The Issue The issue is whether Petitioner must forfeit his vested benefits in the Florida Retirement System (FRS), pursuant to section 112.3173(3), Florida Statutes, due to Respondent's commission of an act of extortion, as defined in section 836.05, Florida Statutes.
Findings Of Fact Petitioner has lived for much of his life in West Palm Beach. Petitioner's family owned a Pepsi-Cola bottling company in West Palm Beach until selling it five or six years ago. Petitioner started with the company as a truck driver and eventually served as a vice-president. Petitioner served as a locally elected official in West Palm Beach for nearly 20 years. Petitioner was elected commissioner of the Board of Commissioners of the City of West Palm Beach and served for 12 years. Subsequently, he was elected and reelected commissioner of the Board of County Commissioners of Palm Beach County. Petitioner was prevented by term limits from serving beyond his second four-year term, which was due to end in December 2010. However, Petitioner resigned from the county commission five months earlier after he pleaded guilty to, and was adjudicated guilty of, the extortion that is described below. Petitioner had planned to retire from public office after finishing his term in December 2010. In his early 60s and evidently secure financially, Petitioner looked forward to retirement, during which he planned to volunteer in the community and play with his grandchildren. In the final year of his final term in public office, Petitioner busied himself with--or, perhaps more aptly, obsessed over--one major piece of unfinished business: the South Cove Restoration Project. The South Cove Restoration Project is an ecological restoration project in the Lake Worth Lagoon in downtown West Palm Beach. The Lake Worth Lagoon is a 20-mile long body of water in central Palm Beach County. Located just east of Flagler Drive and north of the Royal Park Bridge, the South Cove Restoration Project's primary sponsor is Palm Beach County, although the state has provided funds and the City of West Palm Beach and the Florida Inland Navigation District are also identified as project "partners." The project consists of the creation of two acres of mangrove/spartina habitat, 3.5 acres of potential seagrass habitat, and one acre of rock revetment/oyster reef. The project also includes a 565-foot elevated boardwalk running from the sidewalk along Flagler Drive to the largest mangrove island and a 16-foot square observation deck. Lastly, the project includes the capping of an old dredge hole with clean sand. This will reduce turbidity in the adjacent water column by preventing the continual resuspension of fine-grained particles that tend to collect in the dredge hole. For many years, water-quality issues in the Lake Worth Lagoon have received the attention of state, regional, and local officials, including Petitioner. For a couple of years, Petitioner had served as the county representative to, and chair of, a consortium of governmental entities that had formed the Lake Worth Lagoon Initiative (Initiative). Members of the Initiative have been drawn from the Florida Department of Environmental Protection, the South Florida Water Management District, the Palm Beach County chapter of the League of Cities, and Palm Beach County. The mission of the Initiative is to restore water quality in the lagoon by obtaining and providing funding from various sources for projects to address such issues as water quality, habitat, and pollution-control. The Initiative has supported the South Cove Restoration Project, which is located to the south of a larger project recently undertaken by the City of West Palm Beach to dredge the Intracoastal Waterway adjacent to Flagler Drive as part of extensive renovations of an old city marina. The dredge spoil from the city marina project will provide the fill for the dredge hole in the South Cove Restoration Project. The South Cove Restoration Project was first identified in 1997 as a Surface Water Improvement and Management project. In August 2008, the Department of Environmental Protection proposed to issue the permits necessary for the project's construction and operation. Trump Plaza challenged the proposed permits in DOAH Case No. 08-4752, and Flagler Center Properties, LLP, intervened on the side of Trump Plaza. Trump Plaza is the owner- association of two 30-story condominium buildings, and Flagler Center Properties is the owner of two eight- or nine-story office buildings. Due to the proximity of their buildings to the South Cove Restoration Project, both parties challenged the project on the grounds of, among other things, the potential obstruction of their view and the unreasonable infringement on their qualified rights to a dock. These properties and the uplands adjoining the South Cove Restoration Project are all entirely within the city limits of the City of West Palm Beach. This litigation delayed the issuance of the permits by 15 months. However, in September 2009, an Administrative Law Judge issued a recommended order approving the permits, and, in November 2009, the Department of Environmental Protection issued the final order issuing the permits. Members of the Johnson family own Flagler Center Properties. Like the Koonses, the Johnsons have lived in West Palm Beach for many years. The eldest Johnson is of the age of Petitioner's parents, and Petitioner knew the next generation of Johnsons, as they grew up together in West Palm Beach. The third generation of Johnsons and Koonses even attend the same school. But all of these relationships notwithstanding, at least certain members of the Johnson family with ownership interests in Flagler Center Properties have opposed at least certain aspects of the South Cove Restoration Project. The extortion occurred late in the approval process for the South Cove Restoration Project. The two acts of extortion took place in the six weeks before a vote by city commissioners to allow a fourth wheelchair-ramp access to be constructed from the existing sidewalk, over the seawall, and onto the boardwalk. The city commission vote took place on June 17 or 19, 2010. As expected, the city commissioners unanimously approved the fourth wheelchair ramp. Within a few days after the city vote, the last project sponsor to commit funds--the board of the Florida Inland Navigation District--approved its $1.5 million contribution. Evidently, the District vote was even more of a certainty that the city vote because--to the extent that Petitioner's extortion was designed to ensure final passage of the South Cove Restoration Project--Petitioner's concern, at the time of the extortion, was the city vote, not the District vote. In anticipation of the city vote, on May 6, 2010, at 9:14 a.m., Petitioner called the Johnson family attorney to discuss the Johnson family's continued objection to the project, especially the boardwalk. Petitioner failed to reach the attorney, so he left a voicemail. After a brief greeting, Petitioner demanded that the attorney send Petitioner immediately a memo outlining the remaining objections of the Johnson family to the South Cove Restoration Project. And if you don't--then I'm going to do a Public Records Request to the City of West Palm Beach on this. Dean, just for the heads up, good friend of mine, I'm going to work as hard as I've ever worked in twenty years of public service to take the Johnsons through the ringer on this if they don't support the City of West Palm Beach. I'll have kids picketing at the building and what I'm going to say is they want [a] marina instead of an island. I told you, this is very personal for me. Okay. This is something I really, really want. After twenty years I want the Johnsons to step away and congratulate me personally on all the work I've done. Okay? I have no idea why they're trying to fuck me on the deal but this is very personal. I'm going to work five [sic] hours a day for the next six weeks. I'm going to leverage every possible person, program--I have to get a five-oh vote out of the City Commission. It's very personal, Dean. So, I can't understand why they want to do it ultimately, I want them to say we've [sic] love to have this project. I'm going to door to door at every tenant in the building and throw them under the fucking bus. I'm going to say they want a marina out here versus a public island. I'm going to the FBI--I'm going to the Foundation. I'm going to every tenant in the building. I'm going to see if I have a banking relationship with anybody in there. I want this done and it's a personal thing for me. Shortly after this voicemail, Petitioner instructed a county employee to visit the Flagler Center Properties' site and photograph dead trees and the property's stormwater outfall. The record is not reliably developed on these points, except to the extent that these two issues are mentioned in Petitioner's next voicemail to the Johnson family attorney, which took place after the photographs were taken. To dispel any doubt of his seriousness, Petitioner called the Johnson family attorney again on June 9, 2010, at 6:18 pm: Hey, it's Koons. Just wondering, are the Johnsons still fighting that island on the maintenance issue? I was just wondering because I don't know if you noticed the dead trees that they have in their building in downtown West Palm Beach. Can't even take care of their own property with the dead trees. I don't know why they're worrying about maintenance on something else [the South Cove Restoration Project]. Anyway, also, do you have a map of where their stormwater goes? I was just trying to think if they were ever under a pre- treatment of their stormwater that goes off, I think, right where that island is going to be. Anyway, just let me know. Let me know if you want me to call Code Enforcement or what you want me to do. Thanks. By Information dated August 3, 2010, the State of Florida alleged that Petitioner "on or between May 6, 2010, and June 17, 2010, . . . did either verbally or by a written or printed communication, maliciously threaten an injury to the reputation of [the Johnson family] with intent to compel the persons so threatened . . . to do any act or refrain from doing any act against their will, contrary to Florida Statute 836.05 (2 DEG FEL)". The Information also alleges two misdemeanors that are irrelevant to this case. After three interviews with the authorities, Petitioner resigned from the county commission on August 3, 2010. The next day, Petitioner pleaded guilty to extortion and the two misdemeanors, and the court adjudicated Petitioner guilty of all three offenses and sentenced him to five years' county probation for the extortion and fined him $10,000 for the extortion. There is no evidence whatsoever that Petitioner extorted the Johnson family for personal financial gain. He had already declined to run for another elected office, so the record does not support a finding that he engaged in this extortion for his personal political gain. There is no evidence whatsoever that Petitioner engaged in this extortion for any other personal purposes, including obtaining wheelchair access for a family member or obtaining improper sexual advantage. It is difficult to find that Petitioner engaged in this extortion to cement some sort of personal legacy. The South Cove Restoration Project is not an exceptionally large project, in terms of water quality impacts. It appears to have already been named, so general naming rights--to paraphrase a theater critic, the graffiti of the political/philanthropic class--do not seem to be involved. (Charles Isherwood, "The Graffiti of the Philanthropic Class," N.Y. Times, December 2, 2007, http://www.nytimes.com/2007/12/02/theater/02ishe.html). As noted above, the sole practical concern of Petitioner, at the time of the acts of extortion, was the city vote on the fourth wheelchair ramp. But this vote was a near certainty and concerned an inconsequential matter--a fourth wheelchair ramp--that would not have prevented the project from going forward. Some proponents of the project even believed that the city vote was unnecessary, and a fourth ramp could have been located nearby at a location not within the jurisdiction of the city. Almost all that is left to explain the extortion is Petitioner's characterization of his acts, which he admitted were driven by anger, frustration, and stupidity. The narcissistic demands in the first voicemail that the Johnson family pay public homage to Petitioner and the eerie passive- aggressive nature of the second suggest pride to the point of hubris. But nothing else--except, of course, anger and stupidity. At all material times, Petitioner was in FRS-covered employment, owned vested FRS benefits, and had not filed for FRS retirement benefits. By letter dated November 8, 2010, Respondent advised Petitioner that he had forfeited his FRS benefits when he entered a guilty plea to the felony of extortion. He timely requested a hearing.
