STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
DAVID H. SHERRY, REBECCA R. SHERRY, AND JOHNS. DONOVAN, | ) } | |
} | ||
Petitioners, | ) } | |
and | } | |
) | ||
MACLA LTD II LIMITED PARTNERSHIP, | ) | |
et al., | } } | |
lntervenors, | ) ) | |
vs. | } . DOAH CASE NO. | 10-0515 |
) OGC CASE NO. | 10-0713 | |
OKALOOSA COUNTY, DEPARTMENT | ) | |
OF ENVIRONMENTAL PROTECTION AND | } | |
BOARD OF TRUSTEES OF THE INTERNAL | } | |
IMPROVEMENT TRUST FUND, | ) | |
) | ||
Respondents, | } | |
} | ||
and | ) | |
) | ||
JETTY EAST CONDOMINIUM | ) | |
ASSOCIATION, INC., DESTIN POINTE | ) | |
OWNERS' ASSOCIATION, INC., et al., | } | |
lntervenors. | ) ) |
1
Filed August 30, 2011 11:42 AM Division of Administrative Hearings
ROLAND GUIDRY, AS CO-TRUSTEE OF THE GUIDRY LIVING TRUST, AND | ) ) | |
OCEANIA OWNERS' ASSOCIATION, INC., | ) | |
Petitioners, | ) ) | |
and | ) ) | |
MACLA LTD II LIMITED PARTNERSHIP, | ) ) | |
et al., | ) | |
) | ||
lntervenors, | ) | |
) | ||
vs. | ) DOAH CASE NO. | 10-0516 |
) OGCCASE NO. | 10-0715 | |
OKALOOSA COUNTY, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND | ) ) | |
BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, | ) ) | |
) | ||
Respondents, | ) | |
and | ) ) | |
j | ||
JETTY EAST CONDOMINIUM | ) | |
ASSOCIATION, INC., DESTIN POINTE | ) | |
OWNERS' ASSOCIATION, INC., etal., | ) | |
) | ||
lntervenors. | ) |
CONSOLIDATED FINAL ORDER
An Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") submitted a Recommended Order ("RO"), on June 29, 2011, to the Department of Environmental Protection ("DEP" or "Department"), and the Board of Trustees of the Internal Improvement Trust Fund ("Board" or "BOT"), in the above captioned consolidated administrative proceedings. The RO stated that copies were served on counsel for all the parties. On July 12, 2011, the Department filed an unopposed Motion for Extension of Time to File Exceptions and Responses to
Exceptions to Recommended Order. The motion was granted by order dated July 14, 2011. The MACLA lntervenors, the DEP and Okaloosa County filed Exceptions to the RO on July 25, 2011. The DEP, Okaloosa County, the MACLA lntervenors, the Sherry Petitioners, and the Oceania Petitioners, filed responses to the Exceptions on August 8, 2011. The next day, the Sherry Petitioners, Oceania Petitioners, and MACLA lntervenors filed an amended response to the DEP's and Okaloosa County's Exceptions. This matter is now on administrative review before the Secretary of the Department for final agency action.1
BACKGROUND
In the aftermath of tropical storms that caused extensive damage, Okaloosa County applied for authorizations from the state to restore several segments of its
. beaches and shores. Among the applications was one for a Joint Coastal Permit (the
"JCP") to place beach-quality sand along a 1.7 mile segment of its shoreline. The
· project was given the name the "Western Destin Beach Restoration" (the "Western Destin Project" or the "Project"). The County also applied for variances from two administrative rules (referred to by the Department in its Consolidated Notice of Intent as the "Variance"). The Variance will allow the County to temporarily establish an expanded mixing zone that extends 1,500 meters down current from the Project's sand dredge site for a period of time that would exceed 30 days. The County also applied for an Authorization to Use Sovereign Submerged Lands (the "SSL Authorization") in
1 The Secretary of the Department is delegated the authority to review and take final agency action on applications to use sovereignly submerged lands when the application involves an activity for which the Department has permitting responsibility. See Fla. Admin. Code R. 18-21.0051(2).
connection with the Project. On December 31, 2009, the Department issued a "Consolidated Notice of Intent to Issue Joint Coastal Permit, Variance, and Authorization to Use Sovereign Submerged Lands" (the "Consolidated NOi"). Attached to the Consolidated NOi, among other attachments, was a Draft Joint Coastal Permit (the "Draft JCP.")
David Sherry, Rebecca R. Sherry, and John S. Donovan (the "Sherry Petitioners"), filed a Petition for Formal Administrative Proceedings (the "Sherry Petition") challenging the Consolidated NOi. The Sherry Petition was assigned Case No. 10-0515 by DOAH. Roland Guidry and Oceania Owner's Association, Inc. (the "Oceania Petitioners"), also filed a Petition for Formal Administrative Proceedings (the "Oceania Petition") regarding the Consolidated NOi. DOAH assigned the Oceania Petition Case No. 10-0516.
Jetty East Condominium Association, Inc., Destin Pointe Owners' Association, Inc., Holiday Isle Improvement Association, Inc., The Islander Owners Association, Inc., Inlet Reef Club Condominium Owners' Association, Inc., and Holiday Surf and Racquet Club Condominium Association, Inc. (the "Holiday Isle lntervenors"), petitioned to intervene in the two cases shortly after they were referred to DOAH. During the course of the proceedings, a number of parties identified in this order as the "MACLA lntervenors" petitioned to intervene.2 The petitions to intervene of both the Holiday Isle
2 On September 8, 2010, a petition to intervene (the "MACLA Petition to Intervene") was filed by nine putative intervenors: MACLA LTD II, a Limited Partnership ("MACLA"); H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust ("Hughes Trust"); Kershaw Manufacturing Company, Inc. ("Kershaw''); Kayser Properties LLC ("Kayser"); Destin, LLC ("Destin"); Paul Blake Sherrod, Jr., and Cindy M. Sherrod ("Sherrods"); Blossfolly, LLC ("Blossfolly"); 639 Gulfshore, LLC ("639
lntervenors and the MACLA lntervenors were granted subject to proof of standing at the final hearing.
The final hearing had been set to commence on July 26, 2010, and to extend for a two-week period. Shortly before the hearing, however, the Okaloosa County Board of County Commissioners voted to remove a segment of shoreline adjacent to the Oceania property from the Project and an Order was entered that continued the final hearing. On July 26, 2010, the Department filed a Notice of Filing Request for Modification and Revised Draft Joint Coastal Permit. Consistent with the vote of the Okaloosa County Board of County Commissioners, the revised JCP removed from the beach restoration project the segment of the shoreline roughly between R-22.6 to R-
23.2 adjacent to the Oceania Condominium property ("Oceania Gap"). It also added a specific condition requiring written authorization from upland owners prior to DEP's authorization of construction and a provision related to any impacts that might occi.Jr from the Oil Spill. As a result of the revised Draft JCP Permit filed by the Department, the Sherry and Oceania Petitioners filed a motion for leave to amend their petitions. By Order dated July 30, 2010, the motion was granted in part and denied in part.
The consolidated cases 10-0515 and 10-0516 proceeded to a final hearing on the Oceania Petitioners' Third Amended Petition for Formal Administrative Hearing and the Sherry Petitioners' Second Amended Petition for Formal Administrative Hearing, on August 2, 2010. The hearing was conducted through August 5 and then continued to August 24-25. In the meantime, the Department modified the JCP for a second time and, on August 18, filed a Notice of Revisions to the proposed JCP. DEP proposed to
Gulfshore"); and Laura Dipuma-Nord ("Nord"), (collectively, the "MACLA lntervenors.")
See RO 1f 56.
revise the JCP's Specific Condition 1 to include a requirement that an Erosion Control Line ("EGL") (set in accordance with the procedures of sections 161.141-161.211, Florida Statutes) be recorded for the Project prior to the commencement of construction.
The final hearing was conducted on August 2-5 and August 24-25, 2010, in Fort Walton Beach, Florida, and on November 5 and November 10, 2010, in Tallahassee, Florida. The parties submitted proposed recommended orders ("PROs"), and the ALJ subsequently issued the RO on June 29, 2011.
SUMMARY OF THE RECOMMENDED ORDER
Based on extensive factual findings and legal conclusions in the RO (336 paragraphs), the ALJ ultimately recommended that the Department enter a final order issuing the Joint Coastal Permit, Variance, and Sovereign Submerged Lands Authorization as revised during the course of the proceedings. (RO page 122). In the RO the ALJ identified four issues for adjudication: (a) Whether the Sherry Petitioners have standing to initiate the proceeding in Case No. 10-0515; (b) Whether the Oceania Petitioners have standing to initiate the proceeding in Case No. 10-0516; (c) Whether the MACLA lntervenors have standing lo intervene; and (d) Whether the Department should enter a final order that issues the JCP, the Variance and the SSL Authorization. (RO page 6).
JCP, Variance, and SSL Authorization
The ALJ found that with the elimination of the Oceania Gap, the Project now called for the placement of 831,000 cubic yards or so of beach-quality sand along 1.7 miles (less the 600 feet of the Oceania Gap) of shoreline within the City of Destin between reference monuments R-16.6 and R-22.6, and between R-23.2 and R-25.5.
The Project would restore the shoreline to conditions that existed before Hurricane Opal in 1995. The useful life of the Project was estimated to be eight years. (RO ,m 91, 92).
The ALJ found that the Department had designated this shoreline as a Critically Eroded Shoreline as defined by rule. Fla. Admin. Code R. 62B-36.002(4). (RO ,-i,i 87 through 90, 230 through 238).
The ALJ concluded that the applicant clearly provided the reasonable assurances necessary for the issuance of the JCP, Variance, and SSL Authorization.
(RO ,-r,i 132, 133, 134, 266, 320, 334, 335). He determined that the evidence to the
contrary provided by the Petitioners' experts, Ors. Dally and Young, that there could be adverse impacts of unknown degree did not outweigh the evidence provided by the Department's expert Mr. Clark; that ii is highly unlikely that the OK-A Borrow Area would cause any significant adverse impacts to the beaches and shores of the state. (RO ,-r,i 180,181,200, 215 through 218, 223 through 225, 334). The ALJ also found that the
modeling presented by the applicant's expert Mr. Trudnak, supported Mr. Clark's expert testimony. (RO 'IJ'IJ 184 through 190, 334).
The ALJ found that the applicant demonstrated the need for the two rule
variances, which would allow them to, during construction, establish an expanded mixing zone (150 meters to 1500 meters) over more time (more than 30 days). (RO '11'11 249 through 266, 335). The ALJ also found that no evidence was presented during the hearing that showed the Deepwater Horizon Oil Spill had caused impacts to the OK-A Borrow Area. (RO 'IJ'IJ 268, 269, 336). Thus, the "changed site conditions" provision of
rule 62B-49.005(16) was not triggered. (RO 'IJ'IJ 267, 336).
The ALJ concluded that the County is a proper applicant for the JCP. (RO ,i,i 84, 85, 308 through 314). The County desires to deposit beach material on sovereignty lands below the MHWL for the purpose of shore protection and beach restoration pursuant to Sections 161.088 - 161.212, Florida Statutes. These statutes provide for beach restoration and re-nourishment funded and sponsored by government, both State
.and local. The ALJ concluded that it is not reasonable to interpret the applicable statutes and rules to require a local government to be the riparian owner of all the upland property which is subject to a beach restoration project. (RO ,i 313). In quoting from a prior Department final order, the ALJ noted that "[i]n fact, Section 161.201, Florida Statutes, expressly preserves the common-law rights of upland owners affected by beach restoration activities under Section 161.141-161.211, Florida Statutes. DEP's interpretation that Rule 6[2]8-41.005(3) is inapplicable to the Applications in this case is reasonable, and the City and County are proper applicants for the JCP in this case." See Save Our Beaches, Inc. v. Dep't of Envtl. Prat., Case No. 04-2960 (DOAH June 30, 2005; DEP July 27, 2005). (RO ,i 313).
The ALJ concluded that requiring information regarding written authorizations,
listed in rule 62B-41.00[8](1)(c) and (n), in a specific permit condition (Specific Condition 5), instead of at the time of application, does not require denial of the County's JCP application. (RO ,i 317). The ALJ rejected the Petitioners' claim that the Waiver Provision (RO ,i 129) shows that the Department violated its own rule when it "waived" the requirements found in paragraphs (c) and (n) when it deemed the application complete. (RO ,i 318). The ALJ found that the provision simply stated circumstances when waiver of application requirements are mandated, but the provision does not state
that requirements found in (c) and (n) are not waivable. (RO 1[ 318). He then concluded that "[o]n the state of this record, the Department was justified in waiving the
requirement and in interpreting its rules and the statutes they implement to allow the waiver." (RO ,r 321).
Sherry Petitioners' standing
The ALJ found that David and Rebecca Sherry retired in late 2005 and live permanently at their leasehold condominium unit at the Surf Dweller Condominium in the Okaloosa Island portion of Santa Rosa Island. (RO ,r,r 9, 12, 20, 21). The Sherrys run and walk on the beach daily. (RO ,r 23). They surf, swim and crab. (RO ,r 23). The
ALJ found that John Donovan leases two units in the El Matador Condominium. The
Petitioner Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. (RO ,r 28). The ALJ found that Mr. Donovan and his family use the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island for walking, fishing, surfing, and swimming. (RO ,r 29). The ALJ also found in paragraph 37 that:
Mr. Donovan is concerned about the erosion and turbidity impacts the borrow site could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. Turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, a change in the beach and shoreline along the El Matador Condominium property as drastic, in Mr. Donovan's view, as that contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium.
The ALJ found that neither the Surf Dweller Condominium Property in which the Sherrys reside, nor the El Matador Condominium Property inhabited by Mr. Donovan abuts or is a part of the area subject to the Western Destin Beach Restoration Project. The two properties in Okaloosa Island are to the west of the Project. (RO 1133). The ALJ determined that the Sherrys and Mr. Donovan did not initiate Case No. 10-0515 because they oppose the restoration of the beach subject to the Project. He found that they initiated the proceeding because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island, and situated in such a way, that once
dredged, ii will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches. (RO 1m 12, 33).
· The ALJ further found that the Surf Dweller and El Matador Condominium
property did not extend to the Mean High Water Line ("MHWL") of the Gulf of Mexico. (RO ,r,r 26, 27, 32). Certain Protective Covenants and Restrictions have designated that 150 feet of public beach is adjacent to the MHWL, and that the private beach is landward of the public beach. (RO 111125, 26, 27, 30, 31, 32, 35, 36). The ALJ specifically found that "[s]ince the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is 'public beach,' there is no doubt that there
is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach and its width is at least 150 feet." (RO 1J 35). Also, the ALJ found that "Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico." (RO 1136). In addition, the ALJ noted that although the beaches and
shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged by storms, beginning with Hurricane Opal in 1995, nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. (RO ffl[ 34). Thus, the ALJ concluded that "there can be no doubt on the state of the record in this proceeding that at the time of hearing there existed a 150 foot-wide stretch of beach water-ward of the two
condominiums that the public has the legal right to occupy and use." (RO 11 35).
The ALJ concluded that the Sherry Petitioners' standing to initiate the proceeding in Case No. 10-0515 was based on their proof through Ors. Dally and Young, that it is reasonable to expect that the beaches adjacent to the Surf Dweller and El Matador Condominiums and the beaches in Okaloosa Island, that they use extensively, could receive impacts from the Project's dredging of the borrow site, and that some of the impacts could be adverse and affect their use and enjoyment of the beach. (RO ffl[ 281 through 291).
Oceania Petitioners' standing
The ALJ found that Colonel Guidry did not appear at the hearing in a personal capacity. He appeared and testified in his capacities as co-trustee of the Guidry Living Trust and President of the Oceania Owners' Association. (RO ffl[ 45, 292). The ALJ found that "[i]n contrast to the Sherry Petitioners, therefore, Colonel Guidry did not
allege his personal use and enjoyment of the beach as a basis for standing." (RO 111145,
292). The ALJ found that the Guidry Living Trust is the owner of Condominium Unit 605
in the Oceania Condominium, a condominium established under chapter 718, Florida Statutes. (RO 1139). In his capacity as co-trustee, Mr. Guidry has the independent power to protect, conserve, sell, lease or encumber, or otherwise to manage and dispose of trust assets, which include Unit 605 in the Oceania Condominium. (RO 1139).
The ALJ found that the Oceania Owners' Association is mandated by the Oceania Declaration of Condominium to "maintain, manage and operate the condominium property," which property extends to the MHWL of the Gulf of Mexico and was initially within the Western Destin Project area. (RO 1111 40, 44, 51). The declaration also declares, "[a]II unit owners shall automatically become members of the association after completion of closing of the purchase of a unit in Oceania, A Condominium."
Thus, the Guidry Living Trust is a member of Oceania Condominium Association. (RO 11 40). The ALJ also found that Oceania's Declaration of Condominium prescribes that "[t]he association shall have all powers granted by Chapter[s] 718 and 617, Florida
Statutes." (RO 1141). The ALJ found that according to the testimony of Colonel Guidry, every member of the Oceania Owners' Association Board of Directors approved the initiation of Case No. 10-0516, but there was no documentary evidence offered that a vote had been taken of the Board of Directors at a board meeting on the issue of whether to file the petition that initiated Case No. 10-0516 or the outcome of any such
vote. (RO 11 42).
The ALJ found that as to injury and standing of both the Guidry Living Trust and the Oceania Owners' Association, Colonel Guidry asserted a number of interests that he believed would be substantially affected by the Project. They fall into four categories of concern, with the first three concerns stemming from a decision made by the
Okaloosa County Board of County Commissioners, after the proceeding was commenced, to remove the Oceania property from the Project. (RO ,m 46, 50, 51). The ALJ found that the first concern was with regard to the action of the sand along the
shoreline of the Oceania property after the two reaches of beach to the east and west are restored under the revisions to the Draft JCP. After construction activities the sand would move or be transported so as to stabilize the shoreline. The ALJ noted that Colonel Guidry is concerned that this would "create a cloud of confusion, if the State lays claim to this sand that accumulates in the Oceania Gap, as a result of the
construction on both sides of us." (RO ,r 47). The ALJ further found that the second
category of concern related to the location of the property, post-construction, between "two public beaches." Such a location, in Colonel Guidry's view, would make individual
units at the Oceania Condominium less valuable. (RO ,r 48). The third category of
concern to Colonel Guidry was that the public would be more likely to trespass on private Oceania property. (RO ,r 49). Finally, the fourth concern of Colonel Guidry was that the Project would have undesirable impacts to Oceania property owners' littoral rights to accretion and to touch the water. (RO ,r 50).
Although the ALJ found that there was nothing of record to determine whether
such sand accumulation would be considered the result of accretion or avulsion and whether, in any event, the State would lay claim to it (RO ,r 293 n. 35); he then concluded:
With the exception of the standing evidence presented by the Oceania Petitioners, all evidence upon which the Oceania Petitioners rely was presented by the Sherry Petitioners as well. Whether the Oceania Petitioners have independent standing, therefore, is an issue that need not be decided. See
Coal. for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400,403, n.4 (Fla. 1996) ("While we question the standing of [one plaintiff], we need not discuss the issue because of the standing of the other plaintiffs.")
(RO 11294).
