STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN S. DONOVAN, DAVID H. SHERRY, AND REBECCA R. SHERRY,

Petitioners,

and

THOMAS WILSON,

vs.

Intervenor,

Case No. 19-1844

CITY OF DESTIN, FLORIDA AND DEPARTMENT OF ENVIRONMENTAL PROTECTION

Respondents.

_/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 29 through 31, 2019, in Tallahassee, Florida, before

1. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioners David H. Sherry, Rebecca R. Sherry, and John S. Donovan:

   
   

   D. Kent Safriet, Esquire Joseph A. Brown, Esquire Hopping Green & Sams, P.A.

   119 South Monroe Street, Suite 300 Tallahassee, Florida 32301

   
   

   For Respondent City of Destin, Florida:

   
   

   Kenneth G. Oertel, Esquire Timothy Joseph Perry, Esquire

   Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

   Tallahassee, Florida 32302

   For Respondent Department of Environmental Protection: Marianna Sarkisyan, Esquire

   Paul Joseph Polito, Esquire

   Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Stop 35

   3900 Commonwealth Boulevard

   Tallahassee, Florida 32399-3900 STATEMENT OF THE ISSUES

   The issues to be determined is whether the City of Destin (“City”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass

   (“East Pass” or “inlet”) entrance channel conducted pursuant to the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0288799-003-JC (“Permit”), in the swash zone east of East Pass in accordance with the Notice to Proceed (“NTP”); and whether the Inlet Management Plan referenced in the NTP is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.

   PRELIMINARY STATEMENT

   
   

   On February 26, 2015, the Department of Environmental Protection (“DEP”) issued the Permit to the City. The Permit authorized periodic maintenance dredging of the federally

   
   

   authorized East Pass and Destin Harbor navigation channels. Dredged material from the first maintenance dredging event was placed at a spoil site along Norriego Point. In accordance with the Permit, “[d]redged material from subsequent maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.”

   On February 2, 2018, DEP issued the NTP to the City, which approved the second maintenance dredging of the East Pass navigation channel, with “placement of dredged material in the swash zone east of East Pass.” The NTP was not made subject to a notice of rights. Petitioners, David H. Sherry, Rebecca R. Sherry, and John S. Donovan (collectively, “Petitioners” or, individually, “Mr. Sherry,” “Ms. Sherry,” or “Mr. Donovan”), received a copy of the NTP on October 1, 2018, and first filed a challenge on November 30, 2018.

   On March 18, 2019, Petitioners filed an Amended Petition for Administrative Hearing (“Amended Petition”). The disposition of the initial Petition for Administrative Hearing and the circumstances necessitating the filing of the Amended Petition were not explained.

   On April 9, 2019, the Amended Petition was referred to the Division of Administrative Hearings and assigned to the

   
   

   undersigned. The final hearing was scheduled for July 29 through 31, 2019.

   On June 17, 2019, the City moved to dismiss the Amended Petition on the ground that the placement of dredged spoil was an issue that could have been challenged at the time the Permit was issued, and the failure to do so at that time constituted a waiver of the right to challenge the location(s) at which spoil disposal was to occur. A hearing on the motion was held on July 2, 2019, and the motion was denied by Order on

   July 3, 2019.

   
   

   On June 28, 2019, a Motion for Leave to Intervene was filed by Thomas Wilson, the Petitioner in DOAH Case No. 19-3356, which involves a challenge to a DEP permit to the United States Army Corps of Engineers (“USCOE”) for the dredging of East Pass. On that same date, Petitioners filed a Motion to Consolidate this case with DOAH Case No. 19-3356. On July 8, 2019, the Motion for Leave to Intervene was granted, and the Motion to Consolidate was denied. For purposes of this Recommended Order, the term “Petitioners” shall include Intervenor, unless the context requires a separate identification.

   On June 18, 2019, the parties filed their Amended Joint Pre-hearing Stipulation (“JPS”). The JPS contained nine stipulations of fact, each of which is adopted and incorporated

   
   

   herein. The JPS also identified disputed issues of fact and law remaining for disposition as follows:

   Issues of fact which remain to be litigated

   
   

   1. Whether Petitioners and Intervenor have standing to challenge the [NTP];

      
      

   2. Whether Petitioners timely challenged the [NTP];

      
      

   3. Whether the NTP authorizing the placement of all fill from the Dredge event is “supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013);

      
      

   4. Whether all the physical monitoring relied upon to issue the NTP was conducted in accordance with the underlying permit and approved physical monitoring plan dated August, 2014;

      
      

   5. Whether the physical monitoring data provides reasonable assurances for the Department to issue the [NTP]; and

      
      

   6. Whether the [NTP], which authorizes the City to deposit material dredged from East Pass within the swash zone on beaches solely to the east of East Pass, constitutes final agency action.

Issues of law which remain for determination

1. Whether the East Pass Inlet Management Implementation Plan (July 24, 2013) is an unadopted rule;

   
   

2. If the East Pass Inlet Management Implementation Plan (July 24, 2013) is an unadopted rule, whether the NTP can be issued;

   
   

3. Whether the City has demonstrated entitlement to the NTP through competent substantial evidence;

   
   

4. Whether the Petitioners and Intervenor have sufficient standing to participate in this proceeding; and

   
   

5. Whether the Petitioners’ administrative challenge is timely.

   
   

   The final hearing was convened on July 29, 2019, as scheduled.

