STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF HILLSBORO BEACH,

vs.

Petitioner,

Case No. 17-2201

CITY OF BOCA RATON AND DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/

RECOMMENDED ORDER

The final hearing in this case was held on October 4 and 5, 2017, in Boca Raton, Florida, before Bram D.E. Canter, Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner, Town of Hillsboro Beach:

Ken G. Oertel, Esquire Timothy J. Perry, Esquire Oertel, Fernandez, Bryant

& Adkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302 For Respondent, City of Boca Raton:

Kevin S. Hennessy, Esquire Richard P. Green, Esquire Lewis, Longman & Walker, P.A.

101 Riverfront Boulevard, Suite 620 Bradenton, Florida 34205

For Respondent, Department of Environmental Protection:

Marianna Sarkisyan, Esquire Bradley Butler, Jr., Esquire Office of the General Counsel

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue to be decided in this case is whether the City of Boca Raton (“City”) is entitled to the requested modification of its Joint Coastal Permit.

PRELIMINARY STATEMENT

On January 30, 2017, the Department of Environmental Protection (“Department”) issued proposed Permit Modification No. 0261499-010-JN (“proposed modification”) to the City, which would authorize the City to dredge 70,000 cubic yards of sand

from the Boca Raton Inlet ebb shoal (“ebb shoal”) and place it on beaches north of the inlet. On February 9, the Town of Hillsboro Beach (“Town”) filed a petition for hearing to challenge the proposed modification. The Department dismissed the petition with leave to amend, determining that the Town had failed to allege an injury sufficient for standing and had failed to include specific facts or an explanation of how the law requires reversal of the agency action. On February 23, the Town filed an amended petition. The Department dismissed the amended petition for failure to identify an injury sufficient for standing. The

Department also determined that the Town’s claim of standing under section 403.412, Florida Statutes, was legally deficient because it was not verified.

The Town filed an appeal of the Department’s dismissal of its amended petition, but later dismissed the appeal. On March 29, the Town filed a verified Second Amended Petition for Formal Administrative Hearing under section 403.412. The Department then referred the petition to DOAH.

On August 11, Respondents filed a Joint Notice of the revision of the proposed modification.

Following a pre-hearing conference held on September 26, an Order was issued, which ruled that section 120.569(2)(p), Florida Statutes, is applicable to all issues raised in the second amended petition, and the issues of fact must arise out of different activities, conditions, and effects than those issues addressed in the original permit.

At the final hearing held on October 4 and 5, Joint Exhibits 1 through 39, 41, and 43 were accepted into evidence. Respondents presented the testimony of Michael Jenkins, Ph.D., P.E., an expert in coastal engineering; Ellen Edwards, Ph.D., program administrator with the Department’s Beaches, Inlets and Ports Program; and Robert Brantly, Jr., P.E., program administrator with the Department’s Engineering, Hydrology, and Geology Program, an expert in coastal engineering. The City’s

Exhibit 1 was admitted into evidence. Petitioner presented the testimony of William Dally, Ph.D., P.E., an expert in coastal engineering; and Dr. Jenkins. Petitioner’s Exhibit 1 was admitted into evidence.

The Transcript of the final hearing was filed with DOAH on November 13. The parties submitted proposed recommended orders that were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Town of Hillsboro Beach is a municipality in Broward County. The Town’s eastern boundary includes shoreline along the Atlantic Ocean.

2. The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 161 and 373, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone. The Department also acts as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”).

3. The City of Boca Raton is a Florida municipality in Palm Beach County. The City has a shoreline along the Atlantic Ocean.

   
   

   The City is responsible for the management of the Boca Raton Inlet and the ebb shoal that is just east of the inlet.

   Background

   
   

4. Natural sand drift along Florida’s Atlantic coastline can move both north and south, depending on winds, waves, tides, and storms. In this particular area, about 80 percent of the sand drift is to the south.

5. Inlets interrupt or alter the natural drift of beach- quality sand, which causes beach erosion. See § 161.142, Fla. Stat.

6. The Department developed a Strategic Beach Management Plan (“SBMP”), which provides an inventory of Florida’s critically eroded beaches and an inventory of Florida’s 66 coastal barrier tidal inlets. The SBMP incorporates by reference the individual inlet management plans (“IMPs”), which describe strategies for addressing beach erosion caused by the inlets.