MACLA lntervenors' standing
The ALJ concluded that the MACLA lntervenors have standing to intervene (RO 11299), and that they had good cause for filing their Petition to Intervene la.ter than 20 days before the commencement of the final hearing (RO 111180, 81, 82, 83, 295, 296). The ALJ found that the nine MACLA lntervenors owned property down to the MHWL of the Gulf of Mexico in the Project area. (RO 1111 57 through 69). The ALJ concluded that the substantial interests of the nine MACLA lntervenors would be determined by the outcome of the proceeding since approval of the JCP will result in a static EGL being recorded. This would set the waterward boundaries of their properties in lieu of the MHWL that presently demarcates the boundary line of their properties with state property: "[w]here established, an erosion control line represents the landward extend of the claims of the state in its capacity as sovereign title holder of the submerged bottoms and shores of the ... Gulf of Mexico ... and the bays, lagoons and other tidal reaches thereof." Fla. Admin. Code R. 62B-41.002(15). (RO 11297). The ALJ concluded that establishment of an EGL was not an issue in the proceeding until the second revision of the Draft JCP. The MACLA lntervenors promptly sought intervention into the proceeding as soon as they realized their petitions to challenge the Second Revised JCP would be dismissed by the Department. (RO 1111298, 299). The ALJ also concluded that "[i]f it should be determined that they do not have standing to intervene,
their participation does not matter. They presented no evidence of their own other than standing evidence and relied on the evidence presented by the Sherry Petitioners as to the impacts of the Project." (RO ,i 300).
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)(1), Fla. Stat. (2010); Charlotte County v. IMC Phosphates Co., 18 So.3d 1089 (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); Nunez v. Nunez, 29 So.3d 1191, 1192 (Fla. 5th DCA
2010).
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 of Envtl. Prof., 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., Tedder v. 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., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So.3d 1079, 1088 (Fla. 2d DCA 2009); 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). 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); LB. 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., 18 So.3d 1089 (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. Prof., 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. (2010). 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 forthe 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. (201O); 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).
MACLA INTERVENORS' EXCEPTIONS
Exception No. 1
The MACLA lnterveriors take exception to the ALJ's conclusions of law in paragraphs 317 through 321 of the RO. In those paragraphs the ALJ concluded that requiring information regarding written authorizations, listed in rule 62B-41.00[8](1)(c) and (n), in a specific permit condition (Specific Condition 5), instead of at the time of application, does not require denial of the County's JCP application. (RO 'IJ 317). The ALJ found that the provision simply stated circumstances when waiver of application requirements are mandated, but the provision does not state that requirements found in
and (n) are not waivable. (RO 'IJ 318). He then concluded that "[o]n the state of this record, the Department was justified in waiving the requirement and in interpreting its rules and the statutes they implement to allow the waiver." (RO 'IJ 321).
MACLA argues that the ALJ interpreted and applied rule 62B-41.008, Florida Administrative Code, "in a manner not advocated by any party." See MACLA lntervenors' Exceptions at page 3. MACLA notes that no party "suggested that the
'written authorizations' required by Rule 62B-41.008(1)(c) and (n), F.A.C., could be or were 'waived';" and that Department "Staff stated they were not waiving the requirements but merely delaying the timing for providing the written authorizations." See MACLA lntervenors' Exceptions at page 3. MACLA further asserts that both the "ALJ's newfound interpretation of 'waiver' and the Department Staff's interpretation" of the rule are contrary to its plain meaning and must be rejected. See MACLA lntervenors' Exceptions at page 3.
Contrary to MACLA's asserting the ALJ's conclusion in paragraph 317 that "[t]he absence in the County's Application of the [written authorizations] does not require that the County's application be denied," is correct and is adopted in this Final Order.
Similar to the conditions for issuance or denial of the ERP portion of the JCP permit, the standards for approval or denial of the CCP portion of the JCP permit are governed by substantive requirements related to whether the Project will have significant adverse impacts that alter the coastal system. See, e.g.,§ 161.041, Fla. Stat. (2010); Rules 62B-41.002(19), 62B-41.003(2), 62B-41.005, 62B-41.0055, and 62B-41.007, Fla.
Admin. Code. This is supported in the record by the testimony of the Chief of DEP's Bureau of Beaches and Coastal Systems. (Tr. pp. 1064-1066; 1065, line 22 - 1066, line 15; 1093, lines 15-25; 1094; 1096, lines 12-20; 1102, line 12 - 1103, line 11; 1103, lines
14-17; 1105, lines 18-23; 1110, lines 2-7).
The record evidence also established that it is more logical and reasonable when governmental entities are conducting beach restoration projects to defer the written authorizations. The DEP relies on withholding the local government permittee's notice
to proceed,3 and on a general condition applicable to all permits, to assure that the permittee does not enter on property it does not own or control. (Joint Ex. 15, general condition 6; Tr. pp. 460, 462-465; 1076, lines 8-19; 1115, lines 4-11). See also Fla. Admin. Code R. 62B-49.013(1). Relevant statutes and rules support this practical approach since permit conditions can provide the assurances that may be necessary for the continued validity of a permit. See§ 161.041(4), Fla. Stat. (2010) and Fla. Admin.
Code R. 62B-49.002(12). In reviewing an application requirement in rule 62B- 41.005(3), the ALJ in this case adopted the position of the final order in Save Our Beaches, Inc. v. Dep't of Envtl. Prof., Case Nos. 04-2960 (DOAH June 30, 2005; DEP July 28, 2005). The Save Our Beaches final order stated that:
[B]oth the City and the County desire to deposit beach material on sovereignty lands of the State of Florida below the MHWL for the purpose of shore protection and beach restoration pursuant to Sections 161.088 - 161.212, Florida Statutes, which provides for beach restoration and renourishment funded and sponsored by government, both State and local. It is not reasonable to interpret the applicable statutes and rules to require a local government to be the riparian owner of all the upland property which is subject to a beach restoration project. In fact, Section 161.201, Florida Statutes, expressly preserves the common law rights of upland owners affected by beach restoration activities under Section 161.141-161.211, Florida Statutes. DEP's interpretation that Rule 6[21B-41.005(3) is inapplicable to the Applications in this case is reasonable, and the City and County are proper applicants for the JCP in this case.
See Level 3 Communications. LLC v. Jacobs, 841 So. 2d 447 (Fla. 2003); Mezaros v. Dep't of Ag. And Consumer Serves., 861 So. 2d 86 (Fla. 5th DCA 2003) (agency interpretation of rules and statutes it is charged with administering is entitled to deference.)
3 Under Rule 62B-41.002(33), Florida Administrative Code, notice to proceed means "the formal notification from the [DEP] authorizing permitted coastal construction to commence."
In light of the controlling statutes and applicable rules, it is a logical, reasonable and permissible interpretation of rule 62B-41.008(1 )(c) and {n), to defer the County's obligation to acquire written authorizations prior to construction activities in accordance with the JCP permit's general condition.4 See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Protection, 668 So.2d 209,212 {Fla. 1st DCA 1996); Pub. Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 {Fla. 1985){An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise). Although the DEP amended the Draft JCP's Specific Condition 5 to require that the County submit those written authorizations, that amendment is not adopted in this Final Order. See, e.g., Highland Lakes Estates Homeowners' Association v. Republic Services of Florida, L.P., DOAH Case No. 09- 6750 (DEP 2010)(reflecting that the Secretary may reject proposed additional permit conditions); Hopwood v. Dept. of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981).
MACLA also takes exception to the ALJ's factual findings in paragraphs 132 and 134 of the RO on the basis that the findings are not supported by competent substantial evidence to the extent that the paragraphs intend to suggest a "waiver to the regulatory written authorizations." See MACLA lntervenors' Exceptions at pages 8 and 9, footnote
The ALJ's findings are supported by competent substantial record evidence and should not be modified or rejected (Joint Ex. 1 and Joint Ex. 1 - Attachment A). See
§ 120.57(1){I), Fla. Stat. (2010); Charlotte County v. IMC Phosphates Co., 18 So.3d
4 This interpretation is as, or more reasonable, than that of the ALJ in the RO.
§ 120.57(1){I), Fla. Stat. (2010).
1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007).
Therefore, based on the foregoing reasons, the ALJ's conclusions of law in
paragraphs 318 and 319 are not adopted in this Final Order. However, the ALJ's conclusions in paragraphs 317 and 321 are adopted in this Final Order. The MACLA lntervenors' Exception No. 1 is denied.
Exception No. 2
The MACLA lntervenors take exception to the ALJ's conclusions of law paragraphs 300, and 317 through 321 of the RO. The ALJ's ultimate conclusion is that the County qualifies for the requested Letter of Consent to use sovereign submerged lands under an exception in Rule 18-21.004(3)(b), Florida Administrative Code, to the requirement of providing "satisfactory evidence of sufficient upland interest." Rule 18- 21.004(3)(b) provides:
Satisfactory evidence of sufficient upland interest is
required for activities on sovereign submerged land riparian to uplands, unless otherwise specified in this chapter.
* * *
Satisfactory evidence of sufficient upland interest is not required ... when a governmental entity conducts restoration and enhancement activities. provided that such activities do not unreasonably infringe on riparian rights.
- (Emphasis added.)
MACLA contends that the ALJ's factual finding in paragraph 320 that "there is not sufficient evidence in the record, moreover, of infringement on riparian rights to support Petitioners' position that evidence of upland ownership was not waivable," is not supported by "any competent substantial evidence in the record." See MACLA lntervenors' Exceptions at page 37. MACLA also asserts that the ALJ "improperly
placed the entire burden on MACLA" of demonstrating unreasonable infringement on riparian rights, and then made no findings of fact on the issue even though the MACLA Intervenor, Kayser Properties, LLC, presented undisputed evidence. See MACLA lntervenors' Exceptions at pages 37-38.
Contrary to MACLA's assertions, the ALJ did not improperly shift the burden of proving unreasonable infringement on riparian rights to the MACLA lntervenors, since any evidence regarding this substantive disputed issue, was already presented during the main evidentiary portion of the hearing. Case law is clear, that when the ALJ allowed intervention, the MACLA lntervenors' rights were subordinate to the propriety of the main proceeding and they were bound by the issues and matters in the record and by the pleadings as they existed at the time of intervention. See, e.g., Riviera Club v·.
Belle Mead Development Corp., 141 Fla. 538, 194 So. 783, 784 (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."); 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 MACLA lntervenors entered the proceeding after the main evidentiary portion of the hearing on all the substantive disputed issues was concluded. See RO at pages 9 through 12. The DEP's response points out that "[i)t was the clear understanding of all the parties and the Judge that the MACLA lntervenors would present no new substantive evidence on the merits of Petitioners' claims as raised in their petitions. See Final Hearing Transcript (Tr.) at 1588 - 1589 &
1676, lines 4-10."5 See DEP's response to MACLA's Exceptions at un-numbered pages 11-12; see also Tr. p. 1504, line 22-1505, line 2. The RO is clear that this was the ALJ's view of the case. Intervention is a general legal principle within the sole discretion of the ALJ. See Fla. Admin. Code R. 28-106; see generally§ 120.57(1)(1), Fla. Stat. (2010); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001)(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.).
The standard of review of the ALJ's RO, dictates that this agency does not have substantive jurisdiction over the general legal principle of intervention. See
§ 120.57(1)(I), Fla. Stat. (201O) and Fla. Admin. Code R. 28-106. The ALJ states that the MACLA lntervenors filed their petition to intervene on September 8, 2010, after the main portion of the evidentiary hearing concluded on August 25, 2010. See RO pages
11-12, ml 56, 70, 71. Then on November 5 and 10, 2010, the ALJ continued the
hearing in order for the MACLA lntervenors to present standing testimony. See RO at page 12 and 1! 300. The ALJ made factual findings and conclusions regarding the MACLA lntervenors standing testimony, including the timeliness of their petition to
intervene, in paragraphs 56 through 83 and paragraphs 295 through 299 of the RO, and ultimately determined in paragraph 300:
If it should be determined that they do not have standing to intervene, their participation does not matter. They presented no evidence of their own other than standing evidence and relied on the evidence presented by the Sherry
5 The RO indicates in paragraph 137 that the Oceania Petitioners "challenged the Consolidated NOi" on the basis that the County had not "provided satisfactory evidence
of sufficient upland interest to be entitled to a letter of consent to use sovereign submerged lands." (RO 1! 137 and endnote 25).
Petitioners as to the impacts of the Project. (Emphasis added.)
RO ,J 300.
The ALJ's application of intervention law and evidentiary ruling in paragraph 300 is both supported by the record and outside this agency's substantive jurisdiction. See Tr. page 1504, line 22 - page 1505, line 2; Tr. pages 1588 - 1589, and page 1676, lines 4-10.
The MACLA lntervenors also assert that the ALJ's factual finding in paragraph 320 that "there is not sufficient evidence in the record, moreover, of infringement on riparian rights to support Petitioners' position that evidence of upland ownership was not waivable," is not supported by "any competent substantial evidence in the record." See MACLA lntervenors' Exceptions at page 37. Contrary to MACLA's assertion, the record in this proceeding establishes that the County's Application sought waiver of the sufficient upland interest requirement of Rule 18-21.004 (Joint Ex. 1; Joint Ex. 1 - Attachment A; RO ,i,i 132, 320, 321); that the Petitioners alleged that the Project will unreasonably infringe on riparian rights (Oceania Petitioners Third Amended Petition at page 9 ,i 16, page 10 ,i 17); that the ALJ found that the record evidence was insufficient
to prove infringement (Tr. pp. 796-797; RO ,i,i 320); and that on this record the
requirement for satisfactory evidence of sufficient upland interest could be waived (RO ,i
321).
Therefore, based on the foregoing reasons, the MACLA lntervenors Exception No. 2 is denied.
Exception No. 3
The MACLA lntervenors take exception to the ALJ's conclusions of law in paragraphs 277, 315, and 316, of the RO where the ALJ concluded:
277. The Department interprets its statutes and rules in light of its stance that a JCP is required for the Project so as to not require a CCCL permit under section 161.053 for the Project. The interpretation is reasonable and supported, moreover, by a specific statute. See§ 161.053(9), Fla. Stat.
***
Coastal Construction Control Line Requirements
The Department's reading of the statutes that govern Joint Coastal Permits and CCCL Permits is correct. See Meszaros v. Dep't of Aqric. and Consumer Serves., supra.
Furthermore, Petitioners' arguments that a CCCL is required in this case is clearly without merit based on the plain language of section 161.053(9).
MACLA contends that the Department Staff and the ALJ's interpretation that Section 161.053(9), Florida Statutes contains an exemption, is in error. See MACLA lntervenors' Exceptions at pages 40-41. The competent substantial record evidence shows that the CCCL and CCP permitting programs are exclusive and are not both used for the same project (Tr. pp. 424-425). See RO 1M[ 123-125. A CCCL permit is required for activities occurring solely on the upper portion of the beach that does not involve sovereign submerged lands, i.e. no construction below the MHWL (Tr. p. 450- 452, 453-454).
Contrary to MACLA's contention, the plain language of the provision that "[t]his section does not apply to structures intended for shore protection purposes which are regulated bys. 161.041,"6 makes it clear that projects intended for shore protection purposes (e.g., artificial nourishment), are not required to obtain a CCCL permit under
6 The provision can be found in Section 161.053(8), Fla. Stat. (2011). At the time of the hearing in 2010, the provision existed in subsection (9) of Section 161.053.
Section 161.053, Florida Statutes. See, e.g., 42 Fla. Jur. 2d Public Lands§ 62 ("The coastal construction control line requirements do not apply to structures intended for shore protection purposes."); Surfrider Foundation, Inc. v. Town of Palm Beach, DOAH Case No. 08-1511 (DOAH March 2, 2009)(DEP July 15, 2009). In the Surfrider case the ALJ made clear that the CCP program does in fact regulate coastal construction landward and seaward of the MHWL. The following conclusions of the ALJ were adopted in the Surfrider final order:
527. The CCP program serves the purpose of "beach and shore preservation." § 161.131, Fla. Stat. The primary focus of the CCP program is the "beach and dune system," Section 161.041(2)(c), Florida Statutes, but the CCP program requires consideration of the impacts of regulated activities upon the "coastal system," Florida Administrative Code Rule 628- 41.005(2), which includes, pursuant to Florida Administrative Code Rule 628-41.002(8):
the beach and adjacent upland dune system and vegetation; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence, and all other associated natural and manmade topographic features and structures.
528. Section 161.041(1), Florida Statutes, requires a CCP for any person, including a municipality, to undertake any "construction or physical activity ... specifically for shore protection purposes ... upon sovereignty lands of Florida, below the mean high water line of any tidal water of the state "
Obviously, the beach restoration activities proposed for the.area below the mean high-water line require a CCP.
529. The dune nourishment activity also requires a CCP. Florida Administrative Code Rule 628-41.001(8) defines "coastal construction" as work or activity "on or encroaching upon" sovereignty lands of Florida, below mean high water, "which is likely to have a material physical effect on existing coastal conditions or natural shore ... processes."
Id.
This Final Order rejects MACLA's contention that the Department Staff and the ALJ erroneously interpreted the provisions of Section 161.053 (9), Florida Statutes. This issue is one over which this agency has substantive jurisdiction. Based on the plain language of the statute and the competent substantial evidence of record, there is no reason to modify or reject the ALJ's conclusion. See§ 120.57(1)(1), Fla. Stat. (2010).
Therefore, based on the foregoing reasons, the MACLA lntervenors Exception No. 3 is denied.
Exception No. 4
The MACLA lntervenors take exception to the ALJ's conclusions of law paragraphs 323 and 324 where he concluded that Specific Condition Five is not an unadopted rule under Section 120.52(16), Florida Statutes. The ALJ determined that:
The additions to Specific Condition Five in the First Revised JCP apply solely to the County. They are not, therefore, statements of "general" applicability and do not meet the definition of "rule" in section 120.52(16).
The additions to Specific Condition Five made by the First Revised JCP do not constitute an un-adopted rule.
MACLA basically argues that the ALJ's factual finding is not supported by the record evidence and that the ALJ's determination ignores the plain definition of the term rule. See MACLA lntervenors' Exceptions at pages 42, 45-46, and 49. In this Exception MACLA seeks reweighing of the record evidence in order to draw different conclusions
from those of the ALJ. See MACLA lntervenors' Exceptions at pages 45-46. However, this agency cannot reject the ALJ's findings that are supported by competent substantial evidence, even to make alternate findings that are also arguably supported by competent substantial evidence (Tr. pp. 460-465, 1031).7 See, e.g., Resnick v. Flagler Cty. School Bd., 46 So.3d 1110, 1112 (Fla. 5th DCA 2010); Green v. Fla. Dep't of Business and Professional Reg., 49 So.3d 315, 319 (Fla. 1st DCA 2010)(holding that the agency improperly re-weighed the evidence and substituted its own factual findings for those of the ALJ}. Since paragraphs 323 and 324 of the RO are supported by competent substantial record evidence, they cannot be modified or rejected in this Final Order. See§ 120.57(1)(e)1 and (e)3, Fla. Stat. (2010).
Therefore, based on the foregoing reasons, the MACLA lntervenors' Exception No. 4 is denied.
Exception No. 5
The MACLA lntervenors take exception to the ALJ's conclusions of law paragraphs 325 through 334, when the ALJ ultimately concluded that the County provided reasonable assurances necessary for the issuance of a joint coastal permit,
and that the Project will not result in any significant adverse impacts. (RO ,r 334).
MACLA does not take exception to any of the ALJ's relevant underlying factual findings.
