DEPARTMENT OF ENVIRONMENTAL PROTECTION
THE SIESTA KEY ASSOCIATION OF SARASOTA, INC., AND MICHAELS. HOLDERNESS, | ) ) ) | |
) | ||
Petitioners, | ) | |
) | ||
v. | ) OGC CASE NO. | 16-1501 |
) DOAH CASE NO. | 17-1449 | |
CITY OF SARASOTA; U.S. ARMY | ) | |
CORPS OF ENGINEERS; DEPARTMENT OF | ) | |
ENVIRONMENTAL PROTECTION; AND | ) | |
BOARD OF TRUSTEES OF THE INTERNAL | ) | |
IMPROVEMENT TRUST FUND, | ) | |
) | ||
Respondents, | ) | |
) | ||
and | ) | |
) |
LIDO KEY RESIDENTS ASSOCIATION, INC.)
)
Intervenor. )
SAVE OUR SIESTA SANDS 2, INC.; PETER VAN ROEKENS; AND DIANE ERNE, | ) ) | |
) | ||
Petitioners, | ) | |
) | ||
v. | ) OGC CASE NO. | 17-0010 |
) DOAH CASE NO. | 17-1456 | |
DEPARTMENT OF ENVIRONMENTAL | ) | |
PROTECTION, | ) | |
) | ||
Respondent, | ) | |
) | ||
and | ) | |
) |
LIDO KEY RESIDENTS ASSOCIATION, INC.)
)
Intervenor. )
I
CONSOLIDATED FINAL ORDER
Filed June 18, 2018 3:48 PM Division of Administrative Hearings
An Administrative Law Judge (ALJ) with the Division of Administrative Hearings (DOAH) on May 8, 2018, submitted a Recommended Order (RO) to the Department of Environmental Protection (DEP or Department) in the above-captioned administrative proceeding. A copy of the RO is attached hereto as Exhibit A. The Petitioners, Siesta Key Association of Sarasota, Inc. and Michael S. Holderness (SKA), and Save our Siesta Sands 2, Peter Van Roekens, and Diane Erne (SOSS2) (referred to collectively as the Petitioners), timely filed exceptions and amended exceptions to the RO on May 23, 2018. The Intervenor, Lido Key Residents Association, Inc. (LKRA or the Intervenor), also timely filed exceptions to the RO on May 23, 2018. The City of Sarasota (City) and the Intervenor timely filed a joint response to the Petitioners' amended exceptions to the RO on June 4, 2018. The U.S. Army Corps of Engineers (Corps) timely filed a response to the Petitioners' amended exceptions to the RO on June 4, 2018. DEP also timely filed a response to the Petitioners amended exceptions on June 4, 2018. This matter is now before the Secretary of the Department for final agency action. 1
On December 22, 2016, the Department gave notice of its intent to issue a Consolidated Joint Coastal Permit (JCP) and grant a Sovereign Submerged Lands Authorization No. 0333315- 001-JC to the City and the Corps, which would authorize the City to dredge sand from Big Sarasota Pass and associated ebb shoal and place it on along the shoreline on Lido Key. The Permit and BOT authorization will authorize a 15-year JCP for beach nourishment, grant a Letter of Consent to use sovereign submerged lands for the proposed beach fill placement area, and
1 The Secretary of the Department is delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which the Department has permitting responsibility. See Fla. Admin. Code R. 18- 21.0051(2).
grant a public easement to use sovereign submerged lands for three proposed borrow areas and two groins (referred to collectively as the Permit.)
The Petitioners, SKA and SOSS2, each filed a petition challenging the Permit. The two cases were consolidated. LKRA was granted leave to intervene in support of the Permit.
Florida Wildlife Federation filed a petition for hearing to challenge the Permit, but later filed a notice of voluntary dismissal of the petition and was dismissed before the final hearing.
At the final hearing held on December 12 through 15 and 18, 2017, Petitioners presented the testimony of Catherine Luckner; Michael Holderness; Peter van Roekens; Diane Erne; Jennifer Peterson, Ph.D.; Ellen Edwards, Ph.D.; Todd Walton, Jr., Ph.D., accepted as an expert in coastal engineering; Mark Luther, Ph.D., accepted as an expert in coastal marine science; R. Grant Gilmore, Ph.D., accepted as an expert in marine ecology and marine fisheries; and Robert Young, Ph.D., accepted as an expert in coastal geology. Exhibits 7, 11, 12, 27, 33, 35, 36, 37-1
through 37-7, and 48 through 51 were admitted into evidence. SOSS2 Exhibits 69, 71, 77, 79, and 83 were admitted into evidence.