   The Permit under review was issued under the authority of both chapters 161 and 373, Florida Statutes. However, the disputed provisions involve standards under chapter 161.

   Therefore, the modified burden of proof established in section 120.569(2)(p), Florida Statutes, is not applicable, and the burden is with the City, as the applicant, to demonstrate that it met the criteria for issuance of the NTP.

   At the final hearing, Joint Exhibits 3 through 12 and

   
   

   16 through 18 were received in evidence.

   
   

   The City called the following witnesses: Matthew Trammell, P.E., who was accepted as an expert in the field of coastal engineering; and Michael Trudnak, P.E., who was also accepted as an expert in the field of coastal engineering. City Exhibits

   10 through 12, 14, 15, 17 through 19, and 27 were received in evidence.

   DEP called the following witnesses: Ralph Clark, P.E., who was accepted as an expert in the fields of coastal engineering, beach and inlet management, hydrographic surveying, photo- interpretation, hurricane impacts, and coastal construction regulation; and Greg Garis, it’s Program Administrator for the

   
   

   Beaches, Inlets, and Ports Program. DEP Exhibits 1 and 20 were received in evidence.

   Petitioners called the following witnesses: Dr. Todd Walton, who was accepted as an expert in the field of coastal engineering; Dr. Lainie Edwards, Deputy Director of DEP’s Division of Water Resource Management; David Sherry; Rebecca Sherry; and John Donovan. Petitioners’ Exhibits 3, 5, 8, 12, and 26 (photographs on pages 8 through 10 only) were received in evidence.

   A five-volume Transcript of the final hearing was filed on August 19, 2019. An extension to file proposed recommended orders was filed by Petitioners on August 22, 2019, and granted over Respondents’ objection on August 23, 2019. Since the extension was not by consent, the undersigned expressed that the extension would not be considered to be a waiver of applicable timeframes. All parties filed a proposed recommended order (“PRO”) on September 5, 2019, each of which has been considered in the preparation of this Recommended Order.

   On September 5, 2019, the City filed a Motion for Attorney’s Fees, Expenses and Costs, by which it seeks an award pursuant to sections 120.569(2)(e) and 120.595(1). Petitioners filed their response on September 12, 2019. The Motion is addressed at the conclusion of this Recommended Order.

   
   

   The law in effect at the time DEP takes final agency action on the application being operative, references to statutes are to their current versions, unless otherwise noted. Lavernia v.

   Dep’t of Prof’l Reg., 616 So. 2d 53 (Fla. 1st DCA 1993).

   
   

   FINDINGS OF FACT

   
   

   Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made:

   The Parties

   
   

   1. Petitioners, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida. The Surf Dweller Condominium, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island,1/ fronts the Gulf of Mexico, and straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass.

   2. Petitioner, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort

      
      

      Walton Beach, Florida. The El Matador Condominium is on Okaloosa Island, fronts the Gulf of Mexico, and is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility.

   3. Intervenor, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, in the vicinity of Monument R-14. Mr. Wilson uses and enjoys the gulf-front beaches between his property on Okaloosa Island and East Pass.

   4. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass areas of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the NTP.

      
      

      Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times.

   5. The City is the applicant for the Permit and the NTP, and abuts the east side of East Pass.

   6. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and issued the NTP at issue in this proceeding to the City.

   7. The NTP was issued on February 2, 2018, without notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioners received a copy of the NTP on October 1, 2018, and filed a challenge more than 14 days later, on November 30, 2018.

      East Pass

      
      

   8. Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly

      
      

      enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida.

   9. East Pass separates the gulf-fronting beaches of the City to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot- long jetty on the west side of the inlet and a 1,210 foot-long jetty on the east side of the inlet.

   10. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity.

       When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south.

       
       

   11. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The Physical Monitoring Plan (“PMP”), which is part of the Permit, and thus, not subject to challenge in this case, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].”

   12. The PMP further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west.

   13. The evidence as to the existence and effect of the East Pass drift nodal point, and its affect on the lateral

       
       

       transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted.

       Evidence to the contrary was not persuasive.

       
       

   14. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On an average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand and become very hazardous for marine traffic. In December of 2018, the City declared a state of emergency relating to the navigational hazards caused by the accumulation of sand in the navigation channel.

       The Permit

       
       

   15. On February 26, 2015, DEP issued the Permit, which authorized the City to perform “periodic maintenance dredging of the federally authorized East Pass and Destin Harbor and navigation channels.” The Permit will expire on February 26, 2030. Notice of the issuance of this Permit was published in the Destin Log, a newspaper of general circulation, on December 24, 2014. No challenge to the issuance of the Permit was filed.

       
       

   16. As it pertains to the issues in this proceeding, the Permit provides that “Dredged material from . . . maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.”