See Envtl. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991) (reflecting that when a party files no exceptions to certain findings of fact the party
7 In DOAH Case No. 10-8197RU (the unadopted rule challenge final order), the ALJ found in paragraph 50, based on this same record, that "[t]here was no evidence that the language added to Specific Condition 5 ... had been in any other permits or that the Department intended to use the language in any other beach restoration permits." See Roland Guidry, et al. v. DEP and BOT, DOAH Case Nos. 10-5348RU, 10-6205RU, 10-8197RU (DOAH November 4, 2010).
"has thereby expressed its agreement with, or at least waived any objection to, those findings of fact."). Instead, MACLA asserts that "Department Staff and the ALJ reviewed and analyzed the project under a single scenario that contains so many assumptions it renders the project completely speculative." See MACLA lntervenors' Exceptions at page 50. MACLA then puts forth a series of statistical analyses that were never presented at the hearing and are not part of the evidence. This "new evidence" is not supported by any competent substantial evidence in the record of this proceeding, and is therefore rejected. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994) (reflecting that an agency has no authority to make independent or supplemental findings of fact).
Therefore, based on the foregoing, the MACLA lntervenors' Exception No. 5 is denied.
OKALOOSA AND DEP EXCEPTIONS
Exception No. 1 - Timeliness of the MACLA Petition to Intervene and Standing of the MACLA lntervenors.8
Okaloosa County takes exception to findings of fact paragraphs 80 through 83 and conclusions of law paragraphs 296 through 300. See Okaloosa County's Exceptions at pages 4 and 5. The DEP takes exception to findings of fact paragraphs 78 through 80, 82, 83,272, and 273, and conclusions of law paragraphs 297 through
300. See DEP's Exceptions at pages 12-16. The gravamen of the County's and the DEP's exceptions is that the ALJ erred first by granting the MACLA Intervenor's late-
8 The DEP Exceptions were not numbered, therefore, the numbering scheme of the County's Exceptions are used herein.
filed Petition to Intervene, and second by finding that MACLA has standing.9
The ruling on the MACLA lntervenors' Exception No. 2 is incorporated into this ruling. As outlined above, intervention is a general legal principle within the sole discretion of the ALJ. See generally Fla. Admin. Code R. 28-106.205; § 120.57(1)(1), Fla. Stat. (201O); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001)(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.). As long as the ALJ's findings of fact are supported by competent substantial evidence, his determination that those findings constitute the "good cause" necessary to allow late intervention canriot be modified or rejected.
The ALJ's factual findings regarding the standing testimony (and reasons for their late intervention) of the MACLA lntervenors (RO ,r,r 15, 55 through 69, 70 through 83), including that they own property down to MHWL and are within the Project area, are
supported by competent substantial record evidence. In addition, since this Final Order finds that the Sherry Petitioners and Oceania Petitioners have standing, the MACLA lntervenors standing is also upheld. However, the issues that MACLA is allowed to argue can be limited by the ALJ under Rule 28-106.205, Florida Administrative Code, and in accordance with applicable intervention case law. See Ruling on MACLA
9 The County and DEP also contend that the ALJ's "good cause" findings conflict with the administrative rules and case law applicable to "new points of entry" into an administrative proceeding, and "substantial modification" of a project. See Okaloosa County's Exceptions at pages 6-7 and DEP's Exceptions at pages 13-15. However, a fair reading of the RO suggests that the ALJ's findings establish a set of facts that he then deems "good cause" for late intervention. To the extent that the ALJ's findings can be interpreted in the manner argued by the County and DEP, those interpretations are not adopted in this Final Order.
lntervenors' Exception No. 2 above; and Riviera Club v. Belle Mead Development Corp., 141 Fla. 538, 194 So. 783, 784 (Fla. 1940).
Therefore, based on the foregoing reasons, the County and DEP's Exception No.
1(as described above) is denied.
Exception No. 2 - Standing: Case No. 10-0515, The Sherrys and Mr. Donovan.
Okaloosa County takes exception to conclusions of law paragraphs 282 through 286 and 288 through 291. See Okaloosa County's Exceptions at pages 9-14. The DEP takes exception to conclusions of law paragraphs 279 and 281 through 291. See DEP's Exceptions at pages 7-12. The gravamen of the County and DEP's exceptions is that the ALJ erred by concluding that the Sherrys and Mr. Donovan have standing. The ALJ's underlying factual findings are not contested and are based on competent substantial record evidence. See Envtl. Coalition of Fla., Inc. v. Broward County, 586
So.2d 1212, 1213 (Fla. 1st DCA 1991)(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.").
This Final Order adopts the ALJ's ultimate conclusion that the Sherrys demonstrated standing under Section 403.412(5), Florida Statutes. See generally Reily Enterprises v. Dep't of Envtl. Prof., 990 So.2d 1248 (Fla. 4th DCA 2008); Palm Beach County Envtl. Coalition v. Dep't of Envtl. Prof., 14 So.3d 1076 (Fla. 4th DCA 2009)(reflecting that standing is unaffected by the ultimate resolution of the challenge on the merits). Based on the undisputed factual findings of the ALJ the Sherrys made a sufficient demonstration "that the proposed activity ... affects [the Sherrys] use or enjoyment of air, water, or natural resources ... " § 403.412(5), Fla. Stat. (2010). The
factual findings support a conclusion that the Sherrys "demonstrate[d] [they] may suffer an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected by this chapter."§ 403.412(5), Fla. Stat. (2010).10
The ALJ found that David and Rebecca Sherry run and walk on the beach daily. (RO 1123). They also surf, swim and crab. (RO ,i 23). The ALJ determined that the Sherrys (and Mr. Donovan) initiated Case No. 10-0515 because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island, and situated in such a way, that once dredged, it will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches. (RO ,i,i 12, 33).
The ALJ concluded that the Sherry Petitioners' standing to initiate the proceeding in
· Case No. 10-0515 was based on their proof through Ors. Dally and Young, that it is reasonable to expect that the beaches adjacent to the Surf Dweller and El Matador Condominiums and the beaches in Okaloosa Island, that they use extensively, could receive impacts from the Projecfs dredging of the borrow site, and that some of the impacts could be adverse and affect their use and enjoyment of the beach. (RO ,i,i 281 through 291).
The County and the DEP present arguments based on their own interpretations and inferences drawn from the evidence of record that are most favorable to their contentions. However, this agency does not have the authority to modify or reject the ALJ's ultimate factual determinations by interpreting the evidence or drawing inferences
10 This two-part test is derived from the case of Agrico Chemical Co. v. Dep't of Envtl. Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). The second part is also called the "zone of interest" usually defined by the substantive statutory licensing or permitting program of the regulatory agency. In this instance the JCP permit, comprised of a CCP and ERP permit, is the permitting program that provides the context for the Petitioners' substantial environmental interests. See § 161.055, Fla. Stat. (2010).
in a manner that is different from the reasonable interpretations made and inferences drawn by the ALJ. See, e.g., Heifitz v. Dep't of Business Regulation, 475 So.2d 1277, 1281-82 (Fla. 1st DCA 1985).
The ALJ found that Mr. Donovan is not a resident of the state of Florida. (RO ,T
28). The ALJ also found that Mr. Donovan and his family use the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island for walking, fishing, surfing, and swimming. (RO ,T 29). Mr. Donovan is concerned that changes to the beach could make walking and swimming dangerous (RO ,T 37). These are some of the uncontested factual findings that form the basis for a conclusion that Mr. Donovan's substantial environmental interests will be affected by the proposed JCP permit. See, e.g., §§ 120.53(13), 120.569, Fla. Stat. (2010); and Agrico Chemical Co. v. Dep't of Envtl. Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).11
Therefore, based on the foregoing reasons, the County and the DEP's Exception No. 2(as described above), is denied.
Exception No. 3 - Standing: Case No. 10-0516, the Oceania Petitioners (DEP's General/Clerical Exception No. 11).
Okaloosa County and DEP take exception to the ALJ's conclusion in paragraph 294 where the ALJ concluded that "[w]hether the Oceania Petitioners have independent standing, therefore, is an issue that need not be decided." The County and DEP assert that Oceania Petitioners' independent standing to bring Case No. 10-0516 should be
11 In addition, under the cases cited by the ALJ in paragraph 294 and endnote 36, Mr. Donovan is a co-petitioner with David and Rebecca Sherry in Case No. 10-0515, and need not have independent standing. See Coal. for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400,403, n.4 (Fla. 1996) ("While we question the standing of [one plaintiff], we need not discuss the issue because of the standing of the other plaintiffs.").
decided in order to assert what claims may be properly raised and decided in this proceeding. See Okaloosa County's Exceptions at pages 14-15 and DEP's Exceptions at page 6-7. Both the County and DEP argue that the Oceania Petitioners do not have standing. The County's exception asserts that "[t]he Oceania Petitioners have admitted that they have no objections to any environmental impacts from the Project," and their "concerns were only economic or related to boundary issues, and not within the zone of interests of the statutes at issue." See Okaloosa County's Exceptions at page 15.
Contrary to the County's assertion the statutory framework of authorizations required for the Project, include applicable proprietary criteria under rules such as chapter 18-21, Florida Administrative Code. (RO at page 5).
The ALJ's conclusion in paragraph 294 is not adopted in this Final Order because the Oceania Petitioners brought a separate proceeding (they are not co petitioners with Mr. and Mrs. Sherry like Mr. Donovan is in Case No. 10-0515). The case law cited by the ALJ is not applicable to this record. The ALJ made critical factual findings that were not contested and are supported by competent substantial evidence. The ALJ found that the Guidry Living Trust owns a condominium unit in the Oceania
Condominium and an undivided interest in condominium property down to the MHWL of the Gulf of Mexico. (RO ,m 39, 43, 44). The Guidry Living Trust is a member of the
Oceania Owners' Association, of which Roland Guidry is President. The Oceania
Owners' Association and its officers are mandated to manage the condominium property in the best interests of its members. (RO ,m 38, 40, 41). The interests of the collective Oceania Petitioners concern the property that is adjacent to the Project. (RO ,i 47). Thus, the Oceania Petitioners have standing to raise concerns as an adjacent
upland riparian owner. See, e.g., Surfrider Foundation, Inc. v. Town of Palm Beach,
DOAH Case No. 08-1511 (DEP 2009); Bd. of Comm'rs of Jupiter Inlet District v. Thibadeau, 956 So.2d 529 (Fla. 4th DCA 2007). This issue is one over which the Board has substantive jurisdiction. See Rule 18-21.004(3), Fla. Admin. Code.
Therefore, based on the foregoing reasons, the County and DEP's Exception No.
3 (as described above), is denied.
DEP's General/Clerical Exceptions
Nos. 1 and 2. The DEP takes exceptions to pages 11 and 12 of the RO where the ALJ states that Jim Martinello's testimony was presented through his deposition transcript, and that the MACLA lntervenors presented him as their witness. These exceptions are granted since the record shows that Jim Martinello was a DEP witness and his live testimony was presented at the hearing by the DEP. See Tr. at 1766.
No. 3. The DEP takes exception to the RO paragraph 69 where the ALJ found that "the Middle segment of the beach is one in which '[u]pland development is not currently threatened.'" The DEP asserts that although the record reflects that this segment is not currently threatened by a 25-year storm event; however, the record reflects and the ALJ found that the upland development is potentially threatened by a 50 to 100 year storm event. (RO 11232; Tr. at 499, 508-509). Under the standard of review this agency cannot make additional or supplemental findings of fact. Therefore, DEP's exception is denied. However, it's clear that paragraphs 69 and 232 contain factual findings that are supported by competent substantial record evidence.
No. 4. The Department takes exception to the RO paragraph 86 on the basis
that "one can infer that the ALJ implies that Oceania & MACLA lntervenors are not
within area of shoreline designated as critically eroded." See DEP's Exceptions at page
3. However, it is clear from a fair reading of all the ALJ's findings relevant to this issue that the subject shoreline is a part of the Department's critically eroded designation (RO 111169, 87-90, 230-233, 236, 238). Therefore, DEP's exception is denied.
No. 5. The DEP takes exception to the RO paragraph 86, endnote 15 on page 125, where the ALJ refers to concerns expressed by the Sherrys and Mr. Donovan in their amended petition and during the hearing - that the project could impact "their property." The DEP argues that the ALJ found the portion of beach along the shoreline is owned and controlled by Okaloosa County (RO 111T 20, 24-28, 30-32, 35, 36). The endnote accurately describes the Sherrys and Mr. Donovan's concerns. See Sherry
Petitioners' Second Amended Petition at page 411 8. Therefore; DEP's exception is
denied.
No. 6. The DEP takes exception to RO paragraph 96 where the ALJ found that "[o]ver the first several months following the Project's construction, a calibration process takes place." DEP asserts that although the transcript (Tr. at 140) contains the word "calibration," the process described by the ALJ in paragraph 96 is "equilibration." DEP points to the dictionary definitions of the word calibration to assert that its use in this context is incorrect. See DEP's Exceptions at pages 4-5. Although the record evidence cited by the ALJ in paragraph 96 uses the word calibration, his finding in paragraph 47 described the same process using the correct description. In paragraph 47 the ALJ found that "[a]fter construction activities, sand along the shoreline will equilibrate, that is, the sand will move or be transported so as to stabilize the shoreline. This stabilization or achievement of shoreline equilibrium will tend to move the shoreline along the
Oceania property waterward." This finding is supported by competent substantial evidence (Tr. at 764-766 and 1051, lines 20-25). Therefore, the use of "calibration" in paragraph 96 is harmless error.
No. 7. In this exception the DEP addresses "a number of scrivener's errors within the RO." The following specific errors are corrected in the RO:
In the RO paragraphs 126,327,328, and 330 "62B-14" is replaced with 62B-41; In the RO paragraph 135 "69B-49" is replaced with 62B-49;
In the RO paragraphs 317 and 321 "62B-41.009(1)" is replaced with 62B- 41.008(1).
With regard to the RO paragraph 137, the ALJ's quote from the Oceania Petitioners' original petition (filed on 2/2/10 in DOAH Case No. 10-0516) is accurate. See Oceania Petitioners' Petitionfor Hearing at paragraph 14:h., page 6.
No. 8. The Department takes exception to the ALJ's last sentence in paragraph
17 of the RO where the ALJ states that "[t]he Court held in Stop the Beach Renourishment12 that the Walton County Project was not a regulatory taking of property that demanded compensation to affected property owners under the Fifth Amendment to the United States Constitution." The DEP points out that, although not the actual holding of the United States Supreme Court, the ALJ's conclusion of law is a correct observation of the effect of applying the principles set forth in the Court's opinion to the project that was at issue in that case. See DEP Exceptions at page 14.
With that clarification, the ALJ's conclusion of law is adopted, and the DEP's exception is granted.
12 Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592 (2010).
No. 9. The DEP takes exception to paragraph 159, endnote 28 of the RO, on the basis that the case law citations in endnote 28 do not appear to relate to the ALJ's findings. The DEP points out that "[t]o the extent that an end note generally provides the source for a finding of fact, there is no competent substantial evidence in the record that these [case] citations contain support for or are sources for the findings of fact contained in paragraph 159." This exception is granted.
No. 10. The DEP takes exception to those portions of the RO paragraphs 280, 281, 297, and 302, where the ALJ states that the various third party petitioners and intervenors substantial interests will be or are "determined" in this proceeding. See DEP's Exceptions at page 5-6. This exception is well taken because it is generally accepted that the person seeking proposed agency action (license or permit) is the party whose interests are "being determined," while a third party petitioner or intervenor may have interests that are "being affected" by proposed agency action. See generally
§§ 120.52(13)(a) and (b), Fla. Stat.;§ 403.412(4), Fla. Stat.; Fla. Admin. Code R. 28- 106.205; see also Agrico Chemical Co. v. Dep't of Envtl. Regulation, 406 So.2d 478 (Fla. 2d DCA 1981) and Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. And Prof! Regulation, 53 So.3d 1158, 1162 (Fla. 1st DCA 2011)("The applicant is a 'party' to the permitting proceeding by operation of law because it is the specifically named person whose substantial interests are being determined by the agency's denial of the permit.")(Emphasis added.)
Based on the foregoing, DEP's exception is granted.
CONCLUSION
Having considered the applicable law in light of the rulings on the Exceptions above, and being otherwise duly advised, it is
ORDERED that:
The Recommended Order (Exhibit A), as modified by the rulings above, is adopted in its entirety and incorporated herein by reference.
Okaloosa County's applications for a Consolidated Joint Coastal Permit and
Authorization to Use Sovereign Submerged Lands in File No. 0286575-001-JC, as revised but without the proposed amendments to specific condition 5; and Water Quality Variance in File No. 0286575-002-BV, are GRANTED.
JUDICIAL REVIEW
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.
DONE AND ORDERED this i ay of August, 2011, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENT PROTECTION
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED. .
' CLERK
atlra,nol.d!
Jpa/11
DATE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:
D. Kent Safriet, Esquire Joseph A. Brown, Esquire Hopping Green & Sams, P.A.
119 South Monroe Street, Suite 300
Tallahassee, FL 32301
Harry Chiles, Esquire
Gregory Thomas Stewart, Esquire Carly J. Schrader, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200
Tallahassee, FL 32308
Steven K. Hall, Esquire Hall & Runnels, P.A.
4399 Commons Drive, East, Suite 300
Destin, FL 32541
by electronic filing to:
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
.-w-
this'3bday of August, 2011.
Walter C. Thompson, Jr., Esquire Qualified Representative
Barkley & Thompson, L.C.
1515 Poydras Street, Suite 2350 New Orleans, LA 70112-3730
William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 618
Tallahassee, FL 32301
Edward A. Dion, Esquire Nabors, Giblin & Nickerson, P.A. 208 Southeast Sixth Street
Fort Lauderdale, FL 33301
and by hand delivery to:
Kelly L. Russell, Esquire Kara L. Goss, Esquire Teresa L. Mussetto
Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
-\a..
- ,,
f:s:
A-> :.? ,-
FRANCINE M. FF6t:KES
Administrative Law Counsel
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000 Telephone 850/245-2242
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID H. SHERRY, REBECCA R. )
SHERRY, AND JOHNS. DONOVAN, )
)
Petitioners, )
)
vs. )
)
OKALOOSA COUNTY AND DEPARTMENT )
Case No. 10-0515
OF ENVIRONMENTAL PROTECTION AND ) BOARD OF TRUSTEES OF THE )
INTERNAL IMPROVEMENT TRUST )
FUND, )
)
Respondents, )
)
and )
)
JETTY EAST CONDOMINIUM )
ASSOCIATION, INC.; DESTIN ) POINTE OWNERS' ASSOCIATION, ) INC.; ET AL., )
)
Intervenors. )
)
EXHIBIT "A"
ROLAND GUIDRY, AS CO-TRUSTEE OF ) THE GUIDRY LIVING TRUST, AND ) OCENIA OWNERS' ASSOCIATION, ) INC., )
)
Petitioners, )
)
vs. )
) OKALOOSA COUNTY AND DEPARTENT ) OF ENVIRONMENTAL PROTECTION AND )
BOARD OF TRUSTEES OF THE )
INTERNAL IMPROVEMENT TRUST ) FUND; )
)
Respondents, )
)
and )
)
JETTY EAST CONDOMINIUM )
ASSOCIATION, INC.; DESTIN ) POINTE OWNERS' ASSOCIATION, ) INC.; ET AL., )
)
Intervenors. )
)
Case No. 10-0516
RECOMMENDED ORDER
These consolidated cases were heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, on August 2-5 and August 24-25, 2010, in Fort Walton Beach, Florida, and on November 5 and November 10, 2010, in Tallahassee, Florida.