The City presented the testimony of Alexandrea Davis-Shaw, P.E., and Michelle Pfeiffer,
P.E. City Exhibits 3, 5, and 6 were admitted into evidence.
The Corps presented the testimony of Aubree Hershorin, Ph.D., accepted as an expert in biology; and Jason A. Engle, P.E., accepted as an expert in coastal engineering. Corps Exhibits 76, 79E and 79H were admitted into evidence.
DEP presented the testimony of Robert Brantly, P.E., accepted as an expert in coastal engineering; and Ellen Edwards, Ph.D. DEP Exhibits 1 and 17A were admitted into evidence.
LKRA presented the testimony of Mark S. Fonseca, Ph.D., accepted as an expert in marine ecology and seagrass restoration. LKRA Exhibit 20 was admitted into evidence.
The Transcript of the final hearing was filed with DOAH on February 26 and March 2, 2018. The parties timely filed Proposed Recommended Orders with the ALJ, who then issued his RO on May 8, 2018.
SUMMARY OF THE RECOMMENDED ORDER
On December 22, 2016, the Department gave notice of its intent to issue a consolidated JCP and BOT authorization (No. 0333315-001). In the RO, the ALJ recommended that the Department enter a final order issuing the consolidated JCP and BOT authorization with a modification and clarification. (RO at page 36).
The Project Area
Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located in the Gulf of Mexico and within the City of Sarasota. (RO ,r 9). North of Lido Key is New Pass, a
navigation channel that separates Lido Key from Longboat Key. (RO ,r 10). South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. (RO ,r 11).
Sediment Transport
In the project area, sand generally drifts along the various shorelines from north to south. Sand may drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called "downdrift." (RO ,r 12).
Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. (RO ,r 13). For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of
Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. (RO ,r 14). A 2.4-mile-long
segment of the shoreline of Lido Key has been designated by DEP as "critically eroded." (RO ,r
15).
The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (cy) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. (RO ,r 16). The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. (RO ,r 17).
Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (No. 1) beach in the United States by "Dr. Beach," Dr. Steven Leatherman, for 2011 and 2017. (RO ,r 18).
The Proiec t
The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key.
However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named "Lido Key Beach
Renourishment and Groins." (RO ,r 19).
The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental
feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. (RO ,r 20). The proposed sand source or borrow areas are three dredge "cuts." Cuts B and D are within the
ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing "flood marginal channel." (RO ,r 21). The sand from the cuts
would be placed along the central and southern 1.6 miles of Lido Key to fill a beach "template."
The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. (RO ,r 22). The Permit would have a duration-of 15 years. The Applicants' intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. (RO ,r 23).
The numerical modeling of the proposed project assumed the removal ofup to 1.3 million cy of sand from the three cuts. (RO ,r 24). One of DEP's witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support
that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand
from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. (RO ,r 25). Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and
the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, to provide a margin to account for less-than-perfect dredging
operations. (RO ,r 26). Therefore, it is found that the Permit authorizes up to 1.3 million cy of
sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Final Order that address the expected impacts of the proposed project are based on this finding. (RO ,r 27).
The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The
groins are designed to be semi-permeable so that they "leak" sand. (RO ,r 28). There are no
seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass
habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. (RO ,r 29). The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. (RO ,r 30). The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. (RO ,r 31).
Project Engineering
The Corps' engineering analysis involved three elements: evaluating the historical
context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. (RO ,r 32). A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. (RO ,r 33).
The Corps developed a sediment budget for the "no action" and post-project scenarios. A
sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. (RO ,r 34). The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. (RO ,r 35). The post-project
sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. (RO ,r 36).
Petitioners did not prepare a sediment budget to support their theory of adverse impact to
Siesta Key. (RO ,r 37). Petitioners object to the engineering materials in the Permit application
because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer's certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. (RO , 38).
Ebb Shoal Equilibrium
Petitioners' witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. (RO, 39). In an article entitled "Use of Outer Bars of Inlets as Sources of Beach Nourishment Material," Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. (RO, 40). The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. (RO, 41). Dr. Walton's study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. (RO, 42).
Modeling Morphologica l Trends
The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (CMS) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. (RO, 43).
Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed
system like Big Sarasota Pass. Dr. Walton's lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this
point. (RO ,r 44). Petitioners contend that the CMS model was not properly calibrated or
verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model's ability to predict a different set of known conditions. (RO ,r 45). For calibrating the hydrodynamic portion of the model, the Corps used
measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. (RO ,r 46). Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. (RO ,r 47). Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical
for some types of modeling. A second set of field data is not always available or practical to
produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. (RO ,r 48). It is the practice ofDEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. (RO ,r 49).
The Corps described a second calibration of the CMS model, or "test of model skill," as an evaluation of how well the CMS model's sediment transport predictions (morphological changes) compared to Light Detection and Ranging (LIDAR) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of
focus. (RO ,r 50).
Petitioners' expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the
model's predictions and the LIDAR data make the model's predictions unreliable. (RO 151). Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used
without modeling to make permit decisions. (RO1 52). Sediment transport is a complex process
involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. (RO 153).
The CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model's accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. (RO 154). The CMS model's ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. (RO 155).
The Applicants extensively analyzed sediment transport pathways and the effects of
alternative borrow areas on sediment transport to Siesta Key. Petitioners' hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased
because sediment now locked in the ebb shoal would reenter the sediment transport pathways. (RO ,r 56). In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby redµce erosive forces on the interior shoreline of north Siesta Key. (RO ,r 57).
Wave Energy
Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. (RO ,r 58). Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. (RO ,r 59). Wave
energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur because of the project could increase the choppiness of waters, but would not materially
increase the potential for wave-related erosion. (RO ,r 60).
Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy.' To the extent that Petitioners' expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the
Applicants' prima facie case on the subject of wave energy. (RO ,r 61).
Groins
Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into
or obstruct the sand "stream" waterward of the renourished beach. (RO ,r 62). The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of
groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. (RO ,r 63). The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. (RO ,r 64).
Public Interest - General
Section 373.414(1), Florida Statutes, requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (OFW), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. (RO
,r 65).
Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been
designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. (RO ,r 66). In determining whether an activity is clearly in the public interest, section 373.414(1)(a), Florida Statutes, requires DEP to .c onsiderand balance
seven factors:
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 section 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
(RO ,r 67). See 403.414(1)(a), Fla. Stat. (2017). DEP determined the project is clearly in the public interest, because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. (RO ,r 68).
Public Interest - Safety
Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others, because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. (RO ,r 69).
Public Interest - Conservation of Fish and Wildlife
Petitioners contend the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not
changed, it logically follows that there should be no adverse impacts to fish and wildlife. (RO ,r
70).
As explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. (RO ,r 71). Except for Dr. Gilmore's field investigation related to the
spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. (RO ,r 72). Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are used repeatedly,
and are important to the conservation of the species. Spotted seatrout spawn from April through September. (RO ,r 73).
The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big
Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. (RO ,r 74). The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as
recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. (RO ,r 75). The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning.
(RO if 76).
Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass
Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. (RO ,r 77). The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the
turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also
threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. (RO ,r
78).
The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site.
Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. (RO ,r 79). Seagrasses that are likely to provide refuge to post-larval seatrout are near the most eastern 1,200 feet of Cut C.
Reasonable assurance that the proposed project would not disrupt or destroy the refuge function
requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. (RO ,r 80). In summary, the proposed project would adversely affect the conservation offish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described
above. (RO 181).
Public Interest- Navigation. Flow of Water. and Erosion
Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. (RO ,i 82).
Public Interest - Recreational Values
Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. (RO ,r 83).
Public Interest - Value of Functions
Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the
evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota
Pass unless dredging was restricted during the spawning season. (RO ,r 84).
Mitigation
If a balancing of the public interest factors in section 373.414(1)(a) results in a
determination that a proposed project is not in the public interest, section 373.414(l){b), Florida Statutes, provides that DEP must consider mitigation offered to offset the adverse impacts. (RO ,r 85). Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same
drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. (RO if 86). The mitigation for the loss of spotted seatrout spawning and refuge
functions is unnecessary if the impacts are avoided by restricting dredging during the spawning
season as described above. (RO ,r 87).
Design Modifications
Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. (RO ,r 88).
Consistency with the Coastal Zone Management Program
Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (FCZMP), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the
Sarasota County Comprehensive Plan. (RO ,r 89).