   17. The specific beach spoil placement sites are, as relevant to this proceeding, located “west of East Pass . . . between [DEP] reference monuments V-611 and V-622; and on

       2 beach sites situated east of East Pass . . . from R-17 to

       
       

       R-20.5 and from R-23.5 to R-25.5.” Those areas correspond to what have been identified as the “areas of influence,” which are the beach areas east and west of East Pass that are affected by tidal forces generated by the inlet. The specified beach spoil placement sites, being conditions of the unchallenged Permit, are not subject to challenge in this case.

   18. The Permit establishes the criteria by which specific work is to be authorized. Specific Condition 5 provides, in pertinent part, that:

       5. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Department for each event. At least 30 days prior to the requested date of issuance of the notice to proceed, the Permittee shall submit a written request for a Notice to Proceed along with the following items for review and approval by the Department:

       
       

       * * *

       
       

6. Prior to the second dredging event authorized under this permit, and each subsequent event, the Physical Monitoring Data, as specified in Specific Condition 9, shall be submitted to select the appropriate placement locations.

1. Specific Condition 9 provides that:

   
   

   Following the initial placement of material on Norriego Point, fill site selection shall be supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan

   (July 24, 2013). All physical monitoring shall be conducted in accordance to the Approved physical monitoring plan dated August, 2014. A notice to proceed for specific projects shall be withheld pending concurrence by the Department that the data support the proposed placement location.

   
   

2. The purpose of Specific Condition 9 is to identify, using supporting monitoring data from the eastern and western areas of influence, the “adjacent eroding beach” most in need of sand from the inlet.

3. The requirement that physical monitoring data be used to determine which of the beach spoil placement sites identified in the Permit’s Project Description will receive the spoil from any particular periodic dredging event was to implement section 161.142, Florida Statutes. That section mandates that “maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches,” and establishes the overriding policy

   
   

   of the state regarding disposition of sand from navigational channel maintenance dredging.

   East Pass Inlet Management Implementation Plan

   
   

4. The East Pass Inlet Management Implementation Plan (“East Pass IMP”) was adopted by Final Order of DEP on July 30, 2013.2/ The East Pass IMP was not adopted through the rulemaking procedures proscribed by chapter 120, Florida Statutes, or DEP rules. Despite a comprehensive Notice of Rights advising persons whose substantial interests could be affected of the means by which the East Pass IMP could be challenged, it was

   not.

   
   

5. There are 44 maintained inlets in Florida. About half

   
   

   have individual inlet management plans. The East Pass IMP is not applicable to any inlet other than East Pass.

6. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in the Permit. Rather, the disposal site is to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass.

7. The critical element of the IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall

   
   

   define the placement need in terms of location and volume.” The East Pass IMP, being applicable only to East Pass, is not of “general applicability.” Furthermore, the East Pass IMP does not implement, interpret, or prescribe law or policy.

   The Notice to Proceed

   
   

8. On January 30, 2018, the City filed its Request for Notice to Proceed (“Request”). The Request addressed the criteria in Specific Conditions 5 and 9 of the Permit.

9. Upon review, DEP determined the conditions of the Permit were satisfied and issued the NTP on February 2, 2018.

10. The analysis of data submitted as part of the Request was designed to show areas of erosion and accretion within the eastern and western areas of influence in order to identify “critically eroded beaches.”

11. The shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred

    
    

    in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate3/ shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences.

12. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall, and thick vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.”

13. The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the west of

    
    

    East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142.

14. The shoreline east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5 and R-23.5 to R-25, except for the area immediately abutting the eastern jetty, is highly erosional. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion.

    Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years.

15. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the east of

    
    

    East Pass are critically eroded, a condition that is influenced by East Pass and or its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142.

    Data in Support of the NTP

    
    

16. The data submitted by the City to DEP in support of the Request included monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017, and additional data from the Holiday Isle Emergency Beach Fill

    Two-Year Post-construction Report. DEP was also provided with historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017, and the Potential Borrow Area Impact Report, which included data from 1996 through 2012. DEP has also received recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than

    20 years of survey date, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded.

17. The data submitted in support of the Request was sufficient to meet Specific Condition 9 that fill site selection be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP.

    
    

18. Petitioners argue that the City failed to comply with the PMP, which requires, among other things, that the analysis of the dredged material disposal area include “preconstruction survey data and the most recent survey conducted at least five years prior.” The PMP establishes that “[p]reconstruction surveys shall be conducted no more than 90 days before construction commences. A prior beach monitoring survey of the beach and offshore may be submitted for the pre-construction survey if consistent with the other requirements” of the PMP. The City submitted a prior beach monitoring survey of the beach and offshore that is consistent with the PMP.

19. Petitioners argue that the City violated a temporal limitation which provides that the City “may submit a prior beach restoration monitoring report for the west or east beach areas (Walton-Destin or Western Destin Beach Restoration Project) if the monitoring data is collected within 1 year of the proposed maintenance dredging event and if consistent with the other requirements of this condition.” Petitioners acknowledge in their PRO that the beach restoration monitoring report was timely when the Request for NTP was submitted. The information contained therein was sufficient to support the notice of proposed action on the NTP.

