. At the beginning of March, the Diocese ended up applying for a permit to build over 200 feet of vertical concrete seawall. That seemed wildly excessive since our 2020 visit only focused on one spot with noticeable erosion. And, inexplicably, despite its great length, the proposed wall failed to cover two other noticeable erosion spots further south on the retreat center.
The Council only meets three times a year, and, since the Council had not specifically directed me to pursue this matter, I wrote as an individual to the FDEP permitting office in Ft. Myers to learn about the status of the permit proposal. I was told they had requested additional information from the applicant on April first and they would notify me before the permit was issued.
In early October 2021, I wrote to ask if someone from their permitting team could attend our October Council meeting to explain how they were approaching the requirements of the law. No, they could not. Then, two weeks before Christmas, the South District unexpectedly issued the permit. I was never notified.
There was only a limited time window to challenge the permit. I had three weeks, which was especially impossible at that time of year. The Council is not constituted as a body that can take legal action, so it was up to me as a citizen. I requested an extension, which was granted. I hired an environmental attorney, and on February 4, 2022, we filed a 44-page petition with 108 separate assertions.
There’s no simple way to condense 44 pages of arguments. The overall objection is that allowing 218 feet of vertical seawall would be contrary to the Wild and Scenic River Act’s mandate to preserve and enhance the resource values of the river.
Some of the specific objections were that DEP had failed to determine the relevant River Area, that the applicant was using the wrong elevation for Mean High Water, that FDEP failed to require the applicant to depict what the shoreline would actually look like if the project was installed, and the wall did not meet the definition of being water dependent. I asserted a portion of the project would be in the River Area, and that, consequently it would have to be clearly in the public interest. Finally, I argued this permit could set a dangerous precedent as there are numerous other eroding banks that may be approaching built structures.
Once that was filed, I spent about a year assembling a fantastic team of experts, and developing petitioner exhibits. I participated in both settlement talks and an expensive mediation process. The date for the administrative hearing kept being pushed off, in part because FDEP eventually conceded that the applicant had been using the wrong Mean High Water elevation – an elevation that had been provided by the State!
Many of my experts and I were deposed by the attorneys for the Diocese and FDEP. At the end of my deposition, the FDEP attorney revealed he would challenge my legal standing. That was particularly galling because I had been working with FDEP staff on Myakka management for 36 years as a volunteer, yet FDEP was signaling it was preparing to argue I didn’t have sufficient interest/involvement in the Myakka to challenge the permit. That’s agency chutzpah! Along the way the vertical concrete seawall had changed to a vertical sheet pile seawall.
Ultimately, the Administrative Law Judge canceled the hearing and FDEP was directed to consider a new design proposal from the applicant. The Diocese responded with an intermittent wall that starts and stops, which would theoretically allow the mature oaks and palms that are holding the bank together to persist. My team disagrees, arguing the trees would be unlikely to survive the inevitable surrounding disturbance. The Diocese also changed the proposed southern wall to rip-rap, an interesting concession, but most of this is an area with no discernible erosion in the first place. Oh, and they extended the length of the project to include the two eroding areas they had inexplicably missed the first time around.
It’s been five and a half years since Hurricane Irma catalyzed the owner's interest in the potential threat of erosion -- five and a half years the Diocese could have been working to relocate its entrance road and infrastructure further away from the river or implement Vegetation Reinforced Soil Stabilization, both of which I support, although relocation would be preferable and require fewer permits.
Despite the failure of the settlement talks and the mediation, I had hoped to resolve this situation without a lot of public airing of the missteps of state government and the inappropriate proposals and rationales of the Diocese. If nothing else, the applicant has been steadfastly obdurate in demanding a wall, despite lots of advice (from myself, experts, their environmental consultant, and even FDEP) to consider other strategies. So, reluctantly, I am casting a wider net in an effort to gain additional support for protecting the Myakka River.
Here’s what you can do to help:
1) Forward this email to people you know care deeply about the Myakka.
2) Write the FDEP permitting office at
SD-ERPcomments@dep.state.fl.us.
Include Facility ID = ERP_399809
Pick one or more of the topics below to comment on. It’s probably better to focus on just one or two. Lead with your personal connection to the River and use your own words to make your case. I’m attaching links to both the Myakka Act and the Myakka Rule, if you want to delve. Write today because FDEP could issue a revised permit at any time.
