July 15, 2009

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Re: Surfrider Foundation, Inc., et al vs. Town of Palm Beach, DEP, et al DOAH Case No.: 08-1511

DEP/OGC Case No.: 08-0469

Dear Clerk:

Attached for filing are the following documents:

1. Agency Final Order

2. DEP’s Exceptions to Recommended Order

If you have any questions, please do not hesitate to contact me at 245-2212 or lea.crandall@dep.state.fl.us.

Sincerely,

Lea Crandall

Lea Crandall Agency Clerk

Attachments

“More Protection, Less Process” www.dep.state.fl.us

Filed July 15, 2009 4:56 PM Division of Administrative Hearings.

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

vs.

lntervenors, )

)

)

)

TOWN OF PALM BEACH, FLORIDA, ) BOARD OF TRUSTEES OF THE INTERNAL ) IMPROVEMENT TRUST FUND, and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

CONSOLIDATED FINAL ORDER

On March 2, 2009, an Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") submitted to the Department of Environmental Protection ("DEP'' or "Department") a Recommended Order ("RO") in the above captioned administrative proceeding. A copy of the RO is attached hereto as Exhibit A. The RO indicated that copies were sent to counsel for the Petitioners, SURFRIDER FOUNDATION, INC., SNOOK FOUNDATION, INC., CAPTAIN DANNY BARROW,

TOM WARNKE and HERBERT TERRY GIBSON ("Petitioners"). Counsel for the Intervenor, CITY OF LAKE WORTH ("Lake Worth"), and counsel for the Intervenor,

EASTERN SURFING ASSOCIATION, INC. ("Eastern Surfing"), were sent copies of the RO. Counsel for the Co-Respondent, TOWN OF PALM BEACH, FLORIDA ("Town"), and counsel for the Department were also copied with the RO. On April 30, 2009, the Department filed Exceptions to the RO.1 No party filed any response to the Department's Exceptions. This matter is now before me for final agency action.

BACKGROUND

The Town of Palm Beach, a municipality, applied to the Department on June 13, 2005, for the permit and authorizations necessary to construct a beach restoration and dune nourishment project along a portion of the shoreline of Palm Beach Island known as Reach 8. The project would be constructed within the jurisdiction of the South Florida Water Management District ("SFWMD" or "the district"). Specifically, the Town sought a joint coastal permit ("JCP"), which consists of an environmental resource permit ("ERP") and coastal construction permit ("CCP"); a letter of consent constituting authorization to use sovereign submerged lands; and a variance from water-quality standards. The ERP would authorize dredging and filling activities mostly in, but also adjacent to, surface waters and included upland dune nourishment because the expected, post-construction erosion of the dune would result in fill entering surface waters. The CCP would authorize activities seaward of the erosion control line. The proprietary authorization was for a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") for the use of state-owned land

1 The Department entered two orders granting unopposed motions for extension of time to file exceptions. Thus, the parties' exceptions were due on April 30, 2009; responses to exceptions were due on or before May 11, 2009; and by agreement, the Final Order deadline was extended to July 15, 2009.

seaward of the mean high water line.2 This proprietary authorization would pertain to borrow areas and a fill area seaward of mean high water. The water-quality variance was for an expanded area, or mixing zone, of elevated turbidity levels--during construction only--in the area at which hydraulic residue from slurry would run off the beach and re-enter the ocean. On February 29, 2008, DEP issued a Consolidated Notice of Intent to Issue a JCP and Authorization to Use Sovereign Submerged Lands with a variance from the provisions of Florida Administrative Code Rule 62-4.244(5)(c) for the Town's Reach 8 Beach Restoration Project.

By Amended Petition for Formal Administrative Hearing dated March 26, 2008, the Petitioners challenged the proposed issuance of the JCP, variance from water quality standards, and authorization to use sovereign submerged lands. On April 22, 2008, the Petitioners filed a Second Amended Petition for Formal Administrative Hearing ("Second Amended Petition"). By Petition for Leave to Intervene in the Formal Administrative Hearing filed August 1, 2008, Lake Worth intervened in the case. Lake Worth, also a municipality, intervened in the case to oppose the Town's application.

Most of Reach 8 is within the jurisdiction of the Town, but a short segment of Reach 8 is within the jurisdiction of Lake Worth. This segment consists of the Lake Worth Municipal Beach, which includes the Lake Worth Pier. Because this segment is within Reach 8, but not within the project area, during the hearing it was sometimes referred to

2 The Secretary of the Department is delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which the Department has permitting responsibility. See Fla. Admin. Code R. 18-21.0051(2).

as the Lake Worth Gap. By Petition for Leave to Intervene filed August 4, 2008, Eastern Surfing also intervened in the case.

The parties filed a Joint Prehearing Stipulation on August 22, 2008. The

stipulation identified the disputed issues including a riparian-rights issue raised by Lake Worth in its petition to intervene. On the same day, the Department 3 filed a motion in limine to strike this issue from the hearing. At the start of the hearing, the ALJ denied the motion in limine (T. 12-24), and in the RO stated the following grounds: 1) that an original party had raised the issue, although that party lacked standing, so Lake Worth was not introducing a new issue; 2) that Lake Worth obviously had standing as an adjacent property owner (i.e., the Lake Worth Municipal Beach); and 3) that Section 403.412, Florida Statutes, gave Lake Worth a right to intervene and raise new issues.

The ALJ conducted the final hearing on August 25-29, September 2-6 and 29-30, and October 1-2, 2008. The Hearing Transcript was filed by October 31, 2008, and the parties filed proposed recommended orders by November 5, 2008. The ALJ subsequently issued his RO on March 2, 2009.

THE RECOMMENDED ORDER

In the RO the ALJ recommended that the Department deny the Town's application for a JCP, letter of consent, and variance. (RO p. 270). Based on extensive factual findings (522 paragraphs), the ALJ ultimately concluded that the Town did not prove that it was entitled to the JCP and letter of consent. (RO ,r,r 548, 566, 573). He further concluded that the Town "would have been entitled to a variance from the

3 The RO states that the motion in limine was filed by the Town (RO p. 17). However, the hearing transcript and pleadings show that the Department filed the motion (T. 16- 17).

turbidity water-quality standard," however, the request was now moot. (RO ,i 576). The ALJ also recommended that "due to the vastly lower volumes of fill involved, the final order may authorize the nourishment of the Reach 8 dunes, apart from those in the Lake Worth Gap (unless Lake Worth joins in the request), in accordance with the dune template approved in the Permit, without any mitigation." (RO p. 270).

CCP criteria

The ALJ determined that the Town failed to provide reasonable assurance that the direct and indirect coverage of hardbottom habitat by excessive fines in the fill would only be limited to the proposed 6.9 acres. (RO ,i,i 485, 486, 487, 494, 500). The ALJ concluded that the proposed offshore sand source (fill) and Reach 8's existing sand were not compatible. (RO,J,J 481, 536, 537, 538). The relatively large discrepancy between the mean grain size of the sand source and the existing beach at Reach 8 would result in a large overfill factor such that more hardbottom habitat would experience sediment cover; there would be more turbidity impacts; and there would be more loss of juvenile green turtles than previously contemplated. (RO ,i,i 481, 500, 501, 502). Thus, the Town's proposed mitigation for only 6.9 acres of hardbottom coverage was not adequate. (RO ,i,i 494, 495, 500, 502). The ALJ also found that the Town failed to provide any mitigation for the turbidity that would result from the project and deprive a wide range of species from the use of the beach and nearshore habitats, other than the mitigated hardbottom, for a period of about one year. (RO ,i 199, 481, 500). He concluded that the Town failed to show that the proposed project would

produce a net positive benefit to the coastal system, and he found that the project would

not maintain the general character and functionality of the beach, dune, and coastal

system of Reach 8. (RO ffll 502, 504).

In addition, the ALJ determined that the Town had failed to justify the scope of the project, given the large overfill factor that would result from the relatively large discrepancy between the mean grain size of the sand source and the existing beach. The Town failed to establish that Reach 8 is eroding, especially the majority of ii that is not designated Critically Eroded Beach ("CEB"). Thus, the Town failed to justify the use of a limited resource--offshore sand--to restore considerable lengths of non-CEB. (RO 11

501).

ERP criteria

The ALJ determined that the Town failed to provide reasonable assurance that the project protects the water resources of the district from harm and that the project is not contrary to the public interest. (RO 1]1] 505, 506 - 513, 566). He found that the Town failed to prove that the project does not impact critical habitat in the form of beach, nearshore, and hardbottom in excess of 6.9 acres, that all such impacts are de minimis, and that all such impacts, even if temporary, have been mitigated. (RO 1]1] 508, 566).

Specifically, the ALJ found that the project would likely result in the death of five

juvenile green turtles plus an unknown number of additional juvenile green turtles based on the impacts to hardbottom in excess of 6.9 acres. He found that for about one year, the project would remove wide swaths of habitat favored by species, many of whom are juvenile and many of whom display marked levels of habitat fidelity, and would remove from this area the species that use these habitats. He concluded that for about one year, the beach and nearshore waters in the vicinity of Reach 8 would be largely devoid

of marine life, and the beach would be unsuitable for sea turtle nesting. The project would remove longer-term (and permanently, if routine nourishments followed the restoration) 6.9 acres of mitigated hardbottom and an unknown additional area of

unmitigated hardbottom. (RO ,r 508, 511, 514). Thus, the mitigation offered by the

Town was inadequate. He concluded that the offered mitigation failed to mitigate for the impacts, for about one year, to the beach and nearshore, including hardbottom (except for 6.9 acres of hardbottom). The offered mitigation failed to mitigate for the loss of five endangered green turtles plus an additional number of green turtles based on impacted hardbottom in excess of 6.9 acres. (RO ,i 514, 566).

The ALJ also found that the project would cause cumulative impacts. The Town

offered mitigation in the same drainage basin, which the Department reasonably construed to be the area between two inlets.4 But the mitigation did not offset all of the adverse impacts, so cumulative impacts must be considered. (RO ,i 515). The ALJ found that the cumulative impacts of poor beach management practices in the past included failing to maintain the sand transfer plant at the Lake Worth Inlet, managing Palm Beach Island by segments instead of as a single resource, allowing the installation of extensive armoring along Reach 8 (in one case at the south end of Reach 8, well seaward of what the coastal system can tolerate) and extensive groins north of Reach

8, and placing excessive fines on the beaches in the form of dredge spoil and unsuitable borrow area fill without monitoring project-related turbidity and its impacts on the water resources of the district. (RO ,i 515).

