The Issue Whether Save the Manatee Club has standing in this proceeding? Whether the exemptions in paragraphs (3), (5) and (6) of Rule 40D-4.051, Florida Administrative Code, (the Exemptions) are "invalid exercises of delegated legislative authority" as defined in paragraphs (b) and (c) of Section 120.52(8), Florida Statutes? Whether the Exemptions violate the prohibitions and restrictions on agency rulemaking contained in the last four sentences of Section 120.52(8), Florida Statutes?
Findings Of Fact The parties Petitioner, Save the Manatee Club, Inc., is a not-for- profit corporation dedicated to protecting the manatee. Respondent, The Southwest Florida Water Management District, is one of five water management districts in the State of Florida. A public corporation created pursuant to Chapter 61- 691, Laws of Florida, the District's geographic boundaries encompass a number of counties or some part of them including the three counties on the shores of Tampa Bay: Hillsborough, Pinellas and Manatee. See Section 373.069(2)(d), Florida Statutes. Within this boundary, the District is generally charged with the protection of water resources and with the management and storage of surface waters of the State pursuant to Part IV, Section 373.403 et seq., Florida Statutes. Intervenor, South Shores Properties Partners, Ltd., is a limited partnership composed of a subsidiary of Tampa Electric Company (TECO) and another business organization, Shimberg Cross Company, referred to by its President Glen Cross as "actually SCSS" (Tr. 133), apparently an acronym for Shimberg Cross Company. Mr. Cross' company is the general partner in the South Shores partnership. South Shores was formed in anticipation of closing on a contract entered by Shimberg Cross to purchase a parcel of real estate in Hillsborough County. The closing proceeded in January of 1998. On January 23, 1998, eight days or so before the closing, South Shores was formed as "a limited partnership organized under the laws of the State of Florida." (Petitioner's Exhibit no. 15). It succeeded to the contract rights of Shimberg Cross and then, pursuant to the closing, became the owner of the real estate subject to the contract. South Shores hopes to sell the property to Atlantic Gulf Communities, an organization that will actually develop it. If the arrangement with Atlantic Gulf Communities is not consummated, South Shores will look for another developer or develop the property itself. No matter what party (if any) is the actual developer, South Shores, as the present owner, now seeks the benefit of the Exemptions in support of a District- issued conceptual permit for development of the parcel in Hillsborough County (the Parcel). The Parcel and Its Proposed Development The Parcel is 720 acres in southwestern Hillsborough County. South Shores proposes to use it for a multi-phase, mixed-use project. The development project is denominated "Apollo Beach aka (sic) Bay Side" (Petitioner's Exhibit 13) on the draft of the conceptual permit attached to the District's Notice of Proposed Agency Action. Atlantic Gulf Communities calls it "Harbor Bay". (Petitioner's Exhibits 3 and 4). (It will be referred to in this order as Apollo Beach/Bay Side). If all goes as planned by South Shores, the Parcel's developer (whether South Shores, Atlantic Gulf Communities, or some other party) will be able to provide the residential portion of Apollo Beach/Bay Side with direct access by boat to Tampa Bay through an existing canal system on the Parcel. For now access to the bay is blocked by an earthen berm or "plug." With the plug in place, boat access to the bay from the canals can only be achieved by means of a boat lift. A lagoon is also part of South Shores' development plans for Apollo Beach/Bayside. Not yet excavated, the lagoon will allow residents to harbor boats close to their residences. If the lagoon is dug, a boat lift (different from the one necessary to allow boats to cross the plug if left in place) will be constructed to give the boats access to the canal system. With access to the canal system established, once the plug is removed, the boats will have unrestricted access to Tampa Bay. In the "Abstract" section of the conceptual permit proposed for issuance by the District, the project was described as follows: Apollo Beach (a.k.a. Bay Side) is a proposed multi-phase, mixed use development on approximately 720.0 acres in . . . Southwestern Hillsborough County. The project will include single-family and multi- family residential areas and commercial sites. The property is in close proximity to Tampa Bay, West of U.S. Highway 41 and immediately south of the existing Apollo Beach development. The site is presently undeveloped but does contain an existing manmade canal system that is tidally connected to Tampa Bay. The Applicant has demonstrated that the proposed project has an Environmental Resource Permit exemption pursuant to Chapters 40D-4.051(3)(5) and (6), F.A.C. and will only require Standard General Permits for Minor Surface Water Management Systems for the future construction in accordance with Chapter 40D-4.041(4), F.A.C. Because of this exemption, this Conceptual Permit will only review the storm water quality aspects of the project in accordance with 40D-301(2) and will not address storm water quantity issues or impacts to wetland/fish and wildlife habitats. The project will include the realignment of existing Leisley Road and the construction of a roadway system to serve the proposed residential and commercial areas. The project will also include the excavation of a "fresh water Lagoon" approximately 136 acres in size. Most of the proposed single-family residential lots will be constructed on the "Lagoon" or existing canal system. Surface water runoff from the upland portions of the project will be treated in 25 proposed ponds or isolated wetlands prior to discharge to the "Lagoon" or existing canal system. (Petitioner's Exhibit no. 13.) The ultimate effects to manatees of the proposed development project, if completed, were described by Ms. Thompson, the Club's witness: A typical project such as this one will introduce a good number of powerboats into the system, in this case, Tampa Bay. And manatees are impacted by powerboats either through propeller injuries or through collision with the hull of a fast-moving boat and the results are either death or in some cases sublethal injuries that may have other consequences such as inability to reproduce, et cetera. . . . [T]he very same boats can affect manatee habitat by prop scarring, boats going over sea grass beds and destroying the grasses. They also, in shallow water, kick up . . . turbidity which can affect light attenuation reaching the sea grass beds. And then there are the water quality issues which have secondary impacts to the sea grass beds . . . (Tr. 96). The Exemptions preliminarily afforded South Shore by the District will allow the removal of the plug in the canal system. Because removal of the plug will facilitate access to Tampa Bay by power boats harbored in the lagoon, it is the issue about the development of the Parcel that most concerns the Club in its efforts to protect manatees in Tampa Bay and elsewhere. Standing of Save the Manatee Club (i). The Manatee The manatee is the "Florida State marine mammal." Section 370.12(2)(b), Florida Statutes. Designated an endangered species under both federal and state law, 50 CFR s. 17.11 and Rule 39-27.003, Florida Administrative Code, the manatee is protected by the federal Endangered Species Act and by the federal Marine Mammal Protection Act. In Florida, the manatee enjoys, too, the protection of the Florida Endangered Species Act and the Florida Manatee Sanctuary Act. The State of Florida has been declared to be "a refuge and sanctuary for the manatee." Id. The Club's Purpose and Activities The Club's primary purpose is to protect the manatee and its habitat through public awareness, research support and advocacy. Long active in efforts to protect the manatee, the Club has achieved special status in manatee protection in Florida. In 1996, it was the recipient of a resolution by the Florida Legislature's House of Representative recognizing its endeavors on behalf of the manatee. The Club has been designated a member of the Manatee Technical Advisory Council provided by the Florida Manatee Sanctuary Act. See sub-sections (2)(p) and (4)(a) of section 370.12(2)(p) and (4)(a), Florida Statutes. The Department of Environmental Protection annually solicits recommendations from the Club regarding the use of Save the Manatee Trust Fund monies. In furtherance of its efforts, the Club has frequently participated before the Division of Administrative Hearings in administrative litigation involving manatees and manatee habitat on behalf of itself and its members. (iii). The Club's Membership The Club has approximately 40,000 members. The number of individual persons who are members of the Club, however, is far in excess of this number because many members are groups that receive membership at discounted fees. For example, a family may be one member or, as is quite common, an entire elementary school classroom may be one member. One-quarter of the Club's membership resides in Florida. Approximately 2,200 of the members are on the west coast of Florida with 439 in Hillsborough County, 584 in Pinellas and 165 in Manatee. The total number of members is therefore about 1,188 in the three counties whose shores are washed by Tampa Bay. (iv). Tampa Bay Tampa Bay is "prime essential manatee habitat." (Tr. 65). At least two factors make this so: the Bay's sea grass beds (manatee feeding areas) and warm water sources, particularly in winter, three of which are "power plant effluence." (Tr. 77). Not surprisingly, therefore, the Club has funded long- term research on the manatee in Tampa Bay. It has "provided about ten years of financial support for aerial surveys to count manatees in Tampa Bay and determine their distribution and the health of the sea grass beds . . ." (Tr. 75), a research project which finished last year. This research has contributed to other manatee research in the Bay leading the Club's witness at hearing to conclude, "[t]here's no other place in the state of Florida that has as long a term, as comprehensive a [manatee] database as Tampa Bay." (Tr. 76). Other activities in Tampa Bay conducted by the Club include the placement of manatee awareness signs. And the Club's staff biologist sits on the Tampa Bay Manatee Awareness Coalition established by the Tampa Bay National Estuary Program. In sum, the quality of manatee habitat in Tampa Bay is enough to make it especially important to the Club. But, its importance to the Club takes on added significance because it is the site of one of only three adoption programs the Club sponsors in Florida. The Tampa Bay Adoption Program The Tampa Bay Adopt-a-Manatee Program was established in April of 1999. The six manatees subject to the Tampa Bay Manatee Adoption Program (as of October 7, 1999) have been adopted by 1,229 members, 284 of which have been schools. (Petitioner's Exhibit 9). Those adopting receive a photo of the manatee, a biography, a scar pattern sheet, and a map showing their manatees' favorite habitat areas along the west coast of Florida. Of the six "Tampa Bay Adoption" program manatees, five have been seen in Tampa Bay and one south of Tampa Bay in the Marco Island area. Of the five seen in the bay, four "winter at the warm water discharge area of Tampa Electric Company's power plant" (Petitioner's Exhibit No. 5, Tr. 67) where they can be observed by members of the Club and the Tampa Bay adoption program as well as by the public. The TECO Power Plant The TECO power plant area is the major warm water refuge for manatees known to frequent Tampa Bay, particularly during the winter. The waters near the plant have been observed to be the host of more than 100 manatees at one time, following the movement of cold fronts through the area. The plant has a manatee-viewing center, one of the two principal places in the state for viewing manatees in the wild. The Club's membership handbook gives detailed information about how to see manatees at the TECO viewing center. During the winter months, the Club frequently directs its members to the TECO viewing center. Precisely how many individuals, either as members of the Club through a group membership or as members, themselves, actually have viewed manatees at the TECO viewing center or elsewhere in Tampa Bay was not established. Nor was any competent estimate made of how many might visit the TECO viewing center in the future. The viewing center and the power plant are in the vicinity of Apollo Beach/Bay Side, the development project South Shores seeks to have approved for an Environmental Resource Permit (the ERP). The SWFWMD ERP Program Chapter 373, Florida Statutes, governs water resources in the state and sets out the powers and duties of the water management districts, including their permitting powers. Part IV of the chapter covers the management and storage of surface waters. According to SWFWMD rules, "'Environmental Resource Permit' means a conceptual, individual, or general permit for a surface water management system issued pursuant to Part IV, Chapter 373, Florida Statutes." Rule 40D-4.021, Florida Administrative Code. The permit issued to South Shores in this case through the application of the challenged Exemptions, is a conceptual Environmental Resource Permit. See Petitioner's Exhibit no. 13 and Rule 40D-4.021(2), Florida Administrative Code. The conceptual permit preliminarily issued South Shores is one that was reviewed by the Club's staff, just as it reviews many permit applications for potential effects to manatees. Because of use of the Exemptions as proposed by the District to South Shores, however, any review the Club conducted to assure that the permit met all general permitting criteria was of no use. Much of those criteria were not applied by the District to the application. If the Exemptions were not available to South Shores, the District would have to employ ERP permitting criteria to the surface water management activities associated with the development project, including removal of the plug, lagoon construction, and boat lift installation. The Exemptions, therefore, keep the Club from participating in what otherwise would be the process for the District's administrative decision on the application of those criteria. In sum, the Exemptions preempt the Club's participation in the state mechanism provided by ERP permitting criteria for assessing, inter alia, threats to the manatee and its habitat from harms associated with the proposed development project. The District recognized this effect of the permit in the draft of the permit. The draft states: "Because of this Exemption, this Conceptual Permit will . . . not address . . . impacts to . . . wildlife habitat." (Petitioner's Exhibit no. 13). The Exemptions, therefore, prevent the Club from carrying out functions useful to protection of manatee habitat, that is, participation in the District's application of wildlife habitat protection criteria. The non-application by the District of permit criteria related to wildlife habitat protection and the Club's inability to assure itself that the criteria are correctly applied poses the danger that manatee habitat will be lost, diminished or damaged. If the Club is ultimately proved right in its assertion that the manatee and its habitat will be damaged by the South Shores development without application of permitting criteria related to wildlife habitat, then the approved application increases the threat that Club members will encounter greater difficulty in observing, studying and enjoying manatees in the wild and in Tampa Bay in particular. Standing of South Shores to Intervene The District has no opposition to South Shores' intervention. As for the Club's position with regard to South Shores intervention, the Club stipulated to South Shores' standing to intervene in a notice filed with its proposed order. South Shores benefits, moreover, from the application of the Exemptions to its proposed project. In light of not having to show compliance with permitting criteria otherwise applicable, South Shores will escape some permitting costs and therefore, enjoys economic benefit. Furthermore, by allowing South Shores to avoid the requirements of compliance with ERP permitting criteria, the Exemptions facilitate fulfillment of the obligation of South Shores to obtain a permit to develop. The District's Rule-making Authority The District governing board has been granted general authority by the Legislature to adopt rules to implement the provisions of Chapter 373, Florida Statutes, the Florida Water Resources Act of 1972: The governing board of the district is authorized to adopt rules . . . to implement the provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. The Legislature has framed this authority in relationship to the District's power to administer the Chapter and its Part IV: In administering the provisions of this chapter the governing board has authority to adopt rules . . . to implement provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. In another provision in Chapter 373, the district has been given rule-making authority that exceeds the authority to implement specific provisions granted typically to most administrative agencies in Florida. This authority is broad indeed. Tied to water use in general, it is bound only by unspecified conditions as warranted: . . . governing boards, . . . may: Adopt rules . . . affecting the use of water, as conditions warrant, . . . Section 373.171, Florida Statutes. The Exemptions; Specific Authority and Laws Implemented The Exemptions are as follows: 40D-4.051 Exemptions. The following activities are exempt from [ERP] permitting under this chapter: * * * (3) Any project, work or activity which has received all governmental approvals necessary to begin construction and is under construction prior to October 1, 1984. *(4) Any project, work or activity which received a surface water management permit from the District prior to October 1, 1984. * * * Any phased or long term buildout project, including a development of regional impact, planned unit development, development with a master plan or master site plan, or similar project, which has received local or regional approval prior to October 1, 1984, if: The approval process requires a specific site plan and provides for a master drainage plan approved prior to the issuance of a building permit, and The Developer has notified the District of its intention to rely upon this exemption prior to April 1, 1985. Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984. As specific authority, the Rule containing the Exemptions references 373.044, 373.113, 373.149, 373.171, and 373.414(9), Florida Statutes. For "Law Implemented", the Rule lists Sections 373.406, 373.413 and 373.414(9), Florida Statutes. Section 373.414(9) is cited by the Rule both as specific authority and as one of the laws implemented. The first of the statutory provisions cited by the Rule as a law implemented is Section 373.406, Florida Statutes. It reads: 373.406 Exemptions.- The following exemptions shall apply: Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any natural person to capture, discharge, and use water for purposes permitted by law. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to be applicable to construction, operation, or maintenance of any agricultural closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such agricultural closed system. This subsection shall not be construed to eliminate the necessity to meet generally accepted engineering practices for construction, operation, and maintenance of dams, dikes, or levees. All rights and restrictions set forth in this section shall be enforced by the governing board or the Department of Environmental Protection or its successor agency, and nothing contained herein shall be construed to establish a basis for a cause of action for private litigants. The department or the governing board may by rule establish general permits for stormwater management systems which have, either singularly or cumulatively, minimal environmental impact. The department or the governing board also may establish by rule exemptions or general permits that implement interagency agreements entered into pursuant to s. 373.046, s. 378.202, s. 378.205, or s. 378.402. Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district and the department are authorized to determine, on a case-by- case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the district or department confirming that the activity qualifies for the exemption. Nothing in this part, or in any rule or order adopted under this part, may be construed to require a permit for mining activities for which an operator receives a life-of-the-mine permit under s. 378.901. Certified aquaculture activities which apply appropriate best management practices adopted pursuant to s. 597.004 are exempt from this part. For the most part, this section sets out general classes of exemptions. And it allows the District to consider whether an activity comes within an exemption on a "case-by-case" basis. See Section 373.406(6), Florida Statutes. But, none of these "exemptions" appear to have anything to do with the grandfather protections provided by the Exemptions at issue in this proceeding. See paragraphs 93-96, below. Section 373.413, Florida Statutes, in pertinent part, reads: (1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district wherein permits may be required. Other than to make reference in subsection (1)to the existence of exemptions under Part IV of Chapter 373: "Except for the exemptions set forth herein . . .", Section 373.413 does not deal at all with exemptions. Certainly, it does not make reference with any specificity to the subject matter of the Exemptions at issue in this proceeding. Cited both as "specific authority" and "law implemented" is paragraph (9) of Section 373.414, Florida Statutes. Unlike Sections 373.406 and 373.413, it has a connection to the Exemptions at issue in this proceeding as is seen from perusal of the underscored language, below: (9) The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate the provision of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics. Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(29) and may include the special criteria adopted pursuant to s. 403.061(35). Such rules shall include a provision requiring that a notice of intent to deny or a permit denial based upon this section shall contain an explanation of the reasons for such denial and an explanation, in general terms, of what changes, if any, are necessary to address such reasons for denial. Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively . . . (emphasis supplied.) History of the Exemptions The Exemptions have been adopted twice and amended several times. One of the amendments and the second adoption followed omnibus legislation in the environmental permitting arena: the amendment in the wake of the passage of the Warren S. Henderson Wetlands Protection Act of 1984, and the second adoption in the aftermath of the Florida Environmental Reorganization Act of 1993. (i). Amendment after the Henderson Act The Warren S. Henderson Wetlands Protection Act of 1984, (the "Henderson Act", later codified as Part VII of Chapter 403, Florida Statutes) was enacted through Chapter 84-79, Laws of Florida. Approved by the Governor on June 1, 1984 and filed in the Office of the Secretary of State on the same day, (see Laws of Florida, 1984, General Acts, Vol.1, Part One, p. 224) the Act had an effective date of October 1, 1984. The Henderson Act does not amend any provision in Part IV of Chapter 373, Florida Statutes, the part of the Water Resources Act which delineates water management district authority over the program for permitting related to the management and storage of surface waters ("MSSW"). Nonetheless, between the adoption of the Henderson Act and its effective date, the District amended and adopted rules in Chapters 40D-4 and 40D-40 of the Florida Administrative Code because of the Act's passage. Rule 40D-4.011 set out the policy for the amendments and adoptions: (2) The rules in this chapter implement the comprehensive surface water management permit system contemplated in part IV of Chapter 373, Florida Statutes. As a result of the passage of Chapter 84-79, Laws of Florida, the Warren G. Henderson Wetlands Protection Act of 1984, the District has adopted the rules in this Chapter and Chapter 40D-40 to ensure continued protection of the water resources of the District including wetlands and other natural resources. (Exhibit OR 4, See the page containing paragraph (2) of Rule 40D- 4.011 in the exhibit.) /1 Exhibit OR 4, a document officially recognized during this proceeding, is denominated "SWFWMD's Rule Amendment No. 116." The exhibit contains a letter on SWFWMD letterhead, signed by Dianne M. Lee for "J. Edward Curren, Attorney - Regulation" dated September 5, 1984. Under cover of the letter is a rule package filed by the District with the Secretary of State on September 11, 1984. Included in the package is the newly amended Rule 40D-4.051. The amended 40D-4.051 contains subparagraphs (3), (5) and (6), the Exemptions challenged in this proceeding. They are worded precisely as they remain worded today. Consistent with the policy expressed in Rule 40D-4.011, Florida Administrative Code as filed in September of 1984, the effective date of the amendment to the Rule containing the Exemptions was the effective date of the Henderson Act: October 1, 1984. The Exemptions contained in the amendment filed in September of 1984 are "grandfather provisions." The first two are designed to protect certain projects, work or activities from the requirements of the Henderson Act if they had governmental approvals on October 1, 1984. The third is designed to protect from the Act "phased or long term buildout project[s]" that meet certain requirements, among them receipt of governmental approvals by October 1, 1984. At the time of the 1984 amendments, the Rule cited to Sections 373.044, 373.113, 373.149 and 373.171 for "Specific Authority," that is, the statutory source for the district's authority to make rules. For "Law Implemented" the Rule cited to Section 373.406, Florida Statutes. At that time, Section 373.406 contained only four subsections. These four are worded substantially the same as the first four subsections of the section today. Although Section 373.406 was the only law implemented by the Rule in 1984, the section is neither mentioned in nor part of the Henderson Act. The section, itself, does not make mention of the Henderson Act or of protection from it based on government approvals obtained by October 1, 1984. Section 373.406, Florida Statutes, in its form both immediately before and after the Henderson Act provided exemptions that appear to have nothing to do with the Exemptions challenged in this proceeding. The only connection between Section 373.406, Florida Statutes, in 1984 and the Exemptions at issue in this proceeding when amended into the Rule in 1984 appears to be the use of the term "exemptions." The exemptions set out in the Section 373.406, Florida Statutes, as it existed in 1984, are not related to grandfather protection from the effects the Henderson Act had on the District's permitting considerations. Following the amendment to the Rule containing the Exemptions, the Rule was amended further. It was amended on October 1, 1986, March 1, 1988, and January 24, 1990. None of these amendments appear to have affected the Exemptions under consideration in this proceeding. The Rule became the subject of rule promulgation by the District again, however, as a result of a second omnibus act of the Legislature in the environmental permitting arena, the Florida Environmental Reorganization Act of 1993. (ii). The Reorganization Act of 1993 Nine years after the passage of the Henderson Act, the Legislature enacted the Florida Environmental Reorganization Act of 1993 (the "Reorganization Act"). Passed as Chapter 93-213, Laws of Florida, the Session Law declares its underlying policy: Declaration of Policy.-- The protection, preservation, and restoration of air, water, and other natural resources of this state are vital to the social and economic well-being and the quality of life of the citizens of this state and visitors to this state. It is the policy of the Legislature: To develop a consistent state policy for the protection and management of the environment and natural resources. To provide efficient governmental services to the public. To protect the functions of entire ecological systems through enhanced co- ordination of public land acquisition, regulatory, and planning programs. To maintain and enhance the powers, duties, and responsibilities of the environmental agencies of the state in the most efficient and effective manner. To streamline governmental services, providing for delivery of such services to the public in a timely, cost-efficient manner. Section 2., Ch. 93-213, Laws of Florida. The Reorganization Act carried out this policy in a number of ways. Among these, it merged the Departments of Environmental Regulation (DER) and Natural Resources into the Department of Environmental Protection. In so doing and at the same time, it incorporated DER's dredge and fill permitting program instituted by the Henderson Act into the programs of the water management districts for the Management and Storage of Surface Waters (MSSW). The permitting program that resulted from the consolidation of DER's dredge and fill permitting program with the District's MSSW permitting program is what has been referred to in this order as the Environmental Resource Permitting or ERP program. With regard to rules under the new ERP program, the Reorganization Act amended Section 373.414, Florida Statutes. Two sentences in subsection (9) of the amended section bear repeating: The department and the governing boards [of the water management districts], on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. * * * Such rules may establish exemptions . . . if such exemptions . . . do not allow significant adverse impacts to occur individually or cumulatively. . . . As discussed earlier in this order, the Henderson Act did not directly create exemptions in the District's MSSW permitting program. Nonetheless, the District through the Exemptions of Rule 40D-4.051, Florida Administrative Code, provided "grandfather" protections in the wake of the Act effective October 1, 1984. Whereas grandfather concerns were raised in front of the District after the Henderson Act, grandfather concerns and concerns about other situation that should be entitled to exemptions were raised to the Legislature during the advent of the Reorganization Act. These concerns were addressed in the Florida Environmental Reorganization Act, itself. The Act provided specific exemptions that were self- executing. Included were ones providing grandfather protection for certain activities approved under Chapter 403, Florida Statutes, (DER's dredge and fill program) from imposition of new ERP permitting criteria expected to be promulgated in the wake of the Reorganization Act. The are contained in subsections (11) through (16) of Section 373.414, Florida Statutes. None of these exemptions make reference to the Exemptions at issue in this case. Of these provisions, only one addresses activities subject to rules adopted pursuant to Part IV of Chapter 373 prior to the anticipated ERP permitting criteria: An application under this part for dredging and filling or other activity, which is submitted and complete prior to the effective date of [the anticipated ERP rules] shall be reviewed under the rules adopted pursuant to this part [including the Exemptions in Rule 40D-4.051] and part VIII of chapter 403 in existence prior to the effective date of the [anticipated ERP rules] and shall be acted upon by the agency which received the application, unless the applicant elects to have such activities reviewed under the [anticipated ERP rules]. Chapter 93-213, Section 30, p. 2149 of Laws of Florida, 1993, General Acts, Vol. 1, Part Two, now Section 373.414(14), Florida Statutes. 2/ Rule Activity in 1995 In observance of the mandate in the first section of Section 373.414(9), Florida Statutes, the District undertook adoption of rules "to incorporate the provisions of [Section 373.414] . . . into the rules governing the management and storage of surface waters." These rules were the ERP rules anticipated by the Reorganization Act. They included the rules necessary for the District to administer under its ERP program its newfound authority over much of the dredge and fill permitting program formerly administered by DER and now consolidated with its permitting authority in its MSSW rules. Among the rules passed under the authority of the Reorganization Act's Section 373.414(9) is Rule 40D-4.051, the Rule containing the Exemptions subject to this proceeding. Filed with the Secretary of State on September 13, 1995, the adoption package for the new readopted states the following, in pertinent part: 40D-4.051 Exemptions The following activities are exempt from permitting under this chapter [Individual ERPs]: (1) - (7) - No change. (Exhibit OR 6, p. 14). The result of this adoption is that the Exemptions became part of the District's ERP Rules. They now apply to both the MSSW authority under Part IV, Chapter 373, Florida Statutes, which existed prior to the Reorganization Act, and, in a consolidated fashion, the District's authority conferred by the Reorganization Act to regulate certain dredge and fill activity formerly regulated by DER.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found: Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures. Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing." Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.
Recommendation Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters. Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 24th day of February, 1981. COPIES FURNISHED: Joseph W. Landers, Jr. Ausley, McMullen, McGehee, Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302 Charles G. Batsel Wotitzky, Wotitzky, Johnson, Mandell and Batsel 201 W. Marion Drive Punta Gorda, Florida 33950 Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976 Tallahassee, Florida 32302 Lester E. Durst Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635 Punta Gorda, Florida 33950 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue for determination in this proceeding is whether Respondent should issue a permit for coastal armoring to protect Petitioners' homes.