The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of
consistency by the agency. (RO ,r 90). With respect to this particular project, the State
Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (SWFRPC) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. (RO ,r 91). In a letter
dated June 26, 2015, the State Clearinghouse reported to the Corps that "at this stage, the proposed federal action is consistent with the [FCZMP]." (RO ,r 92).
In a written "peer review" of the proposed project produced by the Sarasota
Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. (RO ,r 93).
Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (EIS) for the project. Sarasota County did not
indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. (RO ,r 94). Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan
that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence
that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan. (RO ,r 95).
STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS
Section 120.57(1)(1), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Charlotte County v. IMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm 'n, 955 So. 2d 61, 62-63 (Fla. 1st DCA 2007). The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantial evidence" refers to the existence of some evidence as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm 'n, 671 So. 2d 287,289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA 2010).
A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers v.
Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prof., 695 So.
2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands County School Bd., 652 So. 2d 894 (Fla. 2d DCA 1995). If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr. Co. v. Dyer, 592 So. 2d 276,280 (Fla. 1st DCA 1991); Conshor, Inc. v. Roberts, 498 So. 2d 622 (Fla. 1st DCA 1986).
The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Reg'! Water Supply Authority v. IMC Phosphates Co., 18 So. 3d 1079, 1082, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994); Fla. Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025, 1026-027 (Fla. 1st DCA 1997).
Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward County, 746 So. 2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Reg. v. Goldring, 477 So. 2d
532, 534 (Fla. 1985). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prat., 668 So. 2d 209,212 (Fla. 1st DCA 1996).
If an ALJ improperly labels a conclusion oflaw as a finding of fact, the label should be disregarded, and the item treated as though it were actually a conclusion oflaw. See, e.g., Battaglia Properties v. Fla. Land and Water Aqjudicatory Comm'n, 629 So. 2d 161, 168 (Fla. 5th DCA 1994). However, neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law" in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of Prof'! Eng'rs, 952 So. 2d 1224 (Fla. 1st DCA 2007).
Agencies do not have jurisdiction to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction." See Martuccio v. Dep 't of Prof'! Reg., 622 So. 2d 607,609 (Fla. 1st DCA 1993); Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So. 2d at 609.
RULINGS ON EXCEPTIONS
In reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception." See 120.57(1)(k), Fla. Stat. (2017).
However, the agency need not rule on an exception that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.
A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coal. of Fla., Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Med. Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540,542 (Fla. 4th DCA 2003). However, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction, even when exceptions are not filed. See§ 120.57(1)(1), Fla. Stat. (2017); Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994).
RULINGS ON PETITIONERS'. THE SIESTA KEY ASSOCIATION OF SARASOTA. INC. and MICHAELS. HOLDERNESSS (SKA), and SAVE OUR SIESTA SANDS 2, INC..
PETER VAN ROEKENS and DIANE ERNES (SOS S2), EXCEPTIONS
Petitioners', SKA and SOSS2, Exception No. 1 regarding Paragraph 79
The Petitioners, SKA and SOSS2, take exception to the following underlined portions of the findings of fact in paragraph 79:
The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawnin g season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed
project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawnin g season.
The Petitioners contend that the evidence in the record is that the dredging of Cut B will
permanently impact the use of the area for spawning, citing to the transcript on page 757, lines 1-15. Accordingly, they contend that Cut B should be eliminated from any dredging to prevent permanent destruction of critical spawning areas. However, the Petitioners' record citation fails
to support their position. Dr. Gilmore, the Petitioners' expert, merely stated that "[i]f the fish are very predictably spawning at this location right now, and the site has not been disturbed by
humans ever, there is a chance that we could change that activity if we change the entire tidal scenario in association with this project." (emphasis added) (Gilmore, T. Vol. V, p. 757, lines 1- 15). This testimony fails to support the Petitioners' position that dredging will permanently impact use of the area for spawning.
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'! Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Petitioners' arguments, the ALJ's findings in paragraph 79 are supported by competent substantial evidence. (Gilmore, T. Vol. V, pp. 716-24, Exhibit SOSS2-77).
Moreover, drawing reasonable inferences from the evidence, is an evidentiary-related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding. See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So.
2d at 1281-82; Greseth v. Dep't of Health and Rehabilitative Services, 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991).
The Petitioners seek to have the Department reweigh the evidence. However, a reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307; Dunham, 652 So. 2d at 896. If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. Since the findings of fact disputed by the Petitioners in exception No. 1 are based on competent substantial evidence and reasonable inferences therefrom, the Department may not reject the ALJ's findings of fact.
