STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID H. SHERRY, REBECCA R. ) SHERRY, AND JOHN S. DONOVAN, )
)
Petitioners, )
)
and )
) JOHN DEZZUTTO, THOMAS WILSON, ) AND DAVID WALLACE, )
)
Intervenors, )
)
vs. )
) OKALOOSA COUNTY, DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, AND ) BOARD OF TRUSTEES OF THE ) INTERNAL IMPROVEMENT TRUST ) FUND, )
)
Respondents. )
Case No. 10-2468
)
RECOMMENDED ORDER
This case was heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings on November 17- 19, 2010, and November 29-December 1, 2010, in Fort Walton Beach, Florida, and on December 14, 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 Richard Brightman, 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 Intervenors John Dezzutto, Thomas Wilson, and
David Wallace:
D. Kent Safriet, Esquire Joseph A. Brown, Esquire Hopping Green & Sams, P.A.
119 South Monroe Street, Suite 300 Tallahassee, Florida 32301
For Respondent Okaloosa County:
Gregory T. Stewart, Esquire Harry F. Chiles, 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 Respondent Department of Environmental Protection and Board of Trustees of the Internal Improvement Trust Fund
Kelly L. Russell, Esquire Teresa L. Mussetto, Esquire Kara L. Gross, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Stop 35
Tallahassee, Florida 32399-3000 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 940,000 cubic yards of beach quality sand along a 2.8 mile segment of its shoreline between Department reference monuments R-1 and R-15 and which included authorization to use sovereign submerged lands (the "SSL Authorization") in connection with the restoration. The project was given the name the "Okaloosa Island Beach Restoration" (the "Okaloosa Island 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").
On March 25, 2010, 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, filed a Petition for Formal Administrative Proceedings challenging the Consolidated NOI. The Petition was assigned Case No. 10-2468 by the Division of Administrative Hearings ("DOAH"). A motion to amend the Petition was filed on August 4, 2010, and granted on November 17, 2010, during the final hearing.
John Dezzutto, Thomas Wilson, and David Wallace ("Intervenors"), owners of gulf-front property located adjacent to the shoreline to be restored by the Project, petitioned to intervene in the proceeding on October 25, 2010, more than 20 days before the commencement of the final hearing on
November 17, 2010. Opposed by the Department and the County, the petition was granted subject to proof of standing at hearing.
STATEMENT OF THE ISSUES
Whether the Petitioners have standing to initiate this proceeding?
Whether the Intervenors have standing to intervene?
Whether the Department should enter a final order that issues the JCP and the Variance?
PRELIMINARY STATEMENT
On April 7, 2010, Petitioners David H. Sherry, Rebecca H. Sherry and John S. Donovan filed a Petition for Administrative Proceedings with the Department that contests the Consolidated NOI. On May 10, 2010, the Department forwarded the petition to the Division of Administrative Hearings ("DOAH") together with a Request for Assignment of an Administrative Law Judge and Notice of Preservation of Record. The petition was assigned Case No.
10-2468 and the undersigned was designated as the administrative law judge in the case.
On May 11, 2010, Petitioners filed a motion to consolidate the case with Case Nos. 10-0515 and 10-0516. The latter two cases involved a challenge by the Petitioners and others to another Joint Coastal Permit and related authorizations necessary to conduct beach restoration activities for another project known as the Western Destin Beach Restoration Project (the "Western Destin Project"). An Order was entered that consolidated this case with Case Nos. 10-0515 and 10-0516 on the same day that a group of Intervenors in Case Nos. 10-0515 and 10-0516 known as the Holiday Isle Intervenors and the County and the Department filed their written opposition to the consolidation of the three cases.
On June 4, 2010, the case was severed from the other two cases. Throughout the remainder of the administrative process at DOAH, Case No. 10-2468 proceeded on its own.
On May 19, 2010, Petitioners submitted a request for permission to be represented by a qualified representative, Walter C. Thompson, Jr. The request was granted over DEP's objection.
On August 4, 2010, Petitioners filed a motion to amend their petition. The motion was granted at the final hearing.
The case was set for hearing over a four-day period in
Ft. Walton Beach commencing November 15, 2010. Little more than a month before the hearing was set to commence, Petitioners filed a motion for a public hearing pursuant to section 120.57(1)(b). The County and the Department responded in opposition and an Order was entered that denied the motion.
On October 18, 2010, the County filed a motion for a view of several beach restoration sites. The motion was granted.
The Intervenors filed their petition to intervene on October 25, 2010. The County and the Department opposed the petition. It was granted at final hearing, subject to proof of standing, which was ruled could be established by proof of the individual Intervenors' use and enjoyment of the beach but would not be established by the effect of the Project on the common elements of the condominiums in which the Intervenors reside
absent joinder of the other unit owners in the condominium either individually or through their respective condominium associations. It was further argued by the Department that special injury would be required to demonstrate standing by Intervenors who were not Florida residents. The parties were permitted to file memoranda of law on the subject of the standing of non-residents.
The Petitioners filed a declaratory judgment suit against the County in the Circuit Court of the First Judicial Circuit. On October 29, 2010, Petitioners filed a motion for a stay of the proceedings or, alternatively, a continuance, pending the outcome of the declaratory judgment action. The Department opposed the motion. The motion for stay was denied on November 8, 2010, but the parties were ordered to confer on possible dates for a continuance. The hearing was continued until November 17-19 and November 29-December 1, 2010.
In the meantime, on November 4, 2010, the County filed a Request for Official Recognition of complaints filed in actions in the circuit court. Five days later, the County requested official recognition of a complaint for validation and the final judgment in Sherry v. Okaloosa County, Case No. 08-CA-6280 in the First Circuit Court of Florida. These two requests for official recognition are granted.
On November 9, 2010, the parties filed a designation of Stipulated Exhibits, requesting that certain exhibits and testimony from Consolidated Case Nos. 10-0515 and 10-0516 be considered as part of the record in this case to the extent relevant. The request preserved all objections made to any of the exhibits or testimony. (In keeping with the filing, reference in this Recommended Order to exhibits and portions of the transcripts will be preceded by either a "WD," short for Western Destin Project, the project at issue in Case No. 10-0515 or an "OI," short for Okaloosa Island Project, the project at issue in Case No. 10-2468).
On November 16, 2010, the County filed a memorandum of law and a motion to strike. The motion sought to have 16 witnesses stricken from Petitioners' witness list based on the assertion that they had been added to the list as a way of circumventing the denial of the public hearing. The Department, on the same day, filed a memorandum of law regarding standing and a motion in limine to exclude certain testimony that sought the same relief as the County's motion to strike. Petitioners filed a memorandum in support of the testimony of the 16 witnesses. The County's motion to strike was granted ore tenus at the beginning of the third day of final hearing with the exception of one of the listed witnesses: Michael Wright. The ore tenus ruling was memorialized in an Order issued November 24, 2010.
The first three days of the hearing were November 17-19, 2010, in Fort Walton Beach. On November 18, 2010, the Intervenors filed an opposed motion to join indispensable and necessary parties: Pelican at Destin West Beach and Seaspray Condominium Associations. The motion was denied in an Order issued November 24, 2010, separate from the Order issued on the County's motion to strike.
At the beginning of the hearing, Joint Exhibits were entered into evidence, consisting of the entire application file for the Project, subject to hearsay objections that might be made by Petitioners. The County's request for official recognition was taken under advisement subject to relevance objections by Petitioners.
The hearing was continued to November 29, 2010, in Fort Walton Beach to run through December 1, 2010. The hearing did not conclude on December 1, 2010. It was continued to December 14, 2010, when it concluded in Tallahassee. In the meantime, on December 9, 2010, the County filed a Request for
Official Recognition with regard to three documents: the first, an indenture between the United States and the County on September 25, 1963; the second, a quitclaim deed between the County and the United States dated September 25, 1963; and, the third, an amendment to the quitclaim deed dated October 15, 1993. Petitioners and Intervenors filed a response in
opposition, but official recognition of the documents was taken as requested.
At hearing, the County presented the testimony of:
Jim Trefilio; Michael Trudnak, P.E., accepted as an expert in coastal engineering; and Jeremy Reiser. The deposition testimony of Dr. Gregory Stone, Jonathan Hall, and
Ashley Naimaster was presented by the County and the depositions (the "Stone Deposition," the "Hall Deposition" and the "Naimaster Deposition") were admitted into evidence without being marked except by name of the deponent.
The Department presented the testimony of: Ralph Clark, P.L.S., P.E., and Michael Barnett, P.E., Chief of DEP's Bureau of Beaches and Coastal Systems, both of whom were accepted as experts in coastal engineering; Lainey Edwards, Ph.D.; and Jennifer Koch, Ph.D., accepted as an expert in coastal geology.
The Petitioners and the Intervenors presented the testimony of: Michael Barnett; Thomas Wilson; John Dezzutto;
David Wallace; Michael Wright; Rebecca Sherry; Henry Fishkind, accepted as an expert in economics and cost-benefit analysis; Robert Steven Young, Ph.D., accepted as an expert in marine and coastal geology; and Cecil Jackson.
The Department and the County orally moved to strike the testimony of Michael Wright. During Mr. Wright's testimony Petitioners' Exhibits 26 and 71 were admitted into evidence.
The testimony involves the actions of Walton County and the City of Destin, applicants in another proceeding in which a beach restoration project was contested. The testimony is irrelevant to this proceeding. The motion, therefore, is granted; the testimony as well as Petitioners' Exhibits 26 and 71 are stricken from the record. The Department's Exhibits 46, 47, 48, and 49 are also deemed irrelevant since they were offered to rebut Mr. Wright's testimony.
During the rebuttal phase of the hearing, the County re- called Michael Trudnak, P.E., and Jim Trefilio; the Department re-called Michael Barnett, presented the testimony (over objection by Petitioners) of Robbin Trindell, Ph.D., accepted as an expert in sea turtle biology and re-called Ralph Clark, P.L.S., P.E.; presented the testimony of Matthew Aaron Trammel, P.E., to rebut the testimony of Cecil Jackson; and re-called Jennifer Koch, Ph.D.
Proposed recommended orders were timely filed by all parties on March 15, 2011, as allowed by orders granting motions for extensions of time and increasing the page limit. On
March 22, 2011, the Department filed a motion to strike portions of Petitioners' Proposed Recommended Order because it exceeds the page limit of 90 set by order. After consideration of the motion and the response of the Petitioners, the motion is granted.
On August 18, 2011, Petitioners' Motion to Reopen Final Hearing and Hearing Record was filed. Written responses in opposition were filed by the Department and the County. The motion was heard on September 9, 2011, and on the same day an Order was entered that granted the motion in part and denied it in part. The Order opened the record to admit an internal memorandum of the Department issued April 15, 2011. The memorandum was marked as Sherry Exhibit 138.
FINDINGS OF FACT
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." WD Ex. P-8, Bates stamped PET7157. Their address is 554 Coral Court, #511, Fort Walton Beach, Florida 32548.
The Sherrys leased their condominium unit in May 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," WD 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.
WD 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, Case No. 10-0515 (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.
WD 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, 10-0515.
The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island, 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 is:
LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK
2, PAGE 84, OKALOOSA COUNTY. WD Ex. P-8, PET7158.
Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority in 1955 and recorded in the Official Records of the County at BOOK 121, PAGES 233-250. See WD County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4. See id., Part B: Areas of Application, at BOOK 121 Page 235. Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas." Id. at BOOK 121 PAGE 236.
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 B1 and B2 Areas, will be public beaches. The next
150 ft. inland will be private beaches as set out on subdivision plats . . .
WD 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.
Mr. Donovan and His Property
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." WD Ex. P-7, PARTIAL ASSIGNMENT OF SUBLEASE, Bates stamped PET7067. The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, Florida 32548.
Mr. 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.
WD 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 WD 13, at page marked "BOOK 121 PAGE 242."
El Matador Condominium is between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat in County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," see Exhibit P-7, last page (un-numbered), that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions. The public beach designated by the same provision is seaward of the private beach.
Concerns of the Sherrys and Mr. Donovan
The Surf Dweller Condominium Property that serves the Sherrys' condominium unit and the El Matador Condominium Property that serves Mr. Donovan's condominium unit are along
the segment of the beaches and shores of Okaloosa County that will be restored by the Okaloosa Island Project. The Sherrys and Mr. Donovan initiated this proceeding because they are opposed to the Okaloosa Island Project.