Findings Of Fact The Parties Petitioners are "property and/or riparian owner[s]" within the meaning of Section 161.053(5)(a). Petitioners own two single family residences situated on contiguous sites on highway A1A in Orchid Island, Indian River County, Florida. Each site fronts the Atlantic Ocean and extends landward from the mean high water line. Petitioners' homes are major habitable structures within the meaning of Florida Administrative Code Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). 2/ Each home is a two story residence that includes a garage, swimming pool, and patio. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). 3/ Petitioners' application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other agency requirements. Respondent determined that the application was complete on or before August 14, 1990. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws Of Florida, Chapter 93-21. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members. Background Petitioners began construction of their homes prior to March 4, 1987. At the time construction began, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioners' homes. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioners' homes. By that time, construction had progressed sufficiently, and both houses were grandfathered by applicable regulatory restrictions. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). The foundations are not designed to resist the predicted forces associated with a one-hundred-year storm event, do not elevate the support structures of the homes above the breaking wave crests or wave uprush projected for such a storm, and do not meet other applicable design criteria. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in Indian River County including that portion in front of Petitioners' homes. The dune fronting Petitioners' homes was severely undercut by wave action from the storm. The dune in front of Petitioners' property suffered 10 feet of bluff line recession. On Saturday, March 11, 1989, Petitioner, Machata, telephoned Respondent at its Tallahassee office for authority to protect his home from the forces of the storm. Mr. Machata was referred to the Division of Emergency Management. Mr. Machata telephoned the Division of Emergency Management at 10:30 a.m. on March 11, 1989, and spoke with Mr. Bill Whiney. Mr. Whiney advised Mr. Machata that the Division was aware of the storm and had delegated emergency management to Mr. Douglas Wright, Director of Emergency Management, Indian River County. Mr. Wright conducted a site inspection within an hour of Mr. Machata's telephone call. The dune was being undercut, and waves were striking near the top of the dune. Mr. Wright did not get near the bluff line for fear that the dune would collapse. Mr. Wright authorized the temporary placement of large quarry rocks on the seaward side of the dune. The rocks were placed at the toe of the dune on Saturday and Sunday, March 11 and 12, 1989. Mr. Wright instructed Petitioners to contact Respondent on Monday, March 13, 1989, for a permit to construct a permanent rock revetment or other bulkhead. On Wednesday March 15, 1989, an inspector for Respondent confirmed that construction of a rock revetment had begun without benefit of a permit from Respondent. Respondent advised Mr. Machata to stop construction of the rock revetment pending application for, and approval of, a coastal armoring permit. Mr. Machata immediately ceased further construction. At that point, a rock revetment 110 feet long had been placed along the toe of the dune in front of Mr. Machata's house. On July 19, 1989, Petitioners filed an application for a permit to complete construction of the rock revetment. Following several meetings and correspondence between Petitioners and Respondent, Respondent determined that the proposed revetment failed to comply with applicable requirements. At the behest of Respondent, Petitioners agreed to apply for a permit to construct and maintain the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead, in place of the rock revetment, if Petitioners demonstrated their homes are vulnerable to a 10 to 15 year return interval storm event (a "RISE"). The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater storm force. 6/ On April 17, 1990, Petitioners submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line and vegetation line and 23 feet seaward of Petitioners' existing patios. All work on the bulkhead is to take place landward of the steel wall. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval of 25 years. The design, engineering, and construction required to protect Petitioners' homes reflects the storm force associated with a high frequency storm. The steel wall will be constructed with 300 to 400 individual sheets of corrugated steel placed in the shore parallel direction. Each sheet is 25 feet long, 18-24 inches wide, 3/8 inches thick, and weighs approximately 1000 pounds. The sheet piles will be stockpiled on site and transported to the dune by a crane equipped with a vibratory hammer. The first sheet pile will be placed at one end of the proposed bulkhead and partially driven into the sand with the vibratory hammer. The next sheet pile will be threaded and interlocked with the first through the coupling joints and partially driven into the sand. After 50 feet of the proposed wall is put in place, the piles in that 50 foot section will be driven to their design depth. The remaining portion of the wall will be completed in 50 foot segments using the same procedure. Once the sheet piles are in place, 20 foot long steel tie rods will be placed through and connected to the piles near their top. The tie rods will be on the landward side of the piles arranged perpendicular to them. The tie rods will be spaced 15 feet apart, on center, along the entire length of the sheet pile wall. The tie rods will be encased in poured concrete. The other end of the tie rods will be secured to a concrete anchor buried in the soil (a continuous "deadman"). The deadman will run parallel to the sheet pile wall approximately 20 feet landward of the wall. The deadman is constructed with concrete formed and poured in place with reinforcing steel. The steel pile wall is connected to the deadman with tie rods to increase the stability of the sheet pile wall and to achieve the designed level of protection. Forty foot return walls at each end of the bulkhead will run landward of Petitioners' lot lines. The return walls ensure the stability of the bulkhead during storm attack by preventing erosion of sand landward of the bulkhead. A concrete cap will be poured in place on top of the sheet pile wall. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. This form of armoring was proposed, in place of a rock revetment, at Respondent's request. It is uncontroverted that the design and construction of the proposed bulkhead meets all applicable engineering and structural design criteria. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioners' property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent's Division of Beaches and Shores recommended approval of Petitioners' application subject to stated conditions. On August 14, 1990, an agenda item recommending approval of Petitioners' application was considered by the Governor and Cabinet. The agenda item represented that Petitioners' homes are vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioners' application without explication. Immediately following the denial of Petitioners' application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioners', were expressly exempt from the new policy. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioners' homes are located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. 7/ Since Petitioners' application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No other applications were complete on or before August 14, 1990. A Final Order denying Petitioners' application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioners timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1). Agency Requirements Respondent consistently applies a multi-tiered test to assess applications for coastal armoring permits. The first tier consists of two parts. First, armoring must be proposed for a major habitable structure within the meaning of Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). Second, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rule 16B-33.005(1), and must show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed armoring. If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protecting a major habitable structure. 8/ It is uncontroverted that Petitioners' homes are major habitable structures. Therefore, the issues for determination in this proceeding are whether Petitioners' have "clearly justified" the "necessity" for protecting their homes, whether the direct and cumulative impacts clearly justify the armoring, and whether the protection sought is the only "feasible" alternative. The phrase "clearly justify" is the test of both the "necessity" for armoring and the direct and cumulative impacts of armoring. Section 161.053(5)(a)3 requires Respondent to consider whether the direct and cumulative impacts on the beach-dune system clearly justify the proposed armoring. Rule 16B-33.005(7) states that: the proposed armoring may not have an adverse impact on the beach-dune system at the specific site; and a number of similar structures on the coast may not have a significant adverse cumulative impact. 9/ The cumulative impact doctrine has been applied as a policy of equitable distribution in permitting cases involving environmental control statutes. 10/ The doctrine is intended to distribute permitted activities without contravening applicable standards or the public interest. The cumulative impact of the proposed bulkhead on the beach-dune system and on marine turtles is not imposed in addition to other applicable requirements but is a factor to be considered in determining whether the proposed bulkhead is clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. 11/ The terms "necessity", "clearly justify", and "feasible" are not defined in applicable statutes and rules. 12/ Respondent has issued written memoranda and uttered unwritten policy statements to provide guidance in defining the quoted terms. Respondent attempted to explicate the quoted terms in this proceeding. Necessity: Vulnerability To High Frequency Storms Under the 1990 policy, the "necessity" for armoring must be clearly justified by demonstrating vulnerability to a five year RISE. However, the proposed bulkhead is exempt from the specific RISE imposed by the 1990 policy. Respondent asserts that a 10 or 15 year RISE was used to assess vulnerability prior to the 1990 policy and should be applied in this proceeding. In order to ascertain the specific numeric standard of vulnerability applicable in this proceeding, if any, it is necessary to consider the emergence of the vulnerability requirement prior to the adoption of the 1990 policy. 13/ Emerging Vulnerability Requirement In November, 1984, a severe storm caused major erosion over wide expanses of the east coast of Florida (the "Thanksgiving Day storm"). A number of applications for coastal armoring followed. Respondent's staff prepared a report proposing specific policy directives to provide guidance in reviewing applications for coastal armoring. The policy directives were approved by the Governor and Cabinet on March 19, 1985. However, the Governor and Cabinet expressly directed staff to review armoring applications on a case-by-case basis and did not adopt a specific policy (the "1985 directive"). The first application for a coastal armoring permit to go before the Governor and Cabinet following the 1985 directive was filed by Seaplace Association, Inc. The application was for a buried, sloping rock revetment and returns seaward of the two- story Seaplace condominium. The Seaplace application was recommended for approval by Respondent and considered by the Governor and Cabinet as an agenda item on February 23, 1988. The agenda item prepared by Respondent stated that Seaplace was vulnerable to a RISE of less than 10 years. This was the first agenda item where vulnerability to a specific RISE was included in Respondent's justification for a proposed coastal armoring permit. At the time that the agenda item was considered, Respondent's director stated that Respondent imposed a 20 year RISE to assess vulnerability in coastal armoring applications. The Governor and Cabinet denied the Seaplace application without explication. Following the denial of the Seaplace application, a storm impacted the shoreline in front of Seaplace causing erosion and further threatening the condominium. After a meeting with Cabinet aides, Respondent recycled the prior agenda item to reprint the document with no changes and brought the item back before the Governor and Cabinet with the same stated vulnerability. The Governor and Cabinet approved the Seaplace application on May 24, 1988, without explication. In approving the Seaplace application, the Governor and Cabinet neither explicitly nor implicitly adopted a specific RISE as a numeric standard for assessing vulnerability prior to the 1990 policy. The agenda items considered by the Governor and Cabinet on February 23 and May 24, 1988, did not recommend that the Governor and Cabinet adopt a 10 year RISE as a numeric standard for assessing vulnerability in all armoring applications but merely stated that Seaplace was vulnerable to a 10 year RISE. When the Governor and Cabinet considered the Seaplace application, they were informed by Respondent's director that Respondent used a 20 year RISE as a numeric standard for assessing vulnerability. When the Governor and Cabinet intend to adopt a policy, notice is given to the public prior to consideration of the proposed policy. No such notice was given prior to approving the Seaplace application on May 24, 1988. On February 7, 1990, Respondent issued internal memorandum PM-27-90 as a policy statement to guide staff in assessing the justification for rigid coastal armoring structures. Memorandum PM-27-90 states: . . . Existing policy on the use of rigid coastal protection structures is contained in Subsection 16B-33.005(3), Florida Administrative Code. The general policy restricts use of such structures . . . and permits them only if they are fully justified as the only feasible means of protecti[on]. . . . This policy [PM-27-90] provides guidance on the determination of justification for such structures. 2. Threat determination * * * b) The structure proposed to be protected is . . . exposed to direct impacts from hydrodynamic forces associated with high frequency storms and in danger of imminent collapse from such storms. (emphasis supplied) Memorandum PM-27-90 did not prescribe a specific RISE as a numeric standard for assessing vulnerability in all coastal armoring applications. It merely required a qualifying structure to be exposed to direct impacts from "a high frequency storm." A high frequency storm can have any return interval up to 25 years. The requirement in PM-27-90 that a qualifying structure be in imminent danger of collapse imposes neither a specific RISE nor an additional requirement for assessing vulnerability. After PM-27-90 was issued, for example, Respondent agreed to recommend approval of the proposed bulkhead if Petitioners demonstrated that their homes are vulnerable to either a 10 or 15 year RISE. When Memorandum PM-27-90 was superseded by the 1990 policy, it lost any general applicability it may have had within the meaning of Section 120.52(16). Since Petitioners' applications are the only applications exempt from the 1990 policy, the applicability of PM-27-90, if any, is not general but is limited to this proceeding. 14/ Respondent required, under the emerging policy in effect prior to the 1990 policy, that qualifying structures be "exposed to direct impacts from . . . high frequency storms." No numeric standard narrowed the scope of a "high frequency storm" to a specific RISE. Nor was a specific RISE identified in final agency action taken on specific applications prior to the adoption of the 1990 policy. While Respondent wishes to deviate from the general requirement for vulnerability that was in effect prior to the 1990 policy by imposing a specific RISE in this proceeding, Respondent failed to explicate a justification for such a deviation. 