APPEARANCES
For Petitioners David H. Sherry, Rebecca R. Sherry, and John S. Donovan:
D. Kent Safriet, Esquire Joseph A. Brown, Esquire Hopping Green & Sams, P.A.
119 South Monroe Street, Suite 300 Tallahassee, Florida 32301
Walter C. Thompson, Jr., Esquire Qualified Representative Barkley & Thompson, L.C.
1515 Poydras Street, Suite 2350 New Orleans, Louisiana 70112-3730
For Respondent Okaloosa County:
Harry Chiles, Esquire
Gregory Thomas Stewart, Esquire Carly J. Schrader, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200
Tallahassee, Florida 32308
Edward A. Dion, Esquire
Nabors, Giblin & Nickerson, P.A.
208 Southeast Sixth Street Fort Lauderdale, Florida 33301
Steven K. Hall, Esquire Hall & Runnels, P.A.
4399 Commons Drive, East, Suite 300
Destin, Florida 32541
For Respondents Department of Environmental Protection and Board of Trustees of the Internal Improvement Trust Fund:
Kelly L. Russell, Esquire Kara L. Gross, Esquire Teresa L. Mussetto Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
For Intervenors MACLA Ltd, II, LP; H. Joseph Hughes, as Trustee for the Betty Price Hughes Qualified Vacation Residence Trust; Kershaw Manufacturing Company, Inc.; Kayser Properties, LLC; Destin, LLC; Paul Blake Sherrod, Jr., and Cindy M. Sherrod; Blossfolly, LLC; 636 Gulfshore, LLC, and Laura Dipuma-Nord:
D. Ken Safriet, Esquire Joseph A. Brown, Esquire Hopping Green & Sams, P.A.
119 South Monroe Street, Suite 300 Tallahassee, Florida 32301
For Intervenor Holiday Isle:
William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 618 Tallahassee, Florida 32301
BACKGROUND
In the aftermath of tropical storms that caused extensive damage, Okaloosa County applied for authorizations from the state to restore several segments of its beaches and shores. Among the applications was one for a Joint Coastal Permit (the "JCP") to place beach-quality sand along a 1.7 mile segment of its shoreline. The project was given the name the "Western Destin Beach Restoration" (the "Western Destin Project" or the "Project"). The County also applied for variances. from two administrative rules (referred to by the Department in its Consolidated Notice of Intent as the "Variance"). The variance will allow the County to temporarily establish an expanded mixing zone that ex.tends 1,500 meters down current from the Project's
sand dredge site11 for a period of time that would exceed 30 days. The County also applied for an Authorization to use Sovereign Submerged Lands {the "SSL Authorization") in connection with the Project.
On December 31, 2009, the Department of Environmental Protection {the "Department" or "DEP") rendered a "Consolidated Notice of Intent to Issue Joint Coastal Permit, Variance, and Authorization to Use Sovereign Submerged Lands" {the "Consolidated NOI"). Attached to the Consolidated NOI, among other attachments, is a Draft Joint Coastal Permit {the "Draft JCP.")
David Sherry, Rebecca R. Sherry, and John S. Donovan {the "Sherry Petitioners"), filed a Petition for Formal Administrative Proceedings (the "Sherry Petition") challenging the Consolidated NOI. The Sherry Petition was assigned Case No. 10-0515 by the Division of Administrative Hearings ("DOAH"). Roland Guidry and Oceania Owner's Association, Inc. {the "Oceania Petitioners"), also filed a Petition for Formal Administrative Proceedings (the "Oceania Petition") regarding the Consolidated NOI. DOAH assigned the Oceania Petition Case No. 10-0516.
Jetty East Condominium Association, Inc., Destin Pointe Owners' Association, Inc., Holiday Isle Improvement Association, Inc., The Islander Owners Association, Inc., Inlet Reef Club Condominium Owners' Association, Inc., and Holiday Surf and
Racquet Club Condominium Association, Inc. (the "Holiday Isle Intevernors"), petitioned to intervene in the two cases shortly after they were referred to DOAH.
During the course of the proceedings, a number of parties identified in this order as the "MACLA Intervenors" petitioned to intervene. The petitions to intervene of both the Holiday Isle Intervenors and the MACLA Intervenors were granted subject to proof of standing at the final hearing.
STATEMENT OF THE ISSUES
Whether the Sherry Petitioners have standing to initiate the proceeding in Case No. 10~0515?
Whether the Oceania Petitioners have standing to initiate the proceeding in Case No. 10-0516?
Whether the MACLA Intervenors have standing to intervene?
Whether the Department should enter a final order that issues the JCP, the variance and the SSL Authorization?
PRELIMINARY STATEMENT
The Sherry Petitioners and the Oceania Petitioners filed their petitions on January 14, 2010.
The Department referred the petitions to DOAH for the assignment of an Administrative Law Judge. Administrative Law Judge David Maloney was assigned to conduct the proceedings.
On February 10, 2010, a Motion to Intervene in both cases was filed by Holiday Isle Intervenors and on February 12, 2010,
an Addendum to Intervenors' Motion to Intervene was filed. An Order granting the petition to intervene subject to proof of standing was rendered on February 17, 2010.
The County and Holiday Isle Intervenors moved to dismiss the Sherry Petition for lack of standing. The motion was treated as a motion to bifurcate the proceeding into separate segments: one segment restricted to the issue of the Sherry Petitioners' standing, and a second on the merits. A notice of hearing to separately address the Sherry Petitioners' standing was set, but was cancelled in early June when the parties agreed to try the standing issue at the final hearing on the merits of the two petitions. In the meantime, Case Nos. 10-0515 and 10-0516 were consolidated.
On March 22, 2010, Okaloosa County filed a "Motion for Attorney's Fees Pursuant to Section 120.595, F.S.," and on March 26, 2010, Petitioners' Response was filed. On April 5, 2010, Holiday Isle Intervenors filed a Motion for an Award of Attorney's Fees and Costs; on April 8, 2010, an addendum to Intervenors' motion was filed; and on April 13 Petitioners' response was filed.
On April 20, 2010, the Oceania Petitioners moved to amend the Oceania Petition by changing "Roland Guidry," the name of one of the Petitioners to "Roland Guidry as co-trustee of the Guidry Living Trust." Opposed by DEP, the motion was granted, and an
Amended Petition for Formal Administrative Proceeding was filed by the Oceania Petitioners on May 14, 2010.
The Sherry Petitioners filed a Notice of Related Case and Anticipated Motion to Consolidate on April 28, 2010. DOAH Case No. 10-2468, a petition filed by the Sherry Petitioners concerning another segment of beach on which the County wishes to conduct restoration activities was consolidated with Case Nos.
10-0515 and 10-0516. Case No. 10-2468, however, was later deconsolidated to proceed on its own through the administrative process at DOAH.
The City of Destin moved to intervene in the consolidated cases but withdrew on June 4, 2010.
The final hearing had been set to commence on July 26, 2010, and to extend for a two-week period. Shortly before the hearing, however, the Okaloosa County Board of County Commissioners voted to remove a segment of shoreline adjacent to the Oceania property from the Project and an Order was entered that continued the final hearing.
On July 12, 2010, the Sherry Petitioners moved to amend their Petition to remove an issue as to sand quality, and add the issue of a changed site condition related to the Deepwater Horizon oil spill (the "Oil Spill"). The Oceania Petitioners followed suit the next day. The Oceania motion was granted by
Order dated July 20. The Sherry motion was granted in part with certain amendments by Order dated July 21, 2010.
On July 20, 2010, the Petitioners filed a Notice of Filing Pre-Hearing Stipulation followed by an amendment to the stipulation filed the same day. The Holiday Isle Intervenors and the County joined the stipulation. The Department filed a supplement to the Amended Pre-hearing Stipulation on July 23.
On July 26, 2010, the Department filed a Notice of Filing Request for Modification and Revised Draft Joint Coastal Permit. Consistent with the vote of the Okaloosa County Board of County Commissioners, the revised JCP removed from the beach restoration project the segment of the shoreline roughly between R-22.6 to
R-23.2 adjacent to the Oceania Condominium property. It also added a specific condition requiring written authorization from upland owners prior to DEP's authorization of construction and a provision related to any impacts that might occur from the Oil Spill.
As a result of the revised Draft JCP Permit filed by the Department, the Sherry and Oceania Petitioners filed a motion for leave to amend their petitions. By Order dated July 30, 2010, the motion was granted in part and denied in part.
The consolidated cases 10-0515 and 10-0516 proceeded to a final hearing on the Oceania Petitioners' Third Amended Petition for Formal Administrative Hearing, and the Sherry Petitioners'
determined the petition had been untimely filed pursuant to Florida Administrative Code Rule 62-110.106(3)(a)l. As a result and in anticipation of a similar dismissal as to the Kayser and Nord Petitions, the MACLA, Kayser, and Nord Petitioners (the "MACLA Intervenors") jointly filed a Petition to Intervene in case numbers 10-0515 and 10-0516 on September 8, 2010.
Ultimately the Kayser and Nord Petitions were dismissed by DEP in the same manner and on the same basis as the MACLA Petition.
Amended Petitions were filed in each case, and subsequently dismissed with prejudice. No appeals were taken from those dismissals. On September 28, the MACLA Intervenors• petition to intervene in these proceedings was granted in part. Part of the petition was stricken, however, in response to an earlier motion to strike filed by the County.
At the final hearing, on August 2 through 5, Okaloosa County, as the applicant, proceeded first. The County presented the testimony of Jim Trifilio, and of Michael Trudnak, P.E., accepted as an expert in coastal engineering. The Holiday Isle Intervenors presented the testimony of Guy Tadlock. The Department presented the testimony of Ellen McLain Edwards, Ph.D., and Ralph Clark, P.L.S., accepted as an expert in coastal engineering. The Department presented the testimony of Jim Martinello, Janet Llewellyn, and Rod Maddox through their deposition transcripts.
Petitioners presented the testimony of Roland Guidry, David Sherry, Rebecca Sherry, John Donovan, William Dally, P.E., accepted as an expert in coastal engineering and Michael Barnett, P.E., Chief of the Department's Bureau of Beaches and Coastal Systems, accepted as an expert in coastal engineering.
At the continued hearing on August 24-25, 2010, Petitioners presented the testimony of Robert Young, Ph.D., who was accepted as an expert in marine and coastal geology. The County presented rebut al testimony of Michael Trudnak.
The hearing was continued until November 5, 2010, in order for the MACLA Intervenors to present the testimony of William Wilson to establish the standing of Destin, LLC. The hearing was continued again until November 10, 2010. On that final day of the hearing, the MACLA Intervenors presented witnesses Louise Brooker, Laura Dipuma Nord, H. Joseph Hughes, Royce Kershaw, Jr., William A. Stegall, Andrew Emile Bullock, Blake Sherrod, Raymond
F. Kayser, III, and Jim Martinello.
Official Recognition was taken of: chapter 92, Florida Statutes, in particular section 92.16; chapter 120, in particular section 120.542; part I of chapter 161, in particular sections
161.041 and 161.055; chapter 177; chapter 253, in particular sections 253.002 and 253.77; part IV of Chapter 373; section 403. 201; Florida Administrative Code Chapters 18-21 and 62-4, in particular rules 62-4.244(5)(c) and 62-4.242(2) {a)2.b, chapters
62B-33, 62B-36, 62B-41, 62B-49, 62-113, 62-302, and 62 312; and
Stop the Beach Renourishment, Inc. v. Walton County, 130 S. Ct. 2592 (2010).
The parties agreed to submit proposed recommended orders (PROs} by January 10, 2011. Upon unopposed motion by the Department, the time for filing PROs was extended until
January 24, 2011. Petitioners filed a request to extend the page limit to 90 pages, which was granted on January 21, 2011.
The parties' PROs were timely filed.
FINDINGS OF FACT
Setting and Preliminary Identification of the Parties
These consolidated cases are set in Okaloosa County.
They concern the Consolidated NOI issued by the Department to the County that indicate the Department's intent to issue state authorizations to allow the restoration of a stretch of beach known as the Western Destin Beach Restoration Project (the "Western Destin Project" or the "Project"}.
In addition to the Western Destin Project, there are other beach restoration efforts (the "Other Beach Restorations"} which concern the Gulf of Mexico coastal system along the shores of the Florida Panhandle and about which the parties presented evidence in this proceeding.
The applicants for the authorizations in the Other Beach Restorations efforts are either Okaloosa County or Walton County,
the coastal county immediately to the County's east, and concern Okaloosa and Walton County property or are on federal property used by Eglin Air Force Base (the "Eglin Projects" or "A-3" or "A-13").
The Eglin Projects have been completed. The source of the sand use in the Eglin Projects is a borrow area designated by the County and its agent, Taylor Engineering, as "OK-A" ("OK-A" or the ·"OK-A Borrow Area").
The County intends that the OK-A Borrow Area be the source of sand for the Western Destin Project.
West of East Pass, a passage of water which connects Choctawhatchee Bay and the Gulf of Mexico, the OK-A Borrow Area is between 4,000 and 5,000 feet off the shores of Okaloosa Island.
Okaloosa Island is not an island. It is an area of the incorporated municipality of Fort Walton Beach that sits on a coastal barrier island, Santa Rosa Island. Except for the part of the final hearing conducted in Tallahassee, the final hearing in this case took place in Okaloosa Island. As Mr. Clark put it (when he testified in that part of the hearing not in Tallahassee), "I am in Okaloosa Island. [At the same time), I am on Santa Rosa Island." Tr. 521 (emphasis added).
Petitioners in Case No. 10-0515, David and Rebecca Sherry and John Donovan (the "Sherry Petitioners") live along a
stretch of beach that is in Okaloosa Island. They do not live along the stretch of beach that is within the area subject to the Western Destin Project.
The Sherry Petitioners' stretch of beach is the subject of another beach restoration effort by the county (the "Okaloosa Island Beach Restoration Project"). The Okaloosa Island Beach Restoration Project, in turn, is the subject of another case at DOAH, Case No. 10-2468.
The OK-A Borrow Area is much closer to the Sherry Petitioners• property than to the beach to be restored by the Western Destin Project.
The Sherry Petitioners recognize the need for the restoration of at least some of the beaches in the Western Destin Project. The Sherry Petitioners initiated Case No. 10-0515, not to prevent the Western Destin Project from restoring those beaches, but because they are concerned that the beaches subject to the Okaloosa Island Project (including "their" beach) will suffer impacts from the dredging of the OK-A Borrow Area whether the dredging is done to serve the Western Destin Project or the other Projects the OK-A Borrow Area has served or is intended to serve.
In contrast to the Sherry Petitioners, the Petitioners in Case No. 10-0516 (the "Oceania Petitioners") do, in fact, live on beaches in a section of the Western Destin Project that was
slated for restoration when the Consolidated NOI was issued. The Oceania Petitioners are opposed to the restoration of the beaches subject to the Western Destin Project. They initiated Case No.
10-0516, therefore, because of that opposition.
Walton County applied authorizations from the state for the Walton County/East Destin Project (referred-to elsewhere in this order as the "Walton Project"). The Walton Project, like the Eglin Projects, is completed. Unlike the Eglin Projects, and the intent with regard to the Western Destin Project and the Okaloosa Island Project, the Walton Project did not use the OK-A Borrow Area as its source of sand. The Walton Project used a Borrow Area to the east of OK-A (the "Walton Borrow Area"). The Walton Borrow Area is in an area influenced by the ebb tidal shoal formed by the interaction between East Pass and the Gulf of Mexico.
The MACLA Intervenors (all of whom own property deeded to the MHWL of the Gulf in the stretch of beach subject to the Western Destin Project) together with the Sherry Petitioners and the Oceania Petitioners, seek findings in this proceeding concerning the impacts of the Walton Borrow Area to the beaches of Okaloosa County. They hope that findings with regard to Walton Borrow Area beach impacts will undermine the assurances the County and the Department offer for a finding that the
Western Destin Project will not cause significant adverse impacts to the beaches of Okaloosa County.
The Holiday Isle Intervenors support the Project. They are condominium associations or businesses whose properties are within the Project.
Like the Eglin Projects, the Walton Project is complete. The Walton Project was the subject of a challenge at DOAH in Case Nos. 04-2960 and 04-3261. The challenge culminated at the administrative level in a Final order issued by the Department that issued the state authorizations necessary to restore the Walton Project beaches. The Walton Project Final Order was appealed to the First District Court of Appeal where it was reversed. But it was reinstated in a decision by the Florida Supreme Court. The Florida Supreme Court decision was upheld when the United States Supreme Court issued a unanimous 9-0 decision less than two months before the commencement of the final hearing in these consolidates cases: Stop the Beach
Renourishment, Inc. v. Fla. Dep't of Envtl Prot., 130 S. Ct. 2592 (2010). The Court held in Stop the Beach Renourishment that the Walton County Project was not a regulatory taking of property that demanded compensation to affected property owners under the Fifth Amendment to the United States Constitution.
Stop the Beach Renourishment was argued before the United States Supreme Court in December of 2009, shortly before
filing of the petitions that initiated these consolidated cases. The final hearing in these cases was not set initially until July 2010 in the hope that the Stop the Beach Renourishment case would be decided, a hope that was realized.
In the meantime, another event threatened to affect these consolidated cases: the Deepwater Horizon Oil Spill (the "Oil Spill") in the Gulf of Mexico. The spill began with the explosion of the Deepwater Horizon oil platform in April of 2010 and continued until August of 2010 when the Oil Spill was stopped while these cases were in the midst of final hearing. The Joint Coastal Permit issued by the Department was revised to address impacts of the Oil Spill. No impacts, however, were proven in this proceeding by any of the parties.
The Parties
The Sherry Petitioners and Their Property
David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [ a condominium unit) of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . of Okaloosa County, Florida." 21 Their address is 554 Coral Court, #511, Fort Walton Beach, FL 32548.
The Sherrys entered the lease for their condominium unit in May of 2002 in anticipation of it being their retirement
home. After retirement, "towards the end of 2005," tr. 840, the unit became their permanent residence.
They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified:
This particular area we chose because of the beach quality. Quite frankly, ... I was surprised when I first saw the place.
the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen.
Tr. 841.
Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the
sugar white sand." Tr. 936 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry"s routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island.
Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed,
I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.]
Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it:
I . swim. I surf on the skim board, float out in the water . . I help Dave fish, we crab, . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen.
* * *
I've always run barefoot. That's the reason [we chose the beach next to the surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . [cross the beach] barefoot.
Tr. 939.
I actually think the project will impact me, at least, as much as my husband, David ..
my husband is . . involved with. . being board president of the Surf Dweller[.] I spend at least as much time as he does on the
beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm
. extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in ... I don't miss my morning walk.
Tr. 950.
The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island,31 Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium,41 is:
LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280,
281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY.
Ex. P-8, PET7158.
Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority and recorded in the Official Records of the County at Book 121, Pages 233-250. See County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as zones B-1 through B-4.51 Block 5 of Santa Rosa
Island is in zone B-2, "Apartment, Hotel Court and Hotel Areas." 61
Part F of the Protective Covenants and Restrictions, provides, -in part,
Beach Protection
* * *
The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority.
One hundred fifty feet inland from the mean water line, in front of all Bl and B2 Areas, will be public beaches. The next
150 ft. inland will be private beaches as set out on subdivision plats ...
County .Ex. 13, at page marked "BOOK 121 PAGE 242."
The Surf Dweller Condominium property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller condominium property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions.
John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN. . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA. " 71 The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, FL 32548. Petitioner Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia.
Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island:
I've ... got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf.
* * *
I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks.
Tr. 973-4.
In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as:
A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF
SANTA ROSA ISLAND
A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA
Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is
located) is also in Zone B-2 set up by the Protective Covenants and Restrictions.
Block 8, just as Block 5, is governed by Part F, Beach
Protection, of the Protective Covenants and Restrictions that places the beaches, for. at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County Ex. 13, at page marked "BOOK 121 PAGE 242."
El Matador Condominium lies between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat that is the last page of County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," Exhibit P-7, last page (un-numbered), landward of the Gulf of Mexico, that is, to the edge of the area of theprivate beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions, landward of the public beach designated by the same provision.
Neither the Surf Dweller Condominium Property in which the Sherrys reside, nor the El Matador Condominium Property inhabited by Mr. Donovan abuts or is a part of the area subject to the Western Destin Beach Restoration Project. The two properties in Okaloosa Island are to the west of the Project. The Sherrys and Mr. Donovan did not initiate Case No. 10-0515
because they oppose the restoration of the beach subject to the Project. They initiated the proceeding because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island and situated in such a way that once dredged it will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches.
The Beach, Post-Hurricane Opal and Other Tropical Storms
Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be
300 feet. See his testimony quoted, below.
The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its .ever-changing nature might have on the width of the beaches declared public and private81 between the MHWL and the Surf Dweller and El Matador condominium properties, however, there can be no doubt on the state of the record in this proceeding that at .the time of hearing there existed a 150 foot-wide stretch of beach water-ward of the two condominiums that the public has the legal right to occupy and
use. Indeed, Petitioner David Sherry, when asked about the private beach and public beach governed by the Part F of the Protective Covenants and Restrictions in cross-examination conducted by Mr. Hall on behalf of the County, confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife:
Q If someone .. crosses Santa Rosa Boulevard and utilizes this access[-Jway that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium?
A [N]o, they wouldn't have the right to do that.
Q • [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium?
A In that area, no. In the area south of that . . [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don"t have any problem with that. We let people do it --
Q On [the] public beach[.J
A On the public beach they"re perfectly free to do that.
* * *
Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct?
A Essentially, from the building to the Gulf of Mexico.
* * *
Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline?
A Correct.
Q So, there would be enough room today, based on the language of the restrictive covenants to have ... 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13) now?
A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded), yes.
Tr. 891-3, {emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach and its width is at least 150 feet.91
From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominiwn unit leaseholders included 150 feet of private beac4 landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His
lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See Tr. 986-87.
Mr. Donovan is concerned about the erosion and turbidity impacts the borrow site could have on the Gulf and the beach. Erosion would change his view of the beach from the window:..of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. Turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, a change in the beach and shoreline along the El Matador Condominium property as drastic, in Mr. Donovan's view, as that contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium.
The Guidry Petitioners and Their Property
Roland Guidry, a retired Colonel in the United States Air Force, is co-trustee of the Guidry Living Trust and the President of the Oceania Owners' Association, a condominium association governed by chapter 718, Florida Statutes.
The Guidry Living Trust is the owner of Condominium Unit 605 in the Oceania Condominium, a condominium established under chapter 718, Florida Statutes. The address of the unit is
720 Gulf Shore Drive, Unit 605, Destin, Florida, 32541. In his capacity as co-trustee, Mr. Guidry has the independent power to protect, conserve, sell, lease or encumber, or otherwise to manage and dispose of trust assets, which include Unit 605 in the Oceania Condominium.
The Oceania Owners' Association is mandated by the Oceania Declaration of Condominium to "maintain, manage and operate the condominium property." Ex. P-6 at 4. The declaration also declares, "[a)ll unit owners shall automatically become members of the association after completion of closing of the purchase of a unit in Oceania, A Condominium." Id. The Guidry Living Trust, therefore, is a member of Oceania Condominium Association.
The powers of the officers and directors of the Oceania Owners' Association are set forth in the Declaration of Condominium that governs Oceania:
The officers and directors of the association shall have the powers set forth in this declaration and the association bylaws, and shall, at all times, have a fiduciary relationship to the members of the association and shall operate and manage the association in the best interest of its members.
Id. Oceania's Declaration of Condominium, furthermore, prescribes that "[t)he association shall have all powers granted by Chapter[s) 718 and 617, Florida Statutes." Id. at 5.
Every member of the Oceania Owners' Association Board of Directors approved the initiation of Case No. 10-0516, according to the testimony of Colonel Guidry, but there was no documentary evidence offered that a vote had been taken of the Board of Directors at a board meeting on the issue of whether to file the petition that initiated Case No. 10-0516 or the outcome of any such vote.
As an owner of a unit in Oceania, The Guidry Living
Trust owns an undivided share of the Oceania Condominium's common property 101 which "comprise[s] all the real property improvements and facilities to Oceania, A Condominium, including all.parts of the building other than the units . and . [certain] easements " P-6 at 1, 2.
The Oceania Condominium real estate is deeded to the
·,
"APPROXIMATE MEAN HIGH WATER LINE OF THE GULF OF MEXICO" . P-6,
Exhibit "B." The Surveyor's Certificate on the survey of Oceania, A Condominium, attached to the Oceania Declaration of Condominium is dated January 16, 1996. The date is more than two months after Hurricane Opal made landfall and damaged the Okaloosa County coastline in October of 1995.
Standing of the Oceania Petitioners
Colonel Guidry did not appear at hearing in a personal capacity. He appeared in his capacities as co-trustee of the Guidry Living Trust and President of the Oceania Owners'
Association. In contrast to the Sherry Petitioners, therefore, Colonel Guidry did not allege his personal use and enjoyment of the beach as a basis for standing.
As to injury and standing of both the Guidry Living Trust and the Oceania Owners• Association, Colonel Guidry asserted a number of interests that he believed will be substantially affected by the Project. They fall into four categories of concern.
The first concern is with regard to the action of the sand along the shoreline of the Oceania property after the two reaches of beach to the east and west will have been restored under the revisions to the Draft JCP. After construction activities, sand along the shoreline will equilibrate, that is, the sand will move or be transported so as to stabilize the shoreline. This stabilization or achievement of shoreline equilibrium will tend to move the shoreline along the Oceania property waterward. Colonel Guidry expressed his concern as follows:
[The Oceania property] would be sandwiched
. between two public beaches. . mother nature will fill in what I call the Oceania Gap. Right now the only line we have on our beach is our southern property line [the MHWL of the Gulf][1lJ . That's the only line I know of that's on our beach or will be placed on our beach. But if sand fills in, then that creates a cloud of confusion, if the State lays claim to this sand that
accumulates in the Oceania Gap, as a result of the construction on both sides of us.
Tr. 764, (emphasis added).
The second category of concern relates to the location of the property post-construction between "two public beaches." Such a location, in Colonel Guidry's view, would make individual units at the Oceania Condominium less valuable.
The third category is that the public would be more likely to trespass on private Oceania property.
The fourth concern of Colonel Guidry is that the Project will have undesirable impacts to Oceania property owners' littoral rights to accretion and to touch the water. The first three concerns all stem from a decision made by the Board of County Commissioners after this proceeding was commenced to remove the Oceania property from the Project.
Oceania Removed
The beach and shore in the southern part of the Oceania condominium property,121 (the "Oceania Beach Segment of Shoreline" or the "Oceania Gap") were originally subject to the Consolidated NOI for the Western Destin Beach Restoration Project. But on the eve of the date scheduled for the commencement of the final hearing in these cases, the Board of County Commissioners for Okaloosa County voted to remove the Oceania Beach Segment of Shoreline from the application for the Project.
Taylor Engineering (the County's Agent) submitted a request to the Department that reads:
On behalf of Okaloosa County, Taylor Engineering submits its request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project . . The applicant has decided to remove the Oceania Condominium Property from the beach fill placement area. The revised project, as described in the enclosed permit drawings, includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R-22.6) and Reach 2 extends from approximately 200 feet east of R-023 (R- 23.2) to R-25.5. The Oceania Property defines the gap between Reach 1 and Reach 1. Additionally, we request the FDEP modify Specific Condition 1 of the Draft Joint Coastal Permit to reflect the modified project area. More specifically, we request that the Mean High Water Line Survey requirement of Specific Condition 1 exclude the Oceania Condominium property.
Notice of Filing Request for Modification and Revised, Draft Joint Coastal Permit, Exhibit A.
Revisions to the Original Draft JCP
In light of the vote and based on the County's request, DEP filed a Revised Notice of Intent on July 26, 2010, which included revision of the Draft JCP (the "First Revised Draft JCP"). The First Revised Draft JCP eliminated the Oceania Beach Segment of Shoreline from the Project and took other action such as requiring the applicant to check for oil in the OK-A Borrow Area prior to construction by both visual inspection and analysis
of sand samples because of the ongoing Deepwater Horizon Oil Spill in the Gulf. The revision also included changes to Specific Condition 5 of the Draft JCP.13 1
On August 18, 2010, the Department gave notice of another revision of the JCP (the "Second Revised Draft JCP"). The Second Revised Draft JCP changed Specific Condition 1 of the JCP by eliminating the requirement that the County establish a pre-project MHWL prior to undertaking construction activities and instead requires the County to conduct a survey in order to locate an erosion control line ("ECL").
The revisions to the Draft JCP stirred interest in participating in this proceeding among a group of property owners who do not want the beaches along their properties restored: the MACLA Intervenors.
The MACLA Intervenors and Their Properties
On September 8, 2010, a petition to intervene {the "MACLA Petition to Intervene") was filed by nine putative intervenors: MACLA LTD II, a Limited Partnership {"MACLA"); H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust ("Hughes Trust"); Kershaw Manufacturing Company, Inc. ("Kershaw"); Kayser Properties LLC ("Kayser"); Destin, LLC ("Destin"); Paul Blake Sherrod, Jr., and Cindy M. Sherrod ("Sherrods"); Blossfolly, LLC ("Blossfolly"); 639
Gulfshore, LLC ("639 Gulfshore"); and Laura Dipuma-Nord ("Nord"), (collectively, the "MACLA Intervenors.")
All nine of the MACLA Intervenors own real property in the City of Destin within the Project area that fronts the Gulf of Mexico. All nine properties have the MHWL of the Gulf as their southern boundary.
MACLA is a Texas Limited Partnership. Louise Brooker is its president. The address of its .property is 620 Gulf Shore Drive.
The Hughes Trust owns a one-third interest in real property at the address of 612 Gulf Shore Drive. H. Joseph Hughes is a trustee of the Hughes Trust.
Kershaw is an Alabama corporation. The address of its property is 634 Gulf Shore Drive.
The address of the Kayser property is 606 Gulf Shore Drive.
The address of the Destin property is 624 Gulf Shore Drive.
The address of the Sherrods' property is 610 Gulf Shore Drive.
The address of the 639 Gulfshore property is 6346 Gulf Shore Drive.
The address of the Blossfolly property is 626 Gulf Shore Drive.
The address of Ms. Dipuma-Nord is 600 Gulf Shore Drive.
The properties owned by the MACLA Intervenors are among 18-single family lots located between a rough mid-point of reference markers R-020 and R-021 and a rough mid-point of reference markers R-022 and R-023. See Ex. P-238. These 18 single-family lots are in the approximate middle of the Project.
The Oceania property, eliminated from the Project at the time of the filing of MACLA Petition to Intervene, is just to the east of the 18 single family lots in which the properties of the MACLA Intervernors are located. (Reference marker R-023 is set along the shoreline adjacent to the Oceania property.)
The MACLA Intevenors' properties and the Oceania property are within the area from R-020.3 to R-023.3 (the "Middle Segment", see discussion of Critically Eroded Shoreline, below). According to an evaluation conducted by the Department on January 7, 2009, the Middle Segment of the beach is one in which "[u]pland development is not currently threatened." Ex. P-238.
Timeliness of the MACLA Petition to Intervene
The MACLA Petition to Intervene was filed well after the commencement of the hearing.
Under rule 28-106.205, because it was filed later than
20 days before the commencement of the hearing, it could only be accepted upon "good cause shown" or if the time for filing were "otherwise provided by law."
The MACLA Petition to Intervene was also filed after the Department had entered an order dismissing petitions for administrative hearings filed by three of the MACLA Intervenors141 to contest the Second Revised JCP. The order of dismissal with prejudice by the Department dated September 7, 2010, was entered on the following bases:
First, the Petitioners had a clear point of entry to challenge the proposed permit after it was publicly noticed on January 9, 2010. The Petitioners failed to timely challenge the proposed permit when given the opportunity to do so. Second, it is well settled that any proposed modifications to a proposed permit made during the course of a de nova proceeding to formulate final agency action do not create a new point of entry.
Accordingly, the Petition is dismissed without prejudice to amend.
Petition to Intervene, filed September 8, 2010, Ex. A, at 2 of 8.
The Department was aware that the Western Destin Project "because of its size, potential effect on the environment, potential effect on the public, controversial nature or location, is likely to have a heightened public concern or is likely to result in a request for administrative proceedings."
Consolidated NOI, at 13 of 17. The Department therefore took pains to ensure that parties affected by the western Destin Project would be provided notice of the Project and have an opportunity to timely assert their rights to challenge the permitting and authorization of the Project.
The Consolidated NOI required publication within 30 days in the legal ad section of a newspaper of general circulation in the area a public notice of the Consolidated NOI. It also required proof of publication. The County complied on both counts. A notice was published on January 9, 2010, in the
Destin Log, in Okaloosa County. The public notice specifically identified the project location as between reference monuments
R-16.6 and R-25.5 in Okaloosa County, which includes the segment of the shoreline adjacent to the MACLA Intervenors Property.
The Department also provided a detailed statement of the "Rights of Affected Parties," including their right to petition for an administrative hearing pursuant to sections
120.569 and 120.57 within 14 days of receipt of written notice of the Consolidated NOI. The point of entry into the administrative proceedings to challenge the Consolidated NOI, therefore, in the case of affected parties with notice by virtue of the publication on January 9, 2010, expired on January 23, 2010.
The section of the Consolidated NOI that governed the rights of affected parties also warned:
Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the permit or even a denial of the application.
* * *
The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S.
Consolidated NOI, at 14 of 17.
The MACLA Intervenors read the Destin Log at least on occasion and communicated with counsel for the Oceania Petitioners. Some believed they were represented by counsel for the Oceania Petitioners and had contributed to legal fees incurred by the Oceania Petitioners.
Despite the foregoing, the MACLA Petition to Intervene was granted (subject to proof of standing) on the basis that the MACLA Intervenors had shown good cause for the filing after the deadline imposed by rule 28-106.205.
At the time a point of entry into administrative proceedings was provided by the combination of the Consolidated NOI in December of 2009 and publication in the Destin Log of the notice on January 9, 2010, the Draft JCP called for the applicant to provide a survey of a Pre-project MHWL rather than the establishment of an ECL. Neither notice of the Second Revised Draft JCP, filed on July 26, 2010, nor the Second Revised Draft JCP, itself provided a point of entry into formal administrative proceedings to parties whose substantial interest were at stake.
A new substantial interest, however, had been injected into the proceedings by the Second Revised JCP. The Second Draft JCP requires the establishment of an ECL as a condition of the permit in lieu of provision of a survey of Pre-project MHWL. The MACLA Intervenors promptly sought a point of entry to contest what is plainly a drastic change in circumstan9es with significant consequences to the boundary of their properties toward the shoreline with the Gulf of Mexico.
The effect of this change and the difficulty of keeping up with beach restoration activities in Okaloosa County, particularly for affected persons whose permanent residence is elsewhere, was demonstrated by the testimony of Louise Brooker, who lives in Amarillo, Texas. When asked "[w]hy did you wait until September of this year (2010] to file the intervention?," she testified:
[O]ur group thought that we were being represented by the Oceania group. when I did find out [the JCP had been issued], it was after the 30-day period. . I hadn't been reading the Destin Log every day because it's very difficult to do, and then it changed.
* * *
Then it made a huge difference between using the mean high water line
* * *
And then the ECL being established, which was the ECL that I do not agree with, then that
was being put in the permit. So that changed things a great deal. (emphasis added).
Tr. 1526-7.
Once their petitions for formal administrative proceedings had been dismissed with prejudice by the Department (or in the case of the MACLA parties whose petitions for an administrative had not been dismissed yet but appeared likely to meet the same fate), the MACLA Intervenors promptly sought relief through filing the MACLA Petition to Intervene.
When the petition to intervene of the MACLA Intervernors was opposed by the County and the Department, the placement of the substantial interest at stake in the proceeding of a fixed ECL as the southern boundary of their property by the Second Revised JCP and the quick action of the MACLA Intervenors in contesting in contesting it was viewed as good cause for the filing of their petition later than required by rule.
The Other Parties
Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP, the Variances and the SSL Authorization.
The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits
required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations.
The Holiday Isle Intervenors are businesses and condominium associations, all of whose members own real property or conduct businesses along the segment of the beach to be restored by the Project. Their properties (unlike the Oceania property and the MACLA Intervenors' properties in the Project "gap" between R-22.6 and R-23.2) are along shoreline that has been designated by the state as critically eroded.151
Critically Eroded Shoreline
Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline":
"Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife. habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be.stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects.
Fla. Admin. Code R. 62B-36.002(4), (the "Critically Eroded Shoreline Rule").
The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event.
Consideration of the Project on this basis leads to the Project being broken into three segments: a segment from R-17 at the west end of the Project to roughly R-20.3 (the "Western Segment"); a segment roughly between R-20.3 and R-23.2 (the "Middle Segment"); and a segment roughly between R-23.2 and
R-25.5 (the "Eastern Segment"). Mr. Clark described the impact of a 25-year storm event on the Western and Eastern Segments:
[T]hose two areas, based on the evaluation and the projection of the impact of a 25-year storm event, which is a high frequency storm event, showed that there would be erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened.
Tr. 499. As for .the Middle Segment, "the same evaluation did not show that the 25-year storm event would provide that same level of threat." Id.
The Middle Segment, however, for the purposes of continuity of the management and design integrity, was also designated as Critically Eroded Shoreline and the entire stretch
of shoreline, including all three segments, Western, Middle, and Eastern, was originally included in the Project.161
The Project
With the elimination of the Oceania Gap, the Project calls for the placement of 831,000 cubic yards or so1 71 of beach quality sand along .1.7 miles {less the 600 feet of the Oceania Gap) of shoreline within the City of Destin between reference monuments R-16.6 and R-22.6 and between R-23.2 and R-25.5.
The Project is designed to restore the shoreline to conditions that existed before Hurricane Opal in 1995. The useful life of the Project is estimated to be eight years.
The Project will restore beach along 32 separate parcels of property, 31 of which are privately owned. The exception is a small area of publicly owned beach at the extreme west end of the Project.
The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that.work zone, there is a lot of heavy equipment that moves the sand around ... looking at
the Project . [from] an aerial view, roughly half the.sand
will be placed seaward and half the sand [the] Mean High water Line." Tr. 139.
. landward of ..
The Project's construction template or "the shape of
the beach when it['Js constructed," id., consists of a dune, a back berm and a wide variable berm. The dune has an elevation of
8.5 feet and a crest width of 30 feet. The berm has an elevation of 5.5 feet. The width of the construction varies but averages about 200 feet.
Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. "That near shore bar acts as a wave break ... and dissipates wave energy during storms. So having a good healthy bar out there can definitely provide storm protection." Tr. 140.