Recommendation It is RECOMMENDED that the Division of Retirement Services enter a final order determining that Petitioner's acts of extortion, described above, do not constitute grounds for forfeiture of his FRS pension. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2011. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Mark A. Emanuele, Esquire Panza, Maurer and Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308
The Issue Whether the petition that initiated this case was timely as to Petitioner Fullman? If so, whether Petitioner Fullman has standing? Whether Petitioner Burgess has standing? Whether the record demonstrates reasonable assurances for approval of Martin County's application for a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Lease to construct and operate a public mooring field in the Jensen Beach to Jupiter Inlet Aquatic Preserve and to construct and operate a "dinghy" dock immediately south of the Jensen Beach Causeway to support the mooring field?
Findings Of Fact The County, the Lagoon and the Aquatic Preserve Martin County (the "County") is located on the Atlantic Coast in southeast Florida. The Indian River Lagoon (the "Lagoon") runs along the eastern edge of the County in a north-south direction parallel to the coast. The Lagoon is separated from the Atlantic Ocean by barrier islands except for a connection to the ocean through the St. Lucie Inlet. The Lagoon is designated an "Outstanding Florida Water" ("OFW") and its waters are classified as Class III by the Department. The portion of the Lagoon within the County's boundaries is part of the state-designated Jensen Beach to Jupiter Inlet Aquatic Preserve (the "Aquatic Preserve"), one of three aquatic preserves in the Lagoon. The waters and submerged lands of the Aquatic Preserve are used extensively by the public for commercial, recreational, and scientific purposes consistent with statutory authority that allows uses other than preservation. Uses include commercial docking facilities, defined by rule 18-20.003(16) as "docking facilities for an activity which produces income, through rental or any other means " The Parties Martin County Board of County Commissioners The Martin County Board of County Commissioners (the "Board of County Commissioners") is the County's governing body. In the name of the Board of County Commissioners, the County applied for the permit and sovereignty submerged lands lease that is the subject of this proceeding. The Permit and Lease will allow the County to construct and operate a managed mooring field for boats (the "Mooring Field" or the "Project") to be located within a near-shore area of the Aquatic Preserve. Boats now commonly anchor in the area in a random, un-regulated manner and will continue to do so without the permit and the lease. b. The Department The Department is the state agency with responsibility to conserve, protect, and control water resources pursuant to Part IV, chapter 373, Florida Statutes, and chapter 62, Florida Administrative Code. The Department also has the authority to administer the state's program for leases of sovereignty submerged lands, unless such responsibility has been delegated by the Board of Trustees to a water management district or the Department of Agriculture and Consumer Services by an operating agreement. The parties agree that the Department has the authority to administer the sovereignty submerged lands lease applied for in this case. See Petitioners' Proposed Recommended Order, para. 3 at 6; Martin County's Proposed Recommended Order, para. 5 at 7; and the Department's Proposed Recommended Order, para. 2 at 6. Petitioners Petitioner Joseph Burgess resides with his wife in an unincorporated area of the County known as Jensen Beach. He has a direct view of the Lagoon from the rear deck of his home, approximately six-tenths of a mile west of the Project site. Mr. Burgess's wife holds record title to the property, acquired before their marriage. He has a spousal interest in the homestead. He helped his wife to design and build their home on the property and the two have lived there for the past 14 years. They intend to live there for the foreseeable future. Mr. Burgess visits the area of the Project several times a week. He frequently takes his grandchildren and out-of- town friends to the area to appreciate the beauty of the Aquatic Preserve, watch the fishermen, and enjoy the environmental diversity of the Lagoon. When Mr. Burgess drives to the area by way of the Jensen Beach Causeway (the "Causeway") he often finds it difficult to find a parking spot. Mr. Burgess attended community meetings when the Mooring Field was proposed and discussed its impact to the area with other members of the community including Petitioner Fullman. He contacted the Department regarding the status of the Project and requested notice of permit activity. Notice, however, was not provided to him directly; he learned of the Department's intent to issue the permit from counsel. Mr. Burgess has a number of concerns about the Project. He fears it will diminish his way of life and the character of the area in which he resides. He worries that it will add congestion to a near-by rotary for vehicular traffic that he negotiates to get to and from his home nearly every day. He is concerned that the Project will destroy habitat for marine life and the birds which nest and feed in the ecosystem of the Aquatic Preserve and the Lagoon. Petitioner Thomas Fullman owns and resides in a home in Jensen Beach overlooking the Project site. He and his family have enjoyed the Lagoon and the Aquatic Preserve for the past 20 years and he has a deep appreciation for them. Mr. Fullman's concerns for the Aquatic Preserve and the Lagoon led him to challenge the issuance of a permit to construct a seawall in another administrative proceeding. The seawall was proposed to be constructed on the opposite side of the Causeway several hundred feet north of the proposed Mooring Field. The challenge was successful. See Reily Enterprises, LLC v. Fla. Dep't of Envtl. Prot., 990 So. 2d 1248 (Fla. 4th DCA 2008). Mr. Fullman boated in the Lagoon frequently when his children were growing up. He now boats in the Lagoon once or twice a year. He enjoys fishing in the Lagoon. He is an avid bird-watcher who enjoys looking for osprey and hawks in particular. Mr. Fullman often walks by the site proposed for the Project and enjoys the natural scenery and wildlife that populates the Lagoon and the Aquatic Preserve. He frequently visits the Causeway Park adjacent to the Project site to observe the scenery and wildlife and to picnic with his family. In his practice as a family therapist, Mr. Fullman occasionally takes clients to the Causeway to view the Lagoon and the Aquatic Preserve because they provide a pleasant setting conducive to productive therapeutic discussion. Mr. Fullman plans to remain in his home. He is concerned that the Mooring Field, if installed, will affect his continued enjoyment of his property, cause an increase in vehicular traffic and traffic safety hazards on the route he takes to and from his home daily, limit public parking on the parkway he frequents for recreation and professional purposes, and cause harm to the Lagoon and Aquatic Preserve environmental resources important to him and his family. Mr. Fullman learned of the Department's intent to issue the permit through counsel and authorized counsel to request an extension of time to file a petition for a formal proceeding on his behalf. Mr. Burgess was "taking the lead on keeping in touch with DEP," tr. 714, but Mr. Fullman did not have a formal arrangement with Mr. Burgess regarding securing an extension of time for the filing of an administrative hearing. The Department issued an Order on April 5, 2011, that granted "a request made by the Petitioner, Joe Burgess, to grant an extension of time to file a petition for an administrative hearing." The Order extended the time for the filing to April 14, 2011. The Order did not mention Mr. Fullman. On April 14, 2011, a petition was filed with the Department on behalf of both Mr. Burgess and Mr. Fullman. Unlike Mr. Burgess, however, Mr. Fullman, had not been granted an extension of time for the filing of a petition on his behalf at the time the petition was filed. The County's Application The County submitted its application for the Permit and the Lease on December 24, 2009. The application was prepared by a consulting firm, Coastal Systems International ("CSI"), whom the County had hired to obtain the necessary approvals for the Project from the Department and the U.S. Army Corps of Engineers (the "Corps"). The Department acknowledged receiving the County's application in a letter to the County dated January 22, 2010. Beginning with a request for additional information ("RAI") included with that letter, the Department conducted a review process that included more RAIs from the County and from other State agencies. Nearly a year later, the Department notified the County by letter dated January 26, 2011, that the application had been deemed complete. After the application was deemed complete but before the Consolidated NOI (see, below) was issued, the County's consultant submitted additional information to the Department that included copies of documents submitted to the Corps in response to the Corps' requests for additional information. The additional information was overlooked by the Department and, therefore, was not incorporated into the Permit and Lease. During the review process, significant changes were made to the Project proposed by the application. For example, the configuration or "footprint" of the mooring field was made smaller than originally proposed and the number of buoys allowed was lowered. The dinghy dock was relocated and altered in design and materials. Additional terms and conditions were added to the operational requirements. The Project was modified to address the site specific conditions in the Preserve and the possible adverse impact of shading on seagrasses. (This included reduction and relocation of the Mooring Field, re- siting of the Dinghy Dock, and elimination of a proposed "wave attenuator.") The design of the Project considered the characteristics of the vessels that would use the Project, both in the Mooring Field and at the Dinghy Dock. On February 22, 2011, the Board of Trustees determined pursuant to rule 18-20.004(1)(b) that it is in the public interest to lease approximately 34.47 acres of sovereignty submerged lands to the County for 25 years for the Project. The amount of acreage to be leased is 25% less than what was originally proposed, consistent with the changes made to the Project during the review process. The Consolidated NOI, the Project Design and its Location On March 4, 2011, the Department issued a Consolidated Notice of Intent to Issue an Environmental Resource Permit and State Lands Authorization (the "Consolidated NOI") to the County. The Consolidated NOI authorizes the County to construct and operate a public mooring field within 34.29 acres of the Aquatic Preserve just south of the Jensen Beach Causeway. The proposed site of the Mooring Field is an area that was dredged for the filling of submerged lands to create the nearby west island of the Causeway. The general area of the Project is a busy waterway that has heavy boat traffic from the north, south, east and west. It is approximately 500 feet from the Intracoastal Waterway near the Intracoastal's intersection with the Okeechobee Waterway. The Project area is close to established upland facilities such as boat ramps, fish cleaning stations, a fishing pier, restrooms, picnic shelters, and public parking for cars and boat trailers, all maintained by the County on the west island of the Jensen Beach Causeway. The Causeway on its eastern end connects the mainland to a large, populated barrier island. On the mainland shore, several hundred yards west of the Project area is SunDance Marina, a commercial facility that offers fuel, repair, docking and other services for boaters. The facilities operated by the County, the marina, the local population and the heavy boat traffic in the area contribute to the per capita boat ownership in Martin County, among the highest for counties in Florida. Amenities in or near a county park at the west island of the Jensen Beach Causeway include 140-car parking spaces, 58 car/trailer parking spaces and a wooden viewing platform adjacent to the boat ramp on the south side of the Causeway. There is currently a small dock and a sandy beach along the causeway near the boat ramp along the south portion of the Causeway enjoyed by boaters while they also use the park facilities. Boaters would lose the use of the existing dock and the beach if the Project is constructed but would gain the benefits provided by the Project. The Causeway has a vertical concrete seawall parallel to the Project area. There is a section of the Causeway that connects to the shoreline, called a relief bridge that promotes flushing and circulation otherwise impeded