15/ In cases involving an eroding shoreline, the selection of a specific RISE to assess vulnerability is not intended to determine whether coastal armoring is going to be permitted. Rather, it is intended to determine when such armoring will be permitted and perhaps what form the armoring will take. 16/ The shoreline in the area of the proposed project is an eroding shoreline. Between 1972 and 1992, the shoreline in front of Petitioners' homes eroded at an annual rate of 1.7 feet. Respondent conducted shoreline surveys by registered surveyors at Respondent's monuments R-25 through R-30 in Indian River County. Petitioners' homes are located between monuments R-27 and R-28 and are closest to R-27. The field survey data is more reliable than historic shorelines from 1880-1968 depicted on maps submitted by Respondent and Intervenors during the formal hearing. Between 1972 and 1992, the bluff line at R-27 receded 42 feet. There was 50 feet of bluff line recession at R-25, 40 feet at R-26, and 43 feet at R- Between June, 1986, and March, 1992, five to six feet of dune recession occurred at R-27 with no evidence of dune recovery during that period. Since 1972, a significant decrease in the bluff line near Petitioners' homes has been caused by storms. The Thanksgiving Day storm caused 15 feet of bluff line recession. The storm in March, 1989, caused 10 feet of recession. The bluff line at the northern boundary of the Machata home receded 10 feet between 1987 and 1989. The bluff line at the southern boundary of his home receded seven feet during the same period. While the bluff line and mean high water line generally recede at the same rate, the mean high water line at R-27 receded 19.7 feet, or 3.4 feet a year, between 1986 and 1992, and 14.71 feet, or 2.6 feet annually, at R-28. Inlets constructed by government agencies cause 85 percent of the erosion along Florida's southeast coast. The Sebastian Inlet is the principal cause of erosion of the shoreline in front of Petitioners' homes. The erosion rate of the shoreline in front of Petitioners' homes can be expected to fall below one foot a year only if the Sebastian Inlet Management Plan to transfer sand is fully implemented. No evidence was presented to show when the plan will be implemented, if at all. As the shoreline erodes from the effects of the Sebastian Inlet and natural erosion, Petitioners' homes will eventually be vulnerable to a five year RISE. In the absence of any intervening changes, Petitioners will then satisfy the vulnerability requirement in the 1990 policy. However, Petitioners are expressly exempt from the specific vulnerability requirement in the 1990 policy and should not be required to wait until they comply with that requirement. Petitioners do not have to wait until their homes are vulnerable to a five year RISE if vulnerability is assessed using a 25 year RISE. A 25 year RISE is consistent with the design life of the proposed bulkhead. Rule 16B- 33.007(6)(b) requires that armoring: . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the [armoring]. . . . The design life of the proposed bulkhead is 25 years, but Respondent asserts that Petitioners must show that their homes are vulnerable to a 10 or 15 year RISE to clearly justify the necessity for the proposed bulkhead. Respondent failed to explicate a justification for deviating from Rule 16B- 33.007(6)(b) either by accepting a design life that is inconsistent with Respondent's vulnerability requirement or by assessing vulnerability with a RISE that is less than the 25 year design life of the proposed bulkhead. Absent the requisite justification for Respondent's deviation, Petitioners need only show that their homes are vulnerable to any high frequency storm including a RISE of 25 years. 17/ Vulnerability Clearly Justified By Computer Models Assuming that a specific RISE applies in this proceeding, Respondent asserts that either a 10 or 15 year RISE should apply. Respondent presented conflicting evidence concerning the specific RISE that should be applied to assess the vulnerability of Petitioners' homes. One of Respondent's experts, a professional engineer and administrator within the Division of Beaches and Shore, testified that Respondent's policy requires vulnerability to a 10 year RISE. However, the Division Director testified that Respondent's policy requires vulnerability to a 15 year RISE. The testimony of the Division Director was credible, persuasive, and consistent with Respondent's original recommendation of approval. Respondent, without deviation, determines whether a qualifying structure is vulnerable to a specific RISE through the application of computer models. Computer models analyze certain scientific parameters to mathematically simulate storm surge elevation and erosion for a high frequency storm. 18/ If the computer model shows that the eroded profile of the storm would reach the foundations of Petitioners' homes, then their homes are vulnerable to the specific RISE assumed for the storm. Applicable statutes and rules do not prescribe the computer model to be used in assessing the vulnerability of a qualifying structure. Since 1988, Respondent has relied exclusively on the Dean erosion model for such purposes. The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida. 19/ The original Dean model supporting Respondent's recommendation that the Governor and Cabinet approve the proposed bulkhead shows that the eroded profile of a 15 year RISE would reach the foundation of Petitioners' homes. Therefore, each home satisfies the 15 year RISE imposed by Respondent to assess vulnerability in this proceeding. Another computer model commonly used to assess vulnerability to a high frequency storm is the EDUNE erosion model. The EDUNE model utilized by Petitioners' coastal engineer shows that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. Therefore, each home satisfies the 10 year RISE imposed by Respondent to assess vulnerability prior to the 1990 policy. 20/ Since less severe storms occur more frequently, Petitioners' homes are necessarily vulnerable to more severe storms that occur less frequently including storms with return intervals of 15 to 25 years. Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. The results of an erosion model that has not been properly calibrated may not be reliable. The Dean erosion model has not been calibrated for high frequency storm events. Dr. Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead. Both the EDUNE model utilized by Petitioners' expert and the original Dean model utilized by Respondent were calibrated using erosion data from the Thanksgiving Day storm. However, neither erosion model utilized local calibration factors for the proposed project site. No storm hydrograph for the Thanksgiving Day storm is available for Indian River County and no site specific data is available for the proposed site. In the absence of local calibration data, the accuracy of any erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data. The selection of proper input variables, in the absence of local calibration data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results. An erosion factor of 1.5 was properly used in the original Dean model which showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioners' homes. The Bureau of Coastal Engineering applies the Dean model exclusively for Respondent to predict erosion from high frequency storms and to assess the level of vulnerability for a qualifying structure. An erosion factor of 1.5 is the erosion factor approved by the Bureau of Coastal Engineering and consistently used in the Dean model. Use of an erosion factor of 1.5 is consistent with reasonable and appropriate professional judgment and Respondent's long standing practice. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioners' expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. This is the appropriate and reasonable erosion factor to be used for the EDUNE model in the absence of local calibration data. The A factor is another input variable used in erosion modeling. The A factor defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. If the shoreline steepens beyond the depth of the nearshore breaking wave and the A factor is determined by fitting the shoreline to a depth beyond the nearshore breaking wave, the A factor will be increased and the erosive force of the projected storm will be decreased. The A factors used in the original Dean model and the EDUNE model were properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent's manual states that an A factor between 0.14 and 0.16 is most reliable. Use of an A factor of 0.15 is consistent with Respondent's manual and reasonable and appropriate professional judgment. The Revised Dean Model Respondent prepared a revised Dean model for the formal hearing. The return frequency approach used in both the original Dean model and EDUNE model measures the predicted force of a storm by emphasizing its storm surge elevation. The volumetric approach used in the revised Dean model measures storm force by emphasizing the erosive force of a storm. Both storm surge elevation and erosive force are threats to Petitioners' homes. However, the storm surge of an actual storm may or may not be proportional to its erosive force. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. 21/ If a computer model is calibrated for a greater erosive force, the model can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundations of Petitioners' homes. Conversely, if a computer model is calibrated for a lesser erosive force, the model can be used to demonstrate that the storm surge elevation of the same storm produces an eroded profile that does not reach the foundations of Petitioners' homes. The revised Dean model prepared by Respondent for the formal hearing used an erosion factor of 1.0 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundations of Petitioners' homes. In the absence of site specific data including storm surge elevation and a storm surge hydrograph for the Thanksgiving Day storm, use of an erosion factor of 1.0 was inconsistent with reasonable and appropriate professional judgment, Respondent's long standing practice, and the terms of Respondent's instruction manual. 22/ The A factor of 0.19 used by Respondent in the revised Dean model was neither appropriate nor reasonable. Respondent determined the A factor in its revised Dean model by fitting the shoreline profile to a depth substantially beyond the depth of the nearshore breaking wave. The shoreline steepens beyond the depth of the nearshore breaking wave. As the shoreline steepens, the A factor increases. By determining the A factor on the basis of the steeper profile, Respondent overestimated the value of the A factor and underestimated the erosive force of a 15 year RISE. The revised computer model prepared by Respondent assumed an erosive force that was disproportionate to the actual storm used to calibrate all of the computer models. Both the original Dean and EDUNE models were calibrated with erosion data from the Thanksgiving Day storm. The Thanksgiving Day storm had an erosive force that was disproportionate to its storm surge elevation and 2.8 times greater than a major storm such as hurricane Eloise in 1975. To the extent the volumetric approach in the revised Dean model assessed vulnerability by a standard other than storm surge, Respondent deviated from the storm surge criteria in existing statutes and rules. The CCCL is statutorily intended to define that portion of the beach-dune system subject to a specific storm surge. 23/ Respondent's rules describe design criteria for coastal armoring 24/ and conforming foundations 25/ by reference to storm surge. Respondent's rules also describe design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge. 26/ Evidence presented by Respondent to explicate its deviation from storm surge criteria in assessing vulnerability was neither credible nor persuasive and failed to overcome credible and persuasive evidence supporting the results of the original Dean model and EDUNE model. 27/ Respondent's inability to replicate the results of the EDUNE model is not a reasonable and appropriate basis for relying upon the revised Dean model and rejecting both the EDUNE model and the original Dean model. It is not possible to replicate modeling results without knowing each and every input variable used in the model to be replicated. Respondent did not know all of the input variables used by Petitioners' expert in the EDUNE model. In attempting to replicate the results of the EDUNE model, Respondent used input variables not used by Petitioners' expert. Notice Of Vulnerability The 1990 policy adopted by the Governor and Cabinet includes a notice of vulnerability caveat. The caveat provides that an applicant who constructs his or her home after notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. Petitioners' applications are expressly exempt from the 1990 policy. Since Petitioners are not substantially affected by the 1990 policy, within the meaning of Sections 120.535(2) and 120.57(1)(b)15, it is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy are generally applicable within the meaning of Section 120.52(16). The 1990 policy was adopted by the Governor and Cabinet three years after Petitioners began construction of their homes. At the time construction began, Respondent had no rule or policy giving notice to Petitioners that their construction activities may adversely affect their future ability to obtain a coastal armoring permit. Respondent advised Petitioners by separate letters issued on April 13 and 14, 1987, that their homes were exempt from the permitting requirements of the revised CCCL. At the time the CCCL was reestablished on March 4, 1987, Respondent determined on the basis of actual site inspections that Petitioners' homes were under construction within the meaning of former Rule 16B-33.002(56). 28/ The letters from Respondent in April, 1987, notified Petitioners that the foundations of their homes were nonconforming foundations and included a caveat that Respondent's staff would not recommend approval of any applications for coastal armoring to protect Petitioners' homes. The letters did not represent that the Governor and Cabinet would not approve their applications for coastal armoring permits. Petitioners began construction of their homes long before the notice of vulnerability policy was adopted in 1990. By the time Petitioner, Machata, received Respondent's letter in April, 1987, the entire substructure of his home was complete including the placement of 20,000 cubic yards of fill, the pouring of all footers, piles, grade beams, and retaining walls. Some plumbing and structural steel for the slab had been installed. When Petitioner, Lanzendorf, received a letter from Respondent, construction of his home was 80-90 percent complete and over $460,000 had been expended. It was not economically or legally feasible for Petitioners to stop construction of their homes when they received the letters issued by Respondent in April, 1987. Petitioners had already expended substantial sums on construction of their homes, and it is improbable that the lending institutions would have allowed construction to stop. The caveats contained in the letters issued by Respondent in April, 1987, were not timely under the circumstances and should have been issued prior to the beginning of construction rather than after substantial construction occurred. Notwithstanding its caveats, Respondent recommended approval of Petitioners' applications after Petitioners demonstrated that vulnerability to a 15 year RISE, but the Governor and Cabinet denied the application. Direct And Cumulative Impacts On The Beach-Dune System The proposed bulkhead, existing armoring, and proposed similar structures will have no significant adverse direct or cumulative impact on the beach-dune system within the meaning of Section 161.053(5)(a)3. The proposed bulkhead, existing armoring, and proposed similar structures will neither degrade the beach-dune system along that segment of the shoreline nor threaten the beach-dune system and its recovery potential within the meaning of Rule 16B- 33.005(7). Construction Construction of the bulkhead will not adversely affect the stability of the dune and will not damage vegetation seaward of the sheet piles. The sheet piles will be placed 10-15 feet landward of the dune bluff line and landward of the vegetation line. All construction will take place landward of the sheet piles. Excavation required to construct the proposed bulkhead is minimal. No excavation is required for placement of the tie rods in front of the Machata home. Only minor excavation is required for the deadman in front of the Machata home. The seaward and landward faces of the deadman will be covered with sand and not exposed except for a portion of the deadman in front of the Lanzendorf home. Due to dune elevation differences at the Lanzendorf home, a portion of the landward face of the deadman will be exposed. After removal of the forms used for the cap, tie rods, and deadman, the area between the sheet pile wall and the deadman will be filled with sand to bring the area up to a finish grade of 17.5 feet N.G.V.D. 29/ Any sand excavated to construct the bulkhead will be kept on site and used to build the grade to finish grade. The area between the sheet pile wall and deadman will be planted with native vegetation following placement of the sand. Impacts to dune vegetation landward of the steel wall will be temporary. Planted vegetation will provide protection to the dune from windblown erosion within one growing season. By the second growing season, planted vegetation will be of sufficient density to eliminate the initial impacts of construction. Before construction begins, Petitioners will place beach compatible sand at a 2:1 slope along the entire frontal dune escarpment within the limits of their property lines. The sand will provide additional stability for the dune during construction of the bulkhead and is consistent with the dune restoration plan required as a condition of the permit. The dune restoration plan requires Petitioners to place sand and vegetation in prescribed areas within 90 days of completion of construction. Dune restoration is a standard condition required by Respondent for the issuance of armoring permits. Natural Fluctuation Of The Beach-Dune System The beach-dune system is a balanced, interrelated system in a constant state of fluctuation. Natural erosion and accretion of sediment takes place as a result of coastal winds, waves, tides, and storms. Features of the beach-dune system are subject to cyclical and dynamic emergence, destruction, and reemergence. 