Based on the foregoing reasons, the Petitioners' Exception No. 1 is denied.
Petitioners', SKA and SOSS2, Exception No. 2 regarding Paragraphs 80, 81, 83, 84, and 87:
The Petitioners take exception to the following underlined portions of the findings of fact in paragraphs 80, 81, 83, 84, and 87:
Seagrasses that are likely to provide refuge to post-larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of Cut C not be dredged during the spawning season.
In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawnin g season, as described above.
Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season.
Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season.
87. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawnin g season as described above.
The Petitioners contend that the evidence in the record is that the dredging of the easternmost 1,200 feet of Cut C will permanently destroy the seagrass in this area, which is used by the spotted seatrout for spawning and refuge. Accordingly, they contend that the easternmost 1,200 feet of Cut C should be eliminated from any dredging to prevent permanent destruction of critical seagrasses.
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'! Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Petitioners' arguments, the ALJ's findings in paragraphs 80, 81, 83, 84, and 87 are supported by competent substantial evidence. (Edwards, T. Vol. II, pp. 279-80; Luther, T. Vol. IV., pp. 627-29; Gilmore, T. Vol. V, pp. 719-24, 772-73, 775, 790; Exhibit SOSS2-77). Moreover, drawing reasonable inferences from the evidence, is an evidentiary related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding. See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence
and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So. 2d at 1281-82; Greseth, 573 So. 2d at 1006.
The Petitioners seek to have the Department reweigh the evidence. However, a reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307; Dunham, 652 So. 2d at 896. If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. Since the findings of fact disputed by the Petitioners in exception No. 2 are based on competent substantial evidence and reasonable inferences therefrom, the Department may not reject the ALJ's findings of fact.
Based on the foregoing reasons, the Petitioners' Exception No. 2 is denied.
RULINGS ON INTERVENOR'S,
LIDO KEY RESIDENTS ASSOCIATION. INC.. EXCEPTIONS
The Intervenor LKRA's Exception No. 1 regarding Paragraph 73
The Intervenor LKRA takes exception to the ALJ's finding that "Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass, that spawning sites for spotted seatrout are not common, and that the spawning sites in Big Sarasota Pass are important to the conservation of the species," claiming these findings of fact in paragraph 73 of the RO are not supported by competent substantial evidence.
The Intervenor LKRA's Exception No. la. regarding Paragraph 73
The Intervenor LKRA exception No. la. takes exception to the ALJ's finding that "Dr.
Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass." (RO ,r 73).
Contrary to the Intervenor's arguments, the ALJ's finding in paragraph 73 that spotted seatrout were spawning in Big Sarasota Pass is amply supported by competent substantial evidence. (Gilmore, T. Vol. V, pp. 692-93, 706-08, 710-12, 716-17, 721-23, 724, 740; Exhibit SOSS2-77).
The Intervenor LKRA's Exception No. lb. regarding Paragraph 73
The Intervenor LKRA's exception No. 1b takes exception to the ALJ's finding that "Such spawning sites are not common." An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'!
Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Intervenor's arguments, the ALJ's finding in paragraph 73 that "[s]uch spawning sites are not common" is supported by competent substantial evidence. (Gilmore, T. Vol. V, p. 708). The Petitioners' expert stated that "there might be miles between these
spawning sites. And it turns out that these spawnin g sites, because they're used year after year
and they' re infrequent, that they're critical for the survival of the species." (emphasis added). (Gilmore, T. Vol. V, p. 708).
The Intervenor LKRA's Exception No. le. regarding Paragraph 73
The Intervenor LKRA's exception No. le takes exception to the ALJ's finding that "spawning sites in Big Sarasota Pass are important to the conservation of the species." An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial
evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'! Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Intervenor's arguments, the ALJ's finding in paragraph 73 that "spawning sites in Big Sarasota Pass are important to the conservation of the species" is supported by competent substantial evidence. (Gilmore, T. Vol. V, pp. 693, 708-09, 727-30, 734-35).
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'! Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
The ALJ's finding is a reasonable inference from the record testimony. The ALJ can "draw permissible inferences from the evidence." Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). See also Walker v. Bd of Prof'! Eng'rs, 946 So. 2d 604,605 (Fla. 1st DCA 2006) ("It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence."). Moreover, drawing reasonable inferences from the evidence, is an evidentiary-related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding. See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So. 2d at 1281-82; Greseth, 573 So. 2d at 1006.