20. The otherwise compliant data is no longer within one year of the proposed dredge. In that regard, the litigation in

    
    

    this case, initiated by Petitioners, has been ongoing for almost one year. Work authorized by the NTP cannot go forward when subject to challenge. If the PMP, which is not a rule, is unreasonably read so as not to account for delay caused by litigation, such delay becomes a tool for use by, and a reward for, a person dissatisfied with DEP’s outcome. In this case, the NTP was lawfully issued pursuant to compliant data, surveys, and analysis. As with any permit or license subject to a third- party challenge, the terms of the NTP are tolled pending Petitioners’ litigation, and do not become a ground for denial of the otherwise compliant Request. See § 120.60(1), Fla. Stat. (“An application for a license must be approved or denied within

    90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period is tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license which is not approved or denied . . . within 45 days after a recommended order is submitted to the agency and the parties, . . . is considered approved unless the recommended order recommends that the agency deny the license.”).4/

21. Furthermore, DEP has now received recent profile data from April 2019. The evidence establishes that the data provided to DEP as part of the Request includes the latest physical monitoring data over a period of greater than five

    
    

    years, and that the data collection met the standards for conducting physical monitoring.

    Fill Site Selection

    
    

22. The NTP authorized “placement of dredged material in the swash zone east of East Pass.” In accordance with the Permit, that authorized area extends eastward from R-17 to

    R-20.5 and from R-23.5 to R-25.5, in Holiday Isle.

    
    

23. The evidence is persuasive that placing dredged material on the eastern side of East Pass would not result in erosion on the western side of East Pass.

24. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, dredged material placed to the east of East Pass would, if the lateral shoreline drift is east to west as asserted by Petitioners (though not supported by a preponderance of the evidence as set forth in paragraphs 11 through 13), be introduced into the ebb shoal and likely move faster to the west as opposed to it being placed directly at the base of the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, more likely than not, accomplish the beach effect objectives set forth in the Petition.

    
    

    The Eglin AFB Beach Restoration Project

    
    

25. Petitioners relied heavily on photographs taken in 2010 and 2019 from roughly the same location in the vicinity of Monuments V-607 to V-608 to demonstrate that the beaches of Santa Rosa Island are eroding. The area depicted is outside of the area of influence of East Pass, and outside of the western beach placement area under the Permit. Those photographs depict a wide expanse of beach in 2010, with a seawall well upland from the shore in 2010. Then, in 2019, a photograph depicting the same stretch was offered that showed the same seawall, now at or below the water line. The photographs were, ostensibly, designed to depict naturally occurring erosion in the area.

26. Mr. Clark testified that the seawall and boulder mound structure depicted in both photographs protect an Air Force mission-critical tracking facility. The seawall was originally constructed in 1979 after Hurricane Frederick, was constructed at that time to extend into the water, and was maintained in that configuration through the 1990s. One could not walk around the original seawall. Rather, for most of its history, passage around the seaward side of the seawall could only be accomplished by swimming or wading.

27. The original seawall was damaged by Hurricane Opal, and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005. The Air Force, needing to reconstruct the wall, applied for and

    
    

    received a joint coastal construction permit, allowing the structure to be constructed on sovereign submerged land below the line of mean high water. The seawall was rebuilt and, as stated by Mr. Clark, “it was in the water.”

28. In 2010, the Air Force performed the small Eglin Air Force Base Beach Restoration Project, which placed artificial fill in front of the seawall, thereby creating a temporary beach. That beach fill project was “a one-shot deal,” did not involve any subsequent maintenance, and is now essentially gone, as was expected. Mr. Clark was neither surprised nor concerned with the fact that the area returned to what he described as its natural state, with the seawall below mean high water.

29. The 2019 photograph was presented as evidence of erosion caused by East Pass. That was not the case. Rather, the 2010 photograph was evidence of an artificial and singular event, and the 2019 photograph depicts the natural state of the shoreline. Rather than depicting erosion, the 2019 photograph depicts a return to the stable shoreline that exists all along Santa Rosa Island to the west of East Pass.

30. The photographs of the site of the 2010 Eglin Air Force Base Beach Restoration Project do not support a finding that the beaches of Santa Rosa Island are anything but stable, if not accretional, nor do they support a finding that the beaches of Santa Rosa Island are eroding.

    
    

    Ultimate Factual Conclusion

    
    

31. Specific Condition 9 of the Permit requires the location of the spoil disposal be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP and the PMP.

32. The greater weight of the competent substantial evidence establishes that the City submitted physical monitoring data consistent with the requirements of Specific Condition 9.

33. The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5 and

    R-23.5 to R-25.5, are critically eroded, a condition influenced if not caused by the East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive.

34. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611

    to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive.

35. The greater weight of the competent substantial evidence establishes that the City met the standards for the NTP as proposed for issuance by DEP on February 2, 2018. Evidence

    
    

    to the contrary was not persuasive. Thus, the NTP should be

    
    

    issued.

    
    

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

    Standing

    
    

37. Section 120.52(13) defines a “party,” in pertinent part, as a person “whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” Section 120.569(1) provides, in pertinent part, that “[t]he provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency.”