   The SBMP was last updated in 2015.

   
   

7. A Boca Raton IMP was approved in 1997 and portions of it have been incorporated into the SBMP. The Boca Raton IMP called for a minimum of 71,000 cubic yards of sand per year (“cy/y”), as an annual average, to be placed on beaches south of the inlet to account for the inlet’s interference with sand drift. The more recent SBMP revised the “bypass” objective to 83,000 cy/y.

   
   

8. The beaches of Boca Raton, from Range Monument 204 to Range Monument 227.9 in Palm Beach County, are designated by the SBMP as critically eroded beaches.

9. South of Boca Raton is the shoreline of the City of Deerfield Beach. In 1958, rock groins were constructed perpendicular to the shoreline of Deerfield Beach to capture sand and prevent further erosion. Sand has buried most of the northerly rock groins at Deerfield Beach, but about 15 of the most southern rock groins are exposed. The Deerfield Beach “groin field” is the single-most important cause of erosion to the Town’s beaches, which are immediately south of Deerfield Beach.

10. About 3.2 miles of the Town’s beaches, from Range Monument 6 to Range Monument 23, are designated in the SBMP as critically eroded beaches. The Town has conducted several renourishment projects to address the erosion.

11. The long-term beach nourishment projects within Boca Raton are managed through three permits. The permit for the North Boca Raton Beach Nourishment Project authorizes the City to periodically nourish 2.8 miles of beach north of the Boca Raton Inlet, using sand from three offshore borrow areas.

12. There is a Boca Raton Inlet Sand Bypassing Permit, which authorizes the City to periodically dredge sand from the

    
    

    Boca Raton Inlet and place it on the City’s beaches south of the inlet.

13. Another related permit is for the South Boca Raton Beach Nourishment Project, which authorizes the City to periodically dredge sand from the ebb shoal and place the sand on the City’s beaches south of the inlet.

    The Proposed Modification

    
    

14. The proposed modification at issue in this case is related to Joint Coastal Permit No. 0261499-004-JM for the North Boca Raton Beach Nourishment Project. The modification would authorize a “one-time” use of the ebb shoal as a source of sand to be placed on the City’s beaches north of the Boca Raton Inlet.

15. The proposed modification would allow the City to dredge 70,000 cubic yards of sand from the ebb shoal and place it into the template north of the inlet. A template is a three- dimensional target profile for the beach being renourished.

16. The City’s purpose in seeking the modification is to alleviate a navigational hazard to vessels using the Boca Raton Inlet caused by the accretion of sand to the ebb shoal, which shallows the navigation channel. The ebb shoal is subject to continuous accretion and requires periodic dredging to maintain the depth and width of the navigation channel for safe navigation.

    
    

17. The template for the South Boca Raton Beach Nourishment Project is now full and cannot receive more sand without risking damage to the nearshore hard bottom environment. Sand dredged from the ebb shoal to address navigation safety cannot be placed on the City’s beaches south of the inlet.

18. For that reason, the City seeks to place the sand north of the inlet where the template is not full. To do that, the permit for the North Boca Raton Beach Nourishment Project must be modified because currently it only authorizes sand to be taken from offshore areas. The proposed modification allows the ebb shoal to be used as a “one-time” source of sand to be placed north of the inlet.

19. When the Town challenged the proposed modification, the City was unable to use the dredge contractor that was scheduled to be on-site in conjunction with other dredging activity as the City had planned. Therefore, the proposed modification was revised to delete references to the “planned 2017 nourishment event” and to refer instead to a “one-time event during the life of the permit.”

    Minor Modification

    
    

20. The Town contends the Department erroneously reviewed the proposed modification as a minor modification and, as a result, all applicable permitting criteria were not considered by the Department.

    
    

21. The Department’s determination, whether a proposed change is a minor modification or a major modification, is based on its view of whether the proposed change has the potential to result in additional adverse impacts beyond the impacts previously addressed as part of the original permit. The Department determined that the City’s proposed modification was a minor one because the original permit authorizes periodic beach nourishment of the same area where the sand from the ebb shoal would be placed, and the ebb shoal is already an authorized source for sand.

22. This minor/major modification question is of no consequence because both minor and major modifications require the Department to consider all of the criteria for issuance of a joint coastal permit.