- Ask qualified FDEP staff to start in the river and work landward in an effort to determine the River Area, which consists of “that corridor of land beneath and surrounding the Myakka River from river mile 7.5 to river mile 41.5, together with a corridor including the maximum upland extent of wetlands vegetation which is or will be delineated by the Department of Environmental Protection pursuant to its authority under Chapter 403, F.S., and Chapter 62-340, F.A.C.” 62D-15.002 Definitions. (28) The first time FDEP went out they stood on the top of the bank and failed to look down where wetlands would naturally occur.
- Bring the proposed project to the Myakka River Management Coordinating Council for a non-binding advisory opinion as provided for by law, which called for "interagency and intergovernmental coordination in the management of the river," (Section 258.501 Myakka River; wild and scenic segment. (2) Legislative Declaration) and empowered the Council to “render its nonbinding advisory opinion to the Southwest Florida Water Management District, the department, and affected local governments.”(Section 258.501 Myakka River; wild and scenic segment.MANAGEMENT COORDINATING COUNCIL. (7) (b))
- Be rigorous in interpreting the public interest test that requires the applicant to submit a project that features “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic impacts of the proposed action.” 62D-15.002 Definitions. (23)
- Honor the requirement that the project cannot be permitted unless it meets the definition of water dependent as defined in 62D-15.002 Definitions. (36) as “an activity which can only be conducted on, in, over, or adjacent to, water areas because the activity requires primary and direct access to the water body for transportation, recreation, energy production or transmission, or that uses the river as a source of water and where the use of the water is an integral part of the activity.”
- Require both a tree survey (that includes not only Live Oaks but also Cabbage Palms) and a realistic depiction of what the shoreline would look like post-project -- not a hypothetical, idealized image but the actual scenic reality that would exist depicting which specific trees would remain and which would be lost. That’s because the following standards need to be assessed as grounds for denial. In particular62D-15.008 Standards for Issuance or Denial of a Permit.
“17. Decreasing recreational opportunities, including but not limited to fishing, boating, canoeing, picnicking, nature study, or photography,
- Blocking, obstructing, lessening or otherwise interfering with the scenic and natural views as seen within the river area, including but not limited to open water, broad marshes, forested horizons, mangrove swamps, bluffs, riverbanks and bars”
3) Contribute financially to the cause. I’ve received some fantastic, valuable, in-kind contributions from most of the experts and a couple of thousand dollars from friends. But I’ve personally spent around $ 12,000.oo on this effort so far, which is about a quarter of what I have been advised this may end up costing. So, for several reasons, it’s time to involve more people.
There are two ways to contribute: the fastest and more modern is probably through Spot Fund, but they take a cut (2.9% plus thirty cents). If you click on the link below you can see a very amateur video shot on-site.
http://spot.fund/StopTheUnscenicMyakkaSeawall
But SPOT FUND does ask for a tip. If you leave a tip, it goes to SPOT FUND, and not towards challenging the seawall on the Wild and Scenic Myakka. You do not have to leave a tip.
The other, more traditional, option is to send money directly to my attorney's trust account. Contributions may be made to
Ralf Brookes Lawyers Trust Account.
Note on check record: Myakka Wild & Scenic.
Mail to: Myakka Wild & Scenic c/o Jono Miller
P.O.Box 627 Sarasota FL 34230
If I should end up with funds that exceed the final expenses, the surplus will be evenly divided between education (Crowley Museum and Nature Center), management (Friends of Myakka River State Park), advocacy (Peace + Myakka Waterkeeper) and acquisition (Conservation Foundation of the Gulf Coast).
Thank you for taking the time to read this. Feel free to contact me if you’d like a copy of the original 44-page petition. You can review various files FDEP maintains regarding the permit application (including my correspondence) at https://prodenv.dep.state.fl.us/DepNexus/public/electronic-documents/ERP_399809/facility!search
Jono Miller
P.S. In order to avoid potential "Sunshine" issues, if you are a member of the Myakka River Management Coordinating Council, Sarasota County Environmentally Sensitive Lands Oversight Committee, or Sarasota County Park and Recreation Council, please do not respond directly (or indirectly) to me.