30/ The beach-dune system cyclically accretes and erodes as a result of both storm impacts and seasonal changes. During storm events, elevated water conditions carry storm waves inland. Sediment from upland property is eroded. Storm waves carry the eroded material offshore and form an offshore sand bar. The sand bar protects the upland portion of the beach-dune system by tripping incoming waves, causing them to break offshore, and reducing the wave attack on the shoreline. Recovery of the upland portion of the beach-dune system occurs when a milder wave climate returns after a storm. Material from the sand bar is carried back to the upland property by normal wave activity. After the sand is deposited on shore, it is carried upland by wind, trapped by dune vegetation, and the dune previously eroded by the storm is rebuilt. In addition to storm events, seasonal changes cause fluctuations in the beach-dune system. The shoreline typically accretes during the summer when milder waves occur and erodes during the winter when wave action intensifies. When summer returns, the shoreline again accretes. Active Erosion From Armoring Erosion may be passive or active. Passive erosion occurs when the shoreline migrates landward during the natural fluctuation of erosion and accretion. Passive erosion is not an impact of the proposed bulkhead. The proposed bulkhead excludes sand landward of the bulkhead from the natural fluctuation of the beach-dune system. The proposed bulkhead will prevent the loss of sand landward of the bulkhead during storm events with a return interval of 25 years or less. Sand landward of the proposed bulkhead will be released into the beach-dune system in the event of a storm with a return interval of at least 25 years and sufficient force to destroy the proposed bulkhead. The proposed bulkhead will not cause erosion of the beach-dune system during storms with return intervals of less than 25 years unless the bulkhead is exposed and interacts with wave forces. The proposed bulkhead is located 10-15 feet landward of the dune bluff line and, therefore, will not initially be exposed to wave forces. The current annual rate of shoreline erosion near Petitioners' homes is 1.7 feet. At that rate of erosion, the proposed bulkhead would be exposed to wave action in approximately five to ten years in the absence of any mitigating action by Petitioners. If erosion of the shoreline exposes the proposed bulkhead to wave action, active erosion in the form of "scour" and "downdrift" may occur. Scour Scour would be caused by the interaction of the steel wall with storm tides and waves. 31/ Scour associated with a seawall is greater due to increased wave velocity caused by reflection of the wave energy off the seawall. Scour may occur during a storm event in front of the exposed bulkhead. Sand lost to scour will move immediately offshore in front of the bulkhead, as part of the sand bar, and eventually be returned to the shore during the recovery of the beach-dune system. A portion of the scoured sand will be diverted from the sand bar by longshore currents during the storm and redistributed within the littoral system. Downdrift Downdrift erosion occurs when longshore sediment is not transported from updrift to downdrift properties. When downdrift erosion occurs, downdrift properties are deprived of sand that otherwise would be transported from updrift properties. Downdrift erosion may occur if the shoreline retreats landward of the proposed bulkhead, the bulkhead protrudes onto the active beach, and interacts with waves. If all of those circumstances occur, the proposed bulkhead will trap sand on the updrift side of the bulkhead and deprive downdrift properties of sand to the extent of any sand trapped on the updrift side. Downdrift erosion, if any, caused by the proposed bulkhead will be limited to the dune area of the beach and will not result in a loss of sand to the beach-dune system. The amount of decrease in sand on the downdrift side of the proposed bulkhead will equal the amount of increase in sand to the updrift location. Renourishment There are several million cubic yards of sand in the littoral system in Indian River County. Any sand eroded at the location of the proposed bulkhead will be insignificant in comparison to the total amount of sand in the littoral system. Current natural erosion of the shoreline fronting Petitioners' homes causes a significantly greater volume of sand loss than may be caused in the localized area of the proposed bulkhead. Government devices in the region, including the Sebastian Inlet, cause significantly greater erosion to the shoreline in Indian River County than any erosion which may occur from the proposed bulkhead. Petitioners will place sand on the beach to offset or mitigate the sand retention features of the proposed bulkhead. Sand placement will be sufficient to offset any adverse impacts from scour erosion and downdrift erosion. Sand placement is common in Indian River County after storm events. Petitioners will conduct yearly shoreline profile surveys and maintain the shoreline profile in front of the proposed bulkhead through annual sand placement. Sand placement effectively mitigates any direct and cumulative adverse impacts from the proposed bulkhead. The beach profile adjacent to Petitioners' homes showed some recovery of the shoreline in the two year period around 1990. That recovery would not have been prevented by the proposed bulkhead. Proposed Similar Structures Proposed similar structures, within the meaning of Section 161.053(5)(a)3 and Rule 16B-33.005(7), include similar armoring under construction, pending applications for similar armoring, and similar structures that may reasonably be expected in the future. No additional armoring is under construction "along that segment of the shoreline." 32/ No pending applications are exempt from the 1990 policy, under review, approved, or vested along that segment of the shoreline. The 1990 policy prohibits all armoring within the Archie Carr National Wildlife Refuge and requires qualifying structures outside the Refuge to be vulnerable to a five year return interval storm event. Accordingly, no similar projects may reasonably be expected in the future. Respondent prepared a cumulative impact analysis for the proposed bulkhead in support of its recommendation for approval of the permit. That original cumulative impact analysis concludes that there is no potential for increased armoring within one mile north or south of the proposed project site. Respondent's original cumulative impact analysis is credible and persuasive. Revised Cumulative Impact Analysis Respondent prepared a revised cumulative impact analysis for the formal hearing. Respondent attempted to define proposed similar structures to include, not only similar armoring under construction and pending applications for similar armoring, but also future armoring that may occur if approval of Petitioners' application creates a precedent for armoring similarly situated properties. Respondent assessed the cumulative impact on the beach-dune system from such potential future armoring and attributed the potential impact entirely to the proposed bulkhead. In addition, Respondent expanded the definition of "that segment of the shoreline" in Rule 16B- 33.005(7) from a two mile segment of shoreline in its original analysis to an 18 mile segment in its revised analysis. 33/ Respondent evaluated a five region area beginning from a point south of Vero Beach in Indian River County and running north to a point south of Melbourne in Brevard County. Region 1 contains the proposed project site and is slightly south of midway in the area evaluated. 34/ Region 2 is immediately south of Region 1. Region 3 is immediately south of Region 2. Region 4 is immediately north of Region 1, and Region 5 is north of Region 4. The area evaluated excludes a portion of state-owned shoreline between Regions 4 and 5, including the Sebastian Inlet State Park. 35/ The shoreline within the boundaries of the five regions is 21.5 miles or 113,520 feet. Excluding the state-owned shoreline between Regions 4 and 5, the shoreline evaluated within the five region area totals 92,000 feet or 18 miles. The length of the proposed bulkhead is 303 feet. Respondent determined that there are 87 major habitable structures similarly situated to Petitioners' homes and that 9.8 percent of the shoreline in the area evaluated will be armored. Respondent determined that approval of Petitioners' application would increase armoring by: 280 feet in Region 1; 3,260 feet in Region 2; 4,145 feet in Region 3; 850 feet in Region 4; and 2,510 feet in Region 5. Respondent's cumulative impact analysis is not a valid application of the cumulative impact doctrine. The cumulative impact doctrine requires Respondent to consider the ". . . cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future." 36/ (emphasis supplied) Assuming arguendo that all 87 structures are "similarly situated" with Petitioners' property, armoring of all 87 structures can not reasonably be expected in the future. Respondent did not apply the 1990 policy in its cumulative impact assessment for the proposed project. Regions 1, 2, 4, and 5 are within the Archie Carr National Wildlife Refuge. The 1990 policy prohibits all coastal armoring within the Refuge. If the Governor and Cabinet require compliance with the 1990 policy, the proposed project will not create a precedent for armoring within Regions 1, 2, 4, and 5. Any armoring that occurs will be a result of non-adherence to the 1990 policy rather than an impact of the proposed project. Respondent did not apply the 1990 policy to qualifying structures outside the Archie Carr National Wildlife Refuge in Region 3. There are no armoring applications pending for any of the 87 structures identified by Respondent in its cumulative impact assessment, and no applications for any of those structures were complete on or before August 14, 1990. Unlike the proposed project, none of the 87 structures identified by Respondent are exempt from the 1990 policy. More than half of the 87 structures would not be vulnerable to a five year RISE under the 1990 policy. The terms of the permit for the proposed project provide that the permit does not create a precedent for armoring similarly situated structures. Permits issued by Respondent for new structures seaward of the CCCL include a caveat that a particular permit may not be considered as precedent for future applications by similarly threatened structures. Even if Respondent's determination is accepted on its face, a 9.8 percent increase in coastal armoring will not create a significant adverse impact on the beach-dune system. Moreover, several considerations suggest that Respondent's cumulative impact analysis is exaggerated. Respondent has promulgated no criteria in any rule to establish the length of shoreline or the number or size of the regions that must be included in any cumulative impact analysis. Rule 16B-33.005(7) requires that the cumulative impact of the proposed bulkhead must be assessed "along that segment of the shoreline." The prescribed segment of shoreline was expanded from 2 miles, in Respondent's original cumulative impact analysis, to 18 miles in Respondent's revised cumulative impact analysis. 37/ During the formal hearing, Respondent suggested several alternatives for determining the segment of shoreline that should be evaluated in assessing the adverse cumulative impact of the proposed project. Alternatives included: the same general area of the applicants' property; the local area; the entire east coast; the limits of the undeveloped portion of the shoreline on either side of the proposed structure; Vero Beach to the south; two miles on either side of the proposed bulkhead; the coastal cell; the area between two major areas of armoring; areas with similar processes; anywhere on the coast; a two mile segment of shoreline; the area in close proximity; and more areas other than the regions actually used by Respondent in its cumulative impact analysis. In the revised cumulative impact analysis, Respondent included the entire width of the shoreline within the property boundary for each of the structures. Respondent does not allow armoring to extend the entire shoreline of the property on which the armoring device is located. The 87 structures identified by Respondent are not similarly situated to Petitioners' homes. Respondent defined similarly situated structures as those located at a distance from the vegetation line that is similar to the distance between Petitioners' homes and the bluff line. Such a definition fails to take into account actual site conditions for a particular structure. Respondent relied solely on aerial photographs of the five region area to determine the distance between the vegetation line and each of the 87 structures. Aerial photographs provide only an approximation of the distance between the structure and the vegetation line. Respondent did not physically verify distances under actual site conditions ("ground truth"). If Respondent had ground truthed its cumulative impact analysis, site specific variations in the beach-dune system would significantly reduce potential armoring projected by Respondent. By not ground truthing actual site conditions for the 87 structures, Respondent failed to identify those structures that are not vulnerable to a five year return interval storm event due to enhanced dune viability. Respondent could not consider whether the beach-dune system at a particular site provided a structure with more protection due to: greater dune height; the condition of the shoreline; and the viability of the beach-dune system. If the foregoing considerations are taken into account, only 860 feet of shoreline in the five region area, or 0.8 percent, is subject to potential armoring. The impact on the beach-dune system of armoring 0.8 percent of the coastline in the five region area is inconsequential and will not have a significant adverse cumulative impact. It is unlikely that coastal armoring structures will be placed on publicly owned land. The State of Florida owns approximately 11,400 feet, or 22 percent, of the shoreline in the Archie Carr National Wildlife Refuge. The Refuge is within the State of Florida Archie Carr Conservation and Recreational Lands ("CARL") Project. The Refuge is ranked 7th on the 1992 CARL priority list. The priority ranking assigned to the Refuge means that Respondent has sufficient funds to acquire properties within the CARL project. Respondent has $10 million a year for the acquisition of land within the Archie Carr CARL project. Respondent could purchase the entire 9.5 miles of coastline in six years. Respondent has already purchased four parcels within the Archie Carr CARL Project totalling 29.88 acres. Respondent is actively negotiating with property owners and continuing to purchase land within the Archie Carr CARL Project. On October 22, 1991, the Governor and Cabinet authorized the purchase of 7.28 acres of land within the Archie Carr CARL Project. The United States Fish and Wildlife Service is also acquiring property in the Archie Carr National Wildlife Refuge. Congress appropriated $2 million in 1991 and $1.5 million in 1992 for the acquisition of such property. At the formal hearing, Respondent claimed that it would have to be 100 percent certain that no additional permits for armoring would be issued as a result of the proposed bulkhead in order for there to be no cumulative impact. As a practical matter, such a standard has the effect of a complete ban on all armoring and is clearly more restrictive than the 1990 policy from which the proposed bulkhead is exempt. Applicable statutes and rules do not authorize such a ban. Such a ban contravenes, not only existing statutes and rules, but also the express exemption granted by the Governor and Cabinet. Direct And Cumulative Impacts On Marine Turtles Florida has the second highest incidence of marine turtle nesting in the world. Loggerhead, green, and leatherback turtles currently nest on Florida beaches. Green turtles are endangered species while leatherbacks and loggerheads are threatened species. Respondent conducts yearly surveys of marine turtle nesting beaches and compiles the information in nesting summary reports. Nesting densities for each species are generally expressed as nests laid per kilometer of shoreline. Actual leatherback nests surveyed from Canaveral to Key Biscayne totaled 114 in 1991. One was located in the Canaveral National Seashore area. Another 44 and 32 were located on Hutchinson Island and Jupiter Island, respectively. Three nests were located in Boca Raton. Four nests were located in Broward County. Thirty nests were located in the Juno/Jupiter area. 38/ It is improbable that leatherback turtles will nest on the beach-dune system in front of Petitioners' homes. No leatherback turtles have ever been found on the beach in front of Petitioners' homes. Nesting densities for leatherback turtles are greater in St. Lucie, Martin, and Palm Beach counties than leatherback nesting densities in Indian River County. The Wabasso Beach survey area covers eight kilometers and includes the proposed project site. 39/ Wabasso Beach is not a significant nesting area for leatherback turtles. Nesting densities for leatherback turtles in Wabasso Beach are very low. Only one leatherback nested along the eight kilometers in Wabasso Beach in 1989, resulting in a nesting density of 0.125. There were no nests in 1990. The nesting density in 1991 was 0.62. The number of leatherback turtles that may be found in front of Petitioners' homes, expressed as a percentage of 1991 nesting density for Wabasso Beach, is 0.006. Wabasso Beach is not a significant nesting area for green turtles. In 1990, 2,055 green turtle nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting quality behind Jupiter Island, Brevard County, and Juno Beach. The likelihood of a green turtle nesting in front of Petitioners' homes is low to very low. Green turtle nesting densities for Wabasso Beach from 1989-1991 were as follows: 14 nests or 1.75 nests per kilometer in 1989; 55 nests or 6.9 nests per kilometer for 1990; and 7 nests or 0.87 nests per kilometer in 1991. Expressed as a percentage of nesting density for Wabasso Beach, the number of a green turtle nests to be found in front of Petitioners' homes was 0.0175 in 1989, 0.069 in 1990, and 0.0087 in 1991. 