The Intervenor seeks to have the Department reweigh the evidence. However, a reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to
resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307; Dunham, 652 So. 2d at 896. If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. Since the findings of fact disputed by the Intervenor in exception No. 1 are based on competent substantial evidence, and inferences therefrom, the Department may not reject the ALJ's findings of fact.
Based on the foregoing reasons, the Intervenor LKRA's exception Nos. la, lb, and le are
denied.
The Intervenor LKRA's Exception No. 2 regarding Paragraph 75
The Intervenor LKRA takes exception to the ALJ's finding in paragraph 75 that "DEP is required to consider and prevent adverse impacts to non-listed species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout
spawning area, that is a strong negative in the balancing of public interest factors," claiming this finding of fact is actually a legal conclusion. (RO ,r 75).
The Intervenor notes that Section 373.414(1)(a)2., Florida Statutes, requires the Department to consider and balance seven factors, including "whether the activity will adversely affect the conservation offish and wildlife"; however, the law does not require the Department to "prevent" all adverse impacts. The Department concludes that the portion of paragraph 75 at issue is a mixed finding of fact and conclusion oflaw. If an ALJ labels a conclusion oflaw as a finding of fact (or vice versa), the label should be disregarded, and the item treated as though it were properly labeled. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm 'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994).
DEP administers and enforces the provisions of Section 373.414, Florida Statutes, and the rules promulgated thereunder. (RO ,r 67); see also§ 120.57(1)(1), Fla. Stat. (2017) (agency can reject or modify a judge's conclusions oflaw and interpretations of administrative rules
"over which it has substantive jurisdiction."); MacPherson v. Sch. Bd. of Monroe County, 505 So. 2d 682, 683 (Fla. 3d DCA 1987); Siess v. Dep't of Health & Rehab. Servs., 468 So. 2d 478, 478 (Fla. 2d DCA 1985); Alles v. Dep't of Prof'/ Regulation, 423 So. 2d 624, 626 (Fla. 5th DCA 1982).
I agree with the Intervenor's legal analysis that Section 373.414(1)(a)2., Florida Statutes, requires the Department to consider and balance seven factors, including "whether the activity will adversely affect conservation of fish and wildlife;" but that the law does not require the Department to "prevent" all adverse impacts. This interpretation of Section 373.414(1)(a), Florida Statutes, in this Final Order is more reasonable than that of the ALJ. See§ 120.57(1)(1), Fla. Stat. (2017). Accordingly, the Department grants this portion of the Intervenor's exception to paragraph 75.
The Intervenor also contends that any inference in this finding of fact that the proposed project could destroy a seatrout spawning area is not supported by any testimony or evidence at
the hearing. However, paragraph 75 merely states that "If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest
factors." (emphasis added) (RO ,r 75).
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial
evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'/ Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Intervenor's arguments, the ALJ's findings in paragraph 75 are supported by competent substantial evidence. (Gilmore, T. Vol. V, pp. 719-24; Exhibit SOSS2-77).
Moreover, drawing reasonable inferences from the evidence, is an evidentiary-related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding.
See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So. 2d at 1281- 82; Greseth, 573 So. 2d at 1006.
The Intervenor seeks to have the Department reweigh the evidence. However, a reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307; Dunham, 652 So. 2d at 896. If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. Since the findings of fact disputed by the Intervenor in exception No. 2 are based on competent substantial evidence, the Department may not reject the ALJ's findings of fact. Accordingly, the portion oflntervenor LKRA's exception No. 2 regarding impacts to the spotted seatrout spawning areas is denied.
Based on the foregoing reasons, the Intervenor LKRA's exception No. 2 is granted in part and denied in part as explained above.
The Intervenor LKRA's Exception No. 3 regarding Paragraph 79
The Intervenor takes exception to the ALJ's finding of fact in paragraph 79 that "[t]he spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site.
Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season." (RO ,r 79). The Intervenor contends that this finding of fact in paragraph 79 is not supported by competent substantial
evidence.
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'! Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Intervenor's arguments, the ALJ's findings in paragraph 79 are supported by competent substantial evidence. (Gilmore, T. Vol. V, pp. 708-09, 716-17, 719-24, 727-30; Exhibit SOSS2-77). Moreover, drawing reasonable inferences from the evidence, is an evidentiary-related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding. See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So. 2d at 1281-82; Greseth, 573 So. 2d at 1006.