"Using "two to 250 feet a day,"1 81 as a "good
approximation for the progress . [in] constructing the " 1 91 Project, construction on any particular individual property should take between one or two days "depending on how ... wide the property is and how fast the construction progresses."
Tr. 141. A property along a lengthier segment of the beach, like the 600 feet at the seaward boundary of the Oceania Property had it remained a part of the Project, therefore, would take "two to three days." Tr. 142.
Storm erosion models on the construction berm showed that the Project will provide protection from a fifty-year storm.
Selection of the Sand Source: Borrow Area OK-A
The engineers of the Project, ( "Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore'' site.
The far-shore site is eight miles offshore and about a
mile east of East Pass and is designated "OK-B."
The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, it is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately
0.9 miles wide north to south, it covers approximately 700 acres.
At its landward-most side, it will be dredged to 10 feet into the existing bottom.
Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone.201 Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf."21 1 Tr. 513. It is referred as the near shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site."
The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts.
Sand quality is "the number one criteri[on]."
Tr. 143. It involves grain size, soil and shell content, and sand color.
Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand.
If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8
miles distance from shore that it would not impact the shoreline in any way. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-Bare unlikely2.21
A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distanc'e. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B.
Taylor Engineering {and ultimately the County) selected OK-A as the sand source.
The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October of 2009.
The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13.231 The selection of OK-A was not upset by Taylor Engineering's OK-A Borrow Area Impact Analysis.
Borrow Area Impact Analysis
An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July of 2008.
Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion.
Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents.
The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" Tr. 149. The basis was the 100-year storm data from Hurricane Opal.
The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that
involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it:
When you use . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . the propagation of distance of the waves is relatively short.
And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . in applications like [Okaloosa County's for the western Destin Project], you ignore the effects of bottom friction.
Tr. 150.
The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." Tr. 152. In the case of OK-A, it is intended to serve the Eglin Air Force Base Project, the Okaloosa Island Project and the Western Destin Project. These projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling.
With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible.
Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." Tr. 152.
ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area.
Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the. borrow area would be negligible whether in normal or "storm" conditions.
The Application
Coastal Construction Permits and CCCL Permits
The Application was processed as one for a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit.
Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits.
The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See Tr. 424-5.
Indeed, when it comes to beach restoration projects (or "shore protection" projects} such as the Western Destin Project, section 161.053 of the CCCL Statute provides as follows in subsection (9): "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated bys. 161.041 [the Shore Protection Statute] "
The Department interprets section 161.053(9} to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP.
b. The "Written Authorization" Provision
Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute.
Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1} and (2).
Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4).
Section (1) of rule 62B-41.008 provides, in pertinent part, as follows:
A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department ... The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" .
is hereby incorporated by reference.
The application shall contain the following specific information:
* * *
Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida.
* * *
(n) Written authorization for any duly authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of
evaluating site conditions prior to final processing of the permit application.
(emphasis added).
Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the
Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B-41.008(1)(f), (h), (il, (jl, (k), (ll, or (ml, F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (cl or (nl.
The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). It did not contain written proof of ownership of any property that will be used in carrying out the Project nor did it contain authorization for such use from the property owner upland of ean high-water, information required by paragraph (c). It did not contain written authorization for any duly-authorized member of the Department staff to enter upon any private property to be used in carrying out the Project for the purpose of evaluating the site conditions prior to final processing of the permit application, information detailed in paragraph (n).
As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the 31 privately-owned properties within the Project area, including the MACLA intervenors.
As part of the Application, however, the County requested a waiver of the requirements related to authorizations.
A waiver was requested under number 14 of the Application. It provides:
Satisfactory evidence demonstrating that the applicant has sufficient control and interest in the riparian upland property, as described in Section 18-21.004(3)(b), Florida Administrative Code. Governmental entities that qualify for the waiver of deferral outlined in this rule must provide supporting documentation in order to be eligible. If the applicant is not the property owner, then authorization from property owner for such use must be provided.
Joint Ex. 1, at 3 of 9. The County, through its agent, Taylor Engineering, responded to number 14 of the Application as follows:
Response: The applicants request a waiver of the requested information under Rule 18- 21.004(3)(b), which grants an exception to the upland interest requirement for restoration and enhancement (e.g. nourishment) activities conducted by a government agency. According to Rule 18- 21.004(3)(b), satisfactory evidence of sufficient upland interest is not required for the proposed activity, because the proposed offshore borrow area is not riparian to uplands and the beach fill activities will not unreasonably infringe on riparian rights.
Joint Ex. 1, Attachment A, at 3rd un-numbered page.
133.. Rule chapter 18-21 governs Sovereignty Submerged Lands Management. Ru•le 18-21.004(3)(b) ("the Upland Interest and Riparian Rights Rule") provides as follows:
(3) Riparian rights.
* * *
(b) Satisfactory evidence of sufficient upland interest is required for activities on sovereign submerged land riparian to uplands, unless otherwise specified in this chapter.
* * *
Satisfactory evidence of sufficient upland interest is not required . . . when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights.
(emphasis added).
Item number 18 of the Application calls for signatures related to "any proprietary authorizations identified above," such as those identified in item number 14. Consistent with the request for a waiver from providing the requested in.formation with regard to satisfactory evidence demonstrating sufficient control and interest in the riparian upland property, no signatures were provided by the County or its agent.
Rule 62B-49.003(3), entitled "Policy" provides:
Any application submitted pursuant to this chapter shall not be deemed complete, and the timeframe for approval or denial shall not commence until the Department has received all information required for: a coastal construction permit under Section 161.041, F.S., and Chapter 62B-41, F.A.C.; an environmental resource permit under Part IV of Chapter 373, F.S., and Title 62, F.A.C.; and a proprietary authorization, under Chapter 253, F.S., and Chapters 18-18, 18-20
and 18-21, F.A.C.
See the material bound and attached to the Request for Official Recognition filed August 2, 2010, Tab "Chapter 69B-49, F.A.C."
The Department deemed the Application complete on December 30, 2009.
Amendment of the JCP re: Written Authorizations
The petition for formal administrative hearing filed in Case No. 10-0516 challenged the Consolidated NOI on the bases,
inter alia, that the Application had failed to "provide 'sufficient evidence of ownership' as defined in rule 62B- 33.008(3)(c), F.A.C., to be a proper applicant for the Permit" 2 41 and that the County had not "provided satisfactory evidence of sufficient upland interest to be entitled to a letter of consent to use sovereign submerged lands." 2 51
To support their allegation that the County is not a proper applicant for the JCP, the Oceania Petitioners amended their petition on July 13, 2010, to add the following:
The County must provide the Department "[w]ritten evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high-water but not sovereign land of the State of Florida", as required by [paragraph (c) of the JCP Application Specific Information Rule].
j. The Department must receive "[w]ritten authorization for any duly-authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site
conditions prior to final processing of the permit application", as required by Rule 62B- 41.008)1} (n), F.A.C.
The Amendment was made despite the existence in all of the versions of the Draft JCP, the original version and the revised versions, of General Condition Six:
This permit does not convey to the Permittee or create in the Permitee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges.
Joint Ex. III at Tab 9 at 4 of 26.
With the filing of the Oceania Petitioners' Second Amended Complaint in Case No. 10-0516, the issues appeared to be fully joined. Before the case proceeded to hearing, however, the County voted to remove the Oceania Property from the Project (see paragraphs 31 and 32, above). The vote led to a formal request from the County to DEP to revise the Project and a revision by the Department of the Project's drawings and the Draft JCP (the "First Revised Draft JCP"), notice of which was filed on July 23, 2010.
The revisions to the Draft JCP necessitated by the elimination of the Oceania property from the Project was not the only revision made to the Draft JCP as noticed on July 23, 2010. The Department also revised the Draft JCP's Specific Condition 5.
This latter revision prompted the Sherry Petitioners to file a petition for an administrative determination concerning un adopted rules. DOAH assigned the petition Case No. 10-6205RU.
During the final hearing, the Department revised the Draft JCP a second time (the "Second Revised Draft JCP".) The second revision inspired the MACLA Petitioners' petition to intervene. Just as with the Sherry Petitioners, the revision to Specific Condition 5 prompted the MACLA Petitioners to petition for an administrative determination concerning un-adopted rules. DOAH assigned this second un-adopted rule challenge to Specific Condition 5 Case No. 10-8197RU.
Case Nos. 10-6205RU and 10-8197RU
In general, the revision to the Draft JCP's Specific Condition 5 advised the County that no beach restoration work can be performed on private upland property unless authorization from the owner of the property has been obtained and submitted to the Department ("the Upland Property Authorization Requirement"). The revision also provided an exception to the Upland Property Authorization Requirement: the County could submit an authorization from a court of competent jurisdiction that such an authorization is not required.
Case Nos. 10-06205RU and 10-8197RU were heard at the same time as these consolidated cases.261 A final order was issued with regard to the two cases on November 4, 2010. The
final order dismissed the case because the Sherry Petitioners and the MACLA Petitioners had not demonstrated that they would be "substantially affected" by Specific Condition 5 as required by section 120.56(3) for a party to have standing to challenge an agency statement that constitutes a rule which has not been adopted pursuant to the rule-making procedures found in section 120.54(1)(a).
Case Nos. 10-6205RU and 10-8197RU were two of three petitions seeking administrative petitions concerning un-adopted rules that were consolidated and heard with the consolidated cases subject to this Recommended Order. The third was a case that had been filed by the Oceania Petitioners earlier in the proceeding: Case No. 10-5384RU.
Case No. 10-5384RU
Case No. 10-5384RU was filed by the Oceania Petitioners in order to challenge as an un-adopted rule Specific Condition 1 as it appeared in the Original Draft JCP ("Original Specific Condition l").
Original Specific Condition 1 contained several requirements. In general, it required the County to record a certificate before the commencement of construction associated with the Western Destin Project. The certificate was required to describe all upland properties along the shoreline of the Project. The certificate was also required to be accompanied by
a survey of a pre-project mean high water line (the "Pre-project MHWL) along the entire length of the Project's shoreline.
The case claimed that the Department had made another statement that constituted an un-adopted rule which violated the rule-making provisions of chapter 120: "that an Erosion Control Line (the 'ECL') is not required to be established pursuant to Section 161.161, Florida Statutes, for a beach restoration project unless 'state funds' are used for the construction (as opposed to just the design) of a beach restoration project." Case No. 10-5384RU, Petition for an Administrative Determination Concerning Unadopted Rules, at 2.
During the course of the final hearing, however, the Department filed a notice of a set of revisions to the First Revised Draft JCP. These revisions (the "Second Revised Draft JCP") included a revision of Specific Condition 1.
The Second Revised Draft JCP
The notice by the Department that alerted the parties to the Second Revised Draft JCP was filed on August 18, 2010.
The August 18, 2010, Notice contains two changes to the First Revised Draft JCP.
The first change deletes entirely the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5384RU). It substitutes the following language:
Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss.
161.141-161.211.
Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4.
Thus, the first change noticed by the Department on August 18 deleted the requirement that the County submit a survey of a Pre-project MHWL. It requires, instead, that the county establish an ECL consistent with applicable statutory provisions.
The second change was made with respect to Specific Condition 4(c) of the First Revised Draft JCP, which lists items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed (with construction) by the Department. The existing language was deleted in its entirety and the following language was substituted:
Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County.
Id.
Disposition of Case No. 10-5384RU
The same Final Order that disposed of Case Nos. 10-
6205RU and 10-8197RU disposed of Case No. 10-5384RU. The Petitioners in Case No. 10-5384RU were found to lack standing to challenge Original Specific Condition 1 and the petition that initiated the case was dismissed.
In addition, the Final Order concluded that had the Petitioners had standing to bring the challenge, the case would still have been decided in favor of the Department. This conclusion was based on the remedy called for by section 120.57(1){e).271 That remedy was found to have been achieved when the Department changed Specific Condition 1 to require an ECL rather than a Pre-project MHWL. See Final Order, Case No. 10- 5384RU (DOAH November 4, 2010).
In addition to the record made with regard to the three rule challenges during the final hearing on the Sherry and Oceania Petitions, most of the rest of the evidence at the final hearing concerned the application of the regulatory authority of the Department and the Board of Trustees found in the Florida Statutes and the Florida Administrative Code, especially the environmental impacts of the Project as permitted by the Second
Revised Draft JCP and as authorized under the variance and the Sovereign Submerged Lands Use Authorization.
Impacts
The depth of OK-A should not exceed -49.4 feet, NGVD in an area where the depth of the ocean bottom is roughly -40 feet, NGVD.
The excavation of the borrow site is designed in two dredging phases. The first phase, anticipated to provide up to
116 percent of the sand needed by the Project, is designed to a depth of 47.4 feet. "If for some reason, the contractor needs
more sand ., then he can move into Phase II depth] of minus 47.4 to minus 49.4 feet [NGVD].
[at a
[, J a two
foot deep layer throughout the entire borrow area." Tr. 165.
OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area.281
Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering
conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." Tr. 633.
Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an .excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts.
Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally
General Wave Dynamics
"[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also become involved with diffraction.
Shoaling is a growth in height from interaction with the shallow bottom or a shoal.
Refraction is a process of alignment of waves with bottom contours.
Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features.
As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions.
Dr. Dally offered the following description of wave changes"as they close in on the face of the beach and approach interaction with the shoreline. The description includes the potential impacts of an excavated OK-A on the beaches and shores of Okaloosa Island adjacent to the Surf Dweller and El Matador condominium property:
As they pass into the very nearshore. they, of course, grow in height. They then break. [or) [s]ometimes, as they pass
over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation.
* * *
Wave reflection from abrupt bathymetric changes... in this case, the landward most
. notch of the borrow area would be a reflective surface . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they
will reflect and begin defraction [sic] so that it becomes a . . complicated wave field.
Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport.
Sediment Transport
"Sand can move along or away from the beach in two ways." Tr. 1141. It can move along the shoreline or it can move offshore.
Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, ratner than those that break straight onto the beach.
The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west.
The Sherrys and Mr. Donovan Petitioners own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "[t]hose beaches have, over the ... last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." Tr. 1143. This area of the Okaloosa county's beaches and shores is the area most likely to be affected by an excavated OK-
A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site.
Borrow Site Impacts
Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area.
The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," tr. 640, in essence', a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea.
The second wave process creates the potential for the waves to become "very, very, complicated." Tr. 640. They could "trip", that is, the notch in the borrow area could break the waves. "[B]rag scattering" (tr. 641) could make the waves deteriorate into shorter period waves.
If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the
potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport.
Just as Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial.
The area of shoreline that would be affected by wave
impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area
affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern. . increases the size of the shadow zone," tr. 680, to a size·,much larger "than the actual shadow zone of the .
borrow area." Id.
Along these same lines; if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property.
Distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor
Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And
that's when you can really cause impacts to the beach, both
accretive and erosive impacts." Id. (emphasis added).
The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that. adverse impacts will occur.
The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to
the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach.
In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report.
The OK-A Borrow Area Impact Analysis Generally
183; Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report.
Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction.
The only numerical data analysis specific to the
excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report.
The Report described its evaluative efforts:
[T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes.
STWAVE ( teady-State Spectral wave Model) simulated normal (average) and extreme (100- year (yr) storm) waves propagating over the baseline and post-dredging bathymetries.
ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet.
County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics.
Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data is not measured wave data. Instead, it consists of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data is then placed in a model coded to represent the entire Gulf.
The WIS station from which data was collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurement, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurement would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however,
If you don't have [field measurement data], then ... especially over the long-term
. a year or more [or] if you're analyzing
your beach profile data over a 10 year period, you would like to have ... wave data to accompany that 10 year period.
Generally we don't and that's when we start relying on models to fill in this missing information.
Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is .. limited to [the] deployment period." Tr. 1234.
It is not practical to take 10 years' worth of field measurement. As Mr. Trudnak explained:
Typically, you would install those gauges for
. a month or a couple of months . you want to use representative conditions .
you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions.
* * *
[W]hen you. install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you. capture representative conditions.
Id. {emphasis added).
The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data.
For its extreme STWAVE modeling, Taylor relied on WIS informati.on generated during Hurricane Opal in 1995.
Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County.
Criticisms of Taylor's STWAVE Modeling
Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) _and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction
results from its STWAVE models or conduct any sediment transport analysis.
Mr. Trudnak offered refutations of the criticisms.
For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't. feeling the bottom so they're not being affected by the bottom friction." Tr. 1236.
The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort.
Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling were not sufficient to support an opinion of "no impacts", but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches.291 see Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models
are." Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id.
With regard to the modeling used in Taylor"s Borrow Area Impact Analysis, Dr. Young summed up:
[W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer. . it's not precisely the right answer, but . . nobody knows how wrong the answer is. I don't know it, Mr.
Trudnak doesn't know and Mr. Clark doesn't know. And. that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data.
Tr. 1160.
In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore Borrow Area Impacts Analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any. 301
Taylor Engineering used STWAVE and not Boussinesq as the model for the Borrow Area Impact Analysis because the Boussinesq Model is typically used where diffraction plays the
dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area, making the STWAVE Model, if not more appropriate than the Boussinesq Model, certainly an acceptable model under the Project's circumstances.
When asked about the Bousinessq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience (rather than actual testing or modeling the impacts of OK-A as done by Taylor), he was "almost certain," tr. 691, that Bousinessq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion. [that is] momentary. . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial.
When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate
scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system.
Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing.
In short, Dr. Dally roundly criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his
testimony whether the impacts will be entirely de minimus, see rule 62B-41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County," a system whose ocean bottom, beaches and shores already contain scalloped features.
Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project.
The Walton Project and Its Borrow Area
Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County {East Destin) and western Walton County.
Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project.
Location and Comparison to the OK-A Borrow Area
The northwest corner of the Walton Borrow Ar.ea is rough y 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See Ex. P-13. The area between the easternmost point of the OK-A Borrow site and the westernmost point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its easternmost point is roughly one-half mile off-shore.
Comparison of the Walton Borrow Area and OK-A shows that OK-A is larger and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water than the Walton Borrow Area. Nonetheless, Petitioners characterize the two borrow sites as similar,31 1 mainly because with less than 1.5 miles separating them, they are relatively close to each other.
Despite proximity, there are significant differences, however, between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . further offshore ... [s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." Tr. 306.
In addition to distance from shore, the predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . and it included the outer flanks of the ebb shoal." Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone.
Walton Borrow Area Impact Analysis and Monitoring
Taylor Engineering"s borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." Tr. 156.
The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year.
Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach.
As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report.
Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008.
After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend " Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." Tr. 160.
Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier.
Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of
tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area.
In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area} is having a beneficial impact on the beaches to the west of the project and its borrow area.
Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining
near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes.321
In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton. Borrow Area which showed erosion early after completion of the Project is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with
Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts which are beneficial.
Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark.
Mr. Clark and The Department's Review of Western Destin Project Borrow Site Impacts
Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the
Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer.
During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water .. " Id.
He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." Tr. 486.
Among his specific duties is the review of "scopes of work and project feasibility studies that are provided by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review
of the Western Destin permit application and additional information related to the Project.
After review, M.r. Clark reached the conclusion that the "Project is a well designed Beach Restoration Project that's critically needed to restore the beaches of Western Destin to provide needed storm protection, recreational benefits and wildlife habitat." Tr. 488.
224; With regard to his overall conclusion as to the Project•·s physical impacts, Mr. Clark testified:
In my opinion, the placement of 831,000 cubic yards of beach compatible sand fill along Western Destin will provide a positive, beneficial impact to the beach and dune system of Western Destin. The excavation of that material from the proposed borrow area [OK-A], along with the excavation of material for four other fill projects proposed for Santa Rosa Island, three of which have been approved, is not expected to have any adverse impact to the beaches of Santa Rosa Island.