40/ Wabasso Beach is not a significant nesting area for loggerhead turtles. In 1990, 55,935 loggerhead nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting density behind Jupiter Island, Juno Beach, and south Brevard County. The nesting density for loggerhead turtles in Jupiter Island and south Brevard County, respectively, was five and two times greater than the nesting density in Wabasso Beach. Loggerhead nesting densities for Wabasso Beach from 1989-1991 were as follows: 1,256 nests or 157 nests per kilometer in 1989; 1,155 nests or 144.4 nests per kilometer for 1990; and 1,758 nests or 219.7 nests per kilometer in 1991. Even though Wabasso Beach is not a significant nesting area for loggerheads, it is likely that loggerhead turtles will nest on the beach-dune system in front of Petitioners' homes. Eleven loggerhead nests were laid on the beach in front of Petitioners' homes in 1990. On average, 13.2 loggerhead nests are laid in front of Petitioners' homes each season. Even if all of the green turtle and loggerhead nests laid in front of Petitioners' homes are destroyed as a result of the proposed project, that unlikely loss would not have a significant adverse impact on the total population of green and loggerhead turtles. Based on the number of nests and the number of times a female nests each season, there are 750 to 1,000 female green turtles and 20,000 to 25,000 female loggerhead turtles in the area between Canaveral and Key Biscayne. The loss of anywhere from 0.0087 to 0.069 green turtle nests and the loss of 13.2 loggerhead turtle nests would be insignificant compared to the overall turtle population for each species. The number of loggerhead nests destroyed in front of Petitioners' home, for example, would be 0.00009 percent of the total nests laid in Florida. Nesting data indicates an upward trend for both green turtles and loggerheads. The proposed bulkhead will not have an adverse impact on the upward trend for either species. Marine turtles do not nest landward of the dune bluff- line or vegetation line. The proposed bulkhead is located landward of the dune bluff line and landward of the vegetation line. Construction activities will not take place in the area of the beach where turtles nest and will not occur during the nesting season. Construction activities will not adversely affect the dune, will not cause damage to the dune, and will not destabilize the dune. False Crawls Adverse impacts on marine turtles from the proposed bulkhead, if any, will not occur unless erosion of the dune is so extensive that the proposed bulkhead is exposed. Even an exposed bulkhead will not have an adverse impact on marine turtles if a dry sandy area in the mid to high beach seaward of the bulkhead is available for nesting. If a nesting turtle encounters an exposed bulkhead, she probably will not nest at that site. She will likely return to the ocean, move up or down the beach, find a more suitable nesting area, and make her nest. This process is referred to as a false crawl. A turtle that false crawls at the site of the proposed bulkhead will not have far to go to nest at an unarmored site. The proposed bulkhead is only 303 feet long. The 1990 policy adopted by the Governor and Cabinet prohibits all armoring in the Archie Carr National Wildlife Refuge. Marine turtles frequently false crawl for reasons that are not completely understood. False crawls that occur when the bulkhead is exposed, if any, may not be attributable to the exposed bulkhead. A false crawl is not an abnormal event for marine turtles and is not necessarily harmful to them. Loggerheads may false crawl 50 percent of the time. In Wabasso Beach in 1990, there were 1,114 false crawls associated with 1,155 nests laid. Even on undisturbed beaches, the percentage of false crawls is as high as 50 percent. Marine turtles can successfully nest on the beach in front of the proposed bulkhead. Turtles have a long history of nesting in front of armoring structures in the Town of Jupiter Beach. Since March, 1989, turtle nests have been laid in front of the partial rock revetment at the toe of the dune escarpment along the shoreline fronting the Machata home. There is no evidence that these nests have not been successful. The percentage of false crawls in front of Petitioners' homes has been similar to false crawls on the rest of Wabasso Beach. Marine turtles sometimes emerge at low tide and nest below that portion of the beach inundated by high tide. Such nests are destroyed by the ensuing high tide. Waves and storm action commonly destroy turtle nests even on undeveloped and unarmored beaches. Racoon predation is a significant cause of turtle hatchling and egg mortality. Predation poses a considerably greater threat to eggs and hatchlings than does the proposed bulkhead. Exposed roots at the dune escarpment in front of Petitioners' homes may cause false crawls in the absence of the proposed bulkhead. Natal Beach Marine turtles return to their natal beach to nest. The proposed bulkhead will not adversely affect the ability of marine turtles to return to their natal beach. Female turtles return to a geographic area to nest. They do not return to the specific beach where they are hatched. Female turtles may nest on widely disparate beaches. One loggerhead that nested in the Carolinas also nested in Melbourne Beach. No tagged hatchling has ever returned to the specific beach where it was hatched. There is no agreement among experts on a precise length of beach that comprises a natal beach. However, the length of the proposed bulkhead is considerably smaller than the beach area encompassed by any definition of a natal beach. A turtle that returns to its natal beach and encounters an exposed bulkhead in front of Petitioners' homes can nest in another portion of its natal beach with no adverse impact from the bulkhead. Nest Relocation Marine turtles can be protected from adverse impacts of the proposed bulkhead through nest relocation. Nest relocation has a high success rate. Relocated nests attain hatchling success similar to that enjoyed by natural nests. In some cases, the hatchling success of relocated nests is greater than that of natural nests. Respondent routinely permits the relocation of large numbers of turtle nests. Thousands of nests have been relocated for threatened inundation, beach renourishment projects, beach cleaning, in heavy use areas, where lighting is a threat, and for research activities. In 1988, Respondent authorized the relocation of 199 loggerhead turtle nests in Brevard County for use in hatchling disorientation studies. More recently, Respondent allowed the Rosenstiel School at the University of Miami to relocate 10 nests to study the affect of sand on hatch success of loggerhead turtles. In 1990, Respondent issued permits allowing the relocation of 857 loggerhead turtle nests, containing 94,322 eggs, that were laid on portions of the beach in the City of Boca Raton, Jupiter Beach, Volusia County, Manalipan, and Daytona Beach. While Respondent has issued permits authorizing governmental agencies to relocate many thousands of turtle nests, Respondent maintains that it does not issue permits authorizing private parties to relocate turtle nests. However, Respondent's Division of Marine Resources has approved nest relocation as part of a sea turtle protection plan in the coastal armoring permit for Suntide Condominium. Petitioners have provided reasonable assurances that nesting turtles and their hatchlings will be protected. Petitioners have agreed to a number of permit conditions including the following: implementation of a sea turtle protection plan; implementation of a dune restoration plan within 90 days of the date the proposed bulkhead is completed; removal of the bulkhead once the bluff line recedes to the landward limit of either return wall; locating the bulkhead as far landward as practicable; placement of sand at a 2:1 slope along the entire dune escarpment adjacent to the bulkhead to enhance the stability of the dune; and yearly restoration of the beach profile fronting the bulkhead if surveys indicate that the profile has eroded. Relocation of turtle nests as an element of the sea turtle protection plan and the absence of any significant adverse direct or cumulative impacts provide reasonable assurances that nesting turtles, their hatchlings, and their habitat will be protected within the meaning of Sections 161.053(5)(c) and 370.12, and that the proposed project will not result in a "take" within the meaning of Section 370.12(1)(c)1. Other Considerations: Imminent Collapse; Public Access; And Local Requirements Petitioners' homes are not within the zone of imminent collapse within the meaning of Federal Emergency Management Agency ("FEMA") rules. The state is not qualified to issue certificates of imminent collapse under Section 1306(c) of the National Flood Insurance Act, as amended. Special permit conditions recommended by Respondent assure public access in the event erosion of the beach results in little or no dry sandy beach for access between the water and the proposed bulkhead. Petitioners are required to provide written evidence that a restrictive notice has been provided in the deeds and covenants and restrictions and recorded with the Clerk of the Court for Martin County. The restrictive notice must provide for a perpetual public access easement across the entire shore parallel width Petitioners' property. The easement must provide appropriate means of access and egress and allow passage along the shoreline. Clearly designated signs advising the public of the easement must be appropriately placed on Petitioners' property. Respondent typically requires applicants to grant public access easements when Respondent issues an armoring permit that may interfere with public beach access. The existing rock revetment in front of Petitioners' homes satisfies local requirements regarding setback requirements or zoning or building codes. Respondent may condition its approval of the proposed bulkhead upon receipt of written evidence that the proposed bulkhead will not contravene local requirements. Respondent has done so in connection with an earlier application by CTP Realty, Inc. (a/k/a Pishock) for a coastal armoring permit in the same region as the proposed project. Only Feasible Alternative Once Petitioners have clearly justified the necessity for the proposed bulkhead and shown that the direct and cumulative impacts clearly justify the proposed bulkhead, Petitioners' must demonstrate that the proposed bulkhead is the only feasible alternative. Alternatives asserted by Respondent in this proceeding include: "do nothing"; sand placement; and home relocation. Do Nothing And Sand Placement Respondent asserts that Petitioners should do nothing and rely on the existing dune for protection against high frequency storms. The "do nothing" alternative is not technically feasible. The existing dune does not provide the necessary protection for Petitioners' homes. The receding bluff line, eroding shoreline, and threat from high frequency storms expose Petitioners' homes to a high level of risk. Respondent also asserts that Petitioners should restore the existing beach profile through sand placement. Sand placement that provides a level of protection equivalent to the proposed bulkhead is not economically feasible. Sand placement at that level would require the placement of sand at a rate of 1.7 to 2.0 cubic feet per foot of shoreline for one half mile on either side of Petitioners' homes and in front of the proposed bulkhead. Due to the eroding nature of the shoreline, sand placement would need to occur more than once a year and would be economically prohibitive. Relocation: Technical Feasibility It is not technically feasible to relocate the Machata home. The structural design of the Machata home is unique. It has a 35 foot clear story from the finish floor up to a major ridge beam that supports the entire roof structure. The ridge beam bears on a bearing wall at its south end and the vertical standing fireplace at its north end. The fireplace in the Machata home is a two story, 38 foot high structure. It is the main support for the entire roof system of the home. The fireplace is constructed with concrete masonry and stone veneer and weighs 250,000 pounds. The fireplace rests on a slab foundation and is supported by six to eight 25 foot long piles. The piles are an integral structural element of the fireplace. Girder trusses on the second floor are connected to both sides of the fireplace. The trusses accept the loading of the second floor framing. The fireplace in the Machata home is cantilevered at the second floor. A cantilever beam off the fireplace supports the second story of the fireplace. The cantilevered nature of the fireplace means the fireplace is top heavy, out of balance, and out of symmetry. In order to relocate the Machata home, it would be necessary to sever the piles from the fireplace support structure. The piles that must be severed bear the loading associated with the cantilevered nature of the fireplace. Severing those piles may cause the fireplace to collapse. If the fireplace collapses, the ridge beam will collapse, and a large portion of the home will be destroyed. There is a wide variation in structural loading in the Machata home. Structural loading exceeds a quarter million pounds at the center of the home. Perimeter wall loads are 3,000 pounds per square foot. Interior wall loads are 1,500 pounds per square foot. Variations in structural loading prevent the home from being moved without tilting. If the Machata home is tilted during relocation, the fireplace will tilt or move off center. Due to the cantilevered and top heavy nature of the fireplace, the center of gravity will shift from the center of the fireplace to a point outside the fireplace. A shift in the center of gravity will create bending stress on the fireplace. The fireplace is not reinforced and not designed to withstand bending forces. The fireplace may crack and break under bending forces and fail. If the fireplace fails, the ridge beam will collapse and a large portion of the home will be destroyed. Relocation of the Machata home will alter the location of the property securing the interest of the mortgagee. Under the terms of his mortgage, Mr. Machata can not damage or substantially change his property. Relocation: Economic Feasibility Relocation of Petitioners' homes is not economically feasible. The direct cost of relocating the Machata home and garage is $315,000. The direct cost of relocating the Lanzendorf home is $75,000. Direct costs of relocation do not include the cost of restoration after the move. Relocation costs include the reasonable cost of restoring Petitioners' homes to the condition they were in prior to relocation. Respondent failed to explicate a justification for not including such costs in its proposed alternative. Such costs include: rebuilding the swimming pools, patios, retaining walls, driveways, walkways, planters, terraces, and equipment enclosure walls; disconnecting, reconnecting, and refurbishing electrical, air conditioning, plumbing and septic systems; landscaping and repairing or replacing the irrigation systems; repairing or relocating fences; earthwork such as clearing and filling; constructing new foundations; and exterior and interior refinishing and reconditioning. The cost of restoring Petitioners' homes after relocation is: MACHATA LANZENDORF a. Exterior demolition 45,878 11,923 b. Interior demolition 12,375 0 c. Earthwork 88,727 46,033 d. Concrete for retaining walls, planters, equipment enclosure walls, footings, terrace and steps 84,909 5,600 e. Pilings 37,500 15,700 f. Rebuild interior fireplace 52,000 0 g. Exterior refinishing 74,770 10,800 h. House reconditioning 32,700 13,500 i. Pool area 23,500 26,500 j. Deck drain, flashing, water proofing 3,000 1,000 k. Electrical 