by the Causeway. Prevailing winds are out of the southeast. Since the Lagoon is a large, open, water body, the wind traveling across it contributes to wave height which increases turbidity. At present, in the absence of a mooring field, approximately 20 vessels anchor in and around the Jensen Beach area at any one time. Many anchor in the shallow seagrass area and remain for extended periods of time. The anchoring is haphazard and poses a risk of scarring and otherwise damaging seagrass beds. The Project area has been plagued by dilapidated and sunken vessels. The County has removed seven of them recently, plus another three from nearby waters of the Aquatic Preserve. Dilapidated vessels pose the potential to leak hazardous materials, be navigational hazards and prevent seagrass growth, all of which can damage the Aquatic Preserve. The Project Area is not currently managed or maintained by the County. The Project is proposed as a management tool to encourage boaters to utilize mooring buoys located in an area where seagrass is either sparse or barren instead of anchoring in shallow seagrass areas where the boats may damage the seagrass. Known as the Jensen Beach Managed Mooring Field, the Project is authorized for 51 buoys permanently attached to helical mooring anchors drilled into the submerged bottom lands of the Preserve and a new Dinghy Dock on the south shore of the nearby west Causeway Island. The helical mooring anchor is approximately 12 inches in diameter and will be secured to the Lagoon bottom by hydraulic methods. The anchoring system contains a shock absorber designed to provide flexibility when a vessel is moored by allowing the vessel the ability to swing with wind and wave energy. This swinging mechanism reduces potential impacts to seagrass from shading. Vessels moored in a boat slip or at a marina do not have swinging capability. The anchors are designed to provide safe mooring withstanding winds up to 80 miles per hour. Removal of vessels is mandatory in the event of a Category One hurricane (74 miles per hour) or above. The Mooring Field will accommodate vessels from 20 to 60 feet in length. The Mooring Field will be open to the general public on a first-come, first-serve basis as defined in rule 18- 21.003(27). Furthermore, as a mooring field of buoys rather than a dock or marina with fixed boat slips, the waters of the Aquatic Preserve within the Mooring Field will remain open and accessible to public use by any vessels especially in the open, buoy-free lanes (or "Fairways") 75 feet wide. The fairways will bisect the Mooring Field in north-south and east-west directions and thereby create four quadrants in which buoys will be present. Permanent markers will mark the perimeter of the Mooring Field to provide notice of its existence. The Mooring Field will be operated by the County as a not-for-profit operation. A fee will be collected from users with the proceeds to pay for the County's management by a Harbormaster and for maintenance of the buoys, the Dinghy Dock and associated upland amenities available to the users of the Mooring Field. The design of the Mooring Field was determined by bathymetric depths taking into consideration the draft of the vessels that would occupy the field to ensure that there will be at least one foot between the draft of the vessels and the submerged bottom land. The depth inside the Mooring Field varies within a foot or so of 9 feet. The anticipated draft of the vessels entering the field will be 2 to 4 1/2 feet. Vessels traversing the field should not disturb the submerged land. In addition, 34.29 acres of sovereign submerged land in the Aquatic Preserve occupied by the Mooring Field, the Dinghy Dock will be 1,832 square feet and occupy .178 acres of the Preserve. It will L-shaped, with a 5' x 163.5' "access walkway" from shore out to a 5' x 203' "terminal platform" designed to allow temporary mooring of up to 18 small vessels. The access walkway at the Dingy Dock will be constructed from Fiberglass light-transmitting grates atop pilings and elevated as high as 6 feet above the water level. The terminal platform will float on the water in order to comply with requirements of the Americans with Disabilities Act for access by handicapped boaters. The Dinghy Dock is designed to ensure that environmental resources will not suffer impacts. It will connect to the bulkhead and existing riprap on the uplands. The pilings of the dock will be constructed of concrete. The slips will be 13 feet wide and 20 feet long and will accommodate a vessel up to 20 feet in length. A 20-foot vessel has a maximum draft of 2 to 2 1/2 feet. The water depth below the proposed Dinghy Dock's slips ranges from 7 to 10 feet. The Dinghy Dock's terminal platform will be located over an area with no seagrass or other submerged aquatic resources. Publication of Consolidated NOI On March 17, 2011, the County published the Department's Consolidated NOI in the Stuart News. Resources Located at the Site In the summer of 2010, Coastal Systems International, Inc. ("Coastal Systems") performed an inspection of the existing upland structures on the Jensen Beach Causeway west island and the submerged lands located southwest of the Causeway. "The surveyed area is the site of the proposed Jensen Beach Managed Mooring Field Project . . . ." MC Ex. 11. Three prior surveys had been conducted by Coastal Systems in the general Project area. In each of the surveys, in 2005, 2008 and 2009, "seagrass was observed along the mainland shoreline of Jensen Beach, west of the proposed Project area, and in the nearshore shoreline region of Jensen Beach Causeway, just north of the proposed mooring field." Id. at 2. Four species of seagrass were observed in the nearshore area: Manatee Grass, Shoal Grass, Paddle Grass and Johnson's Seagrass. Seagrass beds serve several functions important to the Aquatic Preserve. They stabilize sediments; entrap silt; recycle nutrients; provide shelter, habitat and substrate for animals and other plant life forms; are nursery grounds for fish and shellfish; and are important direct food sources for various species, including the endangered manatee. Many commercially important fishes spend at least part of their lives in seagrass beds. Coastal Systems submitted its Field Observation Report (the "Report") to the Department on July 16, 2010. The Report describes its purpose as follows: Id. The purpose of this inspection was to verify the previous marine resource survey of the submerged lands conducted in 2009 by Coastal Systems and to confirm the location, composition and density of marine resources, including the federally listed species Johnson's Seagrass (Halophila johnsonii . . .) . The Report concluded that consistent with the previous marine resource survey conducted in 2009, seagrasses were found in shallower portions of the survey area. The most extensive areas of seagrass "were observed in the immediate nearshore area along the southwest portion of the Causeway, the southwest quadrant of the survey area [different from the quadrants into which the Mooring Field is divided] and the southeast quadrant of the survey area (See sheet 5 in attachment 1)." MC Ex. 11, "Conclusion" at 3. Sheet 5 in Attachment 1 to the Report is entitled "Resources and Proposed Work" for the "Jensen Beach Mooring Field." It shows seagrass patches consistent with the description in the Report's Conclusion. Depicting the proposed Mooring Field divided by Fairways into four quadrants, Sheet 5 shows the two eastern quadrants to be barren of seagrass. Portions of the two western quadrants are shown to be sparsely inhabited by seagrass at a level of 1 percent or below. The northwest quadrant and the southwest quadrant are inhabited by seagrass at the 1 percent or below level. The area of sparse seagrass is no more than 10 percent of the northwest quadrant. In contrast, most of the southwest quadrant, at least 75 percent of its area, is shown to be inhabited by seagrass. The 2009 survey was confirmed in 2010 when the Report was prepared. Field work done both in 2009 and the next year in 2010 were done during the growing season when the seagrass, including federally-listed Johnson Seagrass, would be most prevalent and easily observed. The seagrass that was observed in the footprint of the Mooring Field was "paddle grass decipiens." Tr. 73. No Johnson Seagrass was observed within the footprint of the Mooring Field in either the 2009 survey or the field work done in July of 2010 during the growing season in advance of the Report. Fish and manatees feed in seagrass areas. They would likely feed in the areas of dense seagrass in the Project Area found outside the Mooring Field where the sediments consisted of shelly, sandy materials and where Paddle, Manatee and Johnson's Seagrass were identified. Macroalgae was present throughout the Project area in varying densities. The types observed included Common Caulerpa, Graceful Red Weed, Green Feather Algae, Hooked Red Weed, Spiny Seaweed, and Y Branched Algae. Macroalgae is a leafy algae and important marine resource. It provides habitat, shelter and food for various species in the Aquatic Preserve including the manatee and different fish species. Fish observed included Atlantic Spadefish, Gray Snapper, Gulf Pipefish, Leopard Sea Robin, Sheepshead, Southern Puffer and other unidentified juvenile fish. Other marine fauna observed during one field inspection included Amber Penshell, Blue Crab, Caribbean Spiny Lobster, Feather Duster Worms, Hermit Crabs, Horseshoe Crab, Hydroids, Lightning Whelk, Spaghetti Worms, Spider Crab and Sponges. The Project area is also habitat for various endangered and threatened species and species of special concern such as birds, reptiles and mammals, including the wood stork, manatee, Atlantic green turtles, and the saltmarsh snake. Wading birds such as the great blue heron and roseate spoonbill inhabit the area. The Florida Manatee uses the area and is known to feed on the types of seagrasses found there. Fish and manatees are unlikely to feed within the footprint of the Mooring Field because seagrass is either not present or extremely sparse. The Mooring Field's Footprint: Seagrass Opportunity The sediments within the mooring field are silty and muddy. Dependent on sunlight for growth, seagrass grows best in shallow areas of good water clarity that allows for sunlight penetration. Silty bottoms interfere with sunlight penetration whenever there is turbidity in the area that kicks up the silt. Seagrass is also more prone to grow in sandy sediments as opposed to silty or muddy sediments. Seagrass root systems hold fast in sandy sediments; they do not adhere well in silty sediments. The Mooring Field's sediment explains why its footprint is either barren of seagrass or inhabited by seagrass at such a sparse level. Nonetheless, the presence of seagrass within the Mooring Field indicates that seagrass has the opportunity to grow there, that is, at least in the parts of the two western quadrants of the Mooring Field which constitute seagrass habitat. Mr. Egan elaborated at hearing: [S]ince the footprint of the mooring area already contains sparse seagrass, that area which is within the footprint of the mooring field itself, though quite sparse now, could easily rebound in much thicker growth were water quality conditions to be good for it . . . . [T]o put a source of water quality impacts in close proximity to . . . the sparse seagrass fields . . . [eliminates] the opportunity for these seagrass beds to expand in an area where we have evidence to see that seagrass beds have been expanding. Tr. 859-60 (emphasis added). The impacts referred to by Mr. Egan are from shading caused by vessels moored in the four quadrants of the Mooring Field and the bioaccumulation in plants of toxic substances and biocides, like copper and zinc, that typically leach from the bottom paint of vessels. While Mr. Egan did not predict with certainty the impact of substances leaching from the bottoms of vessels in the Mooring Field, he was able to opine that in areas where circulation is reduced like the Project area because of the nearby Causeway, the levels of the toxic substances will increase and the plants and animals in the area can be expected to accumulate the substances to a degree that produces "a certain level of concern." Tr. 850. That seagrass beds are expanding in the Project area is evident from a comparison of images provided by the South Florida Water Management District between 2006 and 2009. They show a doubling of the seagrass beds on the side of the channel opposite the Mooring Field site. Whether such expansion will, in fact, occur in the Mooring Field footprint, however, were the footprint free of shading and toxic substances leached from boat bottoms, is speculative. The sediment would still remain silty and unlikely to provide a good basis for seagrass root structure. The Dinghy Dock The types of vessels that will most likely use the Dinghy Dock include johnboats, dinghies, and sailboats. The Project allows sufficient