One of the grounds for their opposition concerns the Project's borrow area to be used as a source of sand. It is offshore but relatively close to the beach immediately landward of the Sherry and Donovan condominium units. The Sherrys and Mr. Donovan presented evidence that the borrow area is sited and situated in such a way that once dredged it will cause impacts to the shoreline of Okaloosa Island. The impacts, they believe, in turn will affect their use and enjoyment of the beach.
Mr. Donovan is concerned about the erosion and turbidity impacts that dredging the borrow site which serves the Project 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. He is concerned that turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, the change in the beach and shoreline along the El Matador Condominium property 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 Sherrys and Mr. Donovan have other concerns about the Project. For example, they believe that the sand used in the restoration will not be compatible with Okaloosa Island's "sugar white" sand. They also are concerned about the impact that placement of the sand will have on their view, their walks and their runs and the many ways in which they use and enjoy the beach. Furthermore, they presented evidence that the cost of the Project will outweigh its benefit.
The Intervenors
Intervenors John Dezzutto and Thomas Wilson own condominium units 102-D and 101-B in the Seaspray Condominium located at 1530 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. At its southern boundary the property that is subject to the declaration of condominium that created the Seaspray Condominium (the "Seaspray Condominium Property") is deeded to the MHWL. Hence, the Seaspray Condominium Property is considered to be "gulf-front."
Intervenor David Wallace owns Unit 502 in the Destin West Beach and Bay Resort Condominium located at 1515 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. Similar to the Seaspray Condominium, at its southern boundary the property that is subject to the declaration of condominium that created the Destin West Beach and Bay Resort Condominium (the "Destin West Beach and Bay Resort Condominium Property") is deeded to the
MHWL. The property, therefore, is considered to be "gulf- front."
The Seaspray Condominium Property and the Destin West Beach and Bay Resort Condominium Property overlap the beaches that are to be restored by the Project. If the County is to restore the area of the beach that is on the condominium properties of the two condominiums in which the Intervenors own condominium units, it will need to heed the advice of General Condition Six in the Draft JCP which is interpreted by the Department as a warning against trespass as well as provide authorization for such use from the property owner as required by the Draft JCP.
The County and the Department
Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP and the Variance.
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.
Okaloosa Island
Okaloosa Island is not an island. It is an unincorporated area of Santa Rosa Island. Santa Rosa Island is a barrier island that runs along much of the coast of the Panhandle of Florida. As explained by Mr. Clark at the final hearing, one is "in" Okaloosa Island while being "on" Santa Rosa Island.
Okaloosa Island was conveyed to the County by the federal government and then leased by the County under long-term leases.
The Surf Dweller and El Matador Condominium Properties (with units that belong to the Sherrys and Mr. Donovan, respectively), are in Okaloosa Island. Some of the other leaseholders in Okaloosa Island opted to have their leases converted to ownership of the leased property in fee simple.
The Surf Dweller and El Matador Condominium Properties remain under long-term leases.
Dry Beach Adjacent to Surf Dweller and El Matador
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 between the MHWL and the Surf Dweller and El Matador condominium properties, 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 right to occupy and use. David Sherry 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 in the following colloquy on cross-examination by Mr. Hall for the County:
Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way 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[.]
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.
WD 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 it has a width of 150 feet.
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 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. 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 WD Tr. 986-87.
Opal and Okaloosa Island Beaches Today
Hurricane Opal made landfall near Pensacola in October 1995.
Prior to Hurricane Opal, the shoreline in Okaloosa Island had been stable. The width of the vegetated and upper berm and dune systems had been about 175 feet and the un- vegetated beach seaward of the dune system about 100 feet wide. Upland development was protected from storm surge and wave action by a good 285-foot width of dune system and beach.
Opal devastated much of the Florida Panhandle.
Okaloosa Island was not spared. The shoreline of Okaloosa Island both advanced and retreated. The western half of Okaloosa Island (west of R-8) showed shoreline recession, that
is, the shoreline on the western half retreated landward. The shoreline on the eastern half (east of R-8) advanced water-ward. The dune system, however, was destroyed. From the point of protection the beaches and the dune system offer upland development, moreover, the advance of the beaches in the eastern half of Okaloosa Island did not offset the damage done from volumetric reduction of the sand that the eastern half of Okaloosa Island suffered. As for Okaloosa Island as a whole, the area lost considerable sand volume. Opal's damage to Okaloosa Island, in sum, consisted of substantial loss of sand volume, significant deflation of beach profile and erosion of the dune and beach system throughout the area.
After Opal, the general trend along Okaloosa Island was recession. Based on an overall average, the recession measured about minus 7 feet per year. See OI Tr. 561. The Okaloosa Island shoreline moved toward upland development.
Despite the general retreat of the shoreline, in some areas of Okaloosa Island, the beaches appear to the untrained eye to be healthy because they are usable and quite wide. But even at their widest points, Okaloosa Island beaches are "very low and flat" OI tr. 562. The only dunes (where there are any at all) are "insignificant manmade dunes," id., that do not protect upland development.
In short, Okaloosa Island is in need of coastal protection. It is "completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms . . . ." OI Tr. 536.
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 Definition").
The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event.
In 2005, the Department designated the area subject to the Okaloosa Island Project as having a "critically eroded
shoreline." The designation was in accordance with the Critically Eroded Shoreline Definition and based on post-storm vulnerability after Hurricane Ivan which made landfall in the United States in September of 2004.
An investigation was conducted in Fall 2008 to update the designation in response to a request from the County. The investigators concluded that there had been erosion, including deflation and recession of the dune and beach, to such an extent that upland properties and development were threatened between
R-1 and R-8.5 and R-12 and R-13.
The shoreline in the area between R-8.5 and R-12 (the "Gap Segment") standing alone did not meet the requirements for designation as critically eroded. Nonetheless, the Gap Segment was designated as having a critically eroded shoreline for continuity of management of the coastal system and to facilitate management of the adjacent beached in order to maintain the integrity of the Project's design. The same is true of the segment of the Project east of R-13, that is, from R-13 to R-15. ("Continuity of management and maintenance of a project's design integrity" is a basis for designating a shoreline to be critically eroded under the Department's rule.)
Were the Gap Segment to be excluded from the Project, fill placed by the restoration effort in the adjacent, restored areas would collapse into it over time. The restored areas
would not remain stable and the restoration effort would be defeated, diminished or endangered.
That upland areas in the Gap Segment might not be threatened by a 25-year storm does not mean that restoration is not a useful activity for the segment. To the contrary, the upland areas alongside the Gap Segment will benefit from the Project. While the upland areas adjacent to the Gap Segment's shoreline may not be threatened by less damaging higher- frequency storms, they are "definitely threatened by a 50 or 100-year storm event and are in need of the project from that standpoint." OI Tr. 557.
Genesis of the County's Efforts
Following the designation by the Department of the shoreline subject to the Project as critically eroded, the County began to consider beach restoration in Okaloosa Island. The efforts gained momentum when the County entered an inter- local agreement with the City of Destin in 2006. The agreement provided that the Tourist Development Council (the "TDC") would be the lead agency in all beach restoration issues.
The County chose the shoreline now subject to the Project for restoration because of the Department's designation of it as critically eroded.
The Project
The Project calls for the placement of 940,000 cubic yards of beach quality sand along a 2.8 mile stretch of shoreline. The shoreline is between the Department's reference markers R-1 and R-15 on Santa Rosa Island in an unincorporated area of the County known as Okaloosa Island, Sections 28 through 30, Township 2 South, Range 23 West, in the Gulf of Mexico, Class III Waters. The Project's entire site is situated within the Gulf Islands National Seashore which extends one mile offshore of Santa Rosa Island, the waters of which have been designated by the state as Outstanding Florida Waters ("OFW").
The placement on the beach of the sand (or fill) will create dunes that have the potential to become stable through vegetation, extend the beach seaward roughly two hundred feet, and elevate the beach an average of roughly five and an half feet.
The design includes a 40-foot-wide dune crest at an elevation of 14 feet NAVD, a 60-foot wide backberm at 8.5 feet NAVD, and a variable width berm at 5.5 feet NAVD. The dune will transition into the backberm at a 1:4 (vertical:horizontal) slope; the backberm will transition into the berm at a 1:10 slope; and the berm will transition into the existing sea bottom at a 1:10 slope. In areas where the landward edge of the dune crest does not tie into the existing dune, the landward dune
face will merge into the existing topography at a 1:4 slope. The fill for the Project will be dredged from an offshore borrow
area.
The Project includes the removal of sand placed on
Okaloosa Island beaches in 2006. Referred to at hearing as "brown sand," see OI tr. 1668, Case No. 10-2468, the sand had been hauled in from an upland source by truck rather than being from an offshore borrow area as contemplated by the Draft JCP. The brown sand is not the same color as the "sugar white" sand on Okaloosa Island's beaches. It is being removed because it is not compatible on the basis of color with the sand on the beach.
The ECL
Morgan and Eklund, Inc., Professional Survey Consultants (the "ECL Surveyors"), prepared a document dated October 30, 2008, entitled "MEAN HIGH WATER LINE SURVEY AND PROPOSED OKALOOSA ISLAND EROSION CONTROL LINE FOR FDEP RANGE MONUMENTS R-1 TO R-16 OKALOOSA COUNTY, FLORIDA," see WD County Ex. 7. The document was referred to at hearing by Mr. Trudnak as the "Erosion Control Line drawings for the Okaloosa Island Project." WD Tr. 261. (The document, WD County Exhibit 7, will be referred to in this order as the "Proposed ECL Drawings.")
The Proposed ECL Drawings show that a survey of the MHWL survey between R-1 and R-16 was conducted on September 16, 2008.
As would be expected, the MHWL depicted on the Proposed ECL Drawings is not a straight line. For the most part, it meanders across the drawings with sections where the line comes to "points" that protrude seaward. For example, one prominent point would be at the end of a perpendicular line (that does not appear on the Proposed ECL Drawings) drawn seaward across the dry beach from a point (also not on the Proposed ECL Drawings) on Surf Dweller Condominium Property. See WD County Ex. 7, Case No. 10-2468.
The Proposed ECL Drawings depict three other lines, entitled "LANDWARD LIMITS OF CONSTRUCTION," "POST CONSTRUCTION MEAN HIGH WATER LINE," and "SEAWARD LIMITS OF CONSTRUCTION," all of which are predominately straight lines.
On April 21, 2010, the Board of Trustees of the Internal Improvement Fund by resolution (the "Resolution") "approved, adopted and certified for the purposes prescribed by Sections 161.141 through 161.211, Florida Statutes," OI Petitioners' Ex. 22, the Okaloosa Island Project ECL "particularly described in Exhibit A." Id.
Exhibit A begins with the legal description of the ECL and ends with drawings entitled "OKALOOSA 001-016 EROSION CONTROL LINE OKALOOSA COUNTY, FLORIDA" (the "Approved ECL Drawings"). With a few exceptions (dates and titles) immaterial
to this proceeding, the Approved ECL Drawings are identical to the Proposed ECL Drawings.
The Seaward Limit of Construction Line is water-ward of the Post Construction MHWL, both of which are well water-ward of the MHWL set in September 2008. Generally, the width from the Seaward Limit of Construction Line to the Landward Limit of Construction Line on the drawings is about 400 feet.
The Landward Limit of Construction
The Landward Limit of Construction Line in much of the Proposed and Adopted ECL Drawings is over dry beach which, although under the strict control of the County, was declared to be "private" by the County's Protective Covenants and Restrictions.
As its name suggests, the Landward Limit of Construction Line was expected by the ECL Surveyors to be the landward edge of the sand fill placed during construction of the Project. As explained by Mr. Trudnak at hearing, the line is "the back of the dune. So, it is the landward most point where sand will be placed." OI Tr. 270. But Mr. Trudnak explained further that the Landward Limit of Construction Line on the Proposed ECL Drawings (and therefore, on the Approved ECL Drawings as well) would not, in fact, be the actual landward- most point of sand placed during the construction phase of the restoration. Rather, the landward-most point where sand would
be placed would be significantly waterward of the Landward Limit of Construction Lines on the drawings.
Mr. Trudnak offered several reasons for his position.
The Landward Limit of Construction Lines on the drawings are straight lines which is not consistent with what will happen when the construction is actually undertaken. Furthermore, a new limit of construction line will be determined when construction plans are submitted prior to the issuance by the Department of a Notice to Proceed, subsequent to the issuance of a JCP. The ECL Surveyors whose Proposed and Approved ECL Drawings contain the straight Landward Limit of Construction Lines that are too landward were not retained to produce drawings for construction plans. The line on the construction plans, when developed, will be much more seaward than the line on the Proposed and Approved ECL Drawings. The County intends, moreover, to construct the Project so that the landward limit of construction falls inside the 150 feet of public beach immediately waterward of the ECL, much further seaward of the Landward Limit of Construction Lines on the Proposed and Approved ECL Drawings. It is reasonable to expect that the County will be able to carry out its intention. See Okaloosa County Exs. 20 and 21, Case No. 10-2468 and Mr. Trudnak's testimony at OI Tr. 181.