Based on the foregoing reasons, the Intervenor LKRA's exception No. 3 is denied.
The Intervenor LKRA's Exception No. 4: Conclusions of Law on "Public Interest"
(,I,I 112-113)
The Intervenor takes exception to the ALJ's conclusions oflaw in paragraphs 112 and 113 that the proposed project does not satisfy the public interest requirements in section 373.414(1), Florida Statutes, and chapter 18-21, Florida Administrative Code, "to the extent it is based on the factual finding that dredging proposed Cut B will have any impact on spotted seatrout spawning sites." (Intervenor's Exceptions,, 24). The Intervenor contends that this finding of fact previously articulated in the RO is not based on any evidence in the record; and thus, if the conclusions of law in paragraphs 112 and 113 are based on this finding of fact, these conclusions of law should be rejected.
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'/ Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Intervenor's arguments, the ALJ's previously noted finding of fact that dredging proposed Cut B will have an impact on spotted seatrout spawning sites is supported by competent substantial evidence. (Gilmore; T. Vol. V, pp. 719-24; Exhibit SOSS2-77).
Moreover, drawing reasonable inferences from the evidence, is an evidentiary-related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding. See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So. 2d at 1281-
82; Greseth, 573 So. 2d at 1006. Accordingly, this portion of the Intervenor LKRA's exception No. 4 is denied.
The Intervenor also takes exception to the ALJ's conclusions of law in paragraphs 112 and 113 that the proposed project does not satisfy the public interest requirements in section 373.414(1), Florida Statutes, and chapter 18-21, Florida Administrative Code, to the extent it is based on the ALJ's erroneous legal conclusion located in finding of fact paragraph 75. The ALJ
stated in paragraph 75 that "DEP is required to consider and prevent adverse impacts to non listed species, as well as recreational fishing and marine productivity." (emphasis added) (RO ,r 75). Instead, the Intervenor contends that section 373.414(1)(a)2., Florida Statutes, requires DEP
to consider and balance whether the proposed project will adversely affect the conservation of fish and wildlife against six other factors. While the ALJ incorrectly stated in paragraph 75 of the RO that DEP is required to "consider and prevent" adverse impacts to non-listed species, as well as recreational fishing and marine productivity, the ALJ correctly stated in paragraph 112 of the RO that DEP is required to "consider and balance" the seven public interest factors in section 373.414(1), Florida Statutes. Accordingly, this portion of the Intervenor LKRA's exception No. 4 is denied.
Based on the foregoing reasons, all of Intervenor LKRA's exception No. 4 is denied.
The Intervenor LKRA's Exception No. 5 regarding Recommendation No. 1 (p. 36 of RO)
The Intervenor takes exception to the ALJ's recommendation No. 1 on page 36 of the RO to the extent that it prohibits dredging in Cut B during spotted seatrout spawning season from April through September. The Intervenor contends that no competent substantial evidence supports a finding that dredging proposed Cut B will have any impact on spotted seatrout spawning.
An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2017); Peace River/Manasota Reg'l Water Supply Authority, 18 So. 3d at 1082, 1088; Wills, 955 So. 2d at 62-63.
Contrary to the Intervenor's arguments, the ALJ's recommendation No. 1 on page 36 of the RO is supported by competent substantial evidence. (Gilmore, T. Vol. V, pp. 719-24; Exhibit SOSS2-77). Moreover, drawing reasonable inferences from the evidence, is an evidentiary related matter wholly within the province of the ALJ, as the "fact-finder" in this administrative proceeding. See e.g., Tedder, 842 So. 2d at 1025. I am not authorized to reweigh the evidence and draw inferences that are different from those drawn by the ALJ. See, e.g., Heifetz, 475 So. 2d at 1281-82; Greseth, 573 So. 2d at 1006.
Based on the foregoing reasons, the Intervenor LKRA's exception No. 5 is denied.
CONCLUSION
The authority of this agency to issue permits containing additional permit conditions recommended by the ALJ in DOAH recommended orders is long established. See, e.g., Hopwood v. Dept. of Envtl. Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981), and cases cited therein at page 1299; Manasota-88 v. IMC Phosphates Company, 25 F.A.L.R. 868,897 (Fla. DEP 2002), aff'd per curiam 865 So.2d 483 (Fla. 1st DCA 2004) (adopting the ALJ's recommendation that IMC submit the final version of its financial responsibility mechanism 30 days before commencing mining operations); Ginnie Springs v. Watson, 21 F.A.L.R. 4072, 4085 (Fla. DEP 1999) (adopting six additional permit conditions recommended by the ALJ); Manasota 88, Inc. v. Agrico Chemical Co., 12 F.A.L.R. 1319, 1331 (Fla. DER 1990), aff'd, 576
So.2d 781 (Fla. 2d DCA 1991) (adopting six changes to the phosphate company's mitigation plan recommended by the hearing officer).