38. Standing under chapter 120 is guided by the two- pronged test established in the seminal case of Agrico Chemical

    Corporation v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). In that case, the court held that:

    We believe that before one can be considered to have a substantial interest in the outcome of the proceeding, he must show

    1. that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals

       
       

       with the degree of injury. The second deals with the nature of the injury. (emphasis added).

       
       

       Id. at 482.

       
       

39. Agrico was not intended as a barrier to the participation in proceedings under chapter 120 by persons who are affected by the potential and foreseeable results of agency action. Rather, “[t]he intent of Agrico was to preclude parties

    from intervening in a proceeding where those parties’ substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceedings.”

    Mid-Chattahoochee River Users v. Fla. Dep't of Envtl. Prot.,

    
    

    948 So. 2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian

    
    

    River Cnty., 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

    
    

40. The standing requirement established by Agrico has

    
    

    been refined, and now stands for the proposition that standing to initiate an administrative proceeding is not dependent on proving that the proposed agency action would violate applicable law. Instead, standing requires proof that the petitioner has a substantial interest and that the interest reasonably could be affected by the proposed agency action. Whether the effect would constitute a violation of applicable law is a separate

    question.

    
    

    Standing is “a forward-looking concept” and “cannot ‘disappear’ based on the ultimate outcome of the proceeding.” . . . When

    
    

    standing is challenged during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his substantial interests “could reasonably be affected by . . . [the] proposed activities.”

    
    

    Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot.,

    
    

    14 So. 3d 1076, 1078 (Fla. 4th DCA 2009) (citing Peace

    
    

    River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co.,

    
    

    18 So. 3d 1079, 1083 (Fla. 2d DCA 2009); and Hamilton Cnty. Bd.

    
    

    of Cnty. Comm'rs v. State, Dep't of Envtl. Reg., 587 So. 2d 1378 (Fla. 1st DCA 1991)); see also St. Johns Riverkeeper, Inc. v.

    St. Johns River Water Mgmt. Dist., 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011) (“Ultimately, the ALJ's conclusion adopted by the Governing Board that there was no proof of harm or that the harm would be offset went to the merits of the challenge, not to standing.”).

41. “Under the first prong of Agrico, the injury-in-fact standard is met by a showing that the petitioner has sustained actual or immediate threatened injury at the time the petition was filed, and ‘[t]he injury or threat of injury must be both real and immediate, not conjectural or hypothetical.’”

    S. Broward Hosp. Dist. v. Ag. for Health Care Admin., 141 So. 3d 678, 681 (Fla. 1st DCA 2014) (citing Vill. Park Mobile Homes

    
    

    Ass'n v. Dep't of Bus. Reg., 506 So. 2d 426, 433 (Fla. 1st

    
    

    DCA 1987)).

    
    

42. Petitioners alleged standing based on the effect that the disruption in the lateral flow of sand along the shoreline would have on the beaches in front of their property. In Bluefield Ranch Mitigation Bank Trust v. South Florida Water Management District, 263 So. 3d 125 (Fla. 4th DCA 2018), the

    court held that the petitioners established their standing based on the following analysis:

    The petitioning parties included the Town of Palm Beach, which owned Phipps Ocean Park within 1000 feet of the condominium and alleged that the Park would suffer damage if the landscaping activity continued, and Dave Darwin, who owned a property within 1000 feet of the condominium and alleged that his property would be damaged by the continued disruption of the dune system. We found that both of these petitioners had a substantial interest in challenging the agency's determination because

    
    

    the statute and administrative proceedings are designed to protect the entire beach/dune system of the state of Florida, and [the petitioners] allege that [the landscaping activities] will harm the dune system in the area of [the condominium's] property. Therefore [the petitioners] have made sufficient allegations to meet the test of standing under Agrico and are entitled to a hearing to present evidence to support their allegations of standing.

    
    

    Id. at 131 (citing Town of Palm Beach v. State Department of

    
    

    Natural Resources, 577 So. 2d 1383, 1388 (Fla. 4th DCA 1991)).

    
    

43. The individual petitioners in Town of Palm Beach who

    
    

    alleged, as do the Petitioners here, that their properties would be substantially affected were within 1,000 feet of the challenged activity.

44. The allegations of conditions that might lead to erosive conditions along the shoreline west of East Pass meet the second prong of the Agrico test, that is, this proceeding is

    designed to protect against erosion, impacts that are the subject of chapter 161, and the rules adopted thereunder.

45. The question for determination as to the first prong of the Agrico test is whether Petitioners have alleged injuries in fact of sufficient immediacy as a result of the NTP to entitle them to a section 120.57 hearing. “[T]he injury-in-fact standard is met by a showing that the petitioner has sustained actual or immediate threatened injury at the time the petition was filed, and ‘[t]he injury or threat of injury must be both real and immediate, not conjectural or hypothetical.’”

    S. Broward Hosp. Dist. v. Ag. for Health Care Admin., 141 So. 3d 678, 681 (Fla. 1st DCA 2014) (citing Vill. Park Mobile Home

    Ass'n v. Dep't of Bus. Reg., 506 So. 2d at 433).