To the west of a point relatively close to R-12, that is, from R-1 to roughly R-12, the Project can be built on "public" property, that part of the beach declared by the Protective Covenants and Restrictions to be public and controlled by the officials of Okaloosa County or owned by the federal government as part of Eglin Air Force Base.
The same is not true of the property to the east of a point just west of R-12. With the exception of the beach adjacent to Newman Brackin Wayside Park (see OI Joint Ex. 2B, sheet 4 of 4 and OI DEP 24), the property east of the federally owned Eglin property is privately owned to the MHWL. If the County does not get authorization from the owners of this private property to conduct restoration activities on the property, the property "would have to be skipped." OI Tr. 188. That would leave two gaps with no restoration landward of the MHWL: the eastern-most end, from roughly R-13.8 to R-15, and a gap from roughly R-11.9 to R-12.9.
"Skipping" private properties in the event of a refusal of consent by the owners to use the property during construction would not mean that the Project should be abandoned.
The Project could be fully constructed where consents were not required. Where necessary consents were not obtained, the Project could still be constructed below the MHWL. Thus,
the project could be constructed over its entire proposed length from R-1 to R-15; east of R-12, however, the Project would not be at its proposed width along the entire length.
Some sand from the areas that are restored fully would be transported to the private properties not restored above the MHWL. The Project width in the fully restored segments adjacent to the gaps would be diminished. The beach width in the eastern part of the Project will be narrower than if the private consents had been obtained and the eastern beach fully restored.
If the Project's proposed width is narrowed in parts by lack of consents, the Project will not be as effective had the consents been obtained. Nonetheless, the Project will still provide protection over its entire length from surges and damaging wave action produced by tropical storms.
Project Construction
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
. . . landward of . . . [the] Mean High Water Line." WD Tr. 139.
The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a backberm and a wide variable berm.
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. The near-shore bar acts as a wave break. It dissipates wave energy during storms. A healthy near-shore bar provides significant storm protection.
The Project will provide protection from a 50-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, OK-A 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 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. See WD Tr. 513. 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." OI 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]."
WD Tr. 143, 10-0515. It involves grain size, soil and shell content, sand color and size of material in the sand, including large shells. See OI Sherry 138.
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-mile distance from shore that it would not impact the
shoreline. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely.
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." WD 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 distance. 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 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." WD 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. See further findings, below.
The selection of OK-A was supported 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 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.'"
WD 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.
WD 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." WD Tr. 152.
Borrow Area OK-A is intended to serve five beach restoration projects in all. Three are completed: the two projects on Eglin Air Force Base and the Emergency Holiday Isle Project. The remaining two are the Western Destin Project and the Okaloosa Island Project. These five 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." WD 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." WD Tr. 152. (emphasis added).
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.
Upland Private Property
Of the properties along the 2.8 miles of shoreline to be restored, six are deeded to the MHWL. The six are the properties of Eglin Air Force Base, the Sheraton Hotel, the Gulfarium, the Ramada Hotel, Destin West Beach and Bay Resort Condominium, and Seaspray Condominium.
These properties are all located in the eastern part of the Project, from R-11.3 to Beasley Park at the east terminus of the Project.
Intervenor Wallace and his wife Sondra S. Wallace were deeded Condominium Unit 502 in the Destin West Beach and Bay Resort-Gulfside by a Special Warranty Deed executed by Tolbert
Gulfside Development Company on March 7, 2003. See OI Petitioners' 112. The Condominium Property associated with Destin West Beach and Bay Condominium extends to the MHWL of the Gulf of Mexico. The Parcel ID Number on the Special Warranty Deed is 00-2S-24-2185-0015-0030 (Parent Parcel). Id.
A quitclaim deed admitted into evidence as OI County Exhibit 22 bears the same Parcel ID Number but without reference to "(Parent Parcel)." The grantor of the quitclaim deed is Okaloosa County and the grantee is Tolbert Enterprises, Inc.
The deed contains the following language:
IT IS THE EXPRESS intent of the Grantor that its reversionary estate in that portion of the original leasehold estate from the Okaloosa County and/or Okaloosa Island Authority which the Grantee now owns in the subject premises shall be merged with such present leasehold interest now owned by the Grantee, subject, however to such terms and conditions contained in the 1963 quitclaim deed of record from the United States of America to the Grantor and all Protective Covenants previously imposed of record on the above land by Okaloosa County or its agent, Okaloosa Island Authority, and by acceptance of this deed, Grantor acknowledges the validity of such Protective Covenants and Restrictions (with the term "owner" being substituted for "leaseholder"
or "lessee" therein where appropriate), which are hereby reimposed.
OI County Ex. 22 (emphasis in original).
Whether the Protective Covenants and Restrictions apply to all of the six properties so that the first 150 feet landward of the MHWL is "public beach" under the "strict control of the County" is a question that cannot be decided on the state of this record. But it appears from the quitclaim deed that constitutes OI County Exhibit 22 that the County took pains when it conveyed the Okaloosa Island property subject to the deed to make sure that the grantees under the conveyances were aware of the Protective Covenants and Restrictions and that the County's intention in the conveyances was for the Protective Covenants and Restrictions to survive.
For the properties in the Project that are not deeded to the MHWL, the County has control of the beaches through the Protective Covenants and Restrictions. In addition to the documents of record, the County's control is evidenced by seven main public access-ways to the beach along Okaloosa Island, additional smaller access-ways, public use of the access-ways, public parking serving access of the public to the beaches of Okaloosa Island and public use of the dry, sandy portion of the beach in Okaloosa Island.
The Application
An Application for a Coastal Construction Permit
The Application was processed as 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 WD Tr. 424-5.
Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053(9) of the CCCL Statute provides as follows: "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 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.
Application Signatures
Item 18 of the Application provides a signature line for the County and "the title of the person signing on its behalf." OI Joint Ex. 1, DEP From 73-500 (05/17/07), p. 4 of 9. The Item opens with: "A. By signing this application form, I am applying . . . for the permit and any proprietary authorizations identified above [see findings below related to "written authorizations"], . . . ." Id., (emphasis added).
Item 18 also provides "signature lines" for an agent in Section B if the County designates an agent for the processing of the application.
Section 18 C of the Application provides a signature line under the following heading: "PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING."
There was no signature provided at any point in the application process by any person authorizing access to the property as called for by Item 18C. Joint Ex. 11, Page 4 of 27.
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 chapter 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:
* * *
(c) 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), (i), (j), (k), (l), or (m), 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
(c) or (n).
The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1).
As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the privately-owned properties within the Project area, including Intervenors.
Demonstration of Property Ownership
The Application demonstrated that the County owned much of the property subject to the Project. At the time of final hearing, it had permission, of course, to use that
property. The County has also obtained the permission of the federal government to use Eglin Air Force Base property that is within the Project area.
As for the other property, all privately owned, no written authorizations as of the final hearing had been obtained from the owners despite discussions between them and the County.
Despite the clear requirement in rule 62B- 41.008(1)(c), the Department does not usually require that an applicant provide in the application written authorization from owners of upland property to be used in coastal construction projects. The Department might require written authorization in an application for certain coastal construction projects like a groin construction project, see OI tr. 476, or a similar project that involved one or two upland property owners. The typical beach restoration project, however, involves the use of many different upland properties, too many, in the Department's view to require the application to contain the written authorizations of all the owners.
The Department justifies departure from enforcing the requirement of rule 62B-41.008(1)(c) in applications for beach restoration for a number of reasons.
First, compliance is impractical. Aside from the significant number of signatures that must be obtained, the moment the application is submitted is too early in the process
to require written authorization. In beach towns, where most restorations take place, many of the owners are absent and difficult to contact. By the time the restoration begins, the property may have changed hands. Second, the Department's practice is to require the authorizations as a permit condition and for written authorization to be submitted prior to construction, that is, sometime between when the JCP is obtained and the Notice to Proceed with construction is issued. An applicant in possession of a JCP for beach restoration cannot begin construction activities until a Notice to Proceed is issued. The aim of the rule is achieved in a timely manner whether all consents are submitted with an application or not.
Aside from practical considerations and safeguards to ensure consent from upland property owners prior to the commencement of construction activities, written authorization in the application is not relevant in the Department's view in a permitting proceeding. Permitting proceedings are not designed to prevent trespass by an applicant. They are designed to consider environmental impacts.
With regard to trespass considerations, there are other safeguards. These include the warning to the applicant in General Condition Six of the Draft JCP:
6. This permit does not convey to the Permittee or create in the Permittee 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.
The Draft JCP also contains General Condition Eight:
8. The Permittee, by accepting this permit, specifically agrees to allow authorized Department personnel with proper identification and at reasonable times, access to the premises where the permitted activity is located or conducted for the purpose of ascertaining compliance with the terms of the permit and with the rules of the Department and to have access to . . . copy any records that must be kept under conditions of the permit; to inspect the facility, equipment, practices, or operations regulated or required under this permit; and to sample or monitor any substances or parameters at any location reasonably necessary to assure compliance with this permit or Department rules. Reasonable time may depend on the nature of the concern being investigated.
If the applicant conducted construction using upland property without written authorizations from the upland owner, the Department would view the construction to be in violation of the JCP and would bring an enforcement action to halt the construction until written authorization was obtained. There are many opportunities, therefore, to achieve the aim of the rule subsequent to the filing of an application.
Lapse in the Application
Chapter 62B-49 is entitled, "Joint Coastal Permits and Concurrent Processing of Proprietary Authorizations."
Rule 62B-49.005 is entitled, "Application Requirements and Processing Procedures."
The following appears in the rule:
An application shall be denied if the applicant fails to provide additional information to the Department within six (6) months [the "Six Month Period"] after a written request for such information has been sent to the applicant. However, if the applicant can demonstrate that he or she has been actively working on collecting or developing the requested information, and that additional time will be required to complete their response to the "RAI," the applicant may request up to six (6) additional months to submit their response.
Fla. Admin. Code R. 62B-49.005(4).
On November 25, 2008, the Department sent its third Request for Information (the "Third RAI") to the County. The Third RAI asked for more information regarding a risk assessment, the permit fee, a biological opinion (the "Biological Opinion") from "Fish and Wildlife," OI tr. 91, and had a question regarding a lighting ordinance.
The County did not respond to the Third RAI within six months which expired on May 25, 2009. Nor did it request an extension within the Six Month Period.
Mr. Trefilio and others on behalf of the County were in touch with DEP throughout the Six Month Period about various issues concerning the JCP. See OI tr. 90. Mr. Trudnak, for example, in early May, prior to the expiration of the Six Month
Period sent an e-mail to DEP personnel to inquire about the permit fee DEP had required because Taylor Engineering believed it was incorrect. The Department did not respond until early June. Taylor Engineering had been "continuously working on the
. . . Economic Analysis that addressed the questions that DEP had about the Risk Assessment [and] . . . had been talking to DEP about that." OI Tr. 169-70. Mr. Trudnak corresponded with the Army Corp of Engineers about the Biological Opinion. His hope was that a draft could be timely submitted with the other responses to the RAI. He contacted Ralph Clark and spoke with Jamie Christoff, a Department employee, about its status. But, the County and its agents "were not able to get that done within the six month time frame." OI Tr. 170.
On June 3, 2009, Mrs. Sherry wrote an e-mail to Michael Barnett. She asserted that the Application was dormant and had lapsed. She requested that it be denied on the basis of the rule.
The next day, an e-mail from Mr. Barnett, Chief of DEP's Bureau of Beaches and Coastal Systems, posed the question to Department personnel, ". . . has there been any verbal or written communication from either the Applicant or their Agent as to when the Department might anticipate a response to RAI #3?" OI Petitioners' Ex. 65, Page 2 of 4.
E-mail messages in the file and a conversation with her subordinate, Jamie Christoff, led Dr. Edwards, who was in charge of the processing of the Application, to conclude that the County and its agents had been working on the application during the Six Month Period.
After the message from Mrs. Sherry to the Department (and after the expiration of the Six Month Period), Mr. Trudnak requested an extension of time under the rule. The extension was not granted in writing. Dr. Edwards concluded "because there was that active back and forth between the Department and the applicant [during the Six Month Period], there was no need for additional time being granted . . . ." OI Tr. 440.