12,665 8,400 l. Plumbing 12,500 8,500 m. Air conditioning systems 11,000 1,250 n. Site grading, irrigation, landscaping 33,192 14,000 o. Driveway 23,256 8,165 p. Temporary shoring and structural support 7,500 0 q. Consulting fees 12,500 3,500 SUBTOTAL 567,972 174,871 r. Contingencies, wastes, and unknowns 42,597 13,155 s. Overhead and profit 128,217 39,477 TOTAL 738,786 227,503 The cost estimates for restoration are reasonable and customary based on what a general contractor would typically submit on such a project. The cost of restoring the Lanzendorf home after relocation is $227,503. When this cost is added to the direct cost of relocation ($75,000), the total cost of relocating the Lanzendorf home is $302,503. The cost of restoring the Machata home after relocation is $738,786. When this cost is added to the direct cost of relocation ($315,000), the total cost of relocating the Machata home is $1,053,786. The patios and terraces at the Machata home are not moveable. The costs of relocating the Machata home, therefore, can not be reduced by moving the terraces rather than demolishing and rebuilding them. Estimated exterior demolition costs of $45,878 include the cost of demolishing the terraces, planter walls, pool steps, segments of the driveway and driveway access that would have to be removed to pour concrete runways on which the home would be rolled to its new location. The cost includes trucking and disposal of the demolition material. The pool at the Machata home can not be moved. It is a reinforced mesh, pencil rod structure, sprayed with gunite. The work reasonably necessary to relocate the Machata home and restore it to its condition prior to relocation would require the pool to be demolished and rebuilt. The estimated cost of $37,500 for constructing a new pile foundation for the Machata home includes pilings, steel reinforcing cages, transition caps, and grade beams. The cost of constructing a new foundation would be greater if Respondent requires the new foundation to comply with the requirements of the relocated CCCL. Estimated earthwork costs of $88,727 for the Machata home include: clearing the site; filling the site to elevate the relocated home to flood elevations required by local government and current elevation; and compacting the fill material. It would also be necessary to grade the site, redo the irrigation system, landscape the site and plant sod, and replace fences to restore the site to its condition prior to the relocation. The air conditioning system at the Machata home is a heat exchange system that utilizes two wells. One well is an artisan well. The other is a shallow well. There are numerous connections between the air conditioning equipment and the two wells. The two wells would have to be relocated and reconnected to the air conditioning system. The underground electrical service to the Machata home would have to be disconnected, relocated, and reconnected. Estimated costs of $12,655 include the disconnection and reconnection of all electrical equipment as well as replacement of numerous pool lights at the new location. The Machata home can not be relocated with the fireplace intact. To assure against the structural collapse of the Machata home during relocation, the home must be properly shored. The fireplace must be disassembled and reassembled after the home is relocated. The cost of demolishing and removing the fireplace, temporarily shoring the home, and rebuilding the fireplace, including masonry reinforcement, internal duct work, structural ties, and Kentucky stone facing, is $71,875. Competing Cost Estimates The estimated relocation costs submitted by Intervenors' expert witness were neither credible nor persuasive. The cost estimates were based on visual observation of Petitioners' homes from an adjacent lot. The witness did not enter Petitioners' property to determine the size or quality of various appurtenances including swimming pools, driveways, tile terraces, retaining walls, and landscaping. The witness did not review structural plans for the Machata home. He was not familiar with structural characteristics of the Machata home and did not know the type of air conditioning used. Relocation costs are based on the estimated weight of each house. Estimating the weight of a structure that exceeds 300,000 pounds is integral to a determination of the cost of relocating that structure. The Machata house weighs 1,200 tons. Intervenors' cost estimates for moving the Machata home are based on a projected weight of 300 to 350 tons. When a structure's weight exceeds 150 tons, an accurate weight projection is integral to an accurate determination of relocation costs. The cost estimates submitted by Intervenors are not formal bids. The cost estimates submitted by Petitioners were prepared as formal bids by an expert in marine construction engineering. The formal bids were based on engineering drawings of the bulkhead. Costs set forth in formal bids are more likely to reflect actual costs than costs set forth in a cost estimate prepared for the formal hearing. The cost estimates submitted by Intervenors unnecessarily exaggerate the cost of the proposed bulkhead. For example, the $5,000 estimate for clearing is unnecessary because no clearing will be conducted. The mobilization/demobilization cost of $10,000 in Intervenors' estimate would actually be $2,500. The $12,000 allotted for site restoration is high and could be completed for $3,000 to $4,000. The $10,000 added for the deadman with tie rods is already included in the square foot cost submitted by Petitioners. Considering these and other examples, the total cost estimates submitted by Intervenors are exaggerated by $100,000. The 2:1 Requirement For Economic Feasibility Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. If the cost of relocation of the upland structure or dune enhancement does not exceed the cost of the proposed armoring by 2:1, then relocation or enhancement is considered to be economically feasible. Respondent requires compliance with the 2:1 requirement in all applications for coastal armoring, and the requirement has the direct and consistent effect of law. The 2:1 requirement is an agency statement of general applicability that implements, interprets, or prescribes policy, or imposes a requirement not included in existing statutes or rules and which has not been adopted in accordance with statutory rulemaking requirements (an "unwritten rule"). 41/ Respondent failed to explicate the reasonableness of selecting the 2:1 requirement over other means of assessing economic feasibility. Even if Respondent had justified its policy during the formal hearing, the cost of relocating Petitioners' homes is more than twice the cost of the proposed bulkhead and, therefore, is not economically feasible. The cost of constructing the proposed bulkhead is $136,000 including all labor, materials, and necessary equipment for the bulkhead and return walls. Of the total cost, $51,000 is attributable to the portion of the bulkhead related to the Lanzendorf home and $85,000 is attributable to the portion of the bulkhead related to the Machata home. The total cost of relocating the Machata home is $1,053,777. The total cost of relocating the Lanzendorf home is $302,464. Agency Requirements Satisfied Petitioners clearly justified the necessity for the proposed bulkhead in accordance with Rule 16B-33.005(1). Their homes are vulnerable to high frequency storms with return intervals as frequent as 10 to 15 years. Computer model results demonstrate that Petitioners' homes are vulnerable to high frequency storm events with return intervals as frequent as 10 to 15 years. The input variables used in the original and EDUNE computer models were reasonably related to Respondent's existing rules, the terms of Respondent's instruction manual, Respondent's long standing practice in all coastal armoring permits since 1988, and reasonable professional judgment. The direct or cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead within the meaning of Section 161.053(5)(a)3. The proposed bulkhead is adequately designed and will be properly constructed within the meaning of Rule 16B-33.005(3) and 16B-33.008. The proposed bulkhead is the only feasible alternative and will be located as far landward as possible within the meaning of Rule 16B-33.005(3)(c).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' application for a coastal armoring permit subject to conditions stated by Respondent on the record and imposed by the terms of this Recommended Order. DONE AND ENTERED this 16th day of February 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if a Petition for Relief is referred to the DOAH for formal hearing based on a Notice of Determination: No Jurisdiction issued by the Florida Commission on Human Relations (FCHR).
Recommendation Based on the foregoing, it is RECOMMENDED that the FCHR resume jurisdiction of the matter and complete the investigation of the Charge of Discrimination, pursuant to Section 760.11(3), Florida Statutes, or permit Petitioner to make her election of remedies pursuant to Section 760.11(8), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of February, 2002. COPIES FURNISHED: William R. Amlong, Esquire Amlong & Amlong, P.A. 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301-1154 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Keith C. Tischler, Esquire Powers, Quaschnick, et. al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
The Issue Whether STOP and the County have standing to challenge the issuance of the Modification? Whether the Department should issue the Modification as authorized in Permit No. BO-612 M1?
Findings Of Fact The Sand Mound The Sand Mound is located entirely on the property of the Applicants in the City of Fort Lauderdale on the southern portion of the city's beach. Oval shaped, it is approximately 176 feet long in a north-south direction parallel to the shore (shore-parallel direction) and 140 feet wide in an east-west direction perpendicular to the shore (shore-normal direction). The Sand Mound's peak at 13 feet NAVD rises between five-to-six feet above the surface of the beach. Gradually sloped, it supports approximately 12,000 square feet of mixed vegetation of varying density. The Sand Mound is an oddity. The width of the beach on the property of The Mayan Beach Club seaward (to the east) of the Sand Mound is approximately 300 feet. The width of the beach lying upland of the Sand Mound (to the west and landward) is approximately 400 feet, a distance of a third or so greater than the beach seaward of the Sand Mound. Unlike a dune, therefore, the Sand Mound lies seaward of an extensive expanse of upland beach. There are no dunes, moreover, in the immediate vicinity of the Sand Mound. The closest dune is several hundred feet to the south. North of the Sand Mound, the closest dune is approximately 800 feet away. Over-sized, recycled tractor tires had been deposited offshore of The Mayan Beach Club property years ago in an unsuccessful government attempt to create an offshore reef. Although not proven, the suggestion was made by the Applicants that the Sand Mound formed as the result of the tires that had washed ashore or ended up on the beach through the beach's advancement due to sand accretion. The suggestion was not disputed by the other parties. It is the only explanation offered by any of the parties for the Sand Mound's isolation from other dunes and its peculiar location seaward of an extensive expanse of upland beach. The Sand Mound's lack of "alongshore continuity" means it is not a "primary dune." It is not a "frontal dune" because there is no "interdunal trough" between it and a primary dune. See Fla. Admin. Code R. 62B-33.002(17)(b). The Sand Mound is not a "significant dune" because it does not have "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). In a major storm event, the Sand Mound would be unable to hold back storm surge. Water would flow over the Sand Mound or flank it so as to move around it. Despite the Department's reference to it as a "dune" in the Permit, the Modification and elsewhere, the Sand Mound is not a dune. It bears similarity to a dune in that is a mound of loose, sand-sized sediment deposited by natural or artificial mechanism which is bare or covered with vegetation and is subject to fluctuations in configuration and location. See Fla. Admin. Code R. 62B-33.002(17). Unlike a dune, however, it is seaward of an extensive expanse of beach. It is not "lying upland of the beach," see id., a characteristic of a dune, and, therefore, it is not a dune.3/ See id. The Permit and the Modification In December 2007, The Mayan Beach Club applied for a permit to reduce the Sand Mound (which it called a "berm") to existing beach level. In the application cover letter, The Mayan Beach Club's manager expressed "the opinion that a large tractor tire was washed onto shore, and never removed, thus causing the berm to evolve." Respondents' Ex. 4, Cover Letter. The cover letter also expressed a simple purpose: "to have the berm leveled to match up with all of the surrounding beaches." In mid-2008, Ocean Lane Villas, Inc., put in writing its support of the efforts to remove the Sand Mound and gave its permission to arrange for removal of the portion of it on Ocean Land Villas, Inc.'s property. The Department issued the Permit on October 2, 2009. But it did not authorize a leveling of the Sand Mound, as requested. The Permit contains a "Project Description" that opens with the caption "Dune Restoration." See Respondents' Ex. 27. The permitted activity is both excavation and restoration between approximately 395 feet and 535 feet seaward of the control line: A +13.0-foot (NAVD) dune feature is to be reduced to +10.0 feet (NAVD), with up to 1,442 cubic yards of excavated material to be spread adjacent to the feature and to construct a second dune feature (approximately 440 cubic yards) located to the north. Excavation and placement areas are to be planted with native salt-tolerant beach and dune vegetation. Id. The Permit authorization of a three-foot reduction in the Sand Mound allows about half of the Sand Mound's five to six-foot elevation above the beach surface to be reduced so that it would have a two to three feet elevation above grade. In January 2011, Coastal Systems International, Inc., submitted an application for a modification of the Permit. The application was received by the Department's Bureau of Beaches and Shores on January 18, 2011. The application proposed that the Sand Mound be removed in its entirety "restoring grade to match the typical conditions of the beach in the area." Respondents' Ex. 33, p. 2. The application's cover letter described the Sand Mound as "an anomaly, uniquely located more than 400 feet east of the landward edge of the beach." Id. The Modification application provided more compelling reasons for the need to remove the Sand Mound beyond the desire of The Mayan Beach Club as expressed in the Permit application to have its beach match the beach in the area. In addition to the contention that the Sand Mound had negative impacts to sea turtles, the cover letter asserted that it "obstructs resident views of the ocean . . . and is an 'attractive nuisance' encouraging trespass onto private property and trash accumulation, and resulting in negative impacts to the Permittee's property values and security." Id. On September 14, 2011, the Department issued the Modification. Its Project Description is markedly different from the Permit's. Rather than "Dune Restoration," the Project Description in the Modification is "Dune Redistribution." Instead of excavation and restoration, the Modified Project, as applied for, is one for "Removal": Dune Redistribution: Removal: Removal of the existing vegetated sand mound[4/] located approximately 514 feet seaward of the control line and redistribute approximately 1,730 cubic yards of the sand across the property. The mound is approximately 140 feet in the general shore- normal direction by 176 feet in the general shore-parallel direction. The removed sand is to be distributed between the Seasonal High Water Line and the western edge of the existing sandy beach to a maximum distance of 536 feet seaward of the control line. Id. at p. 2. Since all of the excavated sand will remain on the beach seaward of the CCCL, there will be no net excavation of in- situ sand or soil seaward of the CCCL. In sum, the primary effect of the Modification is to change the Permit from one that allows the Sand Mound's elevation to be reduced by three feet, to one that removes the Sand Mound in its entirety. The Modification calls for distribution of the excavated sand on the beach, but the Modification, unlike the Permit, calls for no restoration activity that would create a new sand feature. The Parties The Mayan Beach Club is a condominium association that operates and manages a 22-unit low-rise oceanfront residential condominium located along the southern part of Fort Lauderdale's beach. Shortly after its incorporation in 1953, The Mayan Beach Club assumed management of the condominium and its newly- constructed units. The Mayan Beach Club's condominium property is roughly 1/4 of a mile north of the ocean inlet to Port Everglades, a major seaport. Due primarily to a jetty that extends into the ocean along the edge of the inlet, beach sand has accreted in front