    
    

46. Petitioners have alleged that the proposed placement of dredged material in the swash zone to the east of East Pass could result in adverse erosional impacts. For purposes of standing, the allegations must be accepted as true. S. Broward

    
    

    Hosp. Dist. v. Ag. for Health Care Admin., 141 So. 3d at 681.

    
    

    The allegations are sufficient to meet the standard of an “injury in fact which is of sufficient immediacy to entitle them to a section 120.57 hearing.”

47. Despite their allegations, Petitioners, who reside miles away from the area of influence of East Pass, completely failed to prove that they will suffer any injury to their property, or any injury to their ability to enjoy the beaches between their homes and East Pass. There was little or no competent, substantial, and persuasive evidence to support a finding that even a grain of sand deposited on the western disposal site would ever make its way to their property and, if it managed to do so, the journey would take years. Thus, despite their allegations, Petitioners wholly failed to prove at the hearing that the NTP as issued would -- or could -- result in actual or immediate threatened injury to their property or their ability to use and enjoy the beaches west of East Pass.

48. Based on what is perceived to be a broad grant of standing as established in Palm Beach County Environmental

    Coalition and further discussed in Bluefield Ranch Mitigation Bank Trust, and on the policy that it is best to have cases

    heard on their merits when possible, the undersigned is willing to accept the tenuous and ultimately unsupported thread that constitutes Petitioners’ standing in this case.

    
    

49. The City has standing as the applicant for the NTP. Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. & Prof'l Reg., 53 So. 3d 1158, 1162 (Fla. 1st DCA 2011); Maverick Media

    Group v. Dep’t of Transp., 791 So. 2d 491, 492-493 (Fla. 1st DCA 2001).

    Timeliness of Petition

    
    

50. Petitioners filed their Petition for Formal Administrative Hearing more than 14 days from their receipt of the NTP. The NTP was issued without a notice of rights to advise substantially affected persons of their right to a hearing. The notice was insufficient to inform Petitioners of their right to request a hearing, and the time limits for doing so, and is, therefore, inadequate to “trigger” the commencement of the administrative process. See Gardner v. Sch. Bd., 73 So.

    3d 314, 315 (Fla. 2d DCA 2011); Henry v. State, Dep't of Admin., Div. of Ret., 431 So. 2d 677, 680 (Fla. 1st DCA 1983).

    Furthermore, section 120.569(1) provides, in pertinent part,

    
    

    that:

    
    

    The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency . . . . Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply.

    
    

    Based on the lack of notice in the NTP, the Petition for Formal Administrative Hearing was timely.

    Nature of the Proceeding

    
    

51. This is a de novo proceeding, intended to formulate final agency action and not to review action taken earlier and preliminarily. Young v. Dep’t of Cmty. Aff., 625 So. 2d 831,

    833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of Envtl. Reg., 587 So. 2d at 1387; McDonald v. Dep’t of Banking &

    Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

    
    

    Burden and Standard of Proof

    
    

52. The City bears the burden of demonstrating, by a preponderance of the evidence, entitlement to the NTP. Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778, 788

    (Fla. 1st DCA 1981); Save Our Creeks, Inc. v. Fla. Fish & Wildlife Conser. Comm’n, Case No. 12-3427 (Fla. DOAH July 3,

    2013; Fla. DEP Jan. 14, 2014).

    
    

53. The standard of proof is preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

    Reasonable Assurance Standard

    
    

54. Issuance of the NTP is dependent upon there being reasonable assurance that the activities authorized will meet applicable standards.

    
    

55. Reasonable assurance means “a substantial likelihood that the project will be successfully implemented.” Metro. Dade Cnty. v. Coscan Fla., Inc., 609 So. 2d 644, 648 (Fla. 3d DCA

    1992). Reasonable assurance does not require absolute guarantees that the applicable conditions for issuance of a permit have been satisfied. Furthermore, speculation or subjective beliefs are not sufficient to carry the burden of presenting contrary evidence or proving a lack of reasonable assurance necessary to demonstrate that a permit should not be issued. FINR II, Inc. v. CF Indus., Inc., Case No. 11-6495

    (Fla. DOAH Apr. 30, 2012; Fla. DEP June 8, 2012).

    
    

    The East Pass Inlet Management Implementation Plan as an Unadopted Rule

    
    

56. Section 120.52(16) defines a rule as:

    
    

    each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.

    
    

57. An "unadopted rule" is defined as an agency statement that meets the definition of the term rule, but that has not been adopted pursuant to the requirements of section 120.54.

    § 120.52(20), Fla. Stat.

    
    

58. Agencies must adopt, as rules, those statements meeting the definition of a rule. As set forth in section 120.54(1):

    (1)(a) Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.

    
    

59. When a person is substantially affected by agency action, section 120.57(1)(e) provides, in pertinent part, that:

    1. An agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule . . . .

       
       

    2. In a matter initiated as a result of agency action proposing to determine the substantial interests of a party, the party’s timely petition for hearing may challenge the proposed agency action based on . . . an alleged unadopted rule.

    
    

60. Petitioner has the burden of demonstrating that the East Pass IMP meets the definition of a rule, and that the agency has not adopted the statement by rulemaking procedures. Sw. Fla. Water Mgmt. Dist. v. Charlotte Cnty., 774 So. 2d 903, 908 (Fla. 2d DCA 2001); see also Ag. for Pers. with Disab. v.