Application Deemed Complete
Chapter 62B-49 establishes the joint coastal permit program "by combining the regulatory requirements of the coastal construction program (Section 161.041, F.S.) with the environmental resource (or wetland resource) permit program (Part IV of Chapter 373, F.S.) . . . ." Fla. Admin. Code R. 62B-49.001.
The chapter also "provides concurrent review of any activity requiring a joint coastal permit that also requires a proprietary authorization for use of sovereign submerged lands owned by the Board of trustees of the Internal Improvement Trust Fund." Id.
Rule 62B-49.003 is entitled "Policy." It provides as follows in pertinent part:
Any application submitted pursuant to this chapter shall not be deemed complete . . . until the Department has received all information required for: a coastal construction permit under . . . Chapter 62B- 41, F.A.C.; . . . and Chapters 18-18, 18-20
and 18-21.
Fla. Admin. Code R. 62B-49.003(3).
Despite the absence in the Application of written authorizations required by rule 62B-41, the clear directive of rule 62B-49.003(3), and the failure of the County to respond in a timely manner to RAI #3 or obtain in writing an extension of the time to respond, the Department deemed the Application complete on December 30, 2009.
If Written Authorizations are not Obtained
If written authorizations are not obtained from the owners of the six private properties between R-11.3 and the eastern terminus of the Project, the County would have to decide whether and/or how to proceed. If the eastern-most 600 feet of the Project were deleted, for example, the Project could be modified to mitigate the effects of the deletion without much effect on the remainder of the Project. If more of the Project were deleted, it would present more of a challenge to the effectiveness of the Project. In any event, the Project can be completed along its entire length up to the MHWL. The Project
may not be at full width where consents are not obtained but it will still provide some storm protection where narrowed. It would also still provide significant protection westward of R-
11.3 all the way to R-1 albeit the closer to R-11.3 the more diminished would be the effectiveness of the Project if the Project is not at full width east of R-11.3.
Legislative Declaration of Public Interest
Section 161.088, Florida Statutes, bears the catchline, "Declaration of public policy respecting beach erosion control and beach restoration and nourishment projects." It states:
Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the
. . . Gulf of Mexico . . . from erosion and that the Legislature makes provision for beach restoration and nourishment projects
. . . . The Legislature declares that such beach restoration . . . projects, as approved pursuant to s. 161.161, are in the public interest; must be in an area designated as critically eroded shoreline, or benefit an adjacent critically eroded shoreline; . . .
(emphasis added).
Proprietary Public Interest Test
Chapter 18-21 governs Sovereignty Submerged Lands Management.
Rule 18-21.004 sets out management policies, standards and criteria. It opens as follows:
The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands
. . . .
General Proprietary.
(a) For approval, all activities on sovereignty lands must be not contrary to the public interest . . .
"Public interest" is defined as:
Demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action . . .
Fla. Admin. Code R. 18-21.003(51) (the "Proprietary Public Interest Test"). The rule also states that "[i]n determining the public interest in a request for use . . . [of] sovereignty lands . . . , the board shall consider the ultimate project and purpose to be served by said use "
Dr. Fishkind, an economist, conducted an economic cost/benefit analysis of the Project and concluded that the economic benefit is between $5.77 and $12.09 million while the cost of the Project is between $16.30 and $21.58 million. The Department did not present an economist to rebut Dr. Fishkind's analysis. The Department takes the position that the Project is
in the public interest and meets the Proprietary Public Interest Test because of the declaration by the Legislature in section 161.088.
The Department interprets the Legislature's declaration in section 161.088 that beach restoration projects are in the public interest to relieve the County from having to provide evidence that the Project meets the Proprietary Public Interest Test and to relieve the County and the Department from a need to rebut the evidence provided by Petitioners' economist.
The Department draws support for its interpretation from language in section 161.091(3). The language makes reference to the declaration in section 161.088 that beach restoration projects are in the public interest. It finds further "that erosion of the beaches of this state is detrimental to tourism, the state's major industry, further exposes the state's highly developed coastline to severe storm damage, and threatens beach-related jobs, which, if not stopped, may significantly reduce state sales tax revenues "
§ 161.091(3), Fla. Stat.
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.
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.
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." WD 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." WD Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also begin to diffract.
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 interact with the shoreline. The description includes potential impacts of an excavated OK-A on the beaches and shores 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 . . . .
WD 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." WD 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, rather 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 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: "Those beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." WD 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," WD 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." WD Tr. 640. They
could "trip," that is, the notch in the borrow area could break the waves. "[B]rag scattering" (WD 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," WD 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.
Like 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," WD 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.
The 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." WD 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
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 (Steady-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.
WD 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 are not measured wave data. Instead, they consist of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data are then placed in a model coded to represent the entire Gulf.
The WIS station from which data were 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 measurements, 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 measurements 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.
WD 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." WD Tr. 1234. It is not practical to take 10 years' worth of field measurements. 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 information 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." WD 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." WD 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 was 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. See WD 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." WD 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.
WD 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.
See tr. 1233 and 1234.
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. If not more appropriate than the Boussinesq Model, STWAVE is an acceptable model under the Project's circumstances.
When asked about the Boussinesq 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, he was "almost certain," WD tr. 691, that Boussinesq 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." WD 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 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 OK-A
The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western
boundary of the OK-A Borrow Site. See WD Ex. P-13. The area between the eastern-most point of the OK-A Borrow site and the western-most 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 eastern-most point is roughly one-half mile off-shore.
OK-A is larger than the Walton Borrow Area and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water. Nonetheless, because of proximity, Petitioners characterize the two sites as similar.
Despite proximity, there are significant differences 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." WD Tr. 306.
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." WD 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." WD 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." WD 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." WD 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. WD 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.
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 that 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's Review of OK-A 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, and the Murrough P. O'Brien Award from the American Shore and Beach Preservation Association, 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" WD 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." WD Tr. 486.
Specific duties of Mr. Clark's include 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 Okaloosa Island Application and additional information related to the Project.
On the basis of Mr. Clark's review and his testimony, it is found that "the project is a well designed hurricane protection project that is critically needed to restore the beaches of this beach community of Okaloosa Island "
OI Tr. 519. The Project will protect recreational benefits and wildlife habitat in addition to providing necessary storm protection. The placement of 940,000 cubic yard of sand fill as called for by the Draft JCP will provide a significant amount of storm protection from the storm surge and waves of hurricanes or
lesser storms that had impacts to the beaches and shores in the Project area. See OI tr. 520. The excavation of the sand from OK-A for the Project along with the excavation of sand from OK-A for all of the other projects the borrow area serves is not expected to have any adverse impacts to the beaches of Santa Rosa Island, including the beaches within the Project area. See
WD tr. 488.
Mr. Clark's opinions that the Project would be beneficial to the beach and dune system in Okaloosa Island 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," WD 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. During his 37
years of service, Mr. Clark has been 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," WD tr. 494, now electronically available to the public on the Department's website. Mr. Clark performed the "Critically Eroded Shoreline" evaluation for the beaches and shoreline subject to the Project.
Storm Protection
It is reasonable to expect that hurricanes in the future will have impacts on Okaloosa Island. "Okaloosa Island is completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms and is in need of coastal protection." OI Tr. 536
The best defense against 25-year, 50-year, and 100- year storm events is beach restoration.
Comparison to Other Borrow Area Impacts
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." WD 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 . . . ." WD Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." WD 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." WD 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.
Modeling and Dr. Young's Opinions
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 . . . ." WD 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.
WD Tr. 1150-1 (emphasis added). 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 WD tr. 1152, Dr. Young testified, "I have not seen one." Id.. 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." WD Tr. 1152-3.
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.
Other Projects Constructed with OK-A Fill
The OK-A Borrow Area is the sand source for other projects, several of which have been completed. Of the 7 million cubic yards of sand in OK-A, 1.1 million has been removed for other projects, including two projects on federal property that is part of Eglin Air Force Base, referred to as sites A-3 and A-13 (the "Eglin Projects"), and a small 2600-foot stretch of beach in Destin, referred to as the Holiday Isle Emergency Project.
The Eglin Projects
The Eglin Projects were completed in May 2010.
During the construction phase of the Eglin Projects, hopper loads of OK-A Fill were analyzed on the basis of silt content. "[A] visual shell content analysis and a grain size analysis and color analysis" OI tr. 219, was also conducted on the hopper loads of OK-A Fill. An analysis of carbonate content was not conducted during the construction phase because of expense. Carbonate content analysis was saved for later after "post construction sampling." Id.
The Eglin Projects were governed by a Sand Quality Control and Quality Assurance Plan (the "Sand QC/QA Plan") approved by the Department. The Okaloosa Island Project is also governed by a Sand QC/QA Plan.
Sand QC/QA Plans
The Department requires an application for beach restoration to include a Sand QA/QC Plan by rule:
The application shall contain the following specific information:
* * *
(k) Two complete sets of construction plans and specifications . . . . The plans shall include the following:
* * *
4. Permit applications for . . . beach restoration . . . shall include:
* * *
Quality control/assurance plan that will ensure that the sediment from the borrow sites to be used in the project will meet the standard in paragraph 62B-41.007(2)(j),
F.A.C. [the Sand Rule] Fla. Admin. Code R. 62B-41.008(1).
The purpose of a Sand QC/QA Plan was explained at hearing by Dr. Koch. It provides an outline of a level of observation and testing that has to be done during construction and post-construction. It provides remediation measures if fill is placed on the beach that is not "beach compatible fill" as defined in the Sand Rule. It is not a method by which the Department obtains reasonable assurance of compliance; reasonable assurance is obtained by the Department through "review of the sediment data." See OI tr. 705. The QC/QA Plan is more like "an insurance policy." Id. If something were to happen that was unexpected or not in compliance with the Sand Rule, the QA/QC Plans ensure that the "dredger is not going to be dredging outside the limits that's . . . outlined in the plan." OI Tr. 706. If non-compatible beach fill "were to be placed on the beach, [the QC/QA Plan] outlines triggers for [remediation] so that [remedial] action can be taken immediately." OI Tr. 707.
Application of the Sand QC/QA to Eglin Project A-3
A few of the hopper loads used on Eglin A-3 failed. "One or two had a carbonate content greater than 5 percent. A couple had a grain size that was a millimeter or two under the acceptable range." OI Tr. 220.
Given that the hopper used in the Eglin A-3 Project holds 2,500 cubic yards of material and that DEP requires compliance over an area of 10,000 square feet, "sand from one hopper load [that failed] could be blended in with sand from other hopper loads." Id.
The remedial measure employed in the Eglin A-3 Project of blending non-compliant fill with good fill did not succeed. Mr. Trudnak offered at hearing that the OK-A Fill used at the Eglin A-3 Project had "a higher percentage of dark material," OI tr. 216, than the fill used in the Emergency Holiday Isle Project and therefore, the sand color in the restored Eglin A-3 Project "is inferior to the [sand color of the restored beach in the Emergency] Holiday Isle Project." Id. The darkness of the material used in the Eglin A-3 Project was confirmed by aerial photography conducted by Dr. Young a month after construction was completed. See discussion, below.
Mr. Trudnak attributed the inferior quality of the fill used in the Eglin A-3 Project to the area of OK-A from which it was taken: the southeast and south central portions.
Fill taken for the Emergency Holiday Isle Project which
Mr. Trudnak opined was superior from the standpoint of color was taken from OK-A's southwest corner.
Mr. Trudnak's assessment of the inferior color of the sand placed in the Eglin A-3 Project, however, was not revealed by testing of four post-construction samples taken on May 27, 2010 and tested on June 2, 2010. Those four samples all yielded recorded results for Munsell color at the lightest (and predominate) color assigned to the native beach: 5Y 8/1 or as the post construction testing results admitted into evidence show: "5Y Chroma 1 Value 8." See OI County Ex. 13. These tests results call into question the validity of the tests and other test results of the quality of the sand that is OK-A Fill.
Sand Quality
Quartz and Carbonate; Native Sand
Quartz or Silicon Dioxide, a principal constituent of ordinary sand, is a brilliant, crystalline mineral, occurring in abundance in the earth's crust, most often in a colorless, transparent form. Quartz is usually present in beach sands in high percentages.
Like quartz, carbonate also occurs in abundance in the earth's crust and is often present in beach sand. The source of carbonate in beach sand is mainly shells of organisms like clams and scallops. But carbonates that are not from
shells also occur in marine environments. These non-shell carbonates may also be constituents of beach sand.