distance for boats to traverse the Mooring Field and gain access to the Dinghy Dock without encroaching on seagrass beds. The edge of the Dinghy Dock slip closest to the seagrass beds is approximately 25 feet away from the beds. Boater can avoid traversing marine resources whether seeking ingress or egress from their slips. Seagrass, moreover, is not likely to suffer impacts from vessels at the Dinghy Dock because there is a 7 to 10-foot depth under the slips. There is sufficient room between the Dinghy Dock and the Johnson's Seagrass. A small portion of the Dinghy Dock's walkway from the Causeway Island traverses a narrow band of nearshore seagrass. The access walkway is constructed of fiberglass grated decking material and is elevated 6 feet above high water to minimize the impact of shading. The grated decking allows sunlight to reach the seagrass when the sun is directly overhead. Keeping the walkway at a 6-foot elevation above high water allows light to penetrate under the walkway as the sun moves from east to west. The potential for impacts to seagrass from shading by the walkway is not significant. FWC and Archaeological/Historical Resources Florida Fish and Wildlife Conservation Commission ("FWC") recommended approval of the Project if two manatee conditions are added to the permit. The Department relies on FWC for its expertise related to impacts to endangered or threatened species and their habitats, including impacts to manatees or seagrass habitat. There are no archaeological or historical resources in the area. Resource Protection Areas Resource Protection Areas ("RPAs") are divided into three categories. The three categories are defined in rule 18- as follows: "Resource Protection Area (RPA) 1" - areas within the aquatic preserves which have resources of the highest quality and condition for that area. These resources may include, but are not limited to, corals; marine grassbeds; mangrove swamps; salt- water marsh; oyster bars; archaeological and historical sites; endangered or threatened species habitat; and, colonial water bird nesting sites. "Resource Protection Area 2" - Area within the aquatic preserves which are in transition with either declining resource protection are 1 resources or new pioneering resources within resource protection area 3. "Resource Protection Area 3" - Areas within the aquatic preserve that are characterized by the absence of any significant natural resource attributes. The existence of sparse seagrass in the footprint of the Mooring Field, the Johnson's Seagrass, and the dense seagrass beds nearby are indicia that the Project area is within a Resource Protection Area 2. Water Quality and the Management Plan Adverse impacts to water quality caused by haphazard anchoring will be eliminated when boaters instead use the Mooring Field. The Mooring Field will enable boaters to secure their vessels to mooring buoys instead of dropping anchors into the substrate. Anchors hitting bottom cause turbidity. Vessels anchored to the substrate are a continual source of turbidity because the anchor can move back and forth with the wind or water current. Impacts of turbidity from prop dredging when boats anchor in shallow areas would also be reduced because the Mooring Field is in deeper water. The Project will enhance water quality in the Jensen Beach area through the implementation of the Jensen Beach Management Plan (the "Management Plan"). The Management Plan is a list of best management practices. The provisions most significant to water quality enhancement include: 1) all vessels must pump out their septic tank waste within 24 hours of entering the Mooring Field and every three days thereafter; 2) all major repairs are prohibited; 3) the scraping of a vessel's hull is prohibited; 4) throwing trash overboard is prohibited; 5) cleaning a vessel is prohibited; 6) throwing anchor in the leased area is prohibited; and 7) all vessels are required to be operational. The Mooring Field and the Dinghy Dock will be regulated and managed by a harbor master under the plan. The harbor master is responsible for the day-to-day operations of the Mooring Field under the Management Plan. For example, if there is an illegal discharge, the harbor master is charged with notifying FWC so that it can conduct enforcement. The Board of Trustees proposed a lease condition that requires vessels to contain their graywater in onboard holding tanks so that it will not be discharged into the Aquatic Preserve. (Graywater is not potable and not contaminated with sewage but has been used, for example, dishwashing water.) Tierra Consulting Group, Inc. performed the water quality analysis at the Project site. Its findings indicate that water quality in the area meets water quality standards. Flushing in the area is adequate due to strong currents and the relief bridge which assist in offsetting the effects of the Causeway's presence. The Permit addresses water quality during the construction phase by implementing a turbidity management plan. The turbidity plan requires a curtain to be deployed during construction. The curtain will prevent water quality violations from occurring outside the curtained area during construction. The curtain will protect seagrass and microalgae outside the curtain from the effects of turbidity. The County has also agreed to conduct post-construction water quality monitoring to confirm that water quality in the Project area has not been impaired by construction. Navigation The Project is located a safe distance from the Intracoastal, existing boat ramps, and the Sundance Marina. The Mooring Field design provides adequate distance between buoys to ensure that vessels will be properly spaced. The Fairways provide safe corridors for two vessels to pass each other in the Fairways. Board of Trustees Authorization The Project requires a lease because it involves placing mooring buoys over sovereignty submerged lands. The lease is required to be approved by the Board of Trustees and could not be delegated to the Department for two reasons: 1) it was deemed to be a matter of "heightened public concern"; and 2) it would result in the addition of 50 slips. The Board's approval was unanimous. The upland portion adjacent to the Project is owned by the Board of Trustees. The public interest benefits from the Project include enhancement to water quality in the Aquatic Preserve; the first- come, first-serve basis on which it is open to the public; accessibility to the upland public amenities for patrons; protection of seagrass beds; and removal of dilapidated vessels in the area. The Board of Trustees agreed to waive lease fees because all of the revenue the County collects associated with the Project will be used to operate and maintain the facility. There are approximately 19 mooring fields currently in operation on lands owned by the Board of Trustees. None is located in an aquatic preserve. Two are located in the National Marine Sanctuary in the Florida Keys. The Aquatic Preserve Management Plan that applies to the Project area is the 1985 Indian River Lagoon Management Plan. The Conceptual State Lands Management Plan also applies to the Project area. The Conceptual State Lands Management Plan emphasizes balancing the resources of aquatic preserves with public use and benefit of the preserves. Most Current Permit Drawing and Management Plan The Department's Consolidated NOI does not contain the most current permit drawings or the most current management plan. Changes to the drawings and the plan occurred after the Department deemed the application complete. The changes were submitted by County with the intention that they be included. The most current drawings were attached to a Response to an Army Corps RAI. These drawings should have been included in the Department's Consolidated NOI but were overlooked. The changes clarify the dimensions of the Mooring Field boundary and elevated the dinghy dock from 5 feet to 6 feet to allow for more light penetration for the benefit of the seagrass. The most current management plan (also attached to the Response to the Army Corp RAI and submitted by the County to the Department in a timely fashion) includes two revisions. First, it revises section 2.5.1 to require the harbor master to fill Mooring Field Quadrants 1, 2 or 3 ahead of quadrant 4. Quadrant 4 is the quadrant with the seagrass. The order of filling was prescribed to protect the sparse seagrass observed by Coastal Systems in Quadrant 4. Second, the Management Plan was revised to address waste management and marine pollution by adding section 2.7. It provides a schedule for Martin County's waste management vessel to pump out the septic tanks of vessels that use the facility. It specifies how often vessels should be pumped out and requires that information be provided to each patron on arrival. If authorized, the changes to the drawings and the Management Plan not included in the Consolidated NOI will not have to be reviewed by the Board of Trustees because the Department regards them to be "minor modifications." See Fla. Admin. Code. R. 62-343.100(1)(a). The County's Aspiration and Past Department Action The County seeks authorization for the Project in hopes for less adverse impacts from boaters anchoring in seagrass, traversing seagrass, and discharging wastewater, graywater and waste materials into the Aquatic Preserve. Prior to this case, the Department has not authorized a Mooring Field within an Aquatic Preserve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order issuing Consolidated Environmental Resource Permit and Sovereign Submerged Lands Lease, Department File No. 43-0298844-001 and Lease No. 430345996, to the County. It is also recommended that the Consolidated Environmental Resource Permit and Submerged Lands Lease incorporate the current drawings and revised management plan submitted by the County after the application was deemed complete. DONE AND ENTERED this 7th day of November, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2011. COPIES FURNISHED: Virginia P. Sherlock, Esquire Howard K. Heims, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995-1197 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David A. Acton, Esquire Martin County 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues to be determined are whether the U.S. Army Corps of Engineers (“Corps”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to Department of Environmental Protection (“DEP”) Permit Modification No. 0288799-006-JN (“Permit Modification”), as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action (“Proposed Change”) in the nearshore zone east of East Pass; and whether the East Pass Inlet Management Plan (“East Pass IMP”) is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioner, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island1, and fronts the Gulf of Mexico. Petitioner’s property is in the vicinity of Monument R-14, which is roughly 2.3 miles west of DEP Virtual Monument V-611, and 4.3 miles west of the west side of East Pass. Mr. Wilson uses and enjoys the gulf-front beaches between his property in Okaloosa Island and East Pass. Intervenors, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. 1 Okaloosa Island is the name of an unincorporated community that stretches about 2.8 miles along Santa Rosa Island from DEP reference monument R-1 through R-16, and is across Santa Rosa Sound from the mainland community of Ft. Walton Beach. Okaloosa Island is the name of the unincorporated community, while Santa Rosa Island is the name of the much longer island of roughly 40 miles in length, which includes U.S. Air Force/Eglin AFB property that extends from the Okaloosa Island community to East Pass. The Surf Dweller Condominium straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Intervenor, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. The El Matador Condominium is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Petitioners’ residential properties do not abut either the area established as the zone of influence of East Pass or the stretch of beach that is adjacent to the west fill placement site. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass area of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the Permit Modification. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. Respondent, DEP, is an agency of the State of Florida pursuant to section 20.255, Florida Statutes, having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Chapters 62 and 62B, regarding activities in surface waters of the state. DEP has been designated by the legislature as the beach and shore preservation authority for the State of Florida and is authorized to take all necessary initiatives to implement the provisions of chapter 161. See § 161.101, Fla. Stat. DEP is the permitting authority in this proceeding and issued the Permit Modification at issue in this proceeding to the Corps. Respondent, the Corps, is a federal agency responsible for maintenance dredging of East Pass, and is the applicant for the Permit Modification. The Corps and DEP are parties to an Interagency Agreement pursuant to which the Corps has agreed that for joint coastal permits, beach compatible dredged material shall be disposed on Florida’s beaches consistent with chapter 161 and other beneficial use criteria specified by the Department and federal standards. Pursuant to the Interagency Agreement, if DEP determines that a permit modification is required to meet state standards, as was the case here, the Corps agrees to apply for and obtain the modification. Intervenor, Destin, is a municipality in Okaloosa County, Florida, and abuts the east side of East Pass. Intervenor, Okaloosa County, is the local sponsor of the federally authorized East Pass Navigation Project. It has a substantial interest in the safety and navigability of the East Pass Navigation Channel and its protection from effects of tropical storm systems. Okaloosa County also has a substantial interest in preserving its recreational and environmental resources. The Permit Modification was issued on November 14, 2016, without publication, or a notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioner, Mr. Wilson, alleged that he received a copy of the Permit Modification on or after May 22, 2019. There was no evidence to the contrary. He, thereafter, filed a challenge with DEP on June 5, 2019, no more than 14 days from the date on which he received notice. East Pass The issue in dispute in this case, as it was in 19-1844, is the determination of whether beaches adjacent to the East Pass inlet are eroding, stable, or accreting, for purposes of meeting the statutory objective of section 161.142. Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of Destin to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot-long jetty on the west side of the inlet, and a 1,210 foot-long jetty on the east side of the inlet. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand. Although there was a suggestion that recent storms may have opened the channel to some extent, the evidence was not sufficient to alter the findings based on the 19-1844 record that the channel remains hazardous for marine traffic. East Pass Inlet Management Implementation Plan The East Pass IMP was adopted by Final Order of DEP on July 30, 2013. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in permits issued by DEP. Rather, disposal sites are to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. Areas of influence are the beach areas east and west of East Pass affected by tidal forces generated by the inlet. The critical element of the East Pass IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The Permit Modification On October 28, 2009, DEP issued Permit No. 0288799-001-JC to the Corps to perform maintenance dredging of the East Pass Navigation Channel and the Old Pass Lagoon Channel, and to rehabilitate the eastern and western jetties. Materials dredged from the Main Channel south of the U.S. Highway 98 bridge would be primarily bypassed to a portion of the beach on Eglin Air Force Base west of East Pass. As originally issued, the 2009 Permit limited placement of dredged sand to sites west of the inlet, and prohibited placement to the east of the inlet. Contrary to the 2008 amendment to section 161.142 and the 2013 East Pass IMP, the 2009 Permit did not require that sand dredged from the federal navigation channel be placed on the adjacent eroding beach, nor did it extend the life of the proximate West Destin Beach Restoration Project. The Corps requested the Permit Modification in furtherance of an inter-agency agreement between DEP and the Corps, by which the Corps agreed, to the best of its abilities, to act in a manner consistent with state requirements. Pursuant to section 161.142(5), beach compatible sand dredged from federal navigation channels is to be placed on the adjacent eroding beach. On November 14, 2016, DEP issued the Permit Modification to the Corps. The Permit Modification did not change the authorization or requirements for the dredging, but allowed dredged material to be placed on “the Gulf-front beaches on the eastern and western sides of East Pass.” On August 21, 2019, DEP filed the Proposed Change, which amended the Permit Modification to require that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass.” The Permit Modification provides that, for the first maintenance dredging event following issuance of the Permit Modification, dredged material is to be placed at fill sites east of East Pass, the condition that Petitioners’ find objectionable. The Permit Modification then provides that “[f]or all subsequent maintenance dredging events conducted under this permit, disposal locations shall be supported by physical monitoring data of the beaches east and west of East Pass in order to identify the adjacent eroding beaches that will receive the maintenance dredged material, providing consistency with section 161.142, Florida Statutes.” Thus, the placement of dredged material to the east of East Pass authorized by the Permit Modification applies to the next dredging event, and not necessarily to subsequent periodic dredging events authorized by the Permit Modification. Fill Placement Site The eastern fill placement site authorized by the Permit Modification extends from R-17 to R-20.5. The shoreline adjacent to the eastern fill placement site has been designated as critically eroded for more than ten years. The eastern fill placement site is within the Western Destin Beach Restoration Project and designated as “Reach 1.” The fill placement site west of East Pass is located between V-611 and V-622. The shoreline landward of the western fill site has not been designated as critically eroded by the Department. There are no current beach restoration projects in or adjacent to the western fill site. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The evidence in this proceeding, which includes the evidence adduced in 19-1844, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The evidence further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its effect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Competent substantial evidence in the record of this proceeding includes monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017; data from the Holiday Isle Emergency Beach Fill Two-Year Post- construction Report; historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017; the Potential Borrow Area Impact Report, which included data from 1996 through 2012; and recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of data, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate2 bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline, indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the persuasive testimony offered by Mr. Clark, Mr. Trammell, Mr. Garis, and Mr. Trudnak (who testified in 19-1844), collectively establishes, by a preponderance of the evidence, that the beaches east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5, except for the area immediately abutting the eastern jetty, are critically eroded, a condition that is influenced by East Pass and its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. The evidence demonstrates that the shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate 2 “Having an irregularly wavy or serrate outline.” See “crenulate,” Merriam-Webster Dictionary, https://www.merriam-webster.com/ dictionary/crenulate (last visited February 2, 2020). shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall and thickly vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” Mr. Trammel’s photographs offered in 19-1844 were supplemented by a series of photographs taken from several of the same locations after the passage of Tropical Storm Nestor in October 2019. Those photographs are consistent with a finding that the beaches to the east of East Pass are highly eroded and erosional, and that the beaches to the west of East Pass are not. The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establish, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. Petitioners offered testimony of Dr. Douglas and Dr. Young in an effort to shore up weaknesses in the evidence offered in 19-1844. Their testimony and the evidence discussed therein was largely, if not exclusively designed to demonstrate that the direction of lateral sand transport in the vicinity of East Pass was predominantly east to west, which was the prevailing theme of Petitioners’ argument in 19-1844. The evidence adduced from Dr. Douglas was, in many respects, cumulative of that previously offered by Dr. Walton in 19-1844, and considered in the development of the Recommended Order in that case. For example, both Dr. Walton and Dr. Douglas reviewed and assessed information from the Taylor study, the Morang study, and the CP&E report in developing their opinions. Both agreed that sand placed in proximity to the jetties would tend to stay in place. Both ultimately concluded that sand placed to the west of the East Past west jetty would migrate to the west. Dr. Douglas offered new opinion testimony largely based on the Wave Information Study (“WIS”), which is an estimate of wave height and direction from a location two miles off-shore of East Pass. The data is a mathematical estimate, and does not rely on physical measurements from buoys or wave gauges. The wave estimates were then used as inputs in a model developed by the Coastal Engineering Research Center (“CERC”). Dr. Douglas candidly testified that the CERC model, even with normal input data, involves a substantial degree of uncertainty -- up to an order of magnitude. Adding to that uncertainty is that the CERC model assumes bottom contours and offshore volume calculations that were either inapplicable to the area around East Pass, or unavailable. Dr. Douglas was convincing that the CERC model is a tool commonly used by coastal engineers. His testimony, and the evidence on which it was based, was not unreasonable. However, it was not sufficient to outweigh the evidence introduced in support of the Permit Modification. In particular, and in addition to the evidence and testimony introduced in 19-1844, the testimony of Mr. Clark, whose extensive and direct knowledge, observations, and familiarity with the area, and of the data and information collected over periods of years, is found to be more persuasive regarding the processes and conditions in and around East Pass, and supports a finding, by a preponderance of the evidence, that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. Similarly, the evidence adduced from Dr. Young was largely cumulative, a fact that resulted in sustained objections to questions eliciting such information. He did provide testimony regarding time-lapse images from Google Earth Engine, and a critique on how to balance a sediment budget, though without providing a budget. As was the case with Dr. Douglas, Dr. Young’s testimony and the evidence discussed therein, was not sufficient to outweigh the more persuasive evidence introduced in support of the Permit Modification that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. The evidence is persuasive that placing dredged material at R-17 to R-20.5 in Holiday Isle on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, some -- but certainly not all -- of the dredged material placed on the eroding beaches to the east of East Pass can be introduced into the ebb shoal and move to the west. In that regard, the Google Earth Engine images depict sand moving across the ebb shoal to the western side of the inlet and attaching at various distances from the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, to some degree, accomplish the goals of allowing sand transport to the western beaches, as was the relief sought in the Petition. The evidence was convincing that depositing dredged material onto the eroding beaches east of East Pass, as authorized by the Permit Modification, will not result in significant adverse impacts to areas either east or west of East Pass, nor will it interfere with the use by the public of any area of a beach seaward of the mean high-water line. Furthermore, the evidence introduced in this case and 19-1844 provide reasonable assurance that the Permit Modification is consistent with section 161.142 and will ensure that net long-term erosion or accretion rates on both sides of East Pass remain equal. Ultimate Findings of Fact The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5, are critically eroded, a condition influenced, if not caused, by East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the placement of dredged material on the eastern side of East Pass will extend the life of the proximate West Destin Beach Restoration Project. The greater weight of the competent substantial evidence establishes that the Corps met the standards for the Permit Modification as proposed for issuance by DEP on November 14, 2016, and August 21, 2019, including section 161.142 and rules 62B-41.003 and 62B-41.005. Evidence to the contrary was not persuasive. Thus, the Permit Modification should be issued.