Id.
Mr. Clark's opinions that the Project would be beneficial to the beach and dune system and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity;
extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents.
Mr. Clark has reviewed 136 beach restoration projects.
Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number'' tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas." Id.
The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies.
Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those
investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips.
In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project Over his 37 years, Mr. Clark served on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico.
Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document" tr. 494, now electronically available to the public on the Department's website.
The report prepared by Mr. Clark which led to the designation of the Western Destin Project beach as critically eroded showed that the areas from R-17 to roughly R-20.3 and R-
23.2 to R-25.5 revealed erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. The report is based on evaluation and projection of the impact of a 25-year storm event.
The same report did not conclude that a 25-year storm event would provide the same level of threat to the area between R-20.3 and R-23.2 (the shoreline along the MACLA Intervenors" Property and the Oceania Gap) although that stretch of the beach is "potentially threatened by a 50 to a 100-year storm event." Tr. 499. The "R-20.3 to R-23.2" segment was included in the critically eroded designation for design and integrity of the Project and continuity of management of the coastal system.
The designation of the Project area as critically
eroded was made in 2006 and was updated by the Department at the
.
request of the County in 2008. The 2008 update indicated no need
to change the designation.
Although not as threatened as the rest of the shoreline in the Project, the shoreline along the Middle Segment, (including the MACLA Intervernors' Property and the Oceania ·Gap) is erosional. Data obtained as late as October 19, 2009, indicate that there had been more erosion since a Mean High Water Survey located the MHWL in 2008. The data does not show volumetric change, only that "there is a continued trend of erosion" of the shoreline in the Oceania Gap. Tr. 506.
With the Oceania Gap eliminated from the Project, elimination of the rest of the property in the Project's Middle Segment (between R-20.3 and R-23.2) would make the remainder of the Project unstable. It would "isolate a 2,000-foot segment
between R-23.2 and R-25.5 [the Eastern Segment] . and a 2,000-foot fill segment is not long enough to be a stable fill segment." Tr. 507. Although the elimination of all of the Middle Segment would not hurt "the very far west end" of the Project "very much," tr. 508, the elimination of the entire Middle Segment from the Project would also make the very east end of the Western Segment "relatively unstable." Tr. 508.
The Middle Segment, therefore, while not critically eroded, would benefit from beach restoration. Restoration will provide protection from the erosion it is experiencing and from 50-year and 100-year storm events should they occur during the life of the restoration. Restoration will include dune work that will provide protection from storm surge and dissipate the wave energy seaward of any structures in the Middle Segment.
Recent storm events have been 50-year and 100-year events. In the area of the Project, "Hurricane Opal was comparable to a 100-year storm event." Tr. 509. In Pensacola Beach, Ivan was a 200-year event. In the Destin area, Ivan "probably dropped to just below a 100-year storm event in terms of its magnitude. Hurricane Dennis was probably comparable to a 50-year storm event." Id.
The best defense against 25-year, 50-year, and 100- year storm events is beach restoration.
The OK-A Borrow Area is an offshore borrow area.
Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island.
In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area.
Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach. " Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." Tr. 520.
If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts·. to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but
to the beach to the west of the borrow area the impact would be accretion.
Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores. of Okaloosa County.
For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering.
Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island.
Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse
impact from a borrow area . " Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id.
Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young:
[W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And. . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design.
* * *
We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated.
Tr. 1150-1. When asked the question of whether there is a definition of a failed beach restoration project in the
literature or that is generally accepted by the coastal engineering community, see tr. 1152, Dr. Young testified, "I have not seen one." Tr. 1152. He added, " I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." Tr. 1152-3.
248'. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts.
Variance
The "Variance" referenced in the Consolidated NOI concerns two related variances: one from rule 62- 4.242(2)(a}2.b., and the other from rule 62-4.244(5)(c).
The northern boundary of the proposed borrow area is within Outstanding Florida Waters ("OFW"). That location led the County to seek a variance from the limitation in rule 62- 4.242(2)(a)2.b. that turbidity can exceed background conditions in OFW during permitted construction activity for no more than 30 days.
Section (2) of rule 62-4.242 sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows:
no Department permit . shall be issued for any proposed activity. . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that:
* * *
2. The proposed activity the public interest, and.
* * *
is clearly in
b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity. . , except on a temporary basis during construction for a period not to exceed thirty days .
The County also sought a variance from rule 62- 4.244(5)(c) which governs mixing zones in surface waters and reads:
In no case shall the boundary of a dredge and fill mixing zone be more than. 150
meters in radius in. . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants.
Section 120.54(2) authorizes an agency to grant a variance as follows:
variances . . shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the
person and when application of a rule would create a substantial hardship or violate principles of fairness.
Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150 meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150 meter radius, the County "would have had to almost continually be shutting down ....[its hopper] dredge," tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150 meter radius.
Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the variances for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more.down time and conditions [could cause] a cutterhead . to stop dredging and go into safe harbor into East Pass." Tr. 173.
The variance from rule 62-4.244(5)(c), therefore, was needed because the standard size mixing zone would have created a substantial hardship for the County.
In addition to outlining the substantial hardship, the County provided two additional bases in its application to
justify the variances: (a) no resources in the area, such as hard bottom or sea-grass beds, would be affected by a turbidity plume and an expanded mixing zone; and (b) citation to the Pensacola Naval Air Station ("NAS") project claimed to .be similar in that it involved OFW and had received a variance.
Upon receipt of the application for the variances, the Department requested additional information to establish whether OK-A, in fact, would be within OFW and more analysis of the comparability with the Pensacola NAS project.
The Department's engineering section determined that the comparability of the Pensacola NAS project was not adequately demonstrated because of a lack of detail about the hydrodynamics and mixing zone sizes of the two sites.
Nonetheless, the staff responsible for making the final decision on the variances (and ultimately the Department) determined the County's information justifying the variances to be sufficient.
In granting the variances, the Department did not rely on the County's comparison of the Project to the Pensacola NAS project. As explained by Dr. Edwards at hearing, "[H]aving the data . . from an actual project to back up and ... calibrate a mixing zone is an added bonus, but we just didn't have it in this particular case." Tr. 420.
The Department based its decision, in part, however, on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500- meter mixing zone was determined to be appropriate.
Independent of the information provided by the County, the decision, therefore, was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that.there was a comparable project in the area (not the Pensacola NAS project) that had been allowed a 1500- meter mixing zone.
In applying the standard from section 120.54(2) related to the underlying intent of the rules at issue and the statutes, the Department determined that "[t]he Project in the OFW was clearly in the public interests, according to [section]
373.414 and the minimum Water Quality Standards, even within the mixing zone[,] would still be met." Tr. 421-2.
There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters
in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI.
Petitioners presented no evidence to rebut the testimony elicited by the Department and the County that the purpose of the statute underlying the rules from which the variances are sought will be met by other means and that the application of the rules will create a substantial hardship.
Changed Site Conditions
267. Rule 62B-49.005(16) provides:
If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consisfency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 9-day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application.
After the filing of the County's application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico.
No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area.
The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See tr. 175.
Western Destin Erosion Control Line
The requirement for an Erosion Control Line is in section 161.161:
Once a project is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to
. locate an erosion control line.
* * *
In lieu of conducting a survey, the board of trustees may accept and approve a survey as initiated, conducted, and submitted by the appropriate local government if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211.
§ 161.161(3), Fla. Stat.
The Draft JCP as originally issued did not require the establishment of an ECL. It required the establishment of a Pre project Mean High Water Line instead.
The Second Revised Draft JCP dispensed with the requirement of a Pre-project MHWL. It requires that an ECL be established for all properties within the 1.7 miles stretch of beach in the Project area subject to beach restoration.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See§§ 120.569 and 120.57, Fla. Stat.
Joint Coastal Permits and CCCL Permits
The Department is responsible for administration of part I of chapter 161, part v of chapter 373, chapter 403, Florida Statutes and Florida Administrative Code Chapters 62-4, 62-302, 62-330, 62-345, 62B-41, 62B-49; and as staff to the Board of Trustees of the Internal Improvement Fund, is responsible for the administration of chapters 253 and 258, Florida Statutes, and Florida Administrative Code Chapter 18-20.
A Joint Coastal Permit is a legislatively mandated combination of three forms of authorization issued by the State of Florida. Activities that require a Joint Coastal Permit are activities that would require a coastal construction permit under section 161.041, sovereign submerged land authorization under chapter 253, and an environmental resource permit under Part IV of chapter 373. See Fla. Admin. Code R. 18-21.00401(7) and 62B-
49.001. These activities are typically beach restoration, construction of erosion control devices, port construction and inlet management. All three authorizations are reviewed concurrently and issued by the Bureau of Beaches and Coastal Systems as a single permit, the joint coastal permit. See§§ 161.055, 373.427, and 253.77(2), Fla. Stat.; and, Fla Admin. Code Chap. 62B-49 and R. 18-21.004.
The Department interprets its statutes and rules in light of its stance that a JCP is required for the Project so as to not require a CCCL permit under section 161.053 for the Project. The interpretation is reasonable and supported, moreover, by a specific statute. See§ 161.053(9), Fla. Stat.
Standing: Case No. 10-0515, The Sherrys and Mr. Donovan
The Department makes extensive arguments for why the Sherrys and Mr. Donovan do not have standing on the basis, without more, of their undivided interests in condominium property adjacent to public beach in Okaloosa County.
The Department also contends that Mr. Donovan, as a non-resident of Florida, is deprived of standing in this proceeding by section 403.412(5). The Department '.s interpretation of section 403.412(5) as applied to Mr. Donovan is clearly erroneous. While the statute clearly delineates a standard for citizens of the state, it does nothing to diminish the standing in administrative proceedings of persons who are not
citizens of the State of Florida and who assert standing under sections 120.569 and 120.57.
As for standing asserted on the basis that this proceeding is one in which the substantial interests of the Sherrys and Mr. Donovan will be determined, the Department refers to the two-pronged test for standing in formal administrative proceedings of Agrico Chemical Corp. v. Dep't of Envtl. Reg., 406 So. 2d 478 (Fla. 2d DCA 1981) as quoted in Reily Enterprises, LLC
Fla. Dep't of Envtl. Prot., et al., 990 So. 2d 1248:
We believe that before one can be considered to have a substantial interest in the outcome of the proceeding, he must show
that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing and 2i that his substantial injury is of a type or nature which the proceeding is designed to protect.. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.
Reily, supra., at 1251, quoting from Agrico, supra., at 482.
Provided their substantial interests are determined in this proceeding, no party contends that the Sherry Petitioners, do not meet the second prong of the test, that is, this proceeding is designed to protect them from the injuries they allege and for which they offered proof. The standing issue advanced by the Department for a finding that the Sherry Petitioners do not have standing falls under the first prong. The question, therefore, is whether the Sherry Petitioners will
suffer injuries in fact of sufficient immediacy should the JCP be implemented to entitle them to a section 120.57 hearing.
In Reily, above, the Court found the first prong of the test satisfied by proof that the petitioner could see the affected body of water (the Indian River) from his house and that he and his family had spent time by the river and enjoyed it immensely over the years together with his concern that the Reily project would affect his quality of life and the environment and the aquatic preserve that he and his family had learned to appreciate.
Similar to Mr. Reily, all three of the Sherry Petitioners can see the beach and the Gulf of Mexico from their condominium units, a residence in the case of the Sherrys and a unit in which he spends a substantial amount of time in the case of Mr. Donovan. They spend significant time on the beaches and by and in the Gulf and enjoy them immensely with the hope that their use and enjoyment will continue in the future.
Like the Petitioner in Reily vis-a-vis that project, the Sherry Petitioners each have concerns that the Western Destin Project by virtue of impacts to their beaches caused by the dredging of the OK-A Borrow Area for the Project will have effects on the environment and the coastal system they so appreciate. Furthermore, their concerns extend to curtailment of
their use and enjoyment of the beaches of Okaloosa Island because of the Project's impacts.
Through Drs. Dally and Young, Petitioners offered proof that the Project will cause impacts to the beaches adjacent to the Surf Dweller and El Matador Condominium properties on which the Sherry Petitioners recreate and otherwise use and enjoy. Nonetheless, the Department maintains that the proof does not support the standing of the Sherry Petitioners since it did not establish what the impacts would be (whether adverse or beneficial or both) nor attempt to describe, let alone show, the degree of the impacts that would be adverse. In the Department's view, none of the evidence offered by the Sherry Petitioners proved actual injury or, in the language of the Agrico decision, "injury in fact which is of sufficient immediacy to entitle [them] to a Section 120.57 hearing" as required by the test's first prong.
Whatever success the Department's argument might have
had under the Agrico test, the argument fails in light of appellate decisions on standing over the last few years that apply the test and have been determined to clarify it. See Gibby
Family Trust v. Blueprint 2000 and Dep't of Envtl Prot., Case No. 10-9292 (DOAH April 11, 2011 at 14-16; DEP May 26, 2011).
In a series of cases331 that began with Reily and culminated recently in St. Johns Riverkeeper, Inc., et al. v. St.
Johns River Water Management District, 54 So. 3d 1051 (Fla. 5th DCA 2011), three of the five district courts of appea1341 have held that standing to initiate an administrative proceeding under sections 120.569 and 120.57 does not require proof of actual injury for the Agrico test to be met. All that is required is proof that the petitioner has a substantial interest that reasonably could be affected by the agency action in question.
In line with those holdings, the Sherry Petitioners put on proof that the dredging of OK-A as part of the Project would cause impacts to the beaches that they use and enjoy. They also presented evidence that attacked the modeling done by Taylor Engineering which led Taylor to conclude that there would be no
, impacts, a conclusion in opposition to Petitioners' experts.
Had the testimony of Drs. Dally and Young established that the impacts would be significantly adverse, the Sherry Petitioners would meet standing under an application of the
Agrico test literally, that is, under a requirement that actual injury be shown.
Given the testimony of the Petitioners' experts, however, that it was not possible without more data, analysis and study to determine the type of impacts and the significance of those impacts, Petitioners did not establish actual injury. Nonetheless, their proof that the beaches of Okaloosa Island would receive impacts from the Project's dredging of OK-A and
that those impacts could be adverse to the beaches they use and enjoy meets the first prong of the Agrico test for standing as clarified by the Riverkeeper line of cases. This ruling does not mean that the Sherrys prevail on the merits of whether the JCP should be issued. That requires a weighing and balancing of all the testimony, including Mr. Clark's testimony on impacts to the beach caused by the dredging of OK-A. The Sherry Petitioners' standing is based on their proof through Drs. Dally and Young that it is reasonable to expect that the beaches adjacent to the Surf Dweller and El Matador Condominiums and the beaches in Okaloosa Island that they use extensively could receive impacts from the Project's dredging of OK-A and that some of the impacts could be adverse and affect their use and enjoyment of the beach.
Mr. and Mrs. Sherry and Mr. Donovan each have standing to initiate the proceeding in Case No. 10-0515. Standing to challenge the JCP on one basis or another does not mean, however, that they have standing to raise every issue alleged by the Petition to defeat the state authorizations. See the discussion of "Written Authorizations," below.
Standing: Case No. 10-0516, the Oceania Petitioners
In contrast to the Sherry Petitioners, Colonel Guidry did not testify about his personal use of the beach. He testified rather in his dual capacities as trustee for the trust
that owns an Oceania condominium unit and Oceania Condominium Association President.
The Department makes numerous arguments to defeat the standing of the Oceania Petitioners in this case. See its Proposed Recommended Order of Dismissal, at 33-43.351
With the exception of the standing evidence presented by the Oceania Petitioners, all evidence upon which the Oceania Petitioners rely was presented by the Sherry Petitioners as well. Whether -the Oceania Petitioners have independent standing, therefore, is an issue that need not be decided. See Coal. for
Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 403, n.4 (Fla. 19'96) ("While we question the standing of [one plaintiff), we need not discuss the issue because of the standing of the other plaintiffs. ") 361
Standing of the MACLA Intervenors
"Except for good cause shown, petitions for leave to intervene must be filed at least 20 days before the final hearing unless otherwise provided by law." Fla. Admin. Code R. 28- 106.205.
The MACLA Intervenors had good cause for the filing of the MACLA Petition to Intervene later than 20 days before the commencement of the final hearing.
Substantial interests of the nine MACLA Intervenors are will be determined by the outcome of this proceeding.
Approval of the JCP will result in a static ECL being recorded. It will set the water-ward boundaries of their property in lieu of the MHWL that presently demarcates the boundary line of their properties with state property: "[w]here established, an erosion control line represents the landward extend of the claims of the state in its capacity as sovereign title holder of the submerged bottoms and shores of the . . Gulf of Mexico. . and the bays, lagoons and other tidal reaches thereof." Fla. Admin. Code
R. 62B-41.002{15). The substantial interests of the MACLA Intervernors are clearly at stake in this proceeding since an ECL, even if in the same place as the present MHWL, will set the boundary permanently {or at least for the life of the Project, an amount of time reasonably expected to be considerable), while a dynamic MHWL, wherever it might be at the time of the establishment of the ECL, will move over time either toward or away from the position indicated by the Pre-project MHWL survey to have been provided by the County.
The publication in January of 2010 of the notice of the Consolidated NOI and the warning in the Consolidated NOI that the permit could be modified is not sufficient to defeat the good cause of the MACLA Intervenors in seeking to contest the condition of the JCP that an ECL be established, a condition not at issue in the proceeding until the second revision of the JCP. The MACLA Intevernors promptly sought intervention into this
proceeding as soon as they realized their petitions to challenge the Second Revised JCP would be dismissed by the Department.
The MACLA Intervenors have standing to intervene.
If it should be determined that they do not have standing to intervene, their participation does not matter. They presented no evidence of their own other than standing Bvidence and relied on the evidence presented by the Sherry Petitioners as to the impacts of the Project.
Standing of the Holiday Isle Intervenors
The properties of the Holiday Isle Intervenors are along shoreline that is critically eroded and adjacent to beaches clearly in need of beach restoration. The outcome of these proceedings will determine whether that need has any prospect of being met fully.
The substantial interests of the Holiday Isle Intervenors are subject to determination in this proceeding. They have standing to intervene.
Deference to Agency Interpretations
While courts need not defer to an agency's construction or application of a statute if the agency's interpretation conflicts with the statute's plain and ordinary meaning, Sullivan v. Fla. Dep't of Envtl. Prot., 890 So. 2d 417 (Fla. 1st DCA 2004), an agency's construction of the statutes it administers is entitled to great deference and should be accepted
unless clearly erroneous. See Verizon Fla. Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002).
"The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration."
State Contracting & Engineering Corp. v. Dep't of Transp., 709 So. 2d 607, 610 (Fla. 1st DCA 1998). An agency's interpretation of its own rule, therefore, is entitled to great weight and persuasive force in the appellate court. Id.
Section 120.57(1)(1), states, "The agency in its final order may reject or modify the conclusions of law [in a recommended order from an administrative law judge] over which it has substantive jurisdiction and interpretation of administrative rules [in a recommended order] over which it has substantive jurisdiction." This section of the Administrative Procedure Act371 "illustrates that [the] policy of deference to an agency's expertise in interpreting its own rules applies not only to the courts but also to administrative law judges." Id.