The sand on the beaches of Okaloosa Island is predominately quartz and contains an extraordinarily low amount of carbonates. The references to Okaloosa Island beaches as being composed of "sugar white sand" and the beauty of their color which drew the Sherrys to Okaloosa Island is due to their general character as predominately "quartz" beaches to an unusual degree rather than as beaches with a significant amount of carbonate content or other content that would make the color other than "sugar white." As Dr. Young put it in the section of his report which analyzed the carbonate content of OK-A Sand used at A-3, the Eglin East Beach Restoration Project:
Okaloosa Island sands are renowned for their unique, mature, quartz composition providing a "dramatic landscape of drifted blinding white sand that often puts northern visitors in mind of snow;" to quote the Walton County Chamber of Commerce website. This project [the Eglin East Project] has replaced that pure quartz sand with beach fill [that] would rank the beach as the highest carbonate content beach on the Panhandle.
OI Petitioners' Ex. 40, (un-numbered 5th page).
The awareness of the quality and color of Okaloosa Island beaches is accepted by all of the parties to this proceeding. Taylor Engineering, the County's agent, wrote the
following in section 3.3 of its Sand Source Investigation Report, entitled "Color Analysis":
Residents and visitors cherish the beaches of Okaloosa County for their very white clean sand. Thus, renourishment activity must address maintenance of the native beach sand color.
* * *
The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y8/1 (white) and described several other samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations . . . .
OI Petitioners' Ex. 42 at 16, OKC41283 (emphasis added).
In order to ensure that the County's restoration efforts in Okaloosa Island would "address maintenance of the native beach sand color" and other characteristics of the sand native to Okaloosa Island, Taylor and the County made significant effort to comply with the Department's Sand Rule.
The Sand Rule
Rule 62B-41.007 is entitled "Design, Siting and Other Requirements." Section (1) sets out requirements in general for coastal construction. Section (2) provides special guidelines.
Subsection (j) of Section (2) (the "Sand Rule") sets out the guidelines for "beach compatible fill" to be used in
coastal construction projects including the beach restoration of the Okaloosa Island Project. The Sand Rule reads as follows:
62B-41.007 Design, Siting and Other Requirements.
* * *
Coastal construction shall be designed in accordance with established engineering and scientific practice, and the following special guidelines:
* * *
To protect the environmental function of Florida's beaches, only beach compatible fill shall be placed on the beach or in any associated dune system. Beach compatible fill is material that maintains the general character and functionality of the material occurring on the beach and in the adjacent dune and coastal system. Such material shall be predominately of carbonate, quartz or similar material with a particle size distribution ranging between 0.0062mm (4.0Φ) and 4.76mm (-2.25Φ)(classified as sand by either the Unified Soils or the Wentworth classification), shall be similar in color and grain size distribution (sand grain frequency, mean and median grain size and sorting coefficient) to the material in the existing coastal system at the disposal site and shall not contain:
Greater than 5 percent, by weight, silt, clay or colloids passing the #230 sieve (4.0Φ);
Greater than 5 percent, by weight, fine gravel retained on the #4 sieve (- 2.25Φ);
Coarse gravel, cobbles or material retained on the 3/4 inch sieve in a
percentage or size greater than found on the native beach;
Construction debris, toxic material or other foreign matter; and,
Not result in cementation of the beach.
If rocks or other non-specified materials appear on the surface of the filled beach in excess of 50% of background in any 10,000 square foot area, then surface rock should be removed from those areas. These areas shall also be tested for subsurface rock percentage and remediated as required. If the natural beach exceeds any of the limiting parameters listed above, then the fill material shall not exceed the naturally occurring level for that parameter.
Fla. Admin. Code R. 62B-41.007(2)(j) (emphasis added).
In compliance with the Sand Rule, the Department seeks to ensure that fill placed on the beach in a restoration project maintains the general character and functionality occurring in the coastal and dune system adjacent to the beach that is the placement site. If a beach is predominately quartz, then the fill should be predominately quartz. The same is true for a beach that is predominately carbonate; the fill to restore that beach should be predominately carbonate.
It is the general character and functionality of sand on the beach and the adjacent coastal and dune system where the fill is to be placed that is the baseline against which the Department determines the compatibility of fill.
Fill compatible with one beach in Florida is not compatible with all beaches in Florida. Fill that is predominately carbonate, for example, might be compatible with many beaches in the state; it would not be compatible with the predominately quartz coastal and dune systems adjacent to the beaches of Okaloosa Island.
OK-A Fill: Not Compatible
The environmental functions the Department considered when applying the Sand Rule to this case are nesting habitat for turtles, nesting and foraging habitat for shorebirds and general habitat for beach mice.
There may be overlap between the general character of the material at issue and its environmental functionality. Color, a sand characteristic, is a component of the general character of sand. Color can also relate to environmental functionality. It has an effect, for example, on the temperature of the sand which, in turn, determines sex ratios for turtle hatchlings as well as the incubation period for turtle eggs. Sand color, therefore, has an effect on environmental function related to sea turtles. To the extent it affects thermal characteristics of beach sand, color can affect other organisms whose habitat includes beaches.
The County and the Department presented evidence that the fill from OK-A ("OK-A Fill") will maintain the environmental
functionality on the Project's beaches. The evidence presented by Petitioners to rebut the evidence of the County and Department as to environmental functions or functionality otherwise was insubstantial. The fill from OK-A will maintain the environmental functionality of the Project's placement site.
In contrast to environmental functionality, the evidence established that OK-A Fill will not maintain the general character of the native beach subject to the Okaloosa Island Project beach. The finding that the fill will not maintain the general character of the placement site is based on three factors: 1.) carbonate content, 2.) color, and 3.) the presence of 3/4 inch material.
Carbonate Content
Native Beach
Taylor Engineering's Sand Search Investigation Report, see Petitioners' OI 42, Case No. 10-2468, determined the carbonate content of the native beach in Okaloosa Island to be 0.00%. Most beaches in Florida have shell and carbonate content. Carbonate content of "0.00%," therefore, is highly unusual and it underscores the unusual if not unique character of Okaloosa Island beaches.
Taylor's determination of "0.00%" carbonate content of the native beach was based on acid digestion tests conducted by Ellis & Associates, a certified laboratory. While there may
be other ways of objectively determining carbonate content, acid digestion is the best method.
Carbonate content cannot be determined on a percentage basis visually. To arrive at an accurate acceptable percentage, acid digestion is required. See Deposition of Gregory William Stone, Ph.D., at 22.
Taylor Engineering conducted tests on 16 sand samples collected by Taylor at four different monuments on the beach and from the adjacent dune system in Okaloosa Island. At R-1 and R- 6, samples were taken at "Mid-Berm," mean high water and mean low water. At R-11 and R-16, samples were taken in areas of dune vegetation, at the dune toe, Mid-Berm, mean high water and mean low water. (Samples were also taken by Taylor in areas of dune vegetation and at the dune toe at R-1 and R-6. These samples were excluded from the analysis by Ellis and Associates because they represented "non-native dune restoration sand trucked in from an upland source." OI Joint Ex. 3G at 2.2). Each of the 16 samples of native beach sand yielded a calcium carbonate content of "0.00%."
There was other evidence that indicated that beaches of Okaloosa Island must contain some amount of carbonate, no matter how small, despite Taylor Engineering's testing and analyses that yielded carbonate content at 0.00%.
Dr. Stone, the County's witness, testified that in the Okaloosa Island portion of Santa Rosa Island carbonate "is in the swash zone . . . where the waves break, and the water is pushed up and then falls back under gravity." Deposition of Gregory William Stone, Ph.D., at 12. Carbonates from shells are always present in swash zones. Dr. Stone had not conducted carbonate analyses of the native sand and could not testify as to what percentage of Okaloosa Island beach sand is carbonate. During storms, however, large shell fragments are pushed onto the beach.
The conflict in the evidence as to the extent to which Okaloosa Island beach sand contains carbonates is resolved by the following. The carbonate content of the native sand is extraordinarily low, at a figure that approaches zero.
OK-A Fill Carbonate
The persuasive evidence in this case establishes that the carbonate content of OK-A Fill is so much higher than the carbonate content of the sand native to Okaloosa Island beaches that, for this Project, OK-A Fill is not "beach compatible fill," as defined by the Sand Rule. Supportive of the finding is Dr. Young's credible analysis of the OK-A Fill used in the Eglin East Project. The analysis appears in OI Petitioners' Exhibit 40 (marked as "DOAH Case No. 10-2468, Exhibit Sherry
40"), entitled: "Analysis of carbonate content for the Eglin (East) beach nourishment project."
Dr. Young acquired 21 random samples of beach sediment in August of 2010 from the Eglin East Project after construction using a sampling grid and ArcGIS. Criticized by the Department because the samples were all taken close to the shoreline and none were taken within the back of the berm to the back of the dune, his methodology for selecting and collecting the samples is found to be reasonable nonetheless.
The samples were subjected to standard procedures including "Acid Digestion" for the determination of insoluble residue as an estimate of carbonate content.
The data from Dr. Young's "acid digestion/insoluble residue determination," see OI Petitioners' Ex. 40 at 4, show carbonate content to range from as low as 3.89% to as high as 11.81% (using rounded figures). The averaging of the percentage of carbonate content for the 21 samples yields an average carbonate content for OK-A fill of 6.29% (a rounded figure).
In addition to Dr. Young's carbonate content results for OK-A fill used in the Eglin East Project, carbonate content acid digestion testing results of OK-A Sand was introduced into evidence as part of the Sand Source Investigation. See OI Petitioners' 42. Table 5.5 of the document, id. at 36, shows that 61 vibracore samples were taken from different locations
and different depths at the locations in OK-A. Of the 61 vibracore samples, 24 were subjected to analysis for carbonate content. Several were rejected because they were out of the area to be dredged. The acid digestion tests conducted on Taylor's behalf for the samples selected to be included in the results yielded an average carbonate content of OK-A fill at 3.77%.
The carbonate content of OK-A fill, whether measured by Dr. Young or Taylor Engineering, significantly exceeds the carbonate content of seven beaches along the Panhandle of Florida tested for carbonate. These beaches stretch from Perdido Bay in Escambia County to the West to the Walton County
30 A Corridor in the east (with Okaloosa Island being in the middle). The carbonate content in these seven beaches averages 0.6%. The beach with the highest carbonate content of the seven (denominated "Perdido Bay" by Petitioners' Exhibit 3) is located in Escambia County. It is shown to have a carbonate content of 1.4%. Of the seven, the beach with the lowest carbonate content is "Okaloosa Island" at "0." OI Petitioners' 3. The restored beach subject to the Project, therefore, would change from prior to restoration to having either no carbonate content or almost none to being the beach on the panhandle, at least as to its restored portion, with the highest carbonate content by a significant margin.
The fill to be used in the Project is not "beach compatible fill" because it will not maintain the general character of the pre-Project sand from the standpoint of carbonate content.
2. Color
Unlike the objective testing (acid digestion) that was used to determine the carbonate content of OK-A Fill and sand native to Okaloosa Island, the color of the fill and native sand was determined subjectively.
Color determinations were made at various stages in the application process prior to the issuance of the Consolidated NOI. One determination was made when Taylor Engineering conducted an investigation (the "Sand Bleaching Investigation") into how much time it would take for OK-A Fill to lighten up and to what degree it would lighten after it had been excavated and exposed to sunlight and the atmosphere. The investigation led to a report issued in October of 2008 (the "2008 Sand Bleaching Report").
Another determination was made by Ellis and Associates, the laboratory which contracted its work with Taylor. The determinations were reported in a document entitled "Eglin AFB/Okaloosa County/Destin Sand Source Investigation- Okaloosa County, FL" dated October of 2009 (the "2009 Sand Source Report").
Other determinations were made by Department personnel. All of the various color determinations made at the different steps employed the Munsell Color System.
The Munsell Color System
In Florida, the Munsell System is used to assess the color of beach sand and sand fill used in restoration projects.
The Munsell Color System assigns color notations composed of the three dimensions of a color sphere it uses as a model. The three dimensions of the sphere represent hue (five colors of the rainbow and five colors in between each of the five colors), value (lightness), and chroma (saturation or color purity).