4 Palm Beach Island is bounded on the north by the Lake Worth Inlet, and the south by South Lake Worth, or Boynton, Inlet. (RO ,i 10).

Letter of consent {proprietary authorization) criteria

The ALJ found that under the Board of Trustees rules, the Town failed to show that the project is not contrary to the public interest. He concluded that "given the projected performance of the project in terms of damaging turbidity for one year, the relatively quick loss of the excessive fines from where they would be placed on the beach, the impact on the Lake Worth Municipal Beach and Lake Worth Pier, and the need for nourishment programs in quick succession to replace the lost sediments, the social, economic, and environmental costs in this case outweigh the social, economic, and environmental benefits." (RO ,i 519). He further found that there were reasonable alternatives, even to allowing the natural coastal system to continue to build beach along most of Reach 8, such as maintaining the sand transfer plant with greater vigilance and possibly installing groins to capture sand of more appropriate mean grain size. (RO ,i 519). In addition, as the ALJ previously found, the Town failed to mitigate

important impacts to the natural resources. (RO ,i 519).

In addition, the ALJ found that the Town's proposed beach-restoration activities are unreasonable in the use of excessive fines in the fill. This would cause unnecessary turbidity in the Lake Worth Gap at Lake Worth Municipal Beach so as to deprive Lake Worth's licensees and invitees the opportunity to swim and fish for a period of about one year. (RO ,i,i 206, 207, 208, 520, 572). Therefore, he concluded that the Town failed to prove that its use of excessive fines in the fill and the consequent turbidity with its impact on the water resources would not unreasonably deprive Lake Worth of its riparian rights. (RO ,i 520, 572).

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

Section 120.57(1)(I), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of an ALJ, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."

§ 120.57(1)(I), Fla. Stat. (2008); Charlotte County v. IMC Phosphates Co., -- So.2d --, 2009 WL 331661 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007). The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantial evidence" refers to the existence of some evidence (quantity) as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287, 289 n.3 (Fla. 5th DCA 1996).

A reviewing agency may not reweigh the evidence presented at a DOAH final

hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See e.g., Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't ofEnvtl. Prat., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands County Sch. Bd., 652 So.2d 894 (Fla. 2d. DCA 1995). These evidentiary-related matters are within the province of the ALJ, as the "fact-finder'' in these administrative proceedings. See e.g., Tedderv. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Also, the ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

absent a complete lack of any competent substantial evidence of record supporting this decision. See e.g., Collier Med. Ctr. v. State, Dep't of HRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983).

A reviewing agency thus has no authority to evaluate the quantity and quality of

the evidence presented at a DOAH formal hearing, beyond making a determination that the evidence is competent and substantial. See, e.g., Brogan v. Carter, 671 So.2d 822, 823 (Fla. 1st DCA 1996). Therefore, if the DOAH record discloses any competent substantial evidence supporting a challenged factual finding of the ALJ, I am bound by such factual finding in preparing this Final Order. See, e.g., Walker v. Bd. of Prof.

Eng'rs, 946 So.2d 604 (Fla. 1st DCA 2006); Fla. Dep't of Corr. v. Bradley, 510 So.2d 1122, 1123 (Fla. 1st DCA 1987). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol.

Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994).

Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward County, 746 So.2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994). However, neither should the agency label what is essentially

an ultimate factual determination as a "conclusion of law'' in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of Prof'/ Eng'rs, 952 So.2d 1224 (Fla. 1st DCA 2007).

An agency's review of legal conclusions in a recommended order are restricted to those that concern matters within the agency's field of expertise. See, e.g., Charlotte. County v. IMC Phosphates Co., -- So.2d --, 2009 WL 331661 (Fla. 2d DCA 2009);

G.E.L. Corp. v. Dep't of Envtl. Prat., 875 So.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prat., 668 So.2d 209, 212 (Fla. 1st DCA 1996).

However, agencies do not have jurisdiction to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction."

See Martuccio v. Dep't of Prof'/ Regulation, 622 So.2d 607,609 (Fla. 1st DCA 1993);

Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Fla. Power & Light Co. v. Fla. Siting Bd., 693 So.2d 1025, 1028 (Fla. 1st DCA 1997).

Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So.2d at 609.

Agencies do not have the authority to modify or reject conclusions of law that apply general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001).

Finally, in reviewing a recommended order and any written exceptions, the

agency's final order "shall include an explicit ruling on each exception."

See§ 120.57(1)(k), Fla. Stat. (2008). However, the agency need not rule on an exception that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.

RULINGS ON EXCEPTIONS

The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So.2d 254,256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.

Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward

County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003). However, even when exceptions are not filed, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction. See § 120.57(1)(I), Fla. Stat. 2008; Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994).

DEP'S EXCEPTIONS

Exception No. 1 Injection of New Issues by Intervenor

DEP takes exception to the last paragraph of page 17 of the RO (which continues and ends at the top of page 18) where the ALJ stated three grounds for denying the DEP's motion in limine to preclude the Intervenor, Lake Worth, from raising the issue of its riparian rights as the owner of Lake Worth Municipal Beach. DEP argues that this was a "new issue" raised by Intervenor, Lake Worth, "which had been stricken from the [Second Amended] Petition filed by the Petitioners and therefore was not raised by the Petitioners." DEP further contends that the ALJ erroneously interpreted the intervention provision of Section 403.412(5), Florida Statutes, which is within this agency's substantive jurisdiction.

As noted above, at the start of the hearing, the ALJ denied the DEP's motion in limine (T. 12-24), and in the RO stated the following grounds: 1) that an original party had raised the issue, although that party lacked standing, so Lake Worth was not introducing a new issue; 2) that Lake Worth obviously had standing as an adjacent property owner (i.e., the Lake Worth Municipal Beach); and 3) that Section 403.412,

Florida Statutes, gave Lake Worth a right to intervene and raise new issues. (RO pp. 17-18). In its exception DEP cites Nat'/ Wildlife Federation, Inc. v. Glisson, 531 So.2d 996 (Fla. 1st DCA 1988), where the Court reversed the trial court's denial of intervention as an abuse of discretion. Id. at 998. The legal principle applied by the Court was the "[t]he oft-quoted general rule of intervention," incorporated in the Florida Rule of Civil Procedure that governs intervention in pending litigation. See Fla. R. Civ. P. 1.230 and Fla. Admin. Code R. 28-106.205; see a/so Riviera Club v. Belle Mead Development Corp., 141 Fla. 538, 194 So. 783 (Fla. 1940)(reflecting that intervention is a well founded principle of law and that the courts "have always striven to maintain the integrity of the issues raised by the original pleadings, and to keep newly admitted parties within the scope of the original suit."); Nat'/ Wildlife Federation, Inc. v. Glisson, 531 So.2d 996 (Fla. 1st DCA 1988)(stating that an "intervenor must accept the record and pleadings as he finds them and cannot raise new issues, although he may argue the issues as they apply to him as a party."). In addition, the Uniform Rules of Procedure that govern the conduct of administrative proceedings under Section 120.57, Florida Statutes, provides that "[p]ersons other than the original parties to a pending proceeding whose substantial interest will be affected by the proceeding and who desire to become parties may petition the presiding officer for leave to intervene." Fla. Admin. Code R. 28-106.205. The record in this case reveals that Lake Worth filed an unverified Petition for Leave to Intervene under Rule 28-106.205, Florida Administrative Code.

Thus, I conclude that with regard to the ALJ's first ground for denying the motion in

limine he applied a general legal concept typically within the discretion of judicial or quasi-judicial officers. I have no authority to modify or reject conclusions of law that

apply general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001).

The ALJ's second ground for denying the motion in limine points to the legal

basis for Lake Worth's claimed interest in the pending litigation. See, e.g., Nat'/ Wildlife Federation, Inc. v. Glisson, 531 So.2d 996 (Fla. 1st DCA 1988). In order to qualify for a letter of consent, the Town was required to show that under Rule 18-21.004(3)(c), Florida Administrative Code, the proposed "structures and activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners." Thus, since Lake Worth owns property adjoining the Town's Reach 8 project, it has standing to intervene in the administrative hearing. See also Board of Commissioners of Jupiter Inlet District v.

Thibadeau, 956 So.2d 529 (Fla. 4th DCA 2007). This issue is one over which I have substantive jurisdiction; however, based on the plain language of the rule and the competent substantial evidence of record, I find no reason to modify or reject the ALJ's conclusion.

The ALJ's third ground for denying the motion in limine suggests that he

interprets Section 403.412, Florida Statutes, as affording Lake Worth a statutory "right

to intervene and raise new issues." (Emphasis added.) Section 403.412(5), Florida Statutes, provides:

(5) In any administrative, licensing, or other proceedings

authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing

of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. (Emphasis added.)

In Manasota-88, Inc. v. Dep't of Envtl. Regulation, 441 So.2d 1109 (Fla. 1st DCA 1983), the Court ruled that a citizen was authorized to initiate a formal administrative proceeding by filing a verified petition under section 403.412(5) when the Department issues a notice of proposed action, even though there was no proceeding pending before DOAH at that time. Id. at 1111; see also Envtl. Confederation of Southwest Fla., Inc. v. Dep't of Envtl. Protection, 886 So.2d 1013, 1016 (Fla. 1st DCA 2004). The Manasota-88 court further concluded that, for purposes of the "intervene" language of section 403.412(5), a permit proceeding commenced when the Department "issued its notice of proposed action, not when the matter is later referred to DOAH for formal action." Id. at 1111. Since the time of that case it has been held that a county, for example, has the requisite standing under section 403.412 to initiate a petition for a formal hearing, without the need to prove that its substantial interests will be affected.

See, e.g., Hamilton County Bd. of County Comm. v. TS/ Southeast, Inc. and DER, 1990 Fla. Div. Admin. Hear. LEXIS 6347, at 85 ("Sections 403.412, ..., F.S., ... , each confer upon counties standing to participate in various proceedings as a matter of law, without the need to prove that its substantial interests will be affected.") affirmed 587 So.2d

1378 (Fla. 1s t DCA 1991); Charlotte County v. IMC Phosphates Co., 2003 WL

22273803, *6 -*8, DOAH Case No. 02-4134 (Dept. of Env. Prot. Final Order Sept. 2003) affirmed IMC Phosphates Co. v. Dep't of Envtl. Protection, 896 So.2d 756 (Fla. 2d DCA 2005). In 2002 section 403.412(5) was amended to add language that limited

participation in the permitting process by a citizen. See§ 403.412(5), Fla. Stat. (2008)("[A]s it relates to citizens, the term 'intervene' means to join an ongoing

s. 120.569 ors. 120.57 proceeding."). The changes eliminated the previous right of a

"citizen" to initiate a proceeding. This class of people ("citizen") no longer have a right where one existed before. See, e.g., Envtl. Confederation of Southwest Fla., Inc. v.