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 approving the November 14, 2018, Permit Modification No. 0288799-006-JN, as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action, for the maintenance dredging of East Pass, subject to the general and specific conditions set forth therein. DONE AND ENTERED this 20th day of February, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 20th day of February, 2020. COPIES FURNISHED: Joseph Alexander Brown, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) D. Kent Safriet, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) Marianna Sarkisyan, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Winifred L. Acosta, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 (eServed) Kathryn Drey, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 Kenneth G. Oertel, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Carley J. Schrader, Esquire Nabors Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Elizabeth Desloge Ellis, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, 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)
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue Whether the application submitted on behalf of the City of Miami Beach, Florida (City) for a coastal construction control line (CCCL) permit should be approved.
Findings Of Fact The Petitioner, Wallace Corporation, owns and operates the Richmond Hotel located at 1757 Collins Avenue, Miami Beach, Florida. The Richmond Hotel (the Richmond) was built in 1941 by Allan Herbert's grandfather. It has been continuously controlled by Mr. Herbert's family since that time. The Richmond prides itself on its appeal to upscale international travelers. It seeks to offer unique accommodations, service, and privacy. The Richmond was recently renovated and restored at a cost of several million dollars. The guest rooms, roof, plumbing, and electrical systems were upgraded while the original Art Deco decor was preserved. Included in the renovations were improvements to the pool area, landscaping, and a dune walk-over. These renovations sought to appeal to a "boutique" clientele seeking a peaceful and tranquil housing accommodation while enjoying the Miami Beach locale. The Respondent, City of Miami Beach, is the applicant for the instant CCCL permit. Coastal Systems was retained by the City to file and procure the subject permit which is identified in this record as CCCL permit no. DA-361. The CCCL permit application was filed with the Department on June 19, 1997. Since that time it has been modified to address Department concerns. The Department of Environmental Protection is the state agency charged with the responsibility of reviewing applications for CCCL permits. In its review of the instant permit, the Department deemed the application complete on February 5, 1998. Thereafter, the Department's Bureau of Beaches and Coastal Systems entered a proposed order to approve CCCL permit no. DA-361. If approved, this permit will allow the construction and improvements sought by the City. The project proposed by the City will allow for the construction of a beachwalk that would extend from Lummus Park at 14th Lane to an existing boardwalk at 21st Street. This beachwalk, along with its attendant improvements, will allow the public to access the beach at several controlled points along the dune system. Additionally, it will allow pedestrian traffic to move efficiently length-wise along the dune system. The project concept is to limit the number of points across the dune system that the pedestrian public uses for access to the beach. Further, the beachwalk will offer the public an efficient means of traveling north to south or vice versa without reverting out to Collins Avenue. Shifting pedestrian traffic away from Collins Avenue should improve traffic conditions in this highly urbanized area. The design of the beachwalk minimizes impacts to the beach dune system and prevents erosion by keeping pedestrians on the walk and off the dune. The design will act as an erosion preventative measure and should assure minimal adverse impacts to the dune and beach system. In this regard, it is critical to note that the dune and beach system in this area of Miami Beach are the product of beach renourishment. The beach itself was created in the late 1970s and 1980s by the U.S. Army Corps of Engineers. In order to address the severe erosion that threatened properties along Miami Beach, the Corps stepped in and deposited millions of cubic yards of sand on the beach. The beach renourishment project expanded the beach from government cut to 32nd Street. It was designed to provide storm protection for upland owners by widening the non-existent beach and by creating a dune system. The dune was established immediately seaward of the erosion control line (ECL). This ECL had formerly been the mean high water mark for the beach prior to the massive undertaking to deposit sand along the coast. The newly created dune served as a dike to reduce the impacts which would be expected from a 100-year storm event. In theory, water generated in such a storm event would be blocked from coming onshore thereby minimizing damage from wave or surf action upland of the ECL. To enhance the dune's efficiency in this regard, a vegetation program was implemented to address wind and pedestrian erosion to the dune system. This vegetation program will be expanded as explained below if the instant permit is approved. Currently the dune system is marred by cross-over channels cut by pedestrian traffic through the dune. These pathways provide convenient access to the beach but do so at a cost to the dune's efficiency and security. Because they cut through the dune in an easterly direction, they allow wind and, potentially water in a storm event, to gouge the dune. The cuts in the dune undermine the efficiency of the erosion control. By installing the beachwalk proposed by the City, the number of cuts across the dune will be minimized. Moreover, they will be designed to trap sand and to promote erosion control. The areas which have already been gouged will be re- vegetated to deter pedestrian use. The native vegetation planned for this work should promote erosion control and enhance the dune system. The types of vegetation and manner of planting should also deter future unauthorized pedestrian access through the dune. Subsequent to the beach renourishment program, the beach, along the entire project length, has experienced a natural accretion. This means that natural erosion is not occurring. Natural erosion results from wind, tidal, or other naturally occurring influences. In contrast, however, are the man-made erosion sources: pedestrian paths, cuts in the dunes which endanger the dune and limit its effectiveness. The danger from these unregulated cuts could potentially undermine the dune and accelerate erosion from natural events. Dune cross-walks such as proposed by the instant project (and as maintained by the Petitioner) are required for the prevention of erosion. Thus the project in its entirety will prevent erosion. The proposed project will not adversely impact the beach-dune system. Petitioner presented no evidence to establish a significant impact. The project creates a net improvement of sand and vegetation to the dune and will restore all dune cuts. The beachwalk is proposed to follow the shore, parallel to the beach. It is to be constructed of paver blocks and is to accommodate controlled movement of pedestrian traffic and bicyclists. While it could accommodate emergency vehicle traffic such as police or medical rescue, it is not designed for such use on a routine basis. The beachwalk will improve public access at 17th and 18th Streets. These access points will give the public better availability of parking and public accommodations. All of the street end dune cross-overs are designed to trap sand and to minimize erosion to the dune. The proposed access points significantly improve the west to east access to the beach. As currently designed, the beachwalk will not cause wind borne or water borne projectiles during a storm event. Moreover, the paver block walk is located landward of the dune in most instances. Even this walk has been designed to break apart and result in no increased erosion during a storm event. The beachwalk will be constructed of paver blocks installed on a crushed shell or rock base. This base should give the path stability under normal use yet give way in a significant storm event. In some areas the height of the dune will be increased by the placement of additional sand fill. Foundations for improvements proposed along the beachwalk are also designed to give way in a storm event. Thus, planters or low walls should easily collapse if undermined in a storm event. All of the improvements seaward of the ECL are minor structures. Most of the project will be located on state lands. In the instances where the project crosses or touches private property the City recognizes it must secure easements or other appropriate access to construct and maintain improvements. It is unlikely that the improvements will cause scour. It is also unlikely that the project will accentuate or contribute to storm surge. As currently proposed, the beachwalk project will have no adverse impact on the dune system. Moreover, the project will create an improvement to the system by adding sand, stabilizing and improving vegetation on the dune, controlling pedestrian access to the beach, and trapping sand. Prior to 1980 there was no documented turtle nesting on the project area of Miami Beach. Since that time, and the creation of the beach from renourishment, there has been a marked increase in turtle nesting in the area. While such nesting is encouraged by the Department, due to the urbanized nature of the area and the intense pedestrian and public use of the beach, all turtle nests located along this beach are relocated to hatcheries. This relocation policy and practice for the area existed before the proposed project was submitted for approval. The relocation program is managed by Miami-Dade County under a permit issued by the Department. Pursuant to the permit, the County conducts nesting surveys, operates self-release and restraining hatcheries, documents false crawls, and rescues turtles for relocation. None of the foregoing activities will change if the instant permit is approved. Given the width of the beach in the subject area of the proposed beachwalk, the limitations on the lighting proposed for the path, and the current restraints employed to deter the public from interfering with turtle nesting, it is unlikely turtle nesting in the subject area will change. If anything, there is a possibility that nesting may increase. For reasons unknown to the experts, turtle nesting on Miami Beach is greater in the better lit areas of South Beach. More turtles have nested along the better lit area, have had more false crawls, and have resulted in more nest re-locations from the highly commercial area of South Beach than in the darker, more traditional beach of the subject area. As turtles and hatchlings become disoriented by lights, this documented phenomenon seems contrary to the typical turtle scenario which would have the nesting turtle approach a dark, quiet beach, nest within a limited distance of the rack line (the line of seaweed deposited by tide along the beach), and return to the ocean. At the area of the Richmond, turtle nests are typically found within 50 feet of the rack line. Turtles nest within a limited distance of this line, rarely more than 100 feet. Since the beach is several hundred feet wide along the project length, it is unlikely nesting turtles will be deterred by the construction of the path. Additionally, it is unlikely the lights proposed for the beachwalk will adversely impact turtles. The number, placement, and limitations proposed on the lights will adequately minimize lighting impacts expected from this project. Given the need for some lighting to address security and safety issues for the public using the beachwalk, given the relocation of all turtle nests on the subject beach, given the project distances and design considerations to be employed for the path, and given the lack of substantial evidence to the contrary, it is found that the proposed project does not constitute a "take" of marine turtles in the project area. Miami Beach is a very well lit, commercial area. The pockets of dark beach are only dimly lit in comparison to the more pronounced lights from night clubs or other entertainment areas. The lighting plan proposed by the City adequately addresses the potential for impacts to turtles such that the project should not have a significant adverse impact. To further limit impacts, however, construction of the project should not occur during nesting season. The proposed beachwalk with its attendant improvements does not cross in front of the Richmond. The project stops immediately to the south of Petitioner's property. The project picks back up immediately to the north of Petitioner's property. The original design of the project was modified in this fashion because Petitioner opposes the construction of the path and its attendant improvements. Because Petitioner opposes the project, no portion of the beachwalk will impede Petitioner's riparian rights to the beach/ocean. None of the proposed improvements will be constructed seaward of the ECL along Petitioner's property. All owners of property upon whose land the beachwalk will be constructed, have or will be required to give written consent to the project. Any public entity upon whose land the beachwalk will be constructed, has or will be required to give written consent to the project. Petitioner expects the beachwalk to damage business at the Richmond. Mr. Herbert believes the damage should be comparable to the events such as the cold winter of 1958, World War II, and, more recently, the murder of foreign visitors. While it is certain the beachwalk has the potential for increasing pedestrian traffic along the beach in front of the Richmond, any damage suggested by Petitioner is too remote or speculative to be of significant consideration. The construction of the proposed beachwalk will have no adverse impact on the physical condition of Petitioner's property. The proposed project will not create a significant adverse impact to the property of others. Petitioner was not required to establish its dune cross-over was required for erosion control. All dune cross- overs allowed by the Department previous to the instant request were not required to establish that they were required for erosion prevention. All of the existing and proposed cross-overs are seaward of the ECL. No upland riparian rights will not be adversely affected by the project. Petitioner's rights as an adjacent property owner to the project will not be adversely affected by the beachwalk. Petitioner will not be adversely affected from storm impacts as a result of this project.