With regard to hue, Section 3.3 entitled "Color Analysis" of Taylor's Sand Source Investigation Report states, "The hue notation of a color indicates its relation to red, yellow, green, blue and purple." OI Petitioners' Ex. 42 at 16, OKC41283. Hues are identified in Munsell notation by one of ten alphabetical notations that are either a single letter and a number or two letters and a number. The single letter notations indicate the color, "R" for red, "Y" for yellow, "G" for green, "B" for blue and "P" for purple. The double-letter notations are also color notations: "YR" for yellow-red (orange), "GY" for green-yellow, "BG" for blue-green, "PB" for purple-blue, and "RP" for red-purple. The number notation is for one of ten
degrees or shades of each hue. The hue that bears a five is not influenced by the adjacent hues. Thus, "5Y" is completely yellow without any influences of "green-yellow" or "yellow-red."
The hues that matched the colors of the sand analyzed in this case were either "Y" which stands for "Yellow" or "YR," "yellow-red."
The value notation in the Munsell Color System indicates lightness. The Munsell symbols for value span from 0 for absolute black to 10 for absolute white. "Thus, a value of
5 falls visually midway between absolute white and absolute black." Id.
The chroma notation "indicates strength or departure from a neutral of the same lightness." Id. The lower the chroma number and the higher the value, the lighter is the color.
Munsell color charts used in this case describe a value of 8 and a chroma of 1 to be "white." Thus sand classified as "5Y 8/1" would be a hue of "yellow" that approaches "white" because of value and chroma. Sand classified as "5y 7/1" or 5Y 7/2" as allowed by the permit would not be called "white" but rather, from what appears in Table 1.1 of the Sand Bleaching Investigation Report a grayish shade of "yellow." See OI Joint Ex. 3F at 2.
Allowable Color
Table 1 of Attachment G to the Application sets out "Sediment Characteristics" as part of the Draft Sand Quality Control and Quality Assurance Plan [the "Draft Sand QC/QA Plan"] for Eglin AFB/Okaloosa Island Beach Restoration Project." OI Joint Ex. 1G. Allowable Moist Munsell Color proposed by the Draft Sand QC/QA Plan for "Native Beach" is "2.5Y 7/1 or lighter." Id., Table 1. For "Borrow Area Acceptable Material Limits," it is "2.5Y 6/2 or lighter." Id. The values of the borrow area were applied for at "6" or lighter because "70 percent of [OK-A] sand has a Munsell value of 7 or lighter and, roughly, 30 percent has value of 6." OI Tr. 362.
The moist Munsell colors the Application proposed to be considered as the color of the native beach and acceptable colors for OK-A Fill were not approved by the Department. The Draft JCP set the two, respectively, at "5Y 7/1 - 5Y 8/1" and "5Y 7/2, 2.5Y 7/2, or lighter." OI Joint Ex. 11, last page (un- numbered).
A "5Y 7/2" is darker than "5Y 7/1," which in turn is darker than "5Y 8/1," the lightest color assigned by the Draft JCP to the native beach. A "2.5Y 7/2" shares the same value and chroma as a "5Y 7/2" but its hue is not a true yellow; it is of a hue closer to yellow-red (orange) than is the full yellow hue "5Y."
Immediately after being dredged, OK-A Fill is darker than the native beach sand. For the time it has been at the bottom of the Gulf, it has not been exposed to natural forces that Taylor hypothesizes to affect the color of the sand on Okaloosa Island's beaches. Native Okaloosa Island beach sand, subject to sun, winds and waves, on the other hand, in
Mr. Trudnak's view, has "been in an environment where it's really cleaned up." OI Tr. 212.
The Sand Bleaching Investigation conducted by Taylor Engineering concluded that OK-A Fill lightens up once it is dredged and exposed to the elements.
Sand Bleaching Investigation
Before Taylor prepared its Sand Source Investigation Report that is contained in the Application, it sought to quantify how long it would take to OK-A Fill to lighten and the degree of lightening, if any, after placement on the beach. Taylor's investigation led to a report (the "Sand Bleaching Investigation" and the "Sand Bleaching Report"). See OI Joint Ex. 3F.
Forty samples of OK-A fill were kept on the rooftop of a building in Jacksonville and subjected to natural conditions for at least 99 days.
The samples were compared to Munsell colors. See the representation of the color of Munsell Hue 5Y in 24 panes on a
chart labeled "Table 1.1 Representation of Munsell Colors Used in this Analysis" in the Sand Bleaching Report, OI Joint Ex. 3F, at 2. Values range from 4 to 8 with half steps between each value (4.5 and 5.5, for example) and chromas of 1, 2 and 3. The difference between "5Y 6/1" and "5Y 8/1" is obvious to the human eye. See OI Joint Ex. 3F at 2.
The comparison of a sample of sand to Munsell colors and the grading of the sample leading to the assignment of the three Munsell color dimensions do not constitute objective, scientific measurement. Instead, it is merely a visual comparison by the person conducting the test. "[I]t is a subjective test." OI Tr. 237.
The grading of the values in Taylor Sand Bleaching Investigation was determined visually by two Taylor employees. As Ms. Naimaster, one of the two Taylor employees testified, "[w]e held the sand up to the book." Naimaster Deposition at 9. Ms. Naimaster did not have any specialized training in use of the Munsell Color System. She was taught how to use the system by the other Taylor employee involved in the grading of the samples, Mr. Hall. Together, the two graded the samples toward the aim of determining the time it took for them to lighten and the degree of lightening.
Mr. Hall and Ms. Naimaster reached the conclusion that the majority of the samples taken in the Sand Bleaching
Investigation, when exposed to the elements on a Jacksonville rooftop lightened one value, say, "from a Munsell 7 to a Munsell
8 or a Munsell 6 to a Munsell 7." OI Tr. 214. They agreed on most of the comparisons of the samples pre-exposure to the samples post-exposure. When they disagreed, they worked collaboratively:
We held the sample up to the book, and he said what he thought, I said what I thought, and we decided together, who was closer.
Naimaster Deposition at 11.
Mr. Hall, Ms. Naimaster's trainer, was a 27-year old Taylor staff engineer with a Masters of Engineering from Cambridge University in England at the time of his deposition in July 2010. His sole experience with sand bleaching consisted of the work he did that led to the 2008 Sand Bleaching Report. Prior to that work, he had no experience in sand bleaching.
Whether quartz sand grains change color when exposed to sun, wind, and water was unknown to Mr. Hall at the time of his deposition. His description of the grading process during the Sand Bleaching Investigation matched Ms. Naimaster's: they agreed on the color selections for the samples "approximately 80 percent of the time; and then on the ones we disagreed, it was fairly quick to come to a consensus." Jonathan Hall DEPO-10- 2468 at 15.
The lightening observed by Mr. Hall and Ms. Naimaster did not occur because of a change in the quartz in the samples. It occurred because of changes in the impurities in or on the quartz.
Sand Source Grading and Review
While anybody can look at a sample of beach sand and compare it to a Munsell color sheet and come up with a subjective determination of the Munsell color dimensions to be assigned, Taylor Engineering relied on a certified laboratory, Ellis and Associates, to conduct the grading of OK-A Fill during the Sand Source Investigation. See OI Tr. 237.
The Sand Source Investigation report was also reviewed by Dr. Jennifer Koch, a coastal geologist with the Department, including "the color tests for each of the individual samples." OI Tr. 663. Her review, when it came to color consisted of cross-checking the color data that was provided. Although based on "data" (the samples and the Munsell Color sheets), her review was not conducted using objective standards. It was visual and subjective as she explained:
You look at the color information for every individual sample. And then . . . a Vibracore or a portion of borrow area and you kind of look from there. Kind of like creating composites in the same way as you would with sediment data. You look at the overall color and you look at the individual
sample color and compare that to what's existing on the beach.
OI Tr. 686.
Dr. Koch also visited other beach restoration projects to examine OK-A Fill in use. Later, Dr. Koch did her own color testing on samples using the Munsell Color System when she returned to her office. But before she left, Dr. Koch took pictures of the beach restoration in the emergency Holiday Isle project in which OK-A Fill was used. They appear in Department Exhibit 42. The pictures show the fill material to be clearly darker than the native beach sand. Nonetheless, Dr. Koch's assessment of the OK-A Fill used during the Holiday Isle Emergency Project is that "[t]he material was beautiful and it was beach compatible." OI Tr. 703.
The Department concluded that the County had provided reasonable assurance that the OK-A Fill material to be used in the Project is beach compatible in every way, including color.
The Department's Exhibit 42 establishes that the color of OK-A Fill after placement at Holiday Isle is significantly darker than the native beach.
Dr. Young's testimony and other photographs in evidence relate to the color of OK-A Fill more than 100 days after it had been placed on the beach. The testimony and photographs establish that the color of the fill from OK-A is
significantly darker than 5Y 8/1, the predominate color of Okaloosa Island native sand, after it has been on the beach for a time long enough to have received the effects of weathering claimed by the Sand Bleaching Investigation Report.
The color of the native beach in A-3, one of the Eglin Projects, is rated as 5Y 8/1 or 5Y 7/1, the same as the native beach subject to the Okaloosa Island Project. In
Dr. Young's aerials, taken from about 500 feet on June 21, 2010, the line between the restored beach and the native beach is easily seen by their color difference, the fill from OK-A being obviously darker.
Sand Source Report Color Conclusions
The Sand Source Report states the following:
The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y 8/1 (white) and described several others samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations (see Section 2.2).
To help establish acceptable borrow material color criteria, the current study evaluated the effects of sun bleaching on sediment color. The color test exposed 40 potential offshore borrow material samples - representing various core borings collected during the detail phase of the investigation (Chapter 5) - to the Florida sun between
12/7/2007 and 3/17/2008 (99 days). Of the
40 samples, 23 began as value 7 and 13 began as value 6. The samples represented various vibracore depths, ranging between 0 ft and
18 ft. The test results, presented in Table 3.5, indicate that all samples with a Munsell value/chroma of 7/1, 7/2, or 7/3 turned white or nearly white (value of 8) due to weathering within 99 days of placement. Approximately 85% of placed sand with a Munsell value/chroma of 6/1, 6/2, or 6/3 lightened in value to at least 7 within that same period.
* * *
Importantly, the weathering analysis discussed above likely underestimates the level of lightening the beach fill will experience for two reasons. First, the borrow material will undergo a rigorous washing effect through particle abrasion as the sand travels through the dredge pipes during dredge loading and offloading.
Second, wind and waves will weather the beach fill. The weathering analysis did not account for such weathering actions.
OI Petitioners' Ex. 42, Section 3.3, at 16-17 (emphasis added).
The methodology employed in the Sand Source and Sand Bleaching Investigation tests, however, was not scientific. See OI tr. 1424.
Explanations
The County offered several explanations to minimize the disparity between the quality of sand in OK-A Fill when first placed on the beach and the quality of the sand native to Okaloosa Island.
Sand raking is an explanation offered for the low carbonate content of the native sand as determined by Taylor Engineering. "The county has been mechanically cleaning the beaches for close to two decades. Depending upon . . . the season, it's either once every day . . . [or] twice a week . . . [t]hese machines pick up things as small [as] cigarette butts and they've been picking up . . . shells, as well . . . ." OI Tr. 97.
The darkness of OK-A Fill used in the Eglin Projects and the darkness of the OK-A Fill in general was attributed by Dr. Stone and Dr. Koch to heavy mineral content. Heavy minerals or iron-bearing minerals occur naturally in Florida Panhandle beach sand and in sand offshore.
Dr. Stone's testimony about iron-bearing minerals suggested that OK-A Fill prior to dredging is in an anerobic environment and therefore will lighten when exposed to oxygen in the beach environment was refuted by Dr. Young. As Dr. Young testified, sediments in an anerobic environment are in a reduced form that "tend to look black or gray on the Munsell chart." OI Tr. 1424. Sediments from an anerobic environment are termed "gley," which indicates the presence of reduced iron. The OK-A Fill pumped onto the beach in the Eglin A-3 Project "tend to look more tan or brown, which suggest that the iron in them has
. . . been oxidized." OI Tr. 1424-25. Iron imparts much of the
color of sediment. If the iron in OK-A Fill has been oxidized prior to excavation, it is not "gleyed." It cannot be expected that it will oxidize and lighten after exposure to air. See tr. 1425 and 1426.
As recognized by all parties OK-A Fill at the moment of excavation is darker than the sand native to the beaches of Okaloosa Island. When it is initially placed on the beach, the evidence demonstrates that the rigorous washing effect from particle abrasion as it is piped ashore does not lighten it sufficiently to meet the "whiteness" of the color of the native sand as hoped for by Taylor and the County as the result of their investigations.
Aerial photographs of the Eglin A-3 Project taken four weeks after the completion of the project demonstrate "how easily one can . . . delineate the boundaries of the project based entirely on color being assessed at a height of about 400 feet." See OI Petitioners' 8-DDD and 8-GGG.