Dep't of Envtl. Protection, 886 So.2d 1013, 1017 (Fla. 1st DCA 2004).

However, since Lake Worth is a "municipality" it still has the right to initiate a proceeding under section 403.412(5) "on the filing of a verified pleading." However, if Lake Worth did not initiate a permit challenge, but instead waited until the matter was later referred to DOAH, there is nothing in the language of the statute or the relevant case law which suggests that if allowed to intervene at DOAH, Lake Worth would have the same rights as if it had initiated an action (i.e., raise "new issues"). To the contrary, the case law is clear that even when given the opportunity to intervene in the ongoing proceeding, Lake Worth's rights are subordinate to the propriety of the main proceeding. See, e.g., Envtl. Confederation of Southwest Fla., Inc. v. Dep't of Envtl. Protection, 886 So.2d 1013, 1018 n.4 (Fla. 1st DCA 2004); Humana of Fla., Inc. v. Dep't of Health & Rehab. Servs., 500 So.2d 186, 188 (Fla. 1st DCA 1986). The record in this case shows that Lake Worth did not initiate a proceeding under section 403.412(5). Instead, the record reveals that Lake Worth filed an unverified Petition for Leave to Intervene under Rule 28-106.205, Florida Administrative Code. Therefore, the ALJ's reliance on Section 403.412, Florida Statutes, as a ground for denying the motion in limine was misplaced.

Section 403.412(5), Florida Statutes, known as the "Environmental Protection Act

of 1971," is a part of the Environmental Control provisions of Chapter 403, Florida

Statutes, which the Department has been charged by the Legislature to implement and enforce. See§ 403.061, Fla. Stat. (2008). I thus conclude that the interpretation of the provisions of section 403.412(5) is a matter over which I have "substantive jurisdiction" under section 120.57(1)(1), Florida Statutes. I also find that the interpretation of section 403.412(5) in this Final Order is more reasonable than the ALJ's interpretation set forth in the RO. Based on the above rulings, the DEP's Exception No. 1 is denied in part and granted in part. The ALJ's third ground for denying the DEP's motion in limine is rejected.

Exception No. 2 Sediment QAJQC Plan to Assure Performance

The DEP takes exception to paragraph 484 where the ALJ found that:

484. DEP's suggestion that the Sediment Quality Control/Quality Assurance Plan can "account for any unforeseen anomalies in the fill material" (Id.) ignores the facts that: 1) the discrepancies between mean grain size of the fill and existing beach are already known to characterize the two sand bodies in their entirety and cannot be regarded as mere anomalies; 2) even a trained professional cannot, in real time, collect and analyze the fill as ii is deposited on the beach and in the surf zone; 3) accounting for hundreds of thousands of cubic yards of excessive fines dumped on a beach is easier said than done, as it is unclear what the contractor would do with these fines once they are slurried out of the borrow area; and 4) as explained in the Conclusions of Law, the assessment of impacts and identification of mitigation must take place prior to, not after, permitting.

The DEP indicates that ii agrees with the ultimate conclusion of law described in item number 4 in paragraph 484. However, the DEP argues that by placing item 4 in this paragraph the ALJ is "implying that the Sediment Quality Control/Quality Assurance Plan ("QAJQC Plan") is a tool to assess impacts and propose mitigation." See DEP's Exception at page 5. In paragraphs 283 through 286, the ALJ described the QAJQC

Plan submitted by the Town as part of its application materials. (RO ,m 283-286).

Nowhere in those paragraphs did the ALJ find that the QA/QC Plan is a tool to assess impacts and identify mitigation. To the contrary, the ALJ's clear indication in paragraph 484 was that the QA/QC Plan should not be relied on, after the fact, to correct previously known problems. (RO 11 484 and 566). See, e.g., Metropolitan Dade County

v. Coscan Fla., Inc., 609 So.2d 644 (Fla. 2d DCA 1992). The DEP explains in this exception that the QA/QC Plan assures "that the sand that will be placed on the beach will meet the requirements of [] Florida Administrative Code Rule 62B-41.007(2)U), and the conditions of the permit." See DEP's Exceptions at page 5. The ALJ's findings support this explanation, but also emphasize that Florida Administrative Code Rule 62B- 41.007(2)0) ("the Sand Rule") imposes specific requirements for sediment that are necessary for the Town to show entitlement to a permit.

The ALJ found that the QA/QC Plan is "required by Florida Administrative Code Rule 62B-41.008(1)(k)4.b," and "is to ensure that the sediment from the borrow areas will meet the Permit standards." (RO 11283). The QA/QC Plan requires the Town and the engineer "to seek to enforce" the Permit and construction contract related to sediment quantity. (RO 11285). However, the ALJ found that "[i]t is impracticable to expect a contractor to differentiate between grain sizes of 0.2 mm and 0.3 mm in real time as slurry is deposited on the beach or the fill is moved into the water." (RO 11286). Thus, the ALJ found that "the impact of discrepancy in mean grain sizes and silt values in this case is significant," resulting in the contractor being "likely [to) pump as much fill

as is needed to fill [the beach profile] templates, without regard to estimates of volume of fill." (RO ,i 485).5 Thus, the ALJ ultimately found that:

504. Palm Beach has failed to protect all of the

environmental functions of Florida's beaches by proposing to fill Reach 8 with fill whose mean grain size is little more than half the mean grain size of the existing beach and will not maintain the general character and functionality of the beach, dune, and coastal system of Reach 8.

This ultimate finding demonstrates the ALJ's major concern throughout his basic findings of fact that "introducing finer-grained particles, though not necessarily silt-sized, into a beach consisting of considerably coarser-grained particles," results in "post­ construction" adverse impacts that were either not contemplated by the Town and DEP, or were not adequately mitigated. (RO ,i,i 27, 60, 61, 65, 66, 69, 110, 115, 173, 174,

190, HlO, 191, 199, 487). Throughout his basic and ultimate findings, the ALJ

characterizes his concern for "introducing finer-grained particles, though not necessarily silt-sized," on to the beach and dune system of Reach 8, as the introduction of "excessive fines." (RO ,i,i 65, 66, 69, 110, 115, 173, 174 ). This terminology used by

5 In paragraph 173 of the RO, the ALJ found that "CPE has materially understated the mean grain size and overstated the silt content of the existing beach. CPE's understatement of mean grain size of the existing beach relieved it of the necessity of dealing with a much larger overfill factor than the 1.68 factor stated by CPE, which uncovers one of the conundrums of this case: would the contractor place fill in conformity with the template of advance and design fill, as expressed in the post­ construction beach profiles, or in conformity with the Permit provision of 724,200 cubic yards of fill? The contractor cannot comply with both specifications due to the understatement in the overfill ratio. It seems less likely that the contractor will attempt to calculate volumes while the dredge is slurrying sediments onto the beach than that the contractor will try to place fill within the design templates provided it by CP[E]. This means that substantially more than 724,200 cubic yards of fill would be placed on Reach 8."

the ALJ, perhaps based on the dictionary definition of "fine,"6 is not to be confused with the technica.I use of "fines," referring to the silt/clay fraction of the sediment. (T. Fink!

419).

In paragraph 539 of the RO the ALJ discusses the DEP's interpretation of the "Sand Rule" and states, in part, that "according to Mr. Brantly," the size range in the rule, "was intended, at least in part, to address the needs of the nesting sea turtle to be able to burrow into the beach, but it is unclear why the range is as broad as it is,

extending even beyond the Wentworth classification of sand, despite the erroneous

claim in the parenthetical in the third sentence of the rule that it conforms to the

Wentworth classification of sand." (Emphasis added) (RO ,i 539). The Sand Rule provides, in part, that"...[s]uch material shall be predominately of carbonate, quartz, or similar material with a particle size distribution ranging between 0.062mm (4.0cp) and

4.76mm(-2.25cp)(classified as sand by either the Unified Soils or the Wentworth classification), shall be similar in color and grain size distribution... " (Emphasis added). Fla. Admin. Code R. 62B-41.007(2)U). The size ranges cited in the Sand Rule conform to a combination of the sand classifications. The Unified Soils ("USC") 'upper limit' of grain size for sand is more coarse than the upper limit identified by the Wentworth classification. Similarly, the 'lower limit' of a "sand" classification by Wentworth is a smaller grain size than that which represents the lower limit of sand as classified by the USC. Based on the plain language of the Sand Rule, this conclusion of the ALJ is not correct and is not adopted in this Final Order.

Therefore, based on the foregoing, the DEP's Exception No. 2 is denied.

6 According to the American Heritage College Dictionary, Third Edition, "fine" can be defined as "consisting of very small particles;" or "not coarse."

Exception No. 3 Standard for Reasonable Assurances

The DEP takes exception to paragraph 488 "to the extent that it suggests that the applicant must conduct extensive pre and post construction data collection efforts for each coastal construction project in order to provide reasonable assurances for future coastal construction projects." See DEP's Exceptions at pages 5-6. The DEP urges rejection of paragraph 488, which is labeled by the ALJ as an ultimate finding. See DEP's Exceptions at page 6. Ultimate findings are by their nature mixed findings of fact and conclusions of law. To the extent that a mixed finding contains facts that are supported by competent substantial record evidence, I am not authorized to reject or modify those facts. However, where the mixed finding may contain erroneous legal conclusions interpreting agency statutes or rules over which I have substantive jurisdiction, I may modify or reject such erroneous interpretations. See§ 120.57(1)(1), Fla. Stat. 2008; Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001).

Paragraph 488 should be read in both the context of the surrounding paragraphs and the other related findings in the RO. In paragraphs 487 and 488 the ALJ found:

487. The characteristics of sediments by grain size and the

effect of discrepancies between sand sources and existing beaches of the magnitude proposed in this case provide a context for understanding the meaning of the post- construction observations of Reach 7 reported by the citizens in the anecdotals collected above. Obviously, the credibility of these reporters is of paramount importance.

These witnesses reported honestly what they saw. When the waters were fouled, they said so. When the waters cleared, they also said so. They did not bend their testimony to achieve a desired result.