    Consistency with the SBMP and Boca Raton IMP

    
    

23. Much evidence and argument in this case was directed to the issue of whether the proposed modification is consistent with the SBMP and Boca Raton IMP. As discussed in the Conclusions of Law, this was an error because the plans have not been adopted as rules. Because the plans are not rules, a permit applicant does not have to demonstrate that a proposed activity is consistent with the plans as a condition for obtaining the permit. However, because the parties’ evidence on

    
    

    the consistency issue was admitted into the record, findings on that issue are made below.

24. The Town contends the proposed modification is inconsistent with the SBMP and Boca Raton IMP because the plans refer to “nourishment of downdrift beaches using the inlet ebb shoal as a borrow source.” The Town interprets these provisions as prohibiting the removal of sand from the ebb shoal for placement on the City’s “updrift” beaches north of the inlet. The Department asserts that the Town is reading the plans too strictly because they do not expressly prohibit use of ebb shoal sand for nourishment of City beaches north of the inlet.

25. The Department approved a 2006 City project that removed 340,000 cubic yards of sand from the ebb shoal and placed it north of the inlet. In reviewing and approving this project, the Department expressly considered the project’s consistency with the Boca Raton IMP. When the SBMP was updated after the 2006 project, it added a reference to the project.

26. The Department contends that meeting the bypass volume of 83,000 cy/y is the overarching objective of the SBMP and the proposed modification is consistent with the SBMP and the Boca Raton IMP, because the removal of 70,000 cubic yards of sand from the ebb shoal would not interfere with achievement of this objective. The City has been exceeding the sand bypass objective, bypassing an average of 87,100 cy/y.

    
    

27. The bypass volume of 83,000 cy/y was derived from a sediment budget which looked at all mechanisms, both natural and artificial, that move sand in the coastal system. Beach profile monitoring data shows the bypassing has resulted in net volume accumulations south of the inlet.

28. The Town contends the Department has also ignored the Boca Raton IMP’s characterization of the bypass volume as “a minimum.” However, the proposed modification does not prevent the bypass objective from being exceeded.

29. The SBMP includes the statement, “Nothing in the SBMP precludes the evaluation of other alternative strategies which are consistent with Chapter 161, Florida Statutes.”

30. The Town’s argument that the plans prohibit the proposed modification is unpersuasive. The Department’s determination that the proposed modification is consistent with the SBMP and Boca Raton IMP is reasonable.

    Adverse Impacts

    
    

31. Section 161.142 requires the Department to ensure that, “on an annual average basis, a quantity of beach-quality sand is placed on the adjacent eroding beaches which is equal to the natural net annual longshore sediment transport.” The preponderance of the evidence shows that 83,000 cy/y meets this statutory requirement.

    
    

32. The Department determined that authorizing a one-time placement of sand from the ebb shoal onto the beaches north of the inlet would not cause an adverse impact on the inlet system or result in a deficit of sand bypassing to the beaches south of the inlet.

33. Greater weight is given to the opinions of Respondents’ experts that the proposed modification will not interfere with meeting the annual longshore sediment transport objective or cause adverse impacts to the Town’s beaches. The opinions of the Town’s expert coastal engineer were based in large part on assumptions that were shown to be mistaken.

34. For example, the Town’s expert believed that the 2006 dredging of 340,000 cubic yards of sand from the ebb shoal and its placement north of the Boca Raton Inlet led directly to the Town’s need to renourish its beaches in 2011. However, it was shown that the Town’s renourishment project was planned in 2005, which means the Town was addressing an erosion problem that existed before the 2006 dredging of the ebb shoal.

35. The Town’s expert believed that the sediment budget was flawed because the beach profile data used for the analysis was from the period 2005 to 2015, but the wave data (“climate data”) was from the period 1997 to 2007. Because these data periods were not the same, he thought it made the conclusions of the sediment budget unreliable. However, the wave data that was

    
    

    used for the sediment budget was from the period 2005 to 2014, which is a good match with the beach profile data.