    C.B., 130 So. 3d 713, 717 (Fla. 1st DCA 2013).

    
    

61. The standard of proof is by a preponderance of the evidence. § 120.56(1)(e), Fla. Stat.

    
    

62. An agency statement is “generally applicable” if it is intended by its own effect “to create rights, or to require compliance, or otherwise have the direct and consistent effect of law.” Coventry First, LLC v. Off. of Ins. Reg., 38 So.

    3d 200 (Fla. 1st DCA 2010) (quoting McDonald v. Dep’t of Banking

    
    

    & Fin., 346 So. 2d 569, 581 (Fla. 1st DCA 1977)). Furthermore:

    
    

    “[a]n agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law, is a rule.” When deciding whether a challenged action constitutes a rule, a court analyzes the action's general applicability, requirement of compliance, or direct and consistent effect of law.

    
    

    Fla. Dep't of Fin. Servs. v. Cap. Collateral Reg'l Counsel-

    
    

    Middle Region, 969 So. 2d 527, 530 (Fla. 1st DCA 2007) (citations omitted); see also State Bd. of Admin. v. Huberty,

    46 So. 3d 1144, 1147 (Fla. 1st DCA 2010).

    
    

63. The East Pass IMP is limited to its use in but one of the 44 improved inlets in the state of Florida. There was no evidence that DEP requires that an inlet management plan be developed for each of those 44 inlets, or whether comparable management standards and criteria are replicated in any other inlet management plan.

64. The East Pass IMP does not establish specific standards of general applicability with regard to target quantities for placement either to the east or west of East

    
    

    Pass. Rather, the East Pass IMP establishes that the placement sites and quantities for dredged fill be determined on a case- by-case basis, based on a case specific analysis of data for beaches east and west of East Pass. Thus, there is no evidence that the East Pass IMP has the direct and consistent effect

    of law.

    
    

65. The “statement of general applicability” in this case is that dredged material be placed on “adjacent eroding beaches.” That standard is statutory. There was no proof sufficient to establish that the IMP was intended to, or did, set enforceable standards for the implementation of section

    161.142. Therefore, Petitioners failed to demonstrate that the East Pass IMP is an agency statement of “general applicability.”5/

    Standards

    
    

66. Section 161.142 provides, in pertinent part, that DEP shall ensure that:

    [T]he Legislature finds it is in the public interest to replicate the natural drift of sand which is interrupted or altered by inlets to be replaced and for each level of government to undertake all reasonable efforts to maximize inlet sand bypassing to ensure that beach-quality sand is placed on adjacent eroding beaches Therefore,

    in furtherance of this declaration of public policy and the Legislature’s intent to redirect and recommit the state’s comprehensive beach management efforts to

    
    

    address the beach erosion caused by inlets, the department shall ensure that:

    
    

    1. All construction and maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches unless, if placed elsewhere, an equivalent quality and quantity of sand from an alternate location is placed on the adjacent eroding beaches.

       
       

    2. On an average annual basis, a quantity of beach-quality sand is placed on the adjacent eroding beaches which is equal to the natural net annual longshore sediment transport. The department shall, with the assistance of university-based or other contractual resources that it may employ or call upon, maintain a current estimate of such quantities of sand for purposes of prioritizing, planning, and permitting.

    
    

67. What is evident from section 161.142 is that the overriding -- if not exclusive -- interest of the state is that sand from maintenance dredging of navigation inlets is to be placed on adjacent eroding beaches.

    Entitlement to the Notice to Proceed

    
    

68. A “Notice to Proceed” is the notification from DEP authorizing a permitted activity to commence. Fla. Admin. Code Rules 62B-49.002(10) and 62B-41.002(32).

69. This proceeding is limited to determining whether, as established in the Permit, the “physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013)” was

    
    

    sufficient to support the fill site selection for the issuance of the NTP.

70. The evidence in this case established conclusively that the beaches east of East Pass are adjacent eroding beaches.

71. The evidence in this case is equally conclusive that the beaches west of East Pass are not adjacent eroding beaches.

72. To be compliant with section 161.142, sand from the dredging of East Pass must be placed on the beaches east of East Pass.

73. As established in the Findings of Fact, the City provided reasonable assurances that the fill site selection complied with the applicable standards applied by DEP, in particular, Specific Conditions 5 and 9. Further, the City has provided reasonable assurances that it is entitled to the NTP.

    ATTORNEYS’ FEES

    
    

74. The City has moved for an award of attorneys’ fees, expenses and costs pursuant to sections 120.569(2)(e) and 120.595(1).

75. An objective standard is used to determine improper purpose for the purpose of imposing sanctions on a party or attorney under section 120.569(2), and its predecessor statutes. See, e.g., Friends of Nassau Cnty., Inc. v. Nassau Cnty.,

    752 So. 2d 42, 50-51 (Fla. 1st DCA 2000). While no appellate decision has explicitly extended the objective standard to

    
    

    section 120.595(1), a number of DOAH cases have applied the standard to cases arising from 120.595(1). See, e.g., G.E.L. Corp. v. Orange City and Dep’t of Envtl Prot., DOAH Case

    No. 01-4132 (DOAH July 24, 2006); Palm Beach Polo Holdings, Inc. v. Acme Imp. Dist., DOAH Case No. 03-2469 (DOAH Mar. 25, 2004;

    SFWMD May 14, 2004)(holding that the objective standard should be applied to claims arising under section 120.595(1)).