Having considered the applicable law and standards of review in light of the findings and conclusions set forth in the RO and the rulings on the above Exceptions, and being otherwise duly advised, it is
ORDERED that:
The Recommended Order (Exhibit A) is adopted, except as modified by the above rulings on Exceptions, and incorporated by reference herein.
DEP Joint Coastal Permit No. 0333315-001-JC is GRANTED with the following modifications:
A condition is added to the permit to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September; and
A clarification that the Permit authorizes the removal of up to 1.3 million cy of sand. 2
The Board of Trustees of the Internal Improvement Trust Fund Letter of Consent to use sovereign submerged lands for beach nourishment at the beach fill placement area identified in the DEP Joint Coastal Permit No. 0333315-001-JC is GRANTED; and
2 The ALJ's recommendation No. 2 on page 36 that "[t]he joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand" is supported by competent substantial evidence. (Edwards, T. Vol. II, p. 286, 289-90, and 328; Walton, T. Vol. III, p. 446; Walton, T. Vol. IV, p. 562; Brantly, T. Vol. VIII, p. 1226). Moreover, a party that files no exception to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coal. of Fla., Inc., 586 So. 2d at 1213. No party filed an exception to the ALJ's recommendation No. 2; thus, any objection to this finding/recommendation is waived. Accordingly, the ALJ's recommendation No. 2 is accepted in the Department's final order.
The Board of Trustees of the Internal hnprovement Trust Fund public easement (Board of Trustees File No. 580239425, Instrument No. 41874) to use sovereign submerged lands for three proposed borrow areas and two groins is GRANTED.
JUDICIAL REVIEW
Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department.
DONE AND ORDERED this 18th.- day of June, 2018, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
NOAH VALENSTEIN
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.
6
CLERK
(p--/f-/I
DATE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by electronic mail to:
D. Kent Safriet, Esquire Mohammad 0. Jazil, Esquire Adam F. Blalock, Esquire Hopping Green & Sams P.A. 119 S. Monroe St., Suite 300 Tallahassee, FL 32301
kents(a.,h uslaw .com mohammad j(0:hgslaw.com adamb@he.slaw.com
John Herin, Jr., Esquire Gray Robinson, P.A.
401 E. Las Olas Blvd., Suite 1000 Ft. Lauderdale, FL 33301
io hn.herinra ,gray-robinson.com
Kevin Hennessy, Esquire Richard Green, Esquire
Lewis, Longman & Walker, P.A. 101 Riverfront Blvd., Suite 620
Bradenton, FL 34205 khennessv(alllw-law .com rgreen(cvllw-law.com
Thomas W. Reece, Esquire 2951 6181 Ave. S.
St. Petersburg, FL 33712 twreesg(a),aol.com
this day of June, 2018.
Martha Collins, Esquire Collins Law Group 1110 N. Florida Ave Tampa, FL 33602
E. Christopher Lambert, Esquire Brooks. W. Moore, Esquire
Eric P. Summa, Esquire
U.S. Army Corps of Engineers 701 San Marco Blvd. Jacksonville, FL 32207
Edmond.c.lambertca •usace.armv.mil brooks.w.moore(a.lusace.army.mil eric.p.summa@usace.army.mil
Kirk White, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., MS 35
Tallahassee, FL 32399-3000 kirk.white(a{d ep.state.fl.us
Alexandrea Davis Shaw City of Sarasota
Room 100A 1565 1st Street
Sarasota, FL 34236 Alexandrea.davisshaw{aJs arasotagov.com
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
STACEY D. 'G WLEY
Administrative Law Counsel
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000 Telephone 850/245-2242
Email Stacey.Cowley@dep.state.fl.us
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 18, 2018 | Agency Final Order | |
| May 08, 2018 | Recommended Order | It is recommended that the joint coastal permit be approved, but only if it is modified to restrict dredging during the spawning season for the spotted seatrout; otherwise it is recommended that the permit be denied. |