36. The Town’s expert also expressed concern about the sensitivity of the sediment budget’s parameter for ebb shoal growth rate. However, the sensitivity for this parameter is not significant because, even at the highest potential deviation, it would only reduce the estimated total downdrift volume by about 10,000 cubic yards, which is a relatively small amount in the system as a whole. Furthermore, the sediment budget produced for the proposed modification is consistent with sediment budgets previously produced, including a sediment budget developed by the Town.

37. Finally, the opinions of the Town’s expert are given less weight because he conducted no comparable studies of his

    own.

    
    

38. The Town’s assertion that taking sand from the ebb

    
    

    shoal reduces the amount of sand available for natural bypassing may indicate its belief that the calculated bypass volume of 83,000 cy/y does not account for natural bypass. If so, that belief is contrary to the more persuasive evidence. The sediment budget shows that bypassing 83,000 cy/y fully mitigates the effects of the Boca Raton inlet on downdrift south of Boca Raton.

    
    

39. The Town notes the estimate of natural sand bypass of 40,000 to 76,600 cy/y and leaps to the unproven allegation that removing 70,000 cubic yards of sand from the ebb shoal will “eliminate and deprive beaches to the south of such sand for an entire year.” The preponderance of the evidence shows this system does not work in such a simplistic manner, where each cubic yard of sand dredged from the ebb shoal will be a net loss of a cubic yard of sand that would have reached beaches to the south.

40. In addition to the conclusions of the sediment budget, it is credited that: (a) sand travels in the beach system, not offshore; (b) sand placed on beaches north of the inlet is still in the system and contributes to downdrift; (c) the ebb shoal grows relatively rapidly; (d) the template for the City’s beaches south of the inlet is full, which means their contribution to downdrift is maximized; (e) the beaches of Deerfield Beach are stable or accreting; and (f) the historical beach profile data indicate that the downdrift influence of the Boca Raton Inlet does not extend to the Town’s beaches.

41. The Town’s allegation that the proposed modification would be detrimental to nesting sea turtles is based on its claim that the proposed modification would cause erosion of the Town’s beaches. The Respondents’ rebuttal of the Town’s claim

    
    

    of erosion also rebuts the claim of adverse impacts to sea turtles.

42. The Town’s concern about the erosion of its beaches and whether the proposed modification could exacerbate the erosion is reasonable, but the Town’s evidence was not sufficient to prove it would be injured. The preponderance of the evidence supports the Department’s determination that the proposed modification would not cause erosion of the Town’s beaches.

    Cumulative Impacts

    
    

43. The Town argues that the Department’s characterization of the proposed modification as a “one-time” event is misleading because there is no prohibition against the City applying in the future to do the same thing. However, the term “one-time” merely means that the joint coastal permit for the North Boca Raton Beach Renourishment Project would only authorize the dredging of 70,000 cubic yards of sand from the ebb shoal one time during the life of the permit. In contrast, the joint coastal permits for this area allow other dredging and nourishment activities to be repeated during the life of the permits.

44. The Department understands that the City is not prevented from applying again to dredge sand from the ebb shoal and place it north of the inlet. However, if the City were to

    
    

    make another such application, the Department would consider the best available data, including new data, and apply all applicable regulatory criteria to determine if the project would cause any adverse impacts.

45. Because the preponderance of the evidence supports the Department’s determination that the proposed project would have no adverse impacts, and a future project of the same type would not be permitted if it causes adverse impacts, it follows that approving the proposed modification would cause no cumulative adverse impacts.

    Other Regulatory Criteria

    
    

46. Florida Administrative Code Rule 62B-41.005 requires an applicant to demonstrate that proposed coastal construction will have a net positive benefit to the coastal system, based on adequate engineering data concerning the existing coastal system, design features of the proposed activities, and such other specific information or calculations as are necessary for the evaluation of the application.

47. The City satisfied these criteria by providing the Department with sufficent data pertaining to the project to demonstrate a net postitive benefit to the coastal system by placing sand in an authorized beach nourishment template and aleviating a navigational hazard.

    
    

48. Because sand from the ebb shoal has already been used several times for the South Boca Raton Beach Nourishment Project and has been previously used for the North Boca Raton Beach Nourishment Project, the Department already has data and reasonable assurance that sand from the ebb shoal is suitable for placement on the beaches north of the inlet, as required by rule 62B-41.007.