    Section 120.569(2)(e)

    
    

76. Section 120.569(2)(e) provides that:

    
    

    (e) All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

    
    

77. Section 120.569(2)(e) authorizes the imposition of a sanction, which may include reasonable attorney's fees and expenses, if a determination is made that a party filed a paper

    
    

    in a proceeding for an improper purpose, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. DOAH has jurisdiction to resolve that issue by separate final order. See, e.g., Procacci Comm. Realty, Inc. v. Dep't of HRS, 690 So. 2d 603, 606

    (Fla. 1st DCA 1997). Therefore, jurisdiction is reserved to consider that request through a separate final order, provided the City renews its Motion within 30 days of DEP’s entry of the final order in this case.

    Section 120.595

    
    

78. Section 120.595 provides, in pertinent part, that:

    
    

    (1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.57(1).—

    
    

    * * *

    
    

    1. The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney’s fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.

       
       

    2. In proceedings pursuant to

       s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection. In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project

       
       

       as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.

       
       

    3. In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney’s fees.

       
       

    4. For the purpose of this subsection:

    
    

    1. “Improper purpose” means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity.

    
    

79. A frivolous claim is not merely one that is likely to be unsuccessful. Rather, it must be so clearly devoid of merit that there is little, if any, prospect of success. French v.

    Dep't of Child. & Fams., 920 So. 2d 671, 679 (Fla. 5th

    
    

    DCA 2006). “[A] finding of improper purpose could not stand ‘if a reasonably clear legal justification can be shown for the filing of the paper.’” Procacci Commer. Realty v. Dep’t of

    HRS, 690 So. 2d 603, 608, n.4 (Fla. 1st DCA 1997)(quoting

    
    

    Mercedes Lighting & Electrical Supply v. State, Dep’t of Gen.

    
    

    Servs., 560 So. 2d 272, 277 (Fla. 1st DCA 1990)).

    
    

80. Although Petitioners did not prevail, they presented testimony and evidence in support of the issues raised in their Amended Petition and Motion for Leave to Intervene, including expert testimony.

81. Based upon a full review and consideration of the record in this proceeding, the undersigned finds that the facts of this case, and the application of the law as asserted by Petitioners, were not made for an improper purpose, i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity, under section 120.595(1). Furthermore, there was no evidence to suggest that Petitioners participated in two or more proceedings involving the City or DEP and the same project as an adverse party.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order:

1. Approving the February 2, 2018, Notice to Proceed for the maintenance dredging of East Pass as authorized pursuant to Consolidated Environmental Resource Permit and Sovereign

   
   

   Submerged Lands Authorization No. 50-0126380-005-EI and State- owned Lease No. 0288799-003-JC, subject to the general and specific conditions set forth therein; and

2. Denying the City of Destin’s Motion for Attorney’s Fees, Expenses and Costs pursuant to section 120.595(1).

DONE AND ENTERED this 14th day of October, 2019, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2019.

ENDNOTES

1/ Okaloosa Island is the name of the unincorporated community, while Santa Rosa Island is the name of the island.

2/ Although the Final Order was signed on July 24, 2013, it was not filed with and acknowledged by the agency clerk until

July 30, 2013. See § 120.52(7), Fla. Stat.

3/ “Having an irregularly wavy or serrate outline.” Merriam- Webster Dictionary, https://www.merriam-webster.com/ dictionary/crenulate.

4/ The obvious source of unnecessary confusion arising from the PMP is its failure to specifically account for litigation

delays, likely due to DEP’s belief that an NTP is not “agency action” entitling one to a hearing. The confusion could be avoided by specifically incorporating terms consistent with section 120.60 into the PMP’s timeframes.

5/ Petitioners’ reliance on Town of Hillsboro Beach v. City of Boca Raton, DOAH Case No. 17-2201 (Fla. DOAH Dec. 11, 2017;

DEP Jan. 30, 2018) as establishing that an IMP is an unadopted rule is rejected since, as noted in the DEP Final Order at page 16, “the legal issues raised in paragraphs 64-70 (relating to the IMP as an unadopted rule) are not before the ALJ for consideration, because no party filed an unadopted rule challenge in the case, nor was the issue raised by the Petition or the Joint Prehearing Stipulation.”

COPIES FURNISHED:

Joseph Alexander Brown, Esquire Hopping Green & Sams, P.A. Suite 300

119 South Monroe Street Tallahassee, Florida 32301 (eServed)

D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed)

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302 (eServed)

Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302 (eServed)

Marianna Sarkisyan, Esquire

Department of Environmental Protection Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Paul Joseph Polito, Esquire

Department of Environmental Protection Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection Mail Stop 35

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J

Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Noah Valenstein, Secretary

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 19-001844

Orders for Case No: 19-001844