The Eglin A-3 Project was completed at the end of May in 2010. Dr. Young visited the Eglin A-3 site "four or five times," OI tr. 1422, in late June, August and on November 30, 2010. During those visits, including the last visit more than
180 days or six months since completion of the project, he did not observe the OK-A Fill to have "bleached or lightened in color." Id.
3. 3/4 Inch Material
Native sand in the beach subject to the Project has little to no material that would be retained on a 3/4 inch sieve.
Photographs of OK-A Fill used in the Emergency Holiday Isle Project and at the Eglin A-3 Project were introduced into evidence. They demonstrate the presence in OK-A Fill of an amount of shell material that would not pass through a 3/4 inch sieve much greater than is present on the beach subject to the Project.
After the Emergency Holiday Isle Project, an effort was made to remove shells that were in the OK-A Fill deposited on the beach. How much the shell weighed that was removed or how many days of tilling or screening to remove the shells was not established. Mr. Trefilio, the Coastal Management Coordinator acting on behalf of the County "told our contractor to use his professional judgment to basically remove as many shells as possible." OI Tr. 140.
Dr. Young' visit to the Eglin A-3 Project and his personal observation establish that the OK-A Fill used at the A-3 site contains a significant amount of shell material that would not be retained on a 3/4 inch sieve.
The fill from OK-A already excavated and used in other projects contains material that would be retained on the
3/4 inch sieve in a percentage significantly greater than the percentage of that material on the beach subject to the Project. It is highly likely that any fill taken from OK-A to be used in the Project would contain unacceptably-sized material at significantly greater percentages than on the native beach.
Regulatory Public Interest
Section 373.414 requires the County to provide reasonable assurance that the activity authorized by the JCP "will be clearly in the public interest" (as opposed to "not contrary to the public interest") since a portion of the OK-A Borrow Area is in an OFW.
The statute provides:
In determining whether an activity . . . is clearly in the public interest, . . . the department shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
§ 373.414(1)(a), Fla. Stat.
The Department determined the Project to be clearly in the public interest. In doing so, the Department did not consider the Project's "non-environmental" impacts to the property of others under the authority of Miller v. Dep't of Envtl. Reg., 504 So. 2d 1425 (Fla. 1st DCA 1987).
Criterion 1
A distinction is to be drawn between effect on the public health, safety and welfare, on the one hand, and the property of others, on the other hand.
The project will not adversely affect the public health, safety or welfare of others. To the contrary it will serve the public health, safety and welfare. The restoration will protect upland structures and property vulnerable to extreme storm events and waves and storm surge should they occur during the life of the Project.
The Project will affect the property of the Sherrys and Mr. Donovan by placing sand on the beach waterward of their
condominium property that is not beach-compatible fill. The effect is likely to be adverse but to what extent is not established by this record.
Criterion 2
The draft permit contains minimization measures during construction to protect endangered and threatened species such as turtles, shorebirds, and mice. The restoration of a critically eroded beach increases the habitat for endangered and threatened species. The environmental assessment developed to address potential impacts to threatened or endangered species, supplemented with literature review of the effects of beach restoration on natural habitat, demonstrates that there will be little to no adverse impacts with the exception of to the benthic infauna communities.
Any adverse affects to the benthic infauna communities would be temporary. These communities rebound quickly. The temporary impacts are not considered adverse and they are certainly not significantly adverse.
Dr. Robbin Trindell, the Biological Administrator for the State of Florida Management Program, reviewed the Project and concluded that OK-Fill is acceptable for turtle nesting.
The conclusion was based on the grain size information submitted by Dr. Stone and from working with the Department's biologists.
Criterion 3
The Project will not affect navigation. It is far from inlets and a significant distance from East Pass, which connects Choctawhatchee Bay to the Gulf.
The Project may cause erosion, but it may also cause beneficial impacts to the shoreline. Harmful shoaling will not be caused by the Project.
Criterion 4
Fishing is not expected to be impacted by the Project.
The recreational value of the beach should increase.
Marine productivity would not be affected adversely with the exception of the temporary impact to benthic infauna, an impact that would not be adverse in the long term.
Criterion 5
The activity will be temporary.
Criterion 6
There are no significant historical and archaeological resources in the project area.
Criterion 7
The current condition and relative value of functions being performed by the areas affected by the Project will remain the same. It will continue to be a recreational beach adjacent
to the Gulf. It will continue to provide habitat to endangered species and wildlife and will provide storm protection.
Variance and Conditions
The northern boundary of OK-A is within Outstanding Florida Waters ("OFW").
In a letter dated October 14, 2009, Taylor Engineering on behalf of the County requested three variances from rule provisions in chapter 62-4, which governs "Permits," as follows:
[W]e request a variance from the provisions of Rule 62-4.244(5)[(c)], F.A.C., to
establish a temporary mixing zone greater than 150 meters in an Outstanding Florida Water; a variance from the provisions of Rules 62-4.242(2)(a)2.b., 62-302.700(1), and
62-312.080(3), F.A.C., to establish a maximum allowable turbidity level above background levels for work with an Outstanding Florida Water; and a variance from the thirty-day time period, pursuant to Rule 62-4.242(2)(a)2.b. F.A.C., in which elevated turbidity levels may occur within a mixing zone located in an Outstanding Florida Water.
OI Joint Ex. Vol. 3, Ex. 12.
Rule 62-4.244(5)(c) which governs "Mixing zones: surface waters" provides:
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.
Rule 62-302.700(1) is in the rule chapter that governs "Surface Water Quality Standards." Entitled "Special Protection, Outstanding Florida Waters, Outstanding National Resource Waters," it provides:
It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in subsections 62.4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering.
(emphasis added).
Rule 62-312.080(3) is in the rule chapter that governs "Dredge and Fill Activities". It provides: "[n]o permit shall be issued for dredging or filling which . . . is within an outstanding Florida Water unless the applicant complies with Section 403.918(2), F.S. (Supp. 1192), and Rule 62-4.242, F.A.C." (emphasis added).
Both rules 62-302.700 (an OFW anti-degradation rule) and 62-312.080(3) (an OFW anti-degradation rule applicable to dredging and filling) allow an exception when the applicant complies with rule 62-4.242.
Rule 62-4.242(2) sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows:
(a) 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 . . . is clearly in the public interest, and . . .
* * *
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 "Thirty-Day Requirement].
The Department referred to the three variances in its Consolidated NOI as the "Variance" (in the singular rather than the plural).
The Department reviewed the request for the Variance under section 403.201(1):
Upon application, the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons.
There is not practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification.
The Department determined that the Variance could be granted to the County for either of the first two reasons, (a) or (b), listed in section 403.201(1).
Petitioners do not attack the Variance, however, for failure to meet the requirements of section 403.201(1). Instead, they attack the Variance for failure to satisfy section 120.54(2) [the "APA Variance Statute]:
Variances and waivers 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 would violate principles of fairness.
The APA Variance Statute requires that two elements be met for a variance to be granted pursuant to it: 1.) the purpose of the underlying statute will be or has been achieved by other means; and 2.) violation of fairness (not at issue) or hardship.
Hardship
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," WD tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150-meter radius. The Variance "allows an anti-degradation allowance of . . . 3 NTU's above background rather than zero NTU's above background at the edge of that mixing zone." WD Tr. 438.
Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the Variance 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." WD 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. Furthermore, the Department had determined that the Project is clearly in the public interest. While the existing ambient water quality within the OFW is likely to be lowered for more than thirty days by the dredging in OK-A, it will not be lowered for more than ninety days, a "temporary" period. It would be a substantial hardship to require the County to meet the mixing zone standards in rule 62-4.244(5((c) and the 30-day requirement in rule 62- 4.242.
b. Underlying Statutes: Achievement of Purpose
The statutes implemented by the rules covered by the request for the Variance are provisions in either chapter 403 or 373, which control water pollution or protect water resources.
No resources in the area, such as hard bottom or sea- grass beds, will be affected by a turbidity plume and an expanded mixing zone.
The Department reached the conclusion that the purposes of the underlying statutes would be achieved. The conclusion was based on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," WD 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 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 that had been allowed a 1500-meter mixing zone.
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," WD 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.
Deepwater Horizon Oil Spill
346. 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 consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 90 day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application.
After the filing of the 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 WD tr. 175.
Prior to the completion of the Emergency Holiday Isle Project, the County hired E-Tech Environmental Consultants to monitor and inspect OK-A. On August 9, 2010, a team of divers investigated the bottom of the borrow area for evidence of oil
constituents. "Nothing out of the ordinary was seen on the bottom at the borrow site." OI Tr. 402.
The team of divers collected samples at the same time they conducted their visual observation. The samples were sent to Pace Analytical Services in Ormond Beach, Florida, and were received there on August 12, 2010. The results of the analysis showed the presence of no oil constituents. Furthermore, no oil was found in the OK-A Fill pumped onto the beach during the Emergency Holiday Isle Project.
A similar inspection, observation, sampling and testing of samples will be conducted prior to the commencement of operation on the Okaloosa Island Project.
The QA/QC Plan and the Sand Rule cover foreign material (including oil). The plan and the rule should be sufficient to protect the beaches from oil contamination.
CONCLUSIONS OF LAW
Jurisdiction and Department Responsibility
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of the proceeding. §§ 120.569 and 120.57, Fla. Stat.
The Department is responsible for administration of the statutory provisions in Part I of chapter 161, Part V of chapter 373, chapter 403, and the rules in chapters 62-4, 62- 302, 62-330, 62-345, 62B-41, 62B-49. As staff to the Board of
Trustees of the Internal Improvement Fund, the Department is responsible for the administration of the statutory provisions in chapter 253 and the rules in chapter 18-21.
Governing Law
A JCP is a legislatively-mandated combination of three forms of authorization issued by the State of Florida: a coastal construction permit under section 161.041; sovereign submerged land authorization in 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. Beach restoration typically requires a JCP and the Okaloosa Island Beach Restoration Project is not an exception.
When an applicant appropriately applies for a JCP, as did Okaloosa County in this case, the three authorizations that make up a JCP are reviewed concurrently. The Bureau of Beach and Coastal Systems issues a JCP as a single permit when the application is finally approved. See §§ 161.055, 373.427, 253.77(2), Fla. Stat. and Fla. Admin. Code Chs. 62B-49 and
18-21.004.
The Department's interpretation that a coastal construction control line permit is not required in a beach restoration case is a reasonable one and entitled to deference. See Meszaros v. Dep't of Agric. & Consumer Serv., 861 So. 2d 86 (Fla. 5th DCA 2003). Furthermore, Petitioners' arguments to the
contrary are clearly without merit based on the plain language of section 161.053(9).
County as Proper Applicant
It is provided in several sections of chapter 161, as well as the provisions of implementing rules, that local governments are "proper applicants" for JCPs for beach restoration projects. See §§ 161.091 - 161.212, Fla. Stat. In addition, section 161.041 contemplates that a county is a proper applicant for a permit for a beach restoration project.
It is also reasonable to expect that a local government would be an appropriate applicant to restore stretches of critically eroded beaches. Okaloosa County owns the majority of the area proposed to be used in the Okaloosa Island Project. There is no requirement, however, that a local government own any land within a project area in order to receive a JCP for beach restoration.
Okaloosa County is a proper applicant for the permit in this case. Also see Sherry v. DEP, Case No. 10-0515 (Fla. DOAH June 29, 2011; Fla. DEP Aug. 29, 2011).
Standing
The provisions of section 120.569 "apply in all proceedings in which the substantial interests of a party are determined by an agency" and the provisions of section 120.57
provide "additional procedures applicable to [administrative] hearings involving disputed issues of material fact."
In pertinent part, section 120.52(13) reads: "Party" means:
Specifically named persons whose substantial interests are being determined in the proceeding.
Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.
* * *
§ 120.52(13), Fla. Stat.
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 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 affected, the Department refers to the two-pronged test for standing in formal administrative proceedings of Agrico Chem. Corp. v. Dep't of Envtl. Reg., 406 So. 2d 478 (Fla. 2d DCA 1981) (as quoted in Reily Enterprises, LLC, 990 So. 2d 1248 (Fla. 4th DCA 21008):
We believe that before one can be considered to have a substantial interest in the outcome of the proceeding, he must show
1) that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.
Reily, 990 So. 2d at 1251 (quoting from Agrico, 406 So. 2d at 482)).