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 approving CCCL permit no. DA-361 with the conditions as set forth in the proposed agency action order and with additional assurances that construction of the project will not occur during turtle nesting season, and that all property owners over whose land the project will meander provide written approval of, and authorization for, the proposed improvements to their properties. DONE AND ENTERED this 8th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1999. COPIES FURNISHED: Neil Chonin, Esquire Chonin, Sher & Navarrete, P.A. 95 Merrick Way, Suite 100 Coral Gables, Florida 33134 Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431 Ricardo Muratti Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Earl G. Gallop, Esquire Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301 Miami, Florida 33133-4741 Raul J. Aguila, Assistant City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.
Findings Of Fact Background On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of 300 feet seaward of the CCCL. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions: The issuance of the permit placard shall be withheld pending staff receipt and approval of: Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that: The construction of any future rigid coastal protection structures on the property shall be prohibited. The deed covenants and restrictions shall be recorded in the public records of Dade County. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County. The Key Biscayne Council In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL. Key Biscayne and the surrounding topography Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/ Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete. The 30-year erosion projection Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit." The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line. However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code. Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded. Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach.. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional 10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/ While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first 18 months of existence. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/ Impact on the beach and dune system Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/ DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project. Adverse cumulative impact on the beach-dune system Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system. Impact on adjacent property Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties. Interference with public beach access One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property. Compliance with local zoning requirements In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application to construct and excavate seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
Findings Of Fact Petitioner, Florida Clearwater Beach Hotel, Inc., is the owner of Lots 1-5 and 49-52 at 490 North Gulfview Boulevard, Clearwater Beach, Florida. Lots 1-5 are located on the southwest corner of Baymont Street and Gulfview Boulevard and front directly on Clearwater Beach. They measure approximately one hundred feet in depth and one hundred forty-one feet at their widest point. Lots 49-52 lie immediately across the street from Lots 1-5 and are approximately one hundred feet south of Baymont Street. They form a square and measure one hundred feet on each side. Petitioner purchased the property in question in 1978. Prior to that time the two parcels of land enjoyed common ownership and a common development pattern for at least forty years. A twenty-two room facility presently sits on Lots 1-5 and is rented out as ten units. Lots 49-52 are used as a parking lot for the tenants and guests of the facility. The property is presently zoned CTF-28 (High Density Commercial Tourist Facilities), which provides for a complete range of motel/hotel developments. The major emphasis of the district is tourist oriented with a permitted maximum density of forty-two hotel or motel units per acre. Petitioner wishes to destroy the existing structure and replace it with a new rectangular-shaped facility containing approximately twenty-two motel or hotel units. Because of the need to comply with flood ordinances, it must be built on pilings or piers. The proposed new structure will consist of four living levels over grade level parking. Petitioner's property measures less than two hundred feet in depth; therefore, the maximum height of its proposed facility cannot exceed forty feet under existing zoning requirements. Other property owners whose lots exceed two hundred feet in depth may construct buildings not to exceed eighty feet in height. Under present plans, the proposed hotel will have a forty-four foot height, which will require a four-foot variance. Petitioner contends that the hotel cannot be built with smaller dimensions. It also contends that a vista or side setback on the northwest corner of the building is required since present plans call for a small portion of the building to project into the vista area. This is due to the north property line running at an angle to the south property line and the proposed building being rectangular in shape. This variance will be contingent upon the City vacating a right-of-way adjacent to Baymont Street, thereby giving Petitioner an additional twenty feet in which to build its new facility. The City opposes the application on the ground that all criteria necessary to grant a variance have not been met. It specifically points out that the problems encountered by Petitioner are not unique to Petitioner alone, but are hardships common to all area owners.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
Findings Of Fact Petitioner, JOHN C. GROSS, a citizen and resident of Edgewater, Florida, owns approximately 114 acres of submerged and semisubmerged land, which at times extends from 3 to 9 feet above the water and which lies in the near vicinity of Ponce de Leon Inlet, New Smyrna Beach. His property is located due southwest of the inlet and west of the Intracoastal Waterway. The Intervenor, FRANCES TURNER PRICE, is the owner of an oceanfront house and lot located at 2113 Ocean Drive, New Smyrna Beach, Florida, which is directly adjacent to and west of a portion of the proposed spoil disposal area referenced herein. The Ponce de Leon Inlet was first dredged by the COE in 1968, pursuant to a 1965 Act of Congress, and has been dredged periodically since that time. No dredging has taken place there since March, 1978. During the past several years, numerous complaints have been received by the COE from users of the waterway concerning the increased clogging of the inlet channel. These users include operators of relatively large boats, such as commercial fishermen and shrimpers, large yacht owners, and the United States Coast Guard, which maintains and operates a station in the area. Based on these complaints, Mr. Aston, COE Navigation Branch, caused an investigation to be made which revealed an extensive and worsening shoaling which, if not corrected, would further reduce the channel opening. This investigation included several hydrographic surveys using Fathometers (accomplished in November, 1952, and subsequently thereto). The channel, which runs basically east and west from the Intracoastal Waterway to the Atlantic Ocean, is currently navigable (but not safely) by larger draft vessels such as are described above. Because of the prevailing winds from the northeast, larger vessels come in from the northeast; have to come around the jetty, which juts into the ocean north of the channel; and then have to stay close to the jetty to avoid the heavy shoaling in the dredged channel originally in the center of the inlet. 1/ This is dangerous because sport fishermen are frequently anchored in the water just south of the jetty, in the way of the boats going in and out. This danger is compounded by the fact that boats going in and out cannot see each other, because of the jetty to the north and the land to the south, until they both are committed to the channel. Therefore, once in and committed, they are in danger of collision because of the narrowness of the passage and the need to avoid the small fishing boats anchored therein. As a result, the original channel, which provides safer passage, needs to be dredged again immediately to prevent more groundings and collisions with resultant loss of life and property damage such as the 50 which have already occurred there within the past 15 months. In the opinion of Mr. Aston, the situation in the Ponce de Leon Inlet, as it pertains to shoaling, is the worst he has seen in any federal channel in 19 years. It is for these reasons that during the 1982-83 time frame, the COE decided to seek permission to proceed with a dredging project. Initially, three different areas were considered for disposal of the 800,000 or so cubic yards of spoil which would result from the dredging. These were: off the beach north of the north jetty; just south of the weir to which the north jetty is attached; and the beach area approximately one mile south of the inlet. For various reasons, Options (a) and (b) were rejected, and Option (c) was the area then intended for the spoil disposal. The initial application, submitted on November 10, 1982, called for the spoil to be transported by pipe over easements down the beach to the disposal area, where it would then be dumped on the beach to fill in the area of beach eroded and eroding. However, because of public objection to that plan, the COE agreed with the local beach advisory board to move the spoil 1,000 feet offshore to an area approximately 800 feet by one mile long, adjacent to the beach approximately one mile south of the inlet. In any event, both the original application and the amendment thereto (to change the location of the spoil disposal area) called for only one procedure--not multiple dredgings and disposals. This proposed permit, which is objected to by Petitioner and Intervenor, indicated permission for more than one procedure. Intervenor protests this even if permission is to be given for the initial dredging. However, Dr. Collins, from DER, indicated that since a determination was made that the action would have no adverse impact on the environment, there was nothing wrong with giving permission for multiple dumpings. In fact, the Notice of Intent to Issue contains Provisions for monitoring the turbidity caused by the operation and also provides for DER modifications to the conditions or other provisions of the permit as necessary, and recognizes COE's assurances that the immediate and long-term effects of the project will not violate state water quality standards. The spoil, which consists almost exclusively of beach quality sand and which is highly valuable, will be laid down in a berm-shaped deposit the top of which will, at low tide, be no less than 6 feet below the surface of the water. In that configuration, it could not be seen from shore and would in no way impede navigation. The decision to dispose of the spoil in this fashion was made partially on the basis that it would tend to put sand back on the eroded beach in the area. Intervenor theorizes that the spoil (sand and water) will not form this neat berm, but will spread out when it comes out of the dredge pipe below the surface of the water. COE indicates that the contractor on this project will use some sort of a buffer to contain the spread upon discharge. It is anticipated that this project will have to be repeated again and again to keen the channel clear. Though the 800,000 cubic yards anticipated for removal on this occasion is great, so much has never been taken out here at one time before. This is because, as was stated previously, the last dredging was in March 1978, and COE estimated that dredging should take place every 16 months or so. If done on that schedule, succeeding dredgings will be of a far less significant amount. Petitioner, whose profession is as a real estate developer, but whose avocation is as a conservationist of marine life, contends he has been involved in environmental research and protection all his life (he is at least 70). He has, he states, developed several environmental concepts which have, he contends, never been disproved. They are not, however, enjoying widespread acceptance, either, though he contends the Rosenstiel School at the University of Miami has said his environmental concepts are sound. This well may be so; however, Mr. Gross neglected to produce any evidence as to what these concepts are or indications of their soundness. Though he admits to having no formal training in any of the sciences or in engineering, and his research consists of bathing and fishing in the area (he uses a device to