STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN COASTAL ENGINEERING, INC., )

on behalf of WILLIS H. DUPONT, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5417

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 27, 1993, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Anthony F. Barone, Esquire

7301A West Palmetto Park Road, #204-A Boca Raton, Florida 33433-3403

For Respondent: Dana M. Wiehle

Assistant General Counsel Department of Natural Resources Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.

PRELIMINARY STATEMENT

By Final Order dated July 10, 1991, Respondent denied the extension of coastal construction Permit No. 86-155PB and ordered the removal of the experimental reef structure, a/k/a PEP reef. Petitioner timely filed a petition for formal administrative hearing, contesting Respondent's denial.

On August 28, 1991, the matter was referred to the Division of Administrative Hearings. After numerous continuances of the formal hearing, originally scheduled for December 16-20, 1991, a formal hearing was scheduled on April 27, 1993, pursuant to notice.

At the hearing, Petitioner presented the testimony of three rebuttal witnesses and entered four exhibits into evidence. 1/ Respondent presented the testimony of one witness 2/ and entered 10 exhibits into evidence.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the conclusion of the hearing. Only Respondent submitted proposed findings of fact and conclusions of law. Respondent's proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida.

   
   

2. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988.

   
   

3. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide:

   
   

   1. The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida.

      * * *

      10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach

      management plan at that time. The experimental structure shall only remain in place after

      two years upon written approval from the Executive Director indicating an extension has been granted.

      * * *

      12. The Executive Director may order removal of the experimental structure as soon as the

      shoreline along any portion of the area required to be nourished under Special Permit Condition

      6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location

      and accretion at another location within the area to be monitored.

      
      

   2. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12.

      
      

   3. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request.

      
      

   4. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/

      
      

   5. Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach.

      
      

   6. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension.

      
      

   7. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period.

      
      

   8. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by

      comparing profile plots from the same time of year taken during the two-year monitoring period.

      
      

   9. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline.

      
      

   10. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes.

       
       

   11. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity.

       
       

   12. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity."

       
       

   13. Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate.

       
       

   14. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor.

       
       

   15. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial.

       
       

   16. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12.

       
       

   17. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure.

       
       

   18. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP

       reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged.

       
       

   19. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself.

       
       

   20. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location.

       
       

   21. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12.

       
       

   22. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.

       
       

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

       
       

   24. Petitioner bears the burden of showing its entitlement to an extension of coastal construction Permit No. 86-155PB (Permit) for the experimental structure, i.e., the PEP reef. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

       
       

   25. Special Permit Condition 10 of the Permit is controlling as to Petitioner's entitlement to an extension of the Permit. Petitioner has failed to show that the PEP reef has satisfied Special Permit Condition 10. The evidence fails to establish that the intended purpose of the PEP reef has been accomplished, which is that the PEP reef is effective by reducing erosion of the beach landward of the structure.

       
       

   26. Furthermore, Special Permit Conditions 3 and 12 of the Permit are controlling as to the removal of the PEP reef. Petitioner has failed to show that the PEP reef should not be removed pursuant to Special Permit Conditions 3 and 12.

       
       

   27. Hence, Petitioner has failed to establish an entitlement to an extension of the Permit, and the conditions for removal have been met.

       
       

   28. Notwithstanding, of concern is the presence of federally protected and endangered marine species which now reside in the PEP reef. This is an issue which is beyond the scope of this proceeding and cannot be remedied by this tribunal; however, Respondent has indicated a willingness to explore the possibility of relocating the PEP reef to a location further offshore.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final

order DENYING an extension of Permit No. 86-155PB.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994.

ERROL H. POWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1994.

ENDNOTES

1/ Petitioner attempted to enter 12 exhibits into evidence but only four were actually received into evidence.

2/ The parties had agreed that only Respondent's witness would be testifying, which did not include rebuttal witnesses, if any. In its case-in-chief, Petitioner offered no witnesses, but did offer exhibits into evidence. Also, it presented rebuttal testimony and exhibits.

3/ The application for a permit was submitted pursuant to Section 161.041, Florida Statutes.

4/ The Department of Natural Resources has now been statutorily changed to the Department of Environmental Protection, having been merged with the Department of Environmental Regulation.

5/ In Petitioner's case-in-chief, the monitoring data, entitled "PEP Reef Performance Analysis," was entered into evidence, but the author of the document was not called as a witness. As indicated in the Preliminary Statement, Petitioner called no witnesses in its case in chief.

6/ Ch. 89-175, Section 27, Laws of Florida. 7/ See Endnote 4.

APPENDIX

The following rulings are made on the parties' proposed findings of fact.

Petitioner's Proposed Findings of Fact

Petitioner did not submit any proposed findings of fact. Respondent's Proposed Findings of Fact

1. Discussed in the Preliminary Statement and Endnote 3.

2. Partially accepted in finding of fact 6.

3. Rejected as being argument or conclusions of law.

4. Partially accepted in finding of fact 5.

25. Partially accepted in findings of fact 3 and 18. 26-29. Partially accepted in findings of fact 19 and 20.

30. Partially accepted in findings of fact 20 and 21. 31-33. Partially accepted in finding of fact 22.

Note--Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence, recitation of testimony, argument, or conclusions of law.

COPIES FURNISHED:

Anthony F. Barone, Esquire

7301A West Palmetto Park Road, #204-A Boca Raton, Florida 33433-3403

Dana M. Wiehle

Assistant General Counsel Department of Natural Resources Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth J. Plante General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-005417

Orders for Case No: 91-005417