488. Doubtlessly, it would have been preferable to have comprehensive, detailed, post-construction data collection, linked to storm events, which themselves would be classified by wind, current, and wave forces; duration; and frequency.

Palm Beach has long been on notice of the need to collect such data in order to be able to provide the reasonable assurances required by law. The Permit contains important provisions designed to require Palm Beach to do so on this project, but such an undertaking would aid future projects, not this one. The need to obtain comprehensive beach­ performance data has long been highlighted in the

professional literature, as well as by local officials, such as the Palm Beach □ERM and the Palm Beach Shore

Protection Board. Palm Beach cannot complain when the only source of such data is concerned citizens.

In the context of this case, the ALJ accepted and determined credible, the anecdotal observations and experiences of the citizens who testified at the administrative hearing;

and applied them to his ultimate factual findings regarding the performance of the Reach 7 project. (RO ffll 106, 115-125, 487). Paragraph 488 represents his view of the evidence (and lack of evidence) presented at the hearing by commenting that "it would

have been preferable" for the Town of Palm Beach to have collected and provided at the hearing certain post-construction information related to the performance of Reach 7. I do not conclude that the ALJ's paragraph 488 mandates a new standard for reasonable assurances that must apply to all future coastal construction projects. In fact, as pointed out by the DEP, it is the duty of the ALJ to make basic findings of fact in a formal proceeding where an agency permitting action is being contested. However, the determination of whether the findings of fact constitute the necessary "reasonable assurance" for a permit applicant to be entitled to issuance of a permit is a regulatory decision that must ultimately be made by the agency, rather than the ALJ. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001); Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 116-117 (Fla. 2d DCA 1997); Putnam County Environmental Council v. Georgia Pacific Corp., 24 F.A.L.R. 4674, 4685

(Fla. Dept. of Env. Prot. 2002); Miccosukee Tribe of Indians v. South Florida Water Management District, 20 F.A.L.R. 4482, 4491 (Fla. Dept. of Env. Prot. 1998), affd, 721 So.2d 389 (Fla. 3d DCA 1998). As part of the ultimate determination of "reasonable assurances" this agency has the final authority to determine, based on the record evidence, whether proposed mitigation measures are sufficient to offset any expected adverse impacts of a proposed project. See Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 116 (Fla. 2d DCA 1997); 1800 Atlantic Developers v. Dep't of Envtl.

Reg., 552 So.2d 946, 955 (Fla. 1st DCA 1989).

In the instant case the Town applied for a JCP that contains two regulatory components - an ERP and a CCP. As noted in the the ALJ's conclusions of law, the ERP is governed by the provisions in Part IV of Chapter 373, Florida Statutes, and the rules promulgated thereunder. (RO ,m 550-563). In order to be entitled to an ERP, the

applicant must comply with two main criteria; 1) state water quality standards, and 2) the seven-part public interest balancing test. See§ 373.414(1)(a), Fla. Stat. (2008); Robert E. Van Wagoner v. Dep't of Transp., DOAH Case No. 95-3621. 1996 WL 405159 (Fla. Dept. of Env. Prot. May 14, 1996), affd Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113 (Fla. 2d DCA 1997). In the instant case, the ALJ found that the Town's proposed project would not result in a violation of the applicable state water

quality standard for turbidity (29 NTUs above background), with a mixing zone variance during construction. (RO ,m 483, 516, 574-576). However, as to the seven-part public interest test, the ALJ found that the Town "failed to show that the project would satisfy

any one of the public-interest criteria except the criterion concerning archaeological and

historical resources," including secondary impacts.7 (RO 1'f 506-513, 518). Although, as I have noted above, I have the ultimate authority and responsibility for balancing the seven factors in the regulatory public interest test; my final determination must be based on and be consistent with the applicable underlying factual findings of the ALJ. See

Kramer v. Dep't of Envtl. Protection, DOAH Case No. 00-2873, 2002 WL 1774316 (Fla. Dept. of Env. Pro!. April 29, 2002). The ERP analysis does not end there since an applicant may propose measures to mitigate the adverse effects, including adverse secondary impacts, that an ALJ found will be caused by a proposed project. Section 373.414(1)(b), Florida Statutes, provides:

(b) If the applicant is unable to otherwise meet the criteria set forth in this subsection, [DEP], in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136. It shall be the responsibility of the applicant lo choose the form of mitigation. The mitigation must offset the adverse effects caused by the regulated activity. (Emphasis added).

As explained in my ruling on DEP's Exception No. 7 below, Florida Administrative Code Chapter 62-345, the Uniform Mitigation Assessment Method ("UMAM") provides that it shall apply to those impacts subject to review under Section 373.414, Florida Statutes,

7 In determining the adverse effects of a proposed project, the Department should lake into consideration not only the direct impacts of a project, but also the "secondary" impacts caused or enabled by the project. See SFWMD BOR 4.2. 7 (1995); Fla. Power Corp. v. Dep't of Envt/. Regulation, 605 So.2d 149, 152 (Fla. 1st DCA 1992); The Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So.2d 772, 779 (Fla. 1st DCA 1991). .

excluding subparagraphs 373.414(1)(a)1., 3., 5., 6.8 Thus, four of the seven factors in the regulatory public interest test are not addressed by UMAM, such that any adverse effects found by the ALJ under those four factors must be offset by other mitigative measures. In addition, measures other than acreage derived from an UMAM analysis, may be proposed to offset adverse effects caused by the regulated activity. See, e.g., Uneburger v. Prospect Marathon Coquina, DOAH Case No. 07-3757 (Fla. Dept. of Env. Prat. August 4, 2008)(The measures that [the applicant] has agreed to undertake to meet the public interest criteria for the proposed authorizations include installing markers indicating the location of seagrass beds; complying with special permit conditions recommended by FWC and USFWS to protect manatees); Kramer v. Dep't of Envtl. Protection, DOAH Case No. 00-2873, 2002 WL 1774316 (Fla. Dept. of Env. Prat. April 29, 2002)(reflecting that the applicant's mitigation proposal included "contributing financial assistance toward seagrass transplantation and preservation efforts."). In the instant case, the ALJ found that the Town's proposed mitigation was inadequate since it would only offset impacts caused by sediment directly and indirectly covering 6.9 acres

of hardbottom; and he found that more than 6.9 acres of hardbottom would be impacted. (RO fflT 494, 500, 514). In addition, the ALJ found, based on the particular circumstances of this case, that there would be unmitigated adverse effects from turbidity that were not contemplated by the Town or DEP. (RO 'll'l! 115, 116, 180, 191,

8 1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others; ... 3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; ... 5. Whether the activity will be of a temporary or permanent nature; ... 6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of

s. 267.061; ... § 373.414(1)(a), Fla. Stat. (2008).

199,487, 500, 514).

The ALJ also found that since the Town underestimated the area of hardbottom

impact, the number of juvenile green turtle deaths was also underestimated and not mitigated. (RO ,rn 489,490, 495, 500, 514). Although the ALJ's factual finding is supported by the record in this case, his legal conclusion that unspecified mitigation is

required for the taking of juvenile green turtles is not entirely correct. As he noted in paragraph 532 of the RO the provisions of Section 379.2431, Florida Statutes, and the federal Endangered Species Act, apply to the Department's approval for an activity that affects marine turtles or their habitat. The marine turtle protection provisions of Rule 62B-41.0055, Florida Administrative Code, state conditions and requirements as part of the CCP permitting process that are also subject to Section 379.2431, Florida Statutes. Section 379.2431 specifically provides for a recommendation to deny a permit that would result in a "take," unless, "as provided for in the federal Endangered Species Act and its implementing regulations, such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."§ 379.2431(1)(h), Fla. Stat. (2008).

Thus, I interpret the ALJ's findings to mean that any "incidental take" statements in the biological opinions in the record of this case did not satisfy the exception in Section 379.2431(1)(h), Florida Statutes. See, e.g., RO 1T 365 (If the NMFS fails to allow an

Incidental Take, the Town may not commence construction)9. In contrast to the CCP criteria, the ERP permitting criteria require the Department take into consideration any adverse effect of the proposed project on endangered or threatened species, or their habitat, "even if the adverse effect is not so great as to jeopardize the continued existence of the species." Metropolitan Dade County v. Coscan Fla., Inc., 609 So.2d 644, 650 (Fla. 3d DCA 1992). However, this consideration is one of the seven factors that I have the ultimate authority and responsibility for balancing as part of the regulatory public interest test. See§ 373.414(1)(a)2, Fla. Stat. (2008). As I've already noted above, my final determination must be based on and be consistent with the applicable underlying factual findings of the ALJ. See Kramer v. Dep't of Envtl.

Protection, DOAH Case No. 00-2873, 2002 WL 1774316 (Fla. Dept. of Env. Pro!. April

29, 2002).

Similarly, the determination of whether the ALJ's findings of fact constitute the necessary facts that allow the Board of Trustees, acting in its proprietary capacity, to authorize activities on sovereign submerged lands, so long as the activities are not contrary to the public interest, is ultimately a decision of the Board, not the ALJ. See Fla. Admin. Code R. 18-21.004(1)(a) and 18-21.003(48); Board of Trustees v. Lost Tree

9 The above interpretation of the plain language of Fla. Admin. Code R. 62B-41.0055 and Section 379.2431(1), Florida Statutes, is more reasonable than that of the ALJ. See

§ 120.57(1)(I), Fla. Stat. (2008). An agency has the primary responsibility of interpreting statutes within its regulatory jurisdiction and expertise. See, e.g., Public Employees Relations Comm'n v. Dade County Police Benevolent Association, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employees Council, 79 AFSCME v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). If an administrative law judge improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994).

Village Corp., 600 So.2d 1240 (Fla. 1st DCA 1992); Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985); Lineburger v. Prospect Marathon Coquina, DOAH Case No. 07- 3757 (Fla. Dept. of Env. Prot. August 4, 2008)(The Board of Trustees rule sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land authorization to use sovereignty submerged lands). I have been delegated authority from the Board of Trustees to "take final agency action on applications to use sovereign submerged lands" when the application involves an activity for which the Department "has permitting responsibility." See Fla. Admin. Code

R. 18-21.0051. Since the proposed beach and dune nourishment project requires a JCP from the Department, I have "substantive jurisdiction" in this case over the cited rules pertaining to the Town's related request for a proprietary authorization to use the subject sovereign submerged lands below the mean high water line off Reach 8. The ALJ found in paragraph 519 that:

519. As detailed above, [the Town] has failed to show that

the project is not contrary to the public interest. Given the projected performance of the project in terms of damaging turbidity for one year, the relatively quick loss of the excessive fines from where they would be placed on the beach, the impact on the Lake Worth Municipal Beach and Lake Worth Pier, and the need for nourishment programs in quick succession to replace the lost sediments, the social, economic, and environmental costs in this case outweigh the social, economic, and environmental benefits.