The Department makes several arguments for why the Sherrys and Mr. Donovan do not have standing. With regard to impacts to the beach, the Department argues they have not shown that their interests reasonably could be adversely affected by the beach restoration activities and therefore they fail under the first prong of the Agrico test. With regard to concerns characterized by the Department as "aesthetic" (like the color
of the fill to be used and impacts to their use and enjoyment of the beach from the restoration activities) and concerns characterized as "economic" (those advanced by Dr. Fishkind), the Department argues that the standing case fails under the second prong of the Agrico test.
In Reily, 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 the Petitioner in Reily, the three 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-à-vis that project, the Petitioners each have concerns that the Okaloosa Island Project by virtue of impacts to their beaches caused by the dredging of the OK-A Borrow Area for the Project and the
placement of non-compatible beach fill on the beaches of Okaloosa Island 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. These concerns and the testimony of Drs. Dally and Young served as a basis for the standing of the Sherrys and Mr. Donovan in Sherry v. Dep't of Envtl. Prot., Case No. 10-0515 (Fla. DOAH June 29, 2011; Fla. DEP August 29, 2011) and they serve as a case for standing here. Furthermore, the Petitioners' standing to initiate this proceeding is supported by the evidence of adverse impact from placement of OK-A Fill, fill that is not beach- compatible and that will be placed on the beach during the Project. See also Gibby Family Trust v. Blueprint 2000 and Dep't of Envtl Prot., Case No. 10-9292 (Fla. DOAH April 11, 2011 at 14-16; Fla. DEP May 26, 2011); and, St. Johns
Riverkeeper, Inc., et al. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051 (Fla. 5th DCA 2011).
Mr. and Mrs. Sherry and Mr. Donovan have standing to initiate this proceeding.
The only evidence presented by Intervenors that is independent of the evidence presented by the Sherrys is evidence related to the Intervenors' standing. Whether the Intervenors have independent standing, therefore, is an issue that need not
be decided. See Coal. for Adequacy and Fairness in Sch. 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.")
Deference to Agency Interpretations
"The agency in its final order may reject or modify conclusion of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction." § 120.57(1)(l). The Department is accorded deference in its interpretation and applications of its own rules and statutes. Dep't v. Envtl. Reg. v. Goldring, 477 So. 2d 532 (Fla. 1985).
Written Authorizations or
Evidence of Ownership and Sufficient Upland Interest
Requiring information regarding written authorizations at a later time instead of at the time of the application does not require denial of the Application.
The record establishes that it is more logical and reasonable when governmental entities are conducting beach restoration projects to defer the written authorizations. The Department relies on withholding the local government permittee's notice to proceed, 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. See Sherry v. Dep't of Envtl. Prot., Case No. 10-0515 (Fla. DOAH June 24, 2011; Fla. DEP August 29, 2011).
The County qualifies for the requested Letter of Consent to use sovereign submerged lands under the exception in rule 18-21.004(3)(b) to the requirement of providing "satisfactory evidence of sufficient upland interest." There is not sufficient evidence of record, moreover, of infringement on riparian rights to support Petitioners' position that evidence of upland ownership was not waivable. See id.
Proprietary Public Interest Test
The Proprietary Public Interest Test is a combination of the definition of "public interest" in rule 18-21.003(51) and under the category of "General Proprietary" management policies in rule 18-21.004, "[f]or approval, all activities on sovereignty land must be not contrary to the public interest
. . . ." Fla. Admin. Code R. 18-21.004(1)(a).
Dr. Fishkind's cost-benefit analysis which determined that the cost of the Project outweighed the benefit was not rebutted by the Department.
Nonetheless, the Project is determined to be in the public interest, based on the Legislature's declaration in section 161.088 and the Department's position, which is a reasonable one, that the legislative declaration satisfies the
Proprietary Public Interest Test in this case under the department's rules.
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 remaining adverse impacts or other impacts shall be offset by 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 consolidated 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.
The County provided reasonable assurances that there will be no significant adverse impacts from the dredging of OK-
A. 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 applicants provided the assurances necessary with regard to impacts from the dredging of OK-A.
Regulatory Public Interest Test
While there is no question that the Project is in the public interest, whether it is "clearly" in the public interest, the applicable standard under section 373.414(1) since it is within an OFW, is a more difficult determination.
With regard to the public interest test, the applicant's burden is one of providing reasonable assurance, not an absolute guarantee. See Manasota-88, Inc. v. Agrico Chemical Co., Case No. 87-2433 (Fla. DOAH Jan 5, 1990; Fla. DER Feb. 19, 1990). Nor is it necessary for an applicant to eliminate speculation concerning what "might" occur. Chipola Basin
Protective Group, Inc. v. Dep't of Envtl. Reg., Case No. 88-335 (Fla. DOAH Nov. 14, 1998; Fla. DER Dec. 30, 1988). "Reasonable assurance" requires that an applicant establish a "substantial likelihood that the project will be successfully implemented." Metro. Dade Cnty. v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
Additionally, the applicant is not required to prove anew all items in the permit application. Once the applicant has made a prima facie case that an application should be approved, third party challengers have the burden of going forward with the evidence to prove the facts asserted in their petition. Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 790 (Fla. 1st DCA 1981). "If the [third party challenger] fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted . . . then the permit must be approved." Id.
In considering the public health, safety or welfare or the property of others, the Department does not consider non-
environmental factors. Miller v. Dep't of Envtl. Reg., 504 So. 2d 1325, 1327 (Fla. 1st DCA 1987); Surfrider Foundation, Inc. v.
Snook Foundation, Inc., Case No. 08-1511 (Fla. DOAH March 2, 2009; Fla. DEP July 15, 2009).
On balance, the County provided reasonable assurances that the Project is clearly in the public interest. On balance, Petitioners did not carry their burden to controvert the County's case that the Project is clearly in the public interest.
Critically Eroded Shoreline Designation
The critical erosion designation made by the Department is not part of this de novo proceeding. See Fla. Admin. Code R. 62B-36.003(2). The Department's rules and standard applicable to JCPs do not provide for consideration of critical erosion designation in the review of the permits.
Sufficient evidence, moreover, was provided by the County and the Department to support the designation of the entire Project under the Department's definition of "critically eroded shoreline." See Fla. Admin. Code R. 62B-36.002(4).
Sand Quality
The sand proposed for use in the Project is not "beach compatible fill" because it will not maintain the general character of the native beach in the Project area and therefore, is not in compliance with the Sand Rule.
The weight of the evidence demonstrates that OK-A Fill placed on Okaloosa Island's beaches will greatly increase the carbonate content of the native sand. The increase in the carbonate content will not maintain the general character of the native beach.
The County did not carry its burden of showing that OK-A Fill will be similar enough in color to the native beach subject to the Project to maintain its general character when it comes to color.
The conclusions reached in both the Sand Source and Sand Bleaching Investigation Reports that OK-A Fill will lighten within a reasonable amount of time after placement on Okaloosa Island beaches is rejected based on the testimony of Dr. Young.
Whether OK-A Fill to be used on the Okaloosa Island Project will lighten eventually so that the color of the restored beach will maintain the color of the native sand and therefore maintain its general character on the state, as hoped for by the County, is doubtful. The work of Taylor Engineering and its associates that the County relied is not sufficiently scientific to show that it will. Personal observation on the site of the Eglin A-3 Project by Dr. Young of OK-A Fill long after its deposit on the beach established that the bleaching or lightening of the fill in that project had not occurred after the passage of a significant amount of time since its placement.
The explanations for the darkness of OK-A Fill offered by the County and the Department are outweighed by Dr. Young's testimony concerning "gley" in anerobic environments, the oxidation of iron and the color of OK-A Fill after placement.
The weight of the evidence demonstrates that OK-A Fill will greatly increase the presence of shell material that will be retained on a 3/4-inch sieve. The presence of shell material in OK-A Fill that will be retained on a 3/4-inch sieve shows that OK-A Fill is not "beach compatible fill" as required by the Sand Rule. See Sherry 138, an exhibit admitted in an Order entered September 9, 2011, that grants part of Petitioners' Motion to Reopen Final Hearing and Hearing Record filed August 18, 2011.
Miscellaneous Permit Criteria
Allegations that a beach restoration project does not meet the local comprehensive plan are beyond the jurisdiction of the Department and the Board of Trustees, unless the ordinances adopting the plan have been incorporated by reference into a statute or rule. See Taylor v. Cedar Key Special Water & Sewerage Dist., 590 So. 2d 480 (Fla. 1st DCA 1991). Allegations by Petitioners of this nature are beyond the jurisdiction of this proceeding. There are no statutes or rules that give the Department or the Board of Trustees authority to construe, interpret, or apply local city or county zoning and land use
ordinances, comprehensive plans or other local laws when reviewing joint coastal permit applications.
Rule 62B-41.008(1)(g) requires only "written evidence, provided by the appropriate governmental agency having jurisdiction over the coastal construction, that the proposed coastal construction, as submitted to the Department is consistent with the state-approved Local Comprehensive Plan." That evidence was provided by the County. It is sufficient for this proceeding and it is not within the jurisdiction of the government agencies at the state level involved in this proceeding to interpret and rule on determinations with regard to local comprehensive plans.
Written authorization under rule 62B-41.008(1)(n) are not necessary because it was established that there is sufficient public access for the Department to inspect the Project in areas adjacent to privately-owned upland property when inspection is necessary. The majority of the upland property within the Project is owned by the County or the federal government and access by the Department to that property for inspection purposes is not at issue.
The County complied with rule 62B-49.008(1)(b).
The County and the Department showed that the application had not lapsed in fact even though the County did
not timely request an extension of time for it to respond to the Department's RAI.
It was not demonstrated that site conditions of the borrow area or the Project's fill area have been affected by the Oil Spill.
Reasonable Assurance
The County must carry the ultimate burden of proving reasonable assurances that the Project will not violate applicable statutory and rule standards. Fla. Dep't of Transp.
v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
If the County has made a prima facie case showing reasonable assurances that the applicable conditions for issuance of the JCP have been satisfied then the burden shifts to the Petitioners to present contrary evidence of equivalent quality. J.W.C., at 789.
"Reasonable assurance" means "a substantial likelihood that the project will be successfully implemented." See Metro. Dade Cnty. v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
409 Competent substantial evidence based up detailed site plans and engineering studies, geophysical and geotechnical studies, environmental assessments, literature reviews, coupled with credible expert engineering testimony is a sufficient basis to determine that the applicant has provided reasonable
assurances. See Hamilton Cnty. Board of Cnty. Commissioners v. Fla. Dep't of Envtl. Prot., 587 So. 2d 1378 (Fla. 1st DCA 1991).
410. The County has provided reasonable assurances necessary for the issuance of a JCP with one exception.
411. The County and the Department made a prima facie case with regard to whether OK-A Fill to be placed on the beach during construction is "beach compatible fill" and otherwise complied with the Sand Rule. The Petitioners, however, once the burden shifted to them, demonstrated that OK-A Fill is not "beach compatible fill" for the beaches of Okaloosa Island, however suitable it might be for use in restoration of other beaches elsewhere in the state, and that it did not otherwise comply with the Sand Rule. The County and the Department failed to provide reasonable assurance of compliance with the Sand Rule in the face of the Petitioners' evidence and on the state of the record in this case.
412. The County demonstrated the need for the Variance and its appropriateness under section 403.201.
Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order that denies the application of Okaloosa County for issuance of the Joint Coastal Permit for the
Okaloosa Island Beach Restoration Project. Denial of the JCP renders the request for the Variance moot.
DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida.
S
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 22nd day of September, 2011.
COPIES FURNISHED:
Gregory T. Stewart, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200
Post Office Box 11008 Tallahassee, Florida 32302
Joseph Alexander Brown, Esquire Hopping Green & Sams
119 South Monroe Street, Suite 300 Tallahassee, Florida 32301
Harry F. Chiles, Esquire
Nabors, Giblin and Nickerson, P.A. Post Office Box 11008
1500 Mahan Drive, Suite 200
Tallahassee, Florida 32308
D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
Kelly L. Russell, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Richard S. Brightman, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
Edward A. Dion, Esquire
Nabors, Giblin, & Nickerson, P.A.
208 Southeast Sixth Street
Fort Lauderdale, Florida 33301
Walter C. Thompson, Jr. Barkley and Thompson, LC
1515 Poydras Street, Suite 2350 New Orleans, Louisiana 70112
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 |
|---|---|---|
| Dec. 29, 2011 | Agency Final Order | |
| Sep. 22, 2011 | Recommended Order | Okaloosa County and DEP provided reasonable assurance that beach restoration permit for Okaloosa Island Project meets statutory and rule criteria except for compliance with "beach compatible" fill under DEP's "Sand Rule." |