Deference is not given, however, to an agency's interpretation of a statute unrelated to the functions of the agency nor to the agency's interpretation of a statute that does not deal with any of the subjects within the jurisdiction of the agency. Chiles v. Dep't. of State, Div. of Elections, 711 So. 2d
151 (Fla. 1st DCA 1998).381 Also see§ 8.17, Stampelos, Florida
Appellate Practice, Fla. Bar, 6th Ed., at 8-25 to 8-26.
The statutes and rules.with which this proceeding is concerned are all related to functions of the Department or the Board of Trustees. The Department's interpretations, so long as they are settled, are entitled to a high degree of deference.
Proper Applicant
Rule 62B-41.005(3), which originally applied to coastal construction permits, states that the Department will determine whether to authorize coastal construction "upon receipt of an application from a property or riparian owner
"
Petitioners argue that the County is not a proper applicant since it is neither a property nor a riparian owner.
The argument was squarely rejected in Save Our Beaches, Inc. v.
Dep't of Envtl. Prat., Case Nos. 04-2960 (DOAH June 30, 2005; DEP July 28, 2005).
The Save Our Beaches order observed that wetland/environmental resource permits and coastal construction permits pursuant to chapter 62 are expressly made applicable to JCPs. In the event of a conflict between procedural requirements of chapter 62B-49 which governs joint coastal permits and concurrent processing of proprietary authorizations, chapter 62B-
49 controls. See Fla. Admin. Code R. 62B-49.001.
Rule 62B-41.002(3) defines a JCP applicant: "'Applicant' is any county. . having authority, pursuant to Section 161.041, F.S., Chapter 253 or 258 and Part IV of Chapter 373, F.S., to request a permit and authorization to conduct activities upon sovereignty submerged lands of Florida."
Section 161.041(1) provides:
If any. . county . desires to make any coastal construction. . or any construction or physical activity undertaken specifically for shore protection purposes, or other structures and physical activity including. . deposition or removal of beach material . . upon sovereignty lands of Florida, below the mean high-water line of any tidal water of the state, a coastal construction permit must be obtained from the department prior to the commencement of such work.
As written in Save Our Beaches:
[B)oth the City and the County desire to deposit beach material on sovereignty lands of the State of Florida below the MHWL for the purpose of shore protection and beach restoration pursuant to Sections 161.088 - 161.212, Florida Statutes, which provides for beach restoration and renourishment funded and sponsored by government, both State and local. It is not reasonable to interpret the applicable statutes and rules to require a local government to be the riparian owner of all the upland property which is subject to a beach restoration project. In.fact, Section 161.201, Florida Statutes, expressly preserves the common-law rights of upland owners affected by beach restoration activities under Section 161.141-161.211, Florida Statutes. DEP's interpretation that Rule 61B-41.005(3) is inapplicable to the Applications in this case is reasonable, and
the City and County are proper applicants for the JCP in this case. See Level 3 Communications, LLC v. Jacobs, 841 So. 2d 447 (Fla. 2003); Mezaros v. Dep't of Ag. And Consumer Serves., 861 So. 2d 86 {Fla. 5th DCA 2003) {agency interpretation of rules and statutes it is charged with administering is entitled to deference.)
Save Our Beaches, Inc. v. Dep't of Envtl. Prat., Case No. 04- 2960 {DOAH June 30, 2005; DEP July 27, 2005).
The County is a proper applicant in this case.
Coastal Construction Control Line Requirements
The Department's reading of the statutes that govern Joint Coastal Permits and CCCL Permits is correct. See Meszaros
v. Dep't of Agric. and Consumer Serves., supra.
Furthermore, Petitioners' arguments that a CCCL is required in this case is clearly without merit based on the plain language of section 161.053(9).
Written Authorizations
Or Evidence of Ownership and Sufficient Upland Interest
The absence in the County"s Application of the information listed in rule 62B-41.009{1)(c) and (n} does not require that the County's Application be denied.
Petitioners claim that the Waiver Provision shows that the Department violated its own rule when it "waived" the requirements found in paragraphs (c) and (n) when it deemed the application complete. To the contrary, however, the provision simply states circumstances for when waiver of application
requirements are mandated. The provision does not state that requirements found in (c) and (n) are not waivable. Rather, it sets out circumstances for when listed requirements must be waived. The provision, therefore, implies that application requirements in general, including those found in (c) and (n), may be waived and stands for a mandate that listed requirements be waived under certain circumstances.
If the Waiver Provision plays any part in this proceeding, it is to support the Department's discretion to waive the requirements found in (c) and (n) when the Department deemed the application complete.
The County's request, as an agency of government, for a waiver of evidence of upland ownership was granted, in essence, as well when the Department deemed the application complete. There is not sufficient evidence in the record, moreover, of infringement on riparian rights to support Petitioners' position that evidence of upland ownership was not waivable. The waiver was clearly justified by application of the Uplands Interest and Riparian Rights Rule to the Application.
Likewise, when the Department deemed the application complete, it waived compliance by the County with the requirement of providing the information required by (c) and (n) in rule 62B- 41.009(1). The justification for such a waiver may be less clear than the justification for waiver of evidence of the Applicant's
upland ownership since the latter is supported by the Uplands Interest and Riparian Rights Rule. Nonetheless, as discussed, above, the requirement of written of authorization for use of the property for restoration activities from the upland property owner in the Application is waivable. On the state of this record, the Department was justified in waiving the requirement and in interpreting its rules and the statutes they implement to allow the waiver.
Specific Condition Five: an Un-adopted Rule?
"'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency " § 120.52(16), Fla. Stat. (emphasis added}.
The additions to Specific Condition Five in the First Revised JCP apply solely to the County. They are not, therefore, statements of "general" applicability and do not meet the definition of "rule" in section 120.52(16).
The additions to Specific Condition Five made by the First Revised JCP do not constitute an un-adopted rule.
Rule Provisions Related to Siting and Design of Coastal Construction; Potential for
Adverse Impacts; the Coastal System and the Definition of "Beach"
Section 62B-41.007{1)(a} requires that "[a)ll coastal construction shall be sited and designed so as to minimize any expected adverse impact to the coastal system, marine turtles and
adjacent property and structures and be consistent with this Chapter" before a permit will be approved by the Department under chapter 62B-41.
Section 62B-41.005(17) states:
If the Department determines that the proposed coastal construction has the potential for adverse impacts to the system then the Department 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 r maining adverse impacts or other impacts shall be offsetny the applicant.
Section 62B-14.002(9) defines a "Coastal System" as:
The beach and adjacent upland dune system and vegetation; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence, and all other associated natural and manmade topographic features and structures.
Section 62B-14.002(5) defines "Beach" as "the zone of unconsolidated material that extends landward from the mean low- water line to the place where there is marked change in material or physiographic form, or to the line of vegetation."
Impacts
Section 62B-41.002(19) defines six different types of impacts, among them those that are adverse and significantly so:
"Adverse Impacts" are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars.
* * *
(d) "Significant Adverse Impacts" are adverse impacts of such magnitude that they are expected to alter the coastal system that result in either:
An increase in the rate of erosion;
Rendering the coastal system unstable or vulnerable to the effects of coastal storms or interfere with its ability to recover from the effects of a coastal storm;
A take, as defined in subsection 62B- 41.002(48), F.A.C., unless, as provided for by the provisions of paragraph 379.2431(1)(f), F.S.; or
An inconsistency with the provision of paragraph 379.2431(1)(c)., F.S.
Section 62B-14.002(14) defines "Erosion":
"Erosion" is the wearing away of land or the removal of c·onsolidated or unconsolidated material from the coastal system by wind or wave action, storm surge, tidal or littoral currents or surface water runoff. Erosion includes:
Landward horizontal movement of the mean high-water line or beach profile;
The vertical lowering or volumetric loss of sediment from the beach and dune or the offshore profile.
Reasonable Assurances
A permit applicant must provide reasonable assurances, which means that there is substantial likelihood of compliance with standards, or "a substantial likelihood that the project will be successfully implemented." Metro. Dade Cnty. v. Coscan
Fla., Inc., 644 So. 2d 648 (Fla. 3d DCA 1992).
To meet the requirement of reasonable assurances the County need not perform every known test or conduct every possible study. Booker Creek Preservation, Inc. v. Mobil Chem.
Co., 481 So. 2d 10, 13 (Fla. 1st DCA 1985). Nor is the County required by Florida law to provide an "absolute guarantee" that the Project will comply with all applicable air or water quality standards.
Competent substantial evidence based upon detailed site plans and engineering studies, coupled with credible expert engineering testimony is a sufficient basis for a finding of reasonable assurance. See Hamilton Cnty. Bd. of Cnty Comm'n'rs
v. Dep't of Envtl. Prot., 587 So. 2d 1378 (Fla. 1st DCA 1991).
Here, the applicants have provided the reasonable assurances necessary for the issuance of a joint coastal permit. The evidence to the contrary provided by the Drs. Dally and Young
that there could be adverse impacts of unknown degree does not outweigh the evidence provided by Mr. Clark that it is highly unlikely that the OK-A Borrow Area will cause any significant
adverse impacts to the beaches and shores of the state. The modeling presented by Mr. Trudnak is supportive of Mr. Clark's testimony. On balance, the determination is reached that the applicants clearly provided reasonable assurances.
The Variance and Changed Site Conditions
Pursuant to section 120.542, the County demonstrated the need for the variance to establish an expanded mixing zone over more time than otherwise allowed by rule.
No evidence was provided which triggered the application with regard to "changed site conditions" of rule 62B- 49.005(16) as the result of the Deepwater Horizon Oil Spill in the Gulf of Mexico.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order issuing the Joint Coastal Permit, variance, and Sovereign Submerged Lands Authorization as revised during the course of these proceedings.
DONE AND ENTERED this 29th day of June, 2011, in Tallahassee, Leon County, Florida.
DAVID M. MALONEY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2011.
ENDNOTES
1/ The dredge site is in an area of the Gulf of Mexico that is designated Outstanding Florida Waters ("OFW").
2/ Exhibit P-8, Lease Assignment, p. PET7157 (bates-stamped).
3/ The Surf Dweller Condominium and El Matador, the condominium in which Mr. Donovan resides, are in an incorporated area of the County known as "Okaloosa Island." As explained at hearing Okaloosa Island is not an island. It is simply the name of an incorporated area that exists on the coastal barrier island named Santa Rosa Island. The part of Santa Rosa Island that is Okaloosa Island was conveyed to the County by the federal government and then leased out by the County under long-term leases. Some of the leaseholders have opted to have their leased property conveyed to them from the County in fee simple. The Surf Dweller Condominium and El Matador condominium properties, however, remain under long-term leases.
4/ According to the "Surf Dweller condo plat recorded 11-18- 1983," see Ex. P-8, PET7158.
5/ County Ex. 13, Part B: Areas of Application, at BOOK 121 PAGE 235.
6/ Id. at BOOK 121 PAGE 236.
7/ Ex. P-7, PARTIAL ASSIGNMENT OF SUBLEASE, p. PET7067.
8/ For example, if the MHWL has moved landward since the time of the adoption of the Protective Covenants and Restrictions so that there is no longer 300 feet of beach waterward of private property, any loss of "beach" declared public or private under the Protective Covenants and Restrictions would come presumably at the expense of the private beach. The public beach is the first 150 feet of beach inland of the MHWL. Private beach is the "next" 150 feet inland of the public beach.
9/ The.precise width of the "Freeholder's Beach" or beach declared private by the Protective Covenants and Restrictions may be in doubt on the state of this record but the width of the public beach is not. The record establishes that at the time of final hearing there was a stretch of public beach 150 feet wide between the Surf Dweller and the El Matador Condominium properties.
10/ The Oceania Declaration defines "Common property," in part, as "that which Florida Statutes defines as 'common elements,'" see Article I, 8, P-6 at 1.
11/ Colonel Guidry called the Oceania southern property line "the prior to Opal Mean High Water Line." Tr. 764 at 1.12.
There was no competent evidence produced at hearing that the Oceania.. southern property line at the time of hearing is a mean high water line that existed prior to Hurricane Opal in 1995.
The statement by Colonel Guidry appeared to stem from his belief that the southern boundary line of the Oceania property is a static line: the mean high water line that existed at the time the Oceania property was conveyed because, in Colonel Guidry's opinion, the deed reflected that the southern boundary line was the mean high water line at the time of conveyance. No competent evidence was offered to substantiate Colonel Guidry's claim that the MHWL for purpose of a conveyance is a static line, that is, the line that existed at the time of conveyance without change caused by forces of the natural coastal system. To the contrary, the Oceania deed simply conveyed property that had as its southern boundary the mean high water line, which by its nature is a dynamic line.
12/ Designated by DEP as "critically eroded" within the meaning of rule 62B-36.002(4), Florida Administrative Code.
13/ See paragraphs 118 and 119 of this Recommended Order.
14/ See Order Dismissing Petition with Leave to Amend, attached as Exhibit "A" to the MACLA Petition to Intervene. The MACLA Intervenors not subject to this order joined in the filing of the MACLA Petition to Intervene in anticipation that petitions for formal administrative proceedings filed by them would be treated in the same manner by the Department, that is, they anticipated, correctly as it turned out, that their petitions pending before the Department would likewise be dismissed.
15/ When the property was viewed by the Administrative Law Judge and counsel for the parties (other than DEP counsel who had declined the view), water of the Gulf was beneath some of the structures owned by some of the Holiday Isle Intervernors. No party contends in this proceedings that the beach along Holiday Isle Intervenors' property is not in need of restoration. The Sherry Petitioners oppose the Second Draft JCP, not because beach restoration is unnecessary but because of the location of the borrow area and the impacts they fear its dredging will have on their property. The Sherrys would be satisfied if OK-B were the borrow area used for Western Destin Project rather than OK-A because it is so far offshore as to have no impacts, adverse or otherwise, on the beaches of Okaloosa County in general and on those in Okaloosa Island in particular. The Oceania Petitioners do not want the beach along their property restored and voiced concern about the restoration activities immediately.to the west and east of the Oceania Property but did not expressly object to the restoration of the beach along the Holiday Isle properties.
The MACLA Intervenors all expressed opposition to the restoration
of the beach along their properties but did not expressly object to the restoration of the Holiday Isle beach.
16/ Following the 2008 Hurricane Season, the County requested the Department to conduct a review of the critical erosion designation of the restoration projects it hoped to conduct. The western Destin Beach Restoration Project was included in the request. The Department conducted the review and it concluded that "erosion was due to storms during 2008 which caused beach conditions to deteriorate with upland development becoming vulnerable . " Ex. P-54, p. 2, at PET 626. Nonetheless, the Department concluded that "further changes to the existing critical erosion designations are not determined necessary at this time." Id.
17/ The amount called for by the Project may be somewhat less since the shoreline in the Oceania Gap has been eliminated.
18/ Tr. 142.
19/ Id.
20/ "And that's defined in a book ... called Beaches and Coasts, by two prominent coastal geologists, Richard A. Davis, Jr. and Duncan Fitzgerald." Tr. 513.
21/ "[T]hat's the conventional and accepted definition by coastal geologists and coastal scientists and is set forth in the coastal engineering manual." Tr. 514.
22/ See Tr. 172.
23/ Pursuant to an order granting a motion for a view, a view of Project's A-3 and A-13 was conducted on the opening day of final hearing, August 2, 2010, by the Administrative Law Judge in the presence of counsel for the County, Petitioner, the Holiday Isle Intervenors, and Eglin AFB personnel. A view was also conducted of the Holiday Isle property. Counsel for the Department was not present for the views, but opted to be represented by the County with whom it is aligned.
24/ Case No. 10-0516 Petition for Formal Administrative Proceedings, para. 14. h., at 6.
25/ Id., para. 18 at 7.
26 So was another case in which administrative determinations concerning unadopted rules were sought: DOAH Case No. 10-5384RU.
27/ "An agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule. The administrative law judge shall determine whether an agency statement constitutes and unadopted rule."
§ 120.57(1)(e}, Fla. Stat.
28/ See Save Our Beaches, Inc. v. Dep't of Envtl. Prat., Case NO. 04-2960 (DOAH June 30, 2005; DEP July 28, 2005); Save our
Beaches, Inc. v. Dep't of Envtl. Prot., 27 So. 3d 48 (2006); Walton Cty. v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008); Stop the Beach Renourishment, Inc., 130 S. Ct. 2596 (2010).
29/ See tr. 1157.
30/ See tr. 1233 and 1234.
31/ "[P]articularly the western end of the Walton/Destin Project borrow site and site OK-A." Petitioners' Proposed Recommended Order, para. 128, at 35.
32/ Monitoring data was not presented by any of the parties despite the fact that a significant amount of sand had been dredged from OK-A for use in other beach restoration projects by the time of final hearing.
33/ St. Johns Riverkeeper, Inc., supra., Palm Beach Cnty. Envtl. Coal. V. Fla. Dep't of Envtl. Prat., 14 So. 3d 1076, 1078 (Fla.
4th DCA 2009); Peace River/Manasota Reg'l water Supply Auth. V. IMC Phosphates Co., 18 So. 2d 1079,1082 (Fla. 2d DCA 2009); Reily Enters., LLC v. Fla. Dep't of Envtl. Prot., 990 So. 2d 1248, 1251 (Fla. 4th DCA 2008).
34/ The other two district courts of appeal have not subsequently deci:ded cases dealing with the subject.
35/ They are speculative because he projects that the State of Florida would lay claim to sand that would accumulate in the Oceania Gap following Project construction activities to the east and west of the gap. There is nothing of record to determine whether such accumulation would be the considered the result of accretion or avulsion and whether, in any event, the State would lay claim to it.
36/ See also Durham et al. v. Polk Cnty., Case No. AC-04-004 (Admin. Comm'n. June 25, 2004), at 3 quoting from paragraph 53 of the Recommended Order: "CPPI has been allowed to fully participate in this proceeding and to have its claims addressed in this Recommended Order. Further, its co-Petitioner Durham, has standing to continue to pursue the common interests of the two parties." Durham, et al. v. Polk Cnty., Case No. 03-0593GM (Fla. DOAH Feb. 24, 2004) at 28-29.
37/ At the time of the decision in State Contracting and Engineering Corp. v. Dep't of Transp. et al., 706 So. 2d 607 (Fla. 1st DCA 1998), the provision was section 120.57(1)(j).
38/ See also Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2002).
COPIES FURNISHED:
D. Kent Safriet, Esquire Joseph A. Brown, Esquire Hopping Green & Sams, P.A.
119 South Monroe Street, Suite 300 Tallahassee, Florida 32301
Walter C. Thompson, Jr., Esquire Qualified Representative Barkley & Thompson, L.C.
1515 Poydras Street, Suite 2350 New Orleans, Louisiana 70112-3730
Harry Chiles, Esquire
Gregory Thomas Stewart, Esquire Carly J. Schrader, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200
Tallahassee, Florida 32308
Edward A. Dion, Esquire
Nabors, Giblin & Nickerson, P.A.
208 Southeast Sixth Street Fort Lauderdale, Florida 33301
Steven K. Hall, Esquire Hall & Runnels, P.A.
4399 Commons Drive, East, Suite 300
Destin, Florida 32541
Kelly L. Russell, Esquire Kara L. Gross, Esquire Teresa L. Mussetto Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 618 Tallahassee, Florida 32301
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel
Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCPETIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 29, 2011 | Agency Final Order | |
| Jun. 29, 2011 | Recommended Order | Department of Environmental Protection should issue Joint Coastal Permit, Variance and Sovereign Submerged Lands Authorization to Okaloosa County for the Western Destin Beach restoration project. |