This is a mixed finding of fact and conclusion of law where I've been delegated the authority to ultimately determine whether a project is not contrary to the public interest. Id. In most cases however, as with the regulatory public interest balancing test, the determination is based on the applicable underlying factual findings of the ALJ, which in

the particular circumstances of this case are supported by the competent substantial

record evidence.

In determining whether to authorize an activity on sovereign submerged lands, it is recognized that the Board's powers are not "regulatory," and are exercised in accordance with the duty to protect the Public Trust lands of this state under Article X, Section 11 of the Florida Constitution and chapter 253 of the Florida Statutes. In this case the ALJ also recognized that this type of beach restoration and nourishment project involves more than simply authorizing the private use of portions of sovereignty

lands. He found that two segments of the Reach 8 project area are designated as CEBs-critically eroded beaches. (RO ,r 8). This designation occurs under Sections

161.088 and 161.161, Florida Statutes, as part of the state's authority to properly

manage and protect Florida's beaches consistent with the state's Strategic Beach Management Plan. (RO ,r,r 133-144). The ALJ discussed the DEP and the Town's differing views in paragraphs 540 through 546 of the RO regarding the scope and

application of the legislative declaration of public interest in Section 161.088, Florida Statutes. Section 161.088 provides:

161.088 Declaration of public policy respecting beach

erosion control and beach restoration and nourishment projects.-Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the Atlantic Ocean, Gulf of Mexico, and Straits of Florida from erosion and that the Legislature make provision for beach restoration and nourishment projects, including inlet management projects that cost-effectively provide beach­ quality material for adjacent critically eroded beaches. The Legislature declares that such beach restoration and nourishment projects, as approved pursuant to s. 161.161,

are in the public interest: must be in an area designated as critically eroded shoreline, or benefit an adjacent critically eroded shoreline: must have a clearly identifiable beach management benefit consistent with the state's beach management plan; and must be designed to reduce potential upland damage or mitigate adverse impacts caused by improved, modified, or altered inlets, coastal armoring, or existing upland development. Given the extent of the problem of critically eroded beaches, it is also declared that beach restoration and nourishment projects shall be funded in a manner that encourages all cost-saving strategies, fosters regional coordination of projects, improves the performance of projects, and provides long-term solutions.

The Legislature further declares that nothing herein is intended to reduce or amend the beach protection programs otherwise established in this chapter or to result in local governments altering the coastal management elements of their local government comprehensive plans pursuant to chapter 163. (Emphasis added).

In paragraph 543 the ALJ notes that the Town contends that this statute dispenses with the public interest tests under the ERP program for ERPs and proprietary letters of consent for the shorelines that are designated as CEBs. The DEP contends that the mention of public interest in Section 161.088 means only that the funding of certain beach nourishment programs is in the public interest and is not an attempt to preempt the analyses of public interest or necessity under the regulatory programs involved in this case. In its argument and in testimony in this case, the DEP focused on the last sentence in Section 161.088, which states that the "Legislature further declares that nothing herein is intended to reduce or amend the beach protection programs otherwise established in this chapter." Id. (T. Llewellyn 2217). The DEP's expert who testified regarding agency practice stated that the agency's position and practice has been that these types of statements (that certain activities are in the public interest) in one part of a statute do not automatically preempt a public interest test set forth in the criteria

governing an applicable regulatory permitting program. (T. Llewellyn 2212-2213, 2216- 2217). Ms. Llewellyn gave examples of other large public projects that have similar language in their authorizing statutes, such as public roads and public utilities. (T. Llewellyn 2218). As with the project in this case, such large public projects' legislative declarations are given strong consideration when balancing the public interest component of the applicable regulatory permit program. (T. Llewellyn 2217-2218). In this case, the legislative public interest declaration and the designation of a portion of beach as critically eroding is tied to state cost sharing in beach restoration and nourishment projects. (T. Llewellyn 2224-2225).

The legislative public interest declaration was added to Section 161.088 in 1998.

See Chapter 98-11, Laws of Florida. The House Staff Analysis dated June 23, 1998, states that "while all projects will still be subject to Department permitting, this creates a strong presumption that they are in the public interest." See Fl. Staff An., H.B. 3427, 6/23/1998. This strong presumption is generally construed in favor of conducting the project when its design and purpose comport with the legislative findings laid out in the statute. See, e.g., Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So.2d 235, 236 (Fla. 1951)(reflecting that the general rule is that legislative findings are presumptively correct but they can be challenged and disproved in an appropriate proceeding). For example, in various provisions of chapter 161 of the Florida Statutes, the Florida Legislature has found that; "beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions," § 161.088, Fla.

Stat.; and "erosion of the beaches of this state is detrimental to tourism, the state's major industry, further exposes the state's highly developed coastline to severe storm

damage, and threatens beach-related jobs, which, if not stopped, may significantly reduce state sales tax revenues,"§ 161.091(3), Fla. Stat. More specifically, chapter 98- 311 of the Laws of Florida, where the amendments to Sections 161.088 and 161.091(3) were enacted, recites the following legislative findings:

WHEREAS, Florida's number one tourist attraction is its beaches,and

WHEREAS, according to the Office of Tourism, Trade, and Economic Development, some 43 million tourists visited Florida in 1996, spending $37.9 billion in taxable sales and creating 781,400 travel-related jobs, and

WHEREAS, more than half of all tourists coming to Florida spend at least part of their vacation on its beaches, and

WHEREAS, in a recent study over 60 percent of the beach tourists in Broward County said they would not return if there were no beaches, and

WHEREAS, Florida's beaches produced additional state sales and use tax revenues in excess of $500 million in 1996,and

WHEREAS, the Legislature in 1986, pursuant to s. 161.088, Florida Statutes, recognized that uncontrolled beach erosion was a serious threat to the economic and general welfare of the state and its people and that in many areas beach erosion had already advanced to emergency proportions, and

WHEREAS, since this declaration over a decade ago, the health of Florida's beaches has further deteriorated and continue to deteriorate to such an extent that over one-third of the state's beaches are now critically eroded or eroding, are no longer providing effective upland storm protection, and as a result have lost mushc of their value to tourism, and

WHEREAS, the Legislature recognizes the urgency of the problem and declares its intent to fund a comprehensive, long-range beach management plan for erosion control; beach preservation, restoration, and renourishment; and storm and hurricane protection, ....

Ch. 98-311, Laws of Fla.

Thus, the considerations that should be factored into the public interest balancing test for a regulatory permitting program should include, as appropriate, these legislative findings of fact.10 However, as well established Florida case law provides, the presumptions can be challenged and disproved in an appropriate proceeding. See, e.g., Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So.2d 235, 236 (Fla. 1951); and State

v. Ocean Highway and Port Authority, 217 So.2d 103, 106 (Fla. 1968)("In the instant case the legislative definition of the public welfare and the evidence which brings the proposal within the limits and purposes of the enactment combine to support the correctness of the decree validating the bonds."). I conclude that the interpretation by DEP's expert regarding the effect of Section 161.088, Florida Statutes, on the Department's regulatory permitting programs, adopted by the ALJ in paragraph 545 is correct, reasonable, and is a permissible interpretation that is adopted in this Final Order. See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); State Contracting v. Dep't of Transp., 709 So.2d 607, 610 (Fla. 1st DCA 1998); Lardas v. Dep't of Envtl. Prat., 28 F.A.L.R. 3844 (Dep't of Envtl. Prat. 2005).

1. Moreover, courts have held that in considering the "public health, safety, or welfare or property of others" under subparagraph [373.414(1)(a)1], the Department cannot consider non-environmental factors. See Miller v. Dep't of Envtl. Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987); see also Taylor v. Cedar Key Sewerage District, 590 So.2d 481 (Fla. 1st DCA 1991); Grove Island, Ltd. v. Dep't of Envtl. Regulation, 454 So.2d 571, 574 (Fla. 1st DCA 1984); Counsel of the Lower Keys v. Charlie Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983); Robert E. Van Wagoner v. Dep't of Transp., DOAH Case No. 95-3621. 1996 WL 405159 (Fla. Dept. of Env. Prat. May 14, 1996), affd Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113 (Fla. 2d DCA 1997).

   However, the Board of Trustees, acting as proprietor and trustee of the public trust lands that comprise the submerged lands below the mean high water line at designated CEBs that will be impacted by and also benefit from beach restoration and nourishment projects, is bound by the Legislature's public interest declaration. The public interest balancing that the Board would conduct under Fla. Admin. Code R. 18- 21.004(1)(a) employing the definition of public interest in Fla. Admin. Code R. 18- 21.003(48), is preempted by the legislature's intent and findings regarding the environmental, social, and economic benefits of beach restoration and nourishment projects for critically eroded and eroding shorelines. In addition, the definition of public interest under Fla. Admin. Code R. 18-21.003(48) mandates the Board to consider the ultimate project and purpose to be served by the use of the public trust lands and dredged (severed) materials, when determining the public interest in a request for proprietary authorization. I conclude and adopt in this Final Order, the above interpretation, that the Florida Legislature has determined these projects on public trust lands to be in the public interest such that the Board of Trustees is bound by such determination when exercising its proprietary powers. § 161.088, Fla. Stat. (2008).

   However, I view the controlling case law cited above as requiring, in the context of an appropriate proceeding, "the evidence which brings the proposal within the limits and purposes of the enactment." See State v. Ocean Highway and Port Authority, 217 So.2d 103, 106 (Fla. 1968); Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So.2d 235 (Fla. 1951). Thus, I conclude that the interpretation by DEP's expert regarding the effect of Section 161.088, Florida Statutes, on the Board of Trustees' exercise of its proprietary powers, adopted by the ALJ in paragraph 545 is not correct and is not adopted in this

   Final Order. See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); State Contracting v. Dep't of Transp., 709 So.2d 607, 610 (Fla. 1st DCA 1998); Lardas v. Dep't of Envtl. Prat., 28 F.ALR. 3844 (Dep't of Envtl. Prat. 2005).

   As part of the reasonable assurance demonstration under the ERP program the applicant is required to prove that the proposed project will not have "unacceptable cumulative impacts" on the water resources of the district. See Fla. Admin. Code R.