49. The Town points out that the City’s Quality Assurance/Quality Control Plan provides for sampling and analysis of sand in the ebb shoal and does not allow the project to continue if the analysis shows the sand is not beach compatible. The Town argues that the Department cannot approve the proposed modification before it knows whether the sand is beach compatible.

50. However, the Department’s reasonable assurance that the sand is compatible is based on previous analysis and uses of sand from the ebb shoal for renourishment north and south of the inlet. The Town’s allegation that the sand “may be vastly different” now is speculation because it is not supported by competent evidence. The permit condition to check the compatibility of the sand does not amount to approving the proposed modification without reasonable assurances.

51. Rule 62B-41.008(1) sets forth application requirements for joint coastal permits, including topographic and bathymetric

    
    

    information. The City satisfied the application requirements for the proposed modification by submitting signed and sealed bathymetric and topographic plans for the ebb shoal borrow area and the 2016 Sediment Budget Report.

52. The proposed modification must not be contrary to the public interest when considering the seven factors of the “public interest test” in section 373.414(1), Florida Statutes. The proposed modification would have a public benefit of nourishing an eroded beach, would alleviate a navigation hazard, and would have no adverse impacts to inlet management or the coastal system. Therefore, the proposed project is not contrary to the public interest.

53. The Town contends the City’s demonstration of a navigation hazard was not shown. The Town did not refute the testimony that the ebb shoal is always growing, it has been periodically dredged in the past for navigation purposes, and that the dredged channel immediately begins to fill with sediment after it is dredged. Although the record evidence of the current navigation problem was limited to Respondents’ unspecific references to drawings, monitoring data, statements from boaters, and newspaper articles, the Town presented no evidence in rebuttal. The Town’s allegation that the City should have taken care of the navigation problem as part of an earlier dredging project is irrelevant.

    
    

54. Respondents demonstrated that the proposed modification complies with all applicable regulatory criteria.

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

55. DOAH has jurisdiction over the parties and the subject matter of this proceeding. § 120.569, Fla. Stat. (2017).

    Standing

    
    

56. Parties to a chapter 120 proceeding include persons whose substantial interests will be affected by the proposed agency action. § 120.52(13)(b), Fla. Stat. (2017). The Town has a substantial interest in protecting its beaches from erosion.

57. A petitioner does not have to prevail on its claim of injury in order to have legal standing. If a petitioner had to prove its claims of injury, every losing petitioner would lack standing. The injury component of standing is satisfied when the petitioner presents competent evidence at the final hearing to show that it could be injured. The presentation of such evidence satisfies standing, even if it is ultimately determined that the preponderance of the evidence proves the petitioner’s substantial interest would not be adversely affected or that the adverse effect is allowed under the law. See St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So.

    3d 1051 (Fla. 5th DCA 2011).

    
    

58. Despite the rebuttal of some bases for the opinions of the Town’s coastal engineer, he presented competent testimony that dredging sand from the ebb shoal affects sand drift and could be injurious to downdrift beaches if not properly analyzed and addressed. By presenting this competent evidence, the Town met the requirements for standing.

    Scope of the Proceeding

    
    

59. This is a de novo proceeding intended to formulate final agency action, not to review action taken earlier and preliminarily. § 120.57(1)(k), Fla. Stat. (2017); Dep’t of

    Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 785 (Fla. 1st DCA 1981). Whether a permit applicant should have submitted certain information before the permit was approved by the agency, and whether the agency should have considered some regulatory criterion before approving the permit, are questions of no consequence if such errors are cured at the final hearing and due process is afforded.

60. Factual issues that were determined in the initial permit proceeding cannot be raised in this permit modification proceeding. See Friends of the Everglades, Inc. v. Dep’t of

    Envtl. Reg., 496 So. 2d 181, 183 (Fla. 1st DCA 1986).

    
    

    Standard and Burden of Proof

    
    

61. The standard of proof in this case is a preponderance of the evidence. § 120.57(1)(j), Fla. Stat. (2017).

    
    

62. Section 120.569(2)(p) applies to any proceeding arising under chapter 373. This is a proceeding arising under chapter 373 because it is created in section 373.427, which provides for concurrent review of activities that require an environmental resource permit, a coastal construction permit, and proprietary authorization from the Board of Trustees. Under section 120.569(2)(p), the petitioner challenging the issuance of a permit has the burden of ultimate persuasion.