gather bait which results in his picking up a part of the sea bottom) he has published. The Petitioner's publication introduced into evidence consists of the reward notice reproduced herein. $2,000 REWARD To make the public aware of hypocritical groups who mislead and misinform the public about environmental protection, I will donate $1,000 to the first organization, agency, student or individual who produces evidence to prove beyond reasonable doubt that excessive nutrients consisting of mangrove leaves and pods, algae, slime, scum, silt and bacteria, and decaying bodies of all types of insects and creatures emanating from mangrove swamp area DOES NOT cause destruction of shellfish and all forms of marine plant life when infused in excessive amounts into rivers and estuaries by extremely high tides and heavy rainstorms. $1,000 to the first organization, individual, or student who provides evidence to prove beyond reasonable doubt that recent high tides caused by full moon and heavy rains washing through mangrove swamps DID NOT cause most of the crabs, shrimp, and fish to be destroyed or leave this area when the river became polluted with all types of slime, scum, silt, sludge, and mangreve debris, and droppings of birds and animals and all types of decaying material from the mangrove swamps carried into the river by the tide. John C. Gross PO Box 596 New Smyrna Beach, Fl 32069 Though Petitioner was offered the opportunity by the Hearing Officer to submit additional publications when he indicated he had many and was reminded of this later in the hearing by the Hearing Officer, none were forthcoming. Petitioner professes to be very familiar with the area where the dredging and disposal are to take place, and no doubt he is. He contends the area is in a constant state of change, differing from month to month, and populated by a sea life consisting primarily of shellfish, shrimp, and fish. The beach in the area proposed for disposal, he contends, has already built out some 400 to 500 feet since the jetty was built and has naturally built up dunes which, in his opinion, are due to the COE dredging in the past. This beach buildup is a concern of the Intervenor, as well, who indicated that she can no longer see the ocean from her "oceanfront" house due to the large dunes that have built up between her house and the ocean during the years since the construction of the jetty. She is also fearful that the spoil dumped offshore of her property will come ashore there and add to the already expanded beach. Her concerns and those of her neighbors, including Mrs. Speer, who testified in support of Intervenor's position, include the blocked view already mentioned, the fact that the higher dunes are difficult for older people to climb, the fact that it is further to the water with the new sand, and the concern over who will own the new land built up seaward of the vegetation line. 2/ People are already building closer to the water than she did, blocking her lateral view; and all of this will have, she fears, a negative impact on the value of her property. It is without question that dunes have built up and beach area has accreted since the jetties were put in. This is explained by Dr. Dean as a relatively temporary situation resulting from the movement ashore of a preexisting tidal shoal, formerly located outside the entrance to the Ponce de Leon Inlet, which was destroyed by the interruption of the wave action when the jetty was built. The sand from this shoal came ashore at and around the Intervenor's property, as well as north and south of it, adding to the beach and building the dunes. This accretion has stopped, however, and even reversed, and a beach erosion has begun. In any case, according to Dr. Collins of DER, accretion is not usually a consideration in the decision-making process regarding a permit of this nature. Petitioner indicated his understanding that the spoil was to be deposited 3 feet deep over the bottom in the disposal area and believes this will destroy marine life. As will be seen later, competent expert testimony clearly disproves this one theory. He also does not believe anyone can predict where the spoil will settle, but wherever that is, in his opinion, it will have a devastating effect both on the marine life in the area and on the adjacent beaches. He questions the COE's representation that because of the literal drift's prevailing direction from north to south, the spoil will ultimately settle south of the spoil dumping area. Expert testimony, discussed in detail below, will indicate the correctness of the COE's representations. Petitioner further contends that insufficient surveys have been made of the area. In his opinion, the two or three borings that have been done (in actuality, there were more) are not sufficiently extensive since the area in question is too broad and the bottom is not uniform. Therefore, many more borings are needed, he urges, to accurately determine the makeup of the sea bottom. This bottom makeup has an effect on water quality. Sludge, slime, and silt adversely affect water quality. Clean sand is acceptable. However, Petitioner feels that the dredging proposed may, if the bottom where they dredge is of peer quality, be very bad for the bottom in the deposit area. In that regard, it has been shown that the tests done already indicate that the material to be dredged out of the channel is beach quality sand. Other evidence, in the form of samples of the bottom taken in the disposal area, show it is made up of sand with small shells. In neither location is there any evidence of silt, sludge, or slime. In fact, the expert testimony indicates clearly there would be no damage to water quality in either area. A more comprehensive discussion of this subject will be presented below. Petitioner also fears for the manatees and the sea turtles which sometimes come into the area. The expert testimony to be discussed further below readily shows these fears are groundless. It would appear that there may be some reason for Petitioner's interest in this project other than the stated environmental and ecological concerns stated above. By his own testimony, he revealed he had offered to buy this highly valuable 3/ spoil for $400,000. Mr. Aston, of COE, further testified that as late as one week prior to this hearing, Petitioner called him and indicated the matter could be disposed of quite easily if the COE would put the spoil on his property. The Notice of Intent to Issue and the permit to which it relates are not for a one-time dredge. The permit will be for 5 years, but it 15 subject to extension by letter for an additional 5 years. In the analysis of the application, the environmental concerns and the concerns of the public were not taken lightly. The DNR, by letters dated March 9 and June 28, 1983, expressed its lack of objection to the proposal and granted the authority required under Section 253.77, Florida Statutes. The contract is to begin in September, 1984, and be completed by April, 1985. These months were chosen because (a) they take advantage of the northeast winds prevailing then; and (b) there is no sea turtle nesting during this period. Consequently, there would be no risk of harm to the sea turtles. In addition, the risk of harm to the manatees is minimal. They, as a rule, do not frequent these waters, preferring the quiet backwaters of the rivers and bays to the fast moving waters of the channel or the ocean, and they are generally fast enough to avoid both the dredge and the dump. To be doubly safe, however, the contract calls for a "manatee watch" to be conducted and a log kept of all manatees sighted. Another area covered in the contract is water turbidity. Turbidity will be monitored and actions taken to maintain state water quality standards outside the mixing zone--that area inside of which the water temporarily does not meet state standards and outside of which it must. In this case, this zone would extend not more than 150 meters from each point of interest. COE's application contained reasonable assurances that the state's turbidity standards would not be exceeded more than 150 meters from both the dredge and spoil areas. Tests already run on anticipated turbidity show a rapid (4-minute) settlement out due to the fact that the substance being dredged is heavy sand, not light silt. Continuing with an analysis of the impacts of the project which cannot be avoided, on life in both the dredge and the fill areas, it is seen that: Some nonmobile animal life attached to the sea bottom (worms, etc.) in the spoil area which cannot escape being covered by the spoil will be killed. Some sea life sucked up by the dredge and moved will be killed even though they are dumped back into the water in the spill area. However, wherever some death occurs, it will be individuals, not entire populations, and the dump area will be quickly repopulated by sea life from the surrounding area in addition to the live population brought through the pipeline. Full repopulation can be expected within six months. In a more detailed discussion of the disposal site, it is clear that because of the wave action and the hard bottom, one would expect no grass beds, and there are none, nor are there any natural reefs. A survey of the bottom in the disposal area was done by utilizing loran to accurately locate 12 stations throughout the spoil disposal area with three samples to be taken at each site. At seven of the twelve stations, the scientists found the bottom hard and no sample was produced. At only one of the stations, Station 6, some samples were gathered, and what was acquired was very similar to the surf area near the shore. Dr. Atmar admits that the dumping will create some damage to the bottom life and repeated dumping may have a cumulative effect. However, since, as was stated above, complete repopulation can be expected within six months, the damage caused by dredging and dumping every 16 months, even of large amounts of spoil, will be, in his words, "inconceivably insignificant," and that which does occur will be short-lived. Turning then to the question of the impact of the spoil disposal on the beach property adjacent to the disposal area, Dr. Dean explained the prospective results, as well. In conjunction with other experts in sediment transport and based on at least 20 years of accumulated documentation, he developed a model which, when applied to a given situation with variables, can generally permit accurate predictions of what will happen. Applying this model to the dredging area, it is seen that the primary factor which leads to sediment transport here is the wave action which primarily comes from the northeast. This will transport sediment from the north to the south. When the present channel was dug, it interrupted the normal cycle, which, in an attempt to return to the natural flow, fills up the channel. This necessitates new dredging. Applying the model to the disposal area, again the waves play an important part. Based on all available pertinent information, the spoil deposited would generally transport to the south with a very minor amount, + 5 percent going west and another + 5 percent going north. Both the westward and the northward movement would be very slow. The remaining 90 percent of the spoil would move to the south and would reach the shore a mile or two south of the southern boundary of the proposed disposal area. Of this 90 percent, 50 percent would reach the beach within three to four years--the remainder would take longer. The amount of deposited spoil that would go due west to the adjacent beach would be less than would accrete during the normal seasonal accretien. What is more, the proposed disposal activity would have an imperceptible effect on the elevation of the dunes which already exist. The difference between Dr. Dean's estimate of 10 Percent drift to the north and west and COE's estimate of 20 percent sand drift in those two directions is not significant. Both are estimates, and not specifics. As was stated previously, the spoil in question here is a highly valuable beach quality sand with no evidence of muck, slime or silt. If it were to be deposited further out to sea than is proposed here, where the wave action could not get to it, it would be lost to the littoral transport action and would never come to the beach. This would result in the loss of a high quality resource to the beach in an area to the south where the beach is in need of replenishment, and further beach erosion to the south where the existing dunes are eroding due to the effect of the building of the previously mentioned jetty and because of the worldwide rise in the sea level. Admitting he was hired to testify by the COE after the decision was made as to where to deposit the spoil, Dr. Dean contends that had he been asked where to put it before the decision was made, he would have recommended a site closer to shore, but at the same latitude.