   40E-4.302(1)(b). The SFWMD BOR provisions adopted in Fla. Admin. Code R. 62- 330.200(4) provide:

   1. Cumulative Impacts

      
      

      Pursuant to paragraph 4.1.1(g), an applicant must provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. The impact on wetlands and other surface waters shall be reviewed by evaluating the impacts to water quality as set forth in subsection 4.1.1(c) and by evaluating the impacts to functions identified in subsection 4.2.2. The drainage basins within the District are identified on Figure 4.2.8-1.

      An applicant must provide reasonable assurance that the proposed system, when considered with the following activities, will not result in unacceptable cumulative impacts to water quality or the functions of wetlands and other surface waters, within the same drainage basin:

      
      

      1. Projects which are existing or activities regulated under Part IV, Chapter 373 which are under construction, or projects for which permits or determinations pursuant to Sections 373.421 or 403.914 have been sought.

         
         

      2. Activities which are under review, approved, or vested pursuant to Section 380.06 or other activities regulated under Part IV, Chapter 373 which may reasonably be expected to be located within wetlands or other surface waters, in the same drainage basin, based upon the comprehensive plans, adopted pursuant to Chapter 163 of the local governments having jurisdiction over the activities,

      or applicable land use restrictions and regulations. Only those activities listed in paragraphs (a) and (b) which have similar types of adverse impacts to those which will be caused by the proposed system will be considered. (All citations in paragraphs (a) and (b) refer to provisions of Florida Statutes.)

      
      

      The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications.

      
      

      1. Cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities as described in 4.2.8, as set forth in subsection 4.1.1(c), would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters, identified in subsection 4.2.2, within the same drainage basin when considering the basin as a whole.

         
         

      2. Applicants may propose measures such as preservation to prevent cumulative impacts. Such preservation shall comply with the land preservation provisions in subsection 4.3.8. If unacceptable cumulative impacts are expected to occur, the applicant may propose mitigation measures as provided for in sections 4.3 through 4.3.8.

   
   

   In paragraph 563 the ALJ summarized the above provisions stating that "BOR Section

   
   

   4.2.8.1 states that cumulative impacts are unacceptable when the project, combined with certain past, present and future projects, would violate state water quality standards or would cause significant adverse effects to the functions of wetlands or other surface waters within the same drainage basin." Earlier, in paragraph 515 he found that:

   515. The project would also cause cumulative impacts. [The

   Town] offers mitigation in the same drainage basin, which DEP reasonably construes to be the area between the two inlets. But the mitigation does not offset all of the adverse impacts, so cumulative impacts must be considered. The

   cumulative impacts of poor beach management practices in the past include failing to maintain the sand transfer plant at the Lake Worth Inlet, managing Palm Beach Island by segments instead of as a single resource, allowing the installation of extensive armoring along Reach 8 (in one case at the south end of Reach 8, well seaward of what the coastal system can tolerate) and extensive groins north of Reach 8, and placing excessive fines on the beaches in the form of dredge spoil and unsuitable borrow area fill without monitoring project0 related turbidity and its impacts on the water resources of the district. (Emphasis added).

   
   

   By summarizing the provisions of BOR 4.2.8.1 to generally include "certain past, present and future projects," the ALJ appears to ignore the specific provisions of BOR 4.2.8(a) and (b) that lists the types of "past, present and future projects" which may be considered in a cumulative impacts analysis. BOR 4.2.8(b) further prescribes that "[o]nly those activities listed in paragraphs (a) and (b) which have similar types of adverse impacts to those which will be caused by the proposed system will be considered." I conclude that the ALJ's list in paragraph 515 of examples of "poor beach management practices in the past" is contrary to the plain language of the applicable SFWMD BOR Sections 4.2.8(a) and (b), and 4.2.8.1, adopted by the Department in Fla. Admin. Code R. 62-330.200(4).11

   Therefore, based on the foregoing, the DEP's Exception No. 3 is granted to the

   
   

   extent that the ALJ's legal conclusions regarding the reasonable assurance standard are erroneous, otherwise it is denied.

   
   

2. The above interpretation of the plain language of Fla. Admin. Code R. 40E-4.302 and the related SFWMD BOR provisions, is more reasonable than that of the ALJ. See§ 120.57(1)(1), Fla. Stat. (2008). An agency has the primary responsibility of interpreting statutes within its regulatory jurisdiction and expertise. See, e.g., Public Employees Relations Comm'n v. Dade County Police Benevolent Association, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employees Council, 79 AFSCME v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994).

Exception No. 4 Requirement to Monitor Offshore Reefs

The DEP takes exception to paragraph 498 where the ALJ finds that "the performance of the beach filled with excessive fines, poses a potential threat to the offshore reef. Storm-driven plumes of unnatural turbidity can carry these particles from Reach 8 to the offshore reef, where they may settle on the coral, obviously harming or killing this critical resource." In the same paragraph the ALJ continues: "[i]t is

impossible to find, on this record, that the likelihood of this event is such that it represents a probable impact to this resource, but, given the paramount importance of the Florida Reef Tract, the requirement of monitoring was not only a prudent, but necessary, provision as part of the reasonable assurance to be provided by [the Town] concerning the water resources of the district." (Emphasis added) (RO ,i 498). The DEP argues that I should reject paragraph 498 on the basis that no evidence supports the ALJ's conclusions. However, the DEP did not take exception to the ALJ's basic findings underlying this ultimate determination in paragraph 498. (RO ,i,i 480, 481, 496, 498).

The DEP also contends that this is a mixed finding of fact and conclusion of law.

I agree with that contention. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994)(If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law). In paragraph 496 the ALJ characterized risks to the offshore reef as "remote." In paragraph 498 he found it impossible, based on the record evidence, to find that a "probable impact to this resource." These findings result in a legal conclusion contrary to that of the ALJ, regarding reasonable assurance on this issue. Controlling case law states that the

applicant is not required to eliminate contrary possibilities, however remote, or to address unlikely theoretical impacts; the applicant instead must provide reasonable assurances which take into account contingencies that might reasonably be expected. See Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1985); Charlotte County v. IMC Phosphates Co., 25 F.A.L.R. 4704, 4722 (Fla.

Dept. of Env. Prat. 2003), aff'd, per curiam, 896 So.2d 756 (Fla. 2d DCA 2005); Hoffert

v. St. Joe Paper Co., 12 F.A.L.R. 4972, 4987 (Fla. Dept. of Env. Reg. 1990). As I've previously stated, the determination of whether the findings of fact constitute the necessary "reasonable assurance" for a permit applicant to be entitled to issuance of a permit is a regulatory decision that must ultimately be made by the agency, rather than the ALJ. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001); Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 116-117 (Fla. 2d DCA 1997). Thus, I reject as an erroneous conclusion of law the last part of paragraph 498 which states that "the requirement of monitoring was ... necessary ... as part of the reasonable assurance to be provided by [the Town]."

Therefore, based on the foregoing, the DEP's Exception No. 4 is granted.

Exception No. 5 Justifying the Necessity of the Project

The DEP takes exception to paragraph 501, specifically the third sentence where the ALJ found that

501 [The Town] has failed to justify the use of a limited

resource-offshore sand-to restore considerable lengths of nonCEB, especially where they may be other, dissipative beaches that are CEBs and that feature mean grain sizes closer to the mean grain size of BA V and VI, so that the ratio of upland protection and environmental impact would be improved compared to the poor ration offered by the present project.

The DEP contends that this is a mixed finding of fact and conclusion of law and that "[t]his conclusion suggests that an applicant cannot justify the necessity for a beach restoration project if the beach is not designated as critically eroding." See DEP's Exceptions at page 8. This finding is under the CCP criteria where the ALJ summarized his view of the record evidence presented by the Town to prove their entitlement to the CCP. Paragraph 501 is a pure finding of fact regarding the Town's ultimate failure to carry its burden of persuasion on this issue. As outlined in the standard of review, I have no authority to modify or reject factual findings that are supported by competent substantial record evidence. In the context of this RO and after reviewing the record

evidence, I do not view the ALJ's factual finding as having the far reaching implication argued by the DEP. (e.g. RO ,m 546-547). Since the DEP did not argue that this factual

finding is not supported by competent substantial record evidence, this exception is denied.

Exception No. 6 ALJ Recommendation to Issue Dune-Only Permit

The DEP takes exception to the ALJ's ultimate finding in paragraph 522 and the portion of his recommendation on page 270 of the RO, which suggests that I may enter a final order authorizing a dune-only project along Reach 8, "even without any mitigation." After extensive findings (520 paragraphs) the ALJ ultimately determined that the Town did not prove entitlement to the requested JCP and letter of consent.

However, in one paragraph titled "Dune-Only Project" the ALJ stated the following:

522. Several of the witnesses who otherwise opposed the project testified that they would not oppose a dune-only project. Based on the evidence, especially the vastly lower volumes of fill required, Palm Beach has provided the required assurances so that it would be entitled to a JCP,

letter of consent, and variance for such a limited project, even without any mitigation.

In the RO the ALJ ultimately made the following recommendation:

RECOMMENDED that the Department of Environmental Protection enter a final order denying the request for a JCP, letter of consent, and variance (as it is now moot); provided, however, due to the vastly lower volumes of fill involved, the final order may authorize the nourishment of the Reach 8 dunes, apart from those in the Lake Worth Gap (unless Lake Worth joins in the request), in accordance with the dune template approved in the Permit, without any mitigation.

The DEP argues in this exception that "the ALJ's conclusion that a dune only project without mitigation is permittable is not supported by substantial competent evidence, is a mixed finding of fact and conclusion of law, and would be a substantial modification to the permit application." (DEP's Exceptions at page 9.) This exception is well taken and as described in my rulings below, the second sentence of paragraph 522 and the ALJ's alternate recommendation are rejected.