63. Because the City satisfied its prima facie case for entitlement to the proposed modification, the Town had the burden to prove that the City did not provide reasonable assurance of its compliance with applicable permitting requirements. “Reasonable assurances” means “a substantial likelihood that the project will be successfully implemented.” Metro. Dade Cnty. v. Coscan Fla., Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).

    Consistency with the SBMP and Boca Raton IMP

    
    

64. Rule 62B-41.005(15) requires a permit application for construction, excavation, or maintenance of a coastal inlet and related shoals to be consistent with the SBMP. Similarly,

rule 62B-41.008(13)(b) requires that an application for a joint coastal permit demonstrate consistency with the “adopted” SBMP and the applicable IMP.

65. However, rules 62B-41.005(15) and 62B-41.008(13)(b) do not adopt the SBMP or the Boca Raton IMP by reference in the manner required by section 120.55(1).

1. Section 120.57(1)(e) prohibits an agency or an administrative law judge from basing agency action that determines the substantial interests of a party on an unadopted rule. Any provision of the SBMP or the Boca Raton IMP that the Department would apply as a criterion for approving or denying a permit or permit modification meets the definition of a rule. See § 120.52(16), Fla. Stat. (2017).

2. Section 161.161 calls for “development” of the SBMP by the Department and “approval” of IMPs by the Secretary of the Department. There is no indication in section 161.161 that the development of the SBMP or the approval of the IMPs is not subject to the rulemaking requirements of section 120.54 for any provisions of the plans that meet the definition of a rule.

3. The Administrative Procedure Act presumptively governs the exercise of all authority statutorily vested in the executive branch of state government. Gopman v. Dep’t of Educ.,

   908 So. 2d 1118, 1120 (Fla. 1st DCA 2005). Because chapter 120 presumptively governs the exercise of delegated legislative authority, an agency cannot adopt an agency statement that meets the definition of a rule without following the rulemaking requirements of chapter 120 unless the agency has express

   
   

   statutory authority to do so. The Department has no express authority in section 161.161 to develop the SBMP or approve the IMPs without following the rulemaking requirements of

   section 120.54.

   
   

4. Strong support for the conclusion that the Department cannot use a provision in the SBMP or the IMPs as a permitting criterion unless the provision has been adopted as a rule is found in section 161.041(6), which states:

   The department may not issue guidelines that are enforceable as standards for beach management, inlet management, and other erosion control projects without adopting such guidelines as rules.

   
   

   The Department’s use of a guideline in the SBMP or an IMP as a permit criterion when the guideline was not adopted as a rule creates clear conflict with section 161.041(6).

5. Because the Department and the Administrative Law Judge are prohibited by section 120.57(1)(e) from basing agency action on the proposed modification on consistency with the SBMP or the Boca Raton IMP, the proposed modification must be judged on its compliance with the other rule criteria applicable to such projects.

   Permitting Criteria

   
   

6. Respondents proved by a preponderance of the evidence that the City satisfied all applicable regulatory criteria for approval of the proposed modification, including submission of

   
   

   adequate engineering data, a demonstration that no adverse cumulative impacts would result, and a demonstration that the project is not contrary to the public interest.

   Proprietary Authorization

   
   

7. Rule 18-21.005(1)(c)8. provides that written authorization (letter of consent) is required for restoration and nourishment of naturally occurring sandy beaches, including borrow areas to be used for five years or less. The Department’s determination that the requested use of the ebb shoal as a borrow source qualifies for consent to use sovereignty submerged lands is reasonable and valid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Protection enter a final order granting the City’s proposed modification to its Joint Coastal Permit.

DONE AND ENTERED this 11th day of December, 2017, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 11th day of December, 2017.

COPIES FURNISHED:

Bradley Stephen Butler, Esquire Department of Environmental Protection Office of the General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 (eServed)

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302 (eServed)

Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 620

101 Riverfront Boulevard Bradenton, Florida 34205 (eServed)

Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 620

101 Riverfront Boulevard Bradenton, Florida 34205 (eServed)

Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110

Tallahassee, Florida 32302 (eServed)

Marianna Sarkisyan, Esquire

Department of Environmental Protection Office of the General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 (eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

Noah Valenstein, Secretary

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 17-002201

Orders for Case No: 17-002201