Paragraph 522 is indeed a mixed finding and conclusion in which the ALJ

generally applies the statutory and rule criteria to the evidence in order to conclude that the Town "has provided the required assurances" to show entitlement to the applicable permit and authorizations for a dune only project, without any mitigation. See Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994)(If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law). Although, it is the duty of the ALJ to make basic findings of fact in a formal proceeding where an agency permitting action is being contested; the determination of whether these findings of fact constitute the necessary "reasonable assurance" for a

permit applicant to be entitled to issuance of a permit from this agency is a regulatory decision that must ultimately be made by this agency, rather than the ALJ. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001); Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 116-117 (Fla. 2d DCA 1997); Putnam County Environmental Council v. Georgia Pacific Corp., 24 F.A.L.R. 4674, 4685 (Fla. Dept. of Env. Prot. 2002); Miccosukee Tribe of Indians v. South Florida Water Management District, 20 F.A.L.R. 4482, 4491 (Fla. Dept. of Env. Prot. 1998), aff'd, 721 So.2d 389 (Fla. 3d DCA 1998). The basic findings of fact made by the ALJ in this proceeding and the competent substantial record evidence supporting those basic findings do not support his ultimate conclusion in paragraph 522. Therefore, a legal conclusion of "reasonable assurance" is also not supported by the competent substantial record evidence. See Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 118 (Fla. 2d DCA 1997)(reflecting that the "reasonable assurances" conclusion flows inexorably from findings of fact if competent substantial evidence supports the

findings).

The record of this hearing shows that a dune only project at Reach 8 was one of

the alternatives that the Town evaluated during the application process and at the administrative hearing. (RO ,rn 261, 269, 303, 317; TOPS Ex. 62; T. Brazil 3250 - 3275). The Town's evidence showed that it chose not to proceed with the dune only

project alternative because it would be cost prohibitive where the size limitations of such a project would require extensive trucking of sand from upland sand sources to the project site. (T. Brazil 3255, 3261; TOPS Ex. 62). The evidence also showed that a dune only project would have unacceptable infrastructure impacts, logistical issues

including access, impacts to nearshore hardbottom; last only one year thus requiring yearly nourishment; and continuing impact on marine turtle nesting habitat from the frequency of renourishmenl. (TOPS Ex. 62; T. Kruempel 1061-1062; T. Brantly 1972, 2091-2092, 3207-3209, 3238; T. Brazil 3250-3275). The Town's evidence suggested, although not thoroughly analyzed for purposes of this case, that the dune only alternative would require mitigation. (T. Brazil 3268-3269). Other record evidence confirmed that a detailed analysis of the impacts to the nearshore hardbottom from a dune only project was not conducted. (T. Brantly 2089-2090, 2091, 3209-3210, 3235).

The ALJ's basic findings of fact establish that the Town first identified "dune. enhancement only" as an alternative that would provide "modestly increased storm protection to a portion of Reach 8," b.ut would provide little protection to the rest of Reach 8. (RO 1[ 261; DEP Ex. 4, Attachment 38). He found that following Hurricane

Wilma in 2005, the Town constructed a dune nourishment project in the spring of 2006 using stockpiled fill from the Reach 7 project. (RO ,r,r 101,269, 270, 355; DEP Ex. 6; T. Brazil 94-98, 3262). In paragraphs 303 and 317 the ALJ found that in its second and

third responses to DEP's requests for additional information, the Town described a "periodic dune maintenance" alternative. (DEP Ex. 8, Attachment 33; DEP Ex. 9,

Attachment 33). The ALJ found that the dunes had been nourished in January 2005 under an emergency permit (RO ,r 354) and in early 2006; that the dune nourishment was only a temporary solution; that one problem was that the most eroded beaches

offer the narrowest area within which to nourish dunes; and that the fill placed in early 2006 was lost when subTropical Storm Andrea struck the project area in May 2007. (RO

1!1! 101, 270, 303, 317, 354, 355; DEP Ex. 8, Attachment 33; DEP Ex. 9, Attachment 33;

T. Seeling 877-878; T. Kruempel 1062; T. Brantly 2091-2092).

Evaluation of project alternatives is required by the CCP, ERP, and proprietary criteria. Under CCP rule criteria:

(17) If [DEP] determines that the proposed coastal

construction has the potential for adverse impacts to the coastal system, then [DEP] shall require the applicant to revise the project design to avoid or minimize those impacts. After all practicable revisions have been made to minimize impacts; any remaining adverse impacts or other impacts shall be offset by the applicant. (Emphasis added).

Fla. Admin. Code R. 62B-41.005(17).

The competent substantial record evidence shows that the Town did not consider a dune only project to be a "practicable revision." In addition, I've found nothing in the record of this case or in the CCP rule that would lead me to conclude that a dune only project will not have any "remaining adverse impacts or other impacts." The CCP rule requires that any "remaining adverse impacts or other impacts shall be offset by the applicant." Id. Thus, I've determined from a review of the entire record that the ALJ's finding in paragraph 522 that the Town provided the required assurance (i.e. reasonable assurances) to show entitlement to the CCP permit for a dune only project without any mitigation is not based on competent substantial evidence.§ 120.57(1)(I), Fla. Stat. (2008); Charlotte County v. IMC Phosphates Co., -- So.2d --, 2009 WL 331661 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007).

Under applicable ERP permitting criteria in the SFWMD Basis of Review ("BOR") adopted by DEP in Fla. Admin. Code R. 62-330.200(4):

1. The degree of impact to wetland and other surface

   water functions caused by a proposed system, whether

   the impact to these functions can be mitigated and the practicability of design modifications for the site, as well as alignment alternatives for a proposed linear system, which could eliminate or reduce impacts to these functions,

   are all factors in determining whether an application will be approved by the [DEP]. Design modifications to

   reduce or eliminate adverse impacts must be explored, as described in subsection 4.2.1.1. Any adverse impacts remaining after practicable design modifications have been implemented may be offset by mitigation as described

   in subsections 4.3 - 4.3.8. An applicant may propose mitigation, or the [DEP] may suggest mitigation, to offset the adverse impacts caused by regulated activities as identified in sections 4.2 - 4.2.8.2. To receive [DEP] approval, a system cannot cause a net adverse impact on wetland functions and other surface water functions which is not offset by mitigation.

   
   

   1. Except as provided in subsection 4.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of sections 4.2.2 through 4.2.3.7, then the [DEP] in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.

The term "modification" shall not be construed as including the alternative of not implementing the system in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered "practicable". A proposed modification need not remove all economic value of the property in order to be considered not"practicable". Conversely, a modification need not provide the highest and best use of the property to be "practicable". In determining whether a proposed modification is practicable, consideration shall also be given to the cost of the modification compared to the environmental benefit it achieves. (Emphasis added).

The competent substantial record evidence shows that the Town did not consider the dune only project to be a "practicable design modification." Therefore, neither the Town

nor the DEP took the dune only project alternative to the next step of the ERP process, i.e., detailed analysis of the impacts, which would then lead to a consideration of the mitigation necessary to offset identified adverse impacts. See§ 373.414(1)(b), Fla. Stat. (2008); Fla. Admin. Code R. 40E-4.301(3); SFWMD BOR 4.2.1; Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., DOAH Case Nos. 03-0791, etc. (Fla. Dept. of Env. Prot. 2006)(The findings of adequate elimination and reduction of impacts mean only that IMC has made sufficient design modifications that it is entitled to proceed to the next step of the ERP process: detailed analysis of impacts. See RO paragraph 868.). Thus, I've determined from a review of the entire record that the ALJ's finding in paragraph 522 that the Town provided the required assurance (i.e. reasonable assurances) to show entitlement to the ERP permit for a dune only project without any mitigation is not based on competent substantial evidence. See§ 120.57(1)(1), Fla. Stat. (2008); Charlotte County v. IMC Phosphates Co., -- So.2d --, 2009 WL 331661 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007).

For the project alternative that the Town chose to take to the next step of the ERP project, the ALJ found in paragraph 517 that "the public safety exception to the requirement to eliminate and reduce impacts does not require consideration of the impact on the water resources of the district." (RO ,i 517). Earlier in paragraph 517, the

• ALJ stated that "the broad exception for public safety enables [the Town] to show compliance with [the elimination and reduction] requirement." Thus, in paragraph 517 the ALJ suggests that there's a "broad" public safety exception that trumps the consideration of factors identified in BOR Section 4.2.1. I can find no support in the record or controlling case law for this interpretation of BOR Section 4.2.1. Paragraph

522 is actually a mixed finding of fact and conclusion of law that purports to interpret the BOR provisions in Section 4.2.1. The plain language of BOR Section 4.2.1 and controlling case law interpreting and applying the language show that even when public safety is a primary justification for a project, the project alternatives are considered in order to determine which one of them best balances the need to improve safety while eliminating and reducing impacts through practicable design changes. See Protect Key West and the Fla. Keys, Inc., d/b/a Last Stand v. Monroe County and South Fla. Water Mgmt. Dist., DOAH Case No. 08-3823 (SFWMD 2009); and Robert E. Van Wagoner v. Dep't of Transp., DOAH Case No. 95-3621. 1996 WL 405159 (Fla. Dept. of Env.. Prot.

May 14, 1996), affd Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113 (Fla. 2d DCA 1997)(reflecting that although the need for a project is not a factor which can be considered in [ERP], findings relevant to public safety must be considered by the Department. For example, if DOT was proposing to build a road through wetlands to straighten out a dangerous curve in an existing road, the improvement in the public safety can and should be considered and weighed in determining whether the proposed road satisfied the public interest test as well as the requirement for elimination or reduction of adverse impacts).

In Protect Key West, the applicant Monroe County sought an ERP permit

modification to authorize the construction and operation of Runway Safety Area ("RSA") improvements at Key West International Airport ("Airport"). Id. To comply with SFWMD BOR Section 4.2.1, Monroe County prepared an Alternatives Analysis Working Paper, that explored twenty design modifications for the RSA. Id. at RO paragraph 59. The ALJ found that in assessing the various modifications, Monroe County considered the

level to which a particular design would improve safety at the Airport, the degree of environmental impacts, and the constructability, cost, and operational feasibility. With regard to its chosen alternative (Alternative No. 18) the ALJ found that Monroe County's design "best balances the need to improve safety while eliminating and reducing wetlands impacts through practicable design changes." Id. at RO paragraph 61. conclude that Protect Key West and Van Wagoner present a more reasonable interpretation of BOR Section 4.2.1's requirement to explore practicable design modifications that eliminate and reduce impacts. The interpretation of this ERP permitting provision is a matter over which I have "substantive jurisdiction" under section 120.57(1)(1), Florida Statutes. I also find that the interpretation of SFWMD BOR Section

4.2.1 adopted in this Final Order is more reasonable than the ALJ's interpretation set forth in the RO paragraph 517.

Rule 18-21.004, Florida Administrative Code provides that "[t]he following

management policies, standards, and criteria shall be used in determining whether to approve, ... or deny all requests for activities on sovereignty submerged lands." The rule lists several "management policies, standards, and criteria" applicable to requests for proprietary authorization. As I discussed in my ruling on DEP's Exception No. 3 above, for proprietary approval, the Board of Trustees determines that the activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest. See Fla. Admin. Code R. 18-21.004(1)(a). Relevant to this discussion are the Resource Management provisions. Subparagraph (2)(b) states that "[a]ctivities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable

alternative and adequate mitigation is proposed." See Fla. Admin. Code R. 18- 21.004(2)(b). Subparagraph (2)(i) states that "[a]ctivilies on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat." See Fla. Admin. Code R. 18-21.004(2)(i). In paragraph 519 the ALJ found that "[!]here are reasonable alternatives, even to allowing the natural coastal system to continue to build beach along most of Reach 8, such as maintaining the sand transfer plant with greater vigilance and possibly installing

groins to capture sand of more appropriate mean grain size." He also found that the Town had "failed to mitigate important impacts to the natural resources." (RO ,r 519). This finding seems logical at first, but when read more closely, it may create some

confusion regarding how project alternatives are considered under this proprietary rule.

The record evidence in this case showed that the Town explored several project alternatives. (RO ,r,r 257-261, 269, 280,303,322, 331-333; TOPB Ex. 62; T. Brazil

3250-3275). The alternative described by the ALJ as "allowing the natural coastal

system to continue to build beach along most of Reach 8," was the "no-action alternative" for the Town. (RO ,r 257). Based on the competent substantial record evidence in this case the ALJ concluded that the no-action ("no project") alternative is a reasonable alternative, within the meaning of Fla. Admin. Code R. 18-21.004(2)(b).

Unlike the ERP rules, the proprietary rules do not preclude the consideration of "no project alternatives." See Kramer v. Dep't of Envtl. Prof., DOAH Case No. 00-2873, 2002 WL 1774316 (Fla. Dept. of Env. Pro!. April 29, 2002)(reflecling that an unreasonable failure to consider a "no project alternative" for the use of sovereign

submerged lands can result in denial of the proprietary authorization and consequent denial of the ERP under the concurrent review provisions of Section 253.77, F.S.).

However, the ALJ also suggests that the reasonable alternatives inquiry goes beyond identifying reasonable alternatives to the Town's proposal. He lists at least two other alternatives, and concludes that these are reasonable alternatives to "allowing the natural coastal system to continue to build beach along most of Reach 8." I conclude that the plain language of Fla. Admin. Code R. 18-21.004(2)(b) limits the reasonable alternatives inquiry to a comparison with the proposed activity for which proprietary authorization is being requested. See generally§ 120.57(1)(I), Fla. Stat. (2008).12

Therefore, based on the foregoing, the DEP's Exception No. 6 is granted.

Exception No. 7 UMAM Does Address Temporary Impacts

The DEP takes exception to paragraph 565, the conclusion of law where the ALJ

states:

565. Florida Administrative Code 62-345.300 et seq. describes UMAM, which provides ample guidance for the assessment of the impacts from the permanent (assuming ongoing nourishment projects) loss of hardbottom and the juvenile green turtles associated with that hardbottom. Although the notion of time lag is covered in the rules for delayed mitigation, as proposed in this case, UMAM does not seem to address temporary impacts, such as would take place due to excessive turbidity displacing the nearshore species for about one year after construction. This omission in UMAM concerning the one-year impact to the water resources of the district does not relieve [the Town] of

12 The above interpretation of the plain language of Fla. Admin. Code R. 18- 21.004(2)(b) is more reasonable than that of the ALJ. See§ 120.57(1)(1), Fla. Stat. (2008). An agency has the primary responsibility of interpreting statutes within its regulatory jurisdiction and expertise. See, e.g., Public Employees Relations Comm'n v. Dade County Police Benevolent Association, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employees Council, 79 AFSCME v. Daniels, 646 So.2d 813,816 (Fla. 1st DCA

1994).

complying with other provisions of law, including statutes, requiring the mitigation of unavoidable impacts, regardless whether temporary or permanent.

The DEP contends that the ALJ concluded that "Florida Administrative Code Chapter 62-345, does not address temporary impacts created by proposed activities." See DEP's Exceptions at page 11. The DEP points out that temporary effects are considered in the assessment and scoring of impact and mitigation areas under the UMAM analysis. See, e.g., Fla. Admin. Code R. 62-345.500. To the extent that the

ALJ's conclusion can be interpreted to mean that UMAM does not in any way address temporary impacts, then the DEP's contention is correct. However, the ALJ's emphasis in conclusion of law paragraph 565 is that under the particular circumstances of this case, the UMAM analysis did not seem to address temporary impacts "such as would take place due to excessive turbidity displacing the nearshore species for about one year after construction."

As I noted in my ruling on the DEP's Exception No. 3 above, the ALJ found that

there would be unmitigated adverse effects from turbidity that were not contemplated by the Town or DEP. See RO ,m 115, 116, 180, 191, 199, 487, 500, 514. The ALJ

correctly concludes that where UMAM does not address these temporary impacts from

turbidity, other provisions of law will require mitigation for these unavoidable impacts. See, e.g., Section 373.414(1)(b), Fla. Stat. (2008); Fla. Admin. Code R. 62B- 41.005(17); Fla. Admin. Code R. 18-21.004(2)(b). Florida Administrative Code Chapter 62-345 provides that it shall apply to those impacts subject to review under Section

373.414, Florida Statutes, excluding subparagraphs 373.414(1)(a)1., 3., 5., 6.13 Thus, four of the seven factors in the regulatory public interest test are not addressed by UMAM, such that any adverse effects found by the ALJ under those four factors must be offset by other mitigative measures. As I have already previously discussed, measures other than acreage derived from an UMAM analysis, may be proposed to offset adverse effects caused by the regulated activity. See, e.g., Lineburger v. Prospect Marathon Coquina, DOAH Case No. 07-3757 (Fla. Dept. of Env. Prot. August 4, 2008); Kramer v. Oep't of Envtl. Protection, DOAH Case No. 00-2873, 2002 WL 1774316 (Fla. Dept. of Env. Prot. April 29, 2002).

Therefore, based on the foregoing, the DEP's Exception No. 7 is denied.

Exception No. 8 Temporary Impacts that are De Minimis do not require Mitigation The DEP takes exception to paragraphs 500, 565 and 566 "to the extent that they

suggest that temporary impacts that are de minimis must be mitigated." See DEP's Exceptions at page 11. Paragraph 500 contains ultimate factual findings of the ALJ under the CCP criteria that the Town failed to provide adequate mitigation to assure the performance of the Permit with respect to the covering of more than 6.9 acres of hardbottom; failed to mitigate for juvenile green turtle deaths particularly from the loss of additional hardbottom; and failed to mitigate for turbidity impacts that would deprive a wide range of species from the use of beach and nearshore habitat for a period of one

13 1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others; ... 3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; ... 5. Whether the activity will be of a temporary or permanent nature; ... 6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of

s. 267.061; ... § 373.414(1)(a), Fla. Stat. (2008).

year. (RO ,J 500). Nowhere in this paragraph or in the crucial underlying factual findings to which the DEP did not take exception, did the ALJ find that the identified impacts are de minimis. (RO ,i,i_115, 116, 180, 191, 199, 487, 489, 490, 495, 500). Thus, the DEP's

exception to paragraph 500 is denied.

Paragraphs 565 and 566 are conclusions of law under the ERP criteria.

Paragraph 565, as described in my ruling on the DEP's Exception No. 7 above, contains the ALJ's conclusions regarding the ability of the UMAM analysis, as proposed in this case, to address temporary turbidity impacts that the ALJ found would displace nearshore species for about one year after construction. Nowhere in paragraph 565 did the ALJ find or conclude that the identified impacts are de minimis. Thus, the DEP's exception to paragraph 565 is denied. In paragraph 566 the ALJ found that the Town failed to prove "that all such impacts are [de minimis], and that all such impacts, even if temporary, have been mitigated." It is clear that the ALJ did not make any findings or conclusions suggesting that de minimis impacts require mitigation in contravention of the provisions of Section 373.414(1)(b), Florida Statutes, and the SFWMD BOR Section

1. Therefore, the DEP's exception to paragraph 566 is denied.

   
   

   CONCLUSION

   
   

   The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So.2d 254, 256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.

   Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to

   certain findings of fact the party "has thereby expressed its agreement with, or at least

   waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003). However, even when exceptions are not filed, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction. See§ 120.57(1)(1), Fla. Stat. 2008; Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee

   Council, 79 v. Daniels, 646 So.2d 813,816 (Fla. 1st DCA 1994).

   
   

   Having considered the applicable law in light of my rulings on the DEP's Exceptions, and being otherwise duly advised, it is

   ORDERED that:

   
   

   1. The Recommended Order (Exhibit A), as modified by my rulings above, is adopted in its entirety and incorporated herein by reference.

   2. The Town of Palm Beach's applications for a Consolidated Joint Coastal

Permit and Authorization to Use Sovereign Submerged Lands in File No. 0250572-001- JC and Water Quality Variance in File No. 0250572-002-EV, are DENIED.

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal.

The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

with the clerk of the Department.

,ti-...

DONE AND ORDERED this _i{ day of July, 2009, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

icHAavv. SOLE Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILED NT TO§ 120.52.

FLORI E DESIGNATED

DEPA T OF WHICH IS

DAE 'I I.S[D°I

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

United States Postal Service to:

Martha Collins, Esq. Lindsey Pickel, Esq. Collins and West, P.A. 111O North Florida Avenue Tampa, FL 33602-3300

Brady J. Cobb, Esq. Tripp Scott, P.A.

110 Southeast Sixth Street, 15th Floor Fort Lauderdale, FL 33301

Reginald A. Bouthillier, Jr. David L. Jordan

Sherry A. Spiers Greenburg Traurig, P.A. Post Office Drawer 1838 Tallahassee, FL 32302

and by hand delivery to:

Kelly L. Russell, Esq.

N. West Gregory, Esq.

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

/!a

.fV\..

this day of July, 2009.

Elaine A. Humphreys, Esq. Assistant City Attorney City of Lake Worth

7 North Dixie Highway Lake Worth, FL 33460

Jane West, Esq. Collins and West, P.A.

50 South U.S. Route 1, Suite 213

Jupiter, FL 33477

Jennifer L. Eldridge, Esq. Collins & West, P.A.

P.O. Box 1372 Nantucket, MA 02554

--

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

RANCINEM. FF6

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 08-001511

Orders for Case No: 08-001511