of its property over a period of several decades. The Mayan Beach Club's property is bounded "on the East by the waters of the Atlantic Ocean." See Respondents' Ex. 11, Schedule A to Title Opinion and Guarantee, Fund Serial No. 18344. Its fee title ownership includes nearly 700 linear feet of beach between the CCCL (seaward of the condominium residential improvements) and the mean high water line ("MHWL") of the Atlantic Ocean. Ocean Lane Villas, Inc., is an association that owns adjacent property to the south of The Mayan Beach Club property. It notified the Department that it supported the Permit and granted permission for the authorized activity to be conducted on its property. It joined The Mayan Beach Club in seeking the Modification. The Department is the state agency with the authority to establish CCCLs and to issue permits for construction activities seaward of a CCCL when an applicant has shown the permit "to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and [Florida Administrative Code Rule Chapter 62B-33] are met . . . ." Fla. Admin. Code R. 62B-33.005(4). Also see §§ 161.052 and 161.053. Incorporated in the State of Florida on August 31, 2010, STOP is a not-for-profit corporation. Its mission is to protect sea turtles, reduce hatchling mortality due to disorientation from artificial light sources, educate the public about marine turtle habitat and assist the State of Florida with its sea turtle conservation program. Broward County is a political subdivision of the state that has existed for more than one year prior to the date of the filing of the application at issue. Official recognition is taken that the population of Broward County is in excess of 25. The Charter of Broward County addresses its interests in natural resources and environmental protection. It has authority, for example, to adopt environmental rules and regulations that prevail over municipal ordinances with which they conflict. Standing STOP's Standing STOP was incorporated less than one year prior to the date of the filing of the application for the Modification. STOP has 120 permanent staff members. "Almost all of them" (Hearing Tr. vol. 2, 231, Feb. 16, 2012), live in Broward County. All of STOP's permanent staff members are permitted by the Florida Fish and Wildlife Conservation Commission ("FWC") to monitor Broward County's beaches nightly during sea turtle nesting season. The members' work in the field is in shifts of a minimum of four hours between sunset and sunrise. Members work many shifts of more than four hours, some as long as ten hours. The activity of STOP includes recovering disoriented turtle hatchlings and documenting disorientations. To rescue sea turtles, FWC permittees must complete a written test and field training that requires 40 hours on the beach. STOP's program is unusual. It is one of the few organizations in Florida that recovers hatchlings at all hours of the night instead of in early morning daylight after hours of disorientation. According to STOP activity logs, at least 20 different members have patrolled the beach in the area of the Sand Mound. STOP has a website for public use and another accessible only to its members. It posts photos, videos, commentary associated with its activities and materials for public education to serve the conservation of sea turtles. Prior to filing its petition, STOP filed public comments with DEP that the Modification "is likely to cause harm to protected nesting adult sea turtles, and could prove deadly to numerous sea turtle hatchlings, in addition to harming other protected species." STOP Ex. 11. Broward County's Standing Broward County has established a Natural Resource Protection Code in Chapter 27 of the Broward County Code of Ordinances (the "BCC"). The Natural Resource Protection Code was adopted by the County to promote the preservation, protection, and enhancement of natural resources. These resources include coastal and marine animal and plant life. The County also relies on the Florida Statutes5/ and the Florida Administrative Code, including section 161.053 and chapter 62B-33, to protect the interests of the County and its residents in natural resources, plants, and wildlife that are present in the beach and dune system in Broward County. The County's eastern boundary is three miles east of the MHWL of the Atlantic Ocean. The beach area affected by the Modification is in the County. The County has an interest in protection of the area's natural resources, plant, and wildlife. The Sand Mound's Vegetation The Sand Mound's vegetation, in varying density, is spread over approximately 12,000 square feet of the Sand Mound. The vegetation is not as robust as typical dune vegetation. Vegetation on half of the Sand Mound is sparse. If the Sand Mound were part of a dune restoration project, it would require the planting of additional vegetation. In a 2011 Site Inspection Report, the Sand Mound was determined to support "Sea Oats, Panic Grass, Seashore Saltgrass, Beach Elder, Chamaesyce, Ambrosia, Railroad Vine, Dune Sunflower and Beach Star." Of the species growing on the Sand Mound only the beach star is endangered. After interaction with the Department of Agriculture, DEP, and the City of Fort Lauderdale, the Applicants agreed to plant several endangered species in another location as mitigation for the destruction on site of the beach star vegetation. The City of Fort Lauderdale agreed to partner with the Applicants as part of a dune restoration project at The Palms Condominium, north of the Applicants' property. The mitigation plan included removal of invasive exotic plants, and replanting the mitigation area with native plants, including several endangered species. The mitigation planting area is approximately 14,000 square feet, which is roughly 2,000 square feet more than the area of vegetation that will be lost through the removal of the Sand Mound. Minimization of Impacts The Applicants minimize impacts by not proposing activity beyond that which is necessary to remove the Sand Mound and distribute the excavated sand on the beach. Adverse Impacts "Adverse impacts" are defined by rule 62B-33.002(33)(a) as those "to the coastal system that may cause a measurable interference with the natural functioning of the coastal system." The "coastal system" is defined by rule 62B-33.002(13) as "the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and coastal construction." Removal of the vegetation on the Sand Mound, which is seaward of the CCCL, will, of course, have an impact on the vegetation which is part of the coastal system. But it will not cause measurable interference with the natural function of the coastal system. Removal of the Sand Mound, itself, will not cause adverse impacts to the coastal system. Mitigation The Department must deny an application for an activity seaward of the CCCL if it does not provide for mitigation of adverse impacts. If a project causes no adverse impact, mitigation is not required. See Fla. Admin. Code R. 62B- 33.005(3)(b). Mitigation is not required for the removal of the Sand Mound. Furthermore, no mitigation is required by the Modification since the vegetation will be removed if the Permit is implemented without the modification. Nonetheless, the Applicants entered into the mitigation described above with regard to the planting of endangered species. As part of the effort to mitigate off-site, the Applicants made a one-time payment of $7,500 to the City of Fort Lauderdale. The mitigation plan was successfully implemented prior to hearing. Other General Criteria The proposed project will not cause any anticipated short-term or long-term direct or indirect effects on the coastal system and will not cause cumulative impacts to the coastal system. The proposed project is not inconsistent with siting and design criteria. It will not result in damage to existing structures and property or lower existing levels of protection. It will not destabilize a frontal, primary, or significant dune nor will it cause significant adverse impacts to the beach and dune system due to increased erosion by wind or water. The proposed project will not reduce the existing ability of the coastal system to resist erosion during a storm. It will not significantly interfere with the coastal system's ability to recover from a coastal storm. The proposed project will not affect the hydrology of the water flowing across the land and will not direct discharges of water or other fluids in a seaward direction. The proposed project will not result in the net excavation of the in situ sandy soils seaward of the CCCL. The proposed project will not cause an increase in structure induced scouring. The proposed project will not interfere with public access and will not interfere with lateral beach access. Marine Turtles Each night during late summer months, thousands of marine turtle hatchlings emerge from nests located on Broward County's beaches. If not all, nearly all of the nests belong to two of the five species of marine turtles protected by the Marine Turtle Protection Act, section 379.2431, Florida Statutes: the Atlantic loggerhead turtle and the Atlantic green turtle. Of these two species, the green turtle is more likely to be affected by removal of the Sand Mound. A significant number of the turtle nests in Broward County are green turtle nests, and a significant number of the hatchlings on Broward County's beaches and in the area of the Sand Mound are green turtle hatchlings. Marine turtles nest on a wide variety of beaches, but they tend to prefer steeply sloped beaches with prominent vegetated dunes. Dunes are a particular attraction for green turtles in search of a nest because green turtles prefer to nest at higher beach elevations than do loggerheads. The Sand Mound is a marine turtle nesting habitat. Removal of the mound poses the threat of three impacts to marine turtles: 1) promoting abandonment of nesting attempts by female turtles; 2) negatively affecting the survivorship of nests that would have been in the Sand Mound; and 3) disorientation of hatchlings emerging from nests where the Sand Mound would have been when the Sand Mound would have provided silhouette and shape cues that correctly orient hatchlings toward the sea. Sea turtle hatchlings orient toward the ocean and hatchling disorientation frequently results in death. The Sand Mound offers a visual cue to a female marine turtle that indicates the turtle has crawled far enough out of the water and can stop. Turtles that emerge and find no dune or other cover tend to wander longitudinally along the beach. They may return to the sea in what is known as a "false crawl." See Hearing Tr. vol. 2, 201-202, Mar. 9, 2012. False crawls have a cost to the female turtle's energy requirement for nesting. Dune elevation increases nest survivorship because it protects the eggs from storm events. Nests at higher elevations have a better chance of survival than nests at lower elevations because they are less likely to suffer effects from erosion and inundation, two of the main factors that determine nest survivorship. A dune also offers to hatchlings the benefit of a silhouette which blocks out artificial light from the low landward horizon that causes hatchling disorientation. Prominent vegetated dunes are especially helpful in assisting hatchling orientation. Dune vegetation also provides shade, which increases the nest survivability over nests in bare sand. Artificial lighting can disrupt the ability of hatchlings to find the sea from their nests. Hatchlings benefit from the silhouette of a dune that blocks out some of the disorienting lights that exist in an urban environment. Dune vegetation assists in scattering light, and the downward slope of a dune is a cue that orients hatchlings towards the water. Both Dr. Witherington and Dr. Rusenko testified that in their opinion, the removal of the Sand Mound would constitute a "take" as defined in section 379.2431. Isolating the impact of the removal of the Sand Mound is difficult, however, because there are so many factors that have a bearing on turtle nesting and hatchling disorientation along the southern stretch of Fort Lauderdale's beach. These factors include "night glow," predation, erosion form high-wave storms, weather, inundation, and direct artificial lighting. Dr. Witherington was more equivocal as to whether the Modification would be a take if the Permit had been implemented. See Hearing Tr. vol. 2, 252-255, Mar. 9, 2012. In contrast to the opinions of Drs. Witherington and Rusenko which were based on knowledge of marine turtle behavior in general, the Applicants' biological consultant, John James Goldasich, used Broward County data about turtle nesting and hatchling disorientation in the area of the Sand Mound to form his opinions. Mr. Goldasich also based his opinion on light measurements taken on site which indicated no distinction between the lux values of light on the east side of the Sand Mound and on the west side. Furthermore, night glow, which tends to disorient marine turtles, is significant near the Sand Mound and on the southern stretch of Fort Lauderdale's beach. The accuracy of the Broward County data used by Mr. Goldasich was verified by Lewis Edward Fisher, Jr., the County's lead employee for turtle management. Some of the data included turtle nests that were relocated onto The Mayan Beach Club property, but of the exhibits used by Mr. Goldasich, only Respondents' Exhibit 161 showed relocated nests. The inclusion is insignificant. Exhibit 161 depicts only two relocated nests. Mr. Goldasich offered opinions with regard to two issues: 1) whether the Sand Mound affects the location and pattern of turtle nesting; and, 2) whether the Sand Mound has an effect on hatchling disorientation. Three nest plotting maps used by Mr. Goldasich illustrate that the Sand Mound has had little, if any, impact on the location and pattern of turtle nesting: 1) Applicants' Exhibit 99, which plots nesting data of loggerhead and green marine turtles in the vicinity of the Sand Mound from 2002 to 2011; 2) Applicants' Exhibit 128, which plots nesting data in a broader area than Applicants' Exhibit 99 from 2001 through 2011; and 3) Applicants' Exhibit 133, which plots nesting data of loggerhead and green turtles along southern Fort Lauderdale beach for the year 2011. The three exhibits show no concentration or pattern of loggerhead nesting in the vicinity of the Sand Mound. The absence of effect on loggerhead nesting is expected because they do not exhibit the preference for nesting in dunes that green turtles exhibit. Of approximately 34 green marine turtle nests plotted on Applicants' Exhibit 99, only six have nested in the immediate vicinity of the Sand Mound. The locations of the other 28 nests demonstrate the preference of green marine turtles to nest at higher elevations in the upland beach. Respondents' Exhibit 133, that contains FWC data, supports the finding that the Sand Mound has been a negligible factor for the nesting of green turtles. Of the 15 green turtle nests depicted in Respondents' Exhibit 133, two are located in the vicinity of the Sand Mound. Four are concentrated in a small contained beach area next to tall buildings near the mouth of Port Everglades in an area of greater light disturbance, but with no dune influence. The remaining nine are spread over the hundreds of meters to the north and south of the Sand Mound. They do not depict any concentration of green turtle nesting close to the Sand Mound. Applicant Exhibits 99, 128, and 133 establish that the Sand Mound has had little, if any, bearing on marine turtle nesting. To evaluate whether the Sand Mound had any discernible effect on hatchling disorientation, Mr. Goldasich analyzed FWC Marine Turtle Disorientation Reports provided by the County. If the Sand Mound protects hatchlings from disorientation, then hatchlings from nests on or near the dune should exhibit less disorientation. In comparing disorientation from two dozen nests, there is no correlation between nest proximity to the Sand Mound and hatchling disorientation. Analysis of hatchling disorientation data from the four 2011 green turtle nests in the immediate vicinity of the Sand Mound also yields a finding of no correlation between nest proximity to the Sand Mound and hatchling disorientation. There is insufficient evidence as to why so many hatchlings in the proximity of the Sand Mound have not benefited from its presence. It may be because of night glow, weather, or other relevant factors. Whatever the cause, Respondents have presented empirical data and analysis that reveals no orientation benefit to hatchlings from the Sand Mound, a sand feature that is not a dune on a stretch of beach that is without dunes. The Applicants' data and analysis is more persuasive than Petitioners' prediction based on general knowledge of marine turtle behavior in coastal systems that include dunes. No Take Letter When the Department believes a proposed project justifies an inquiry into whether the project would constitute a Marine Turtle Take, it asks FWC to investigate the issue and, if appropriate, to issue a "take letter." See Hearing Tr. vol. 1, 24, Mar. 9, 2012. In the initial stages of the review of the application for the Permit, the Department did not request FWC to determine if a take letter should be issued. The proposed activity seemed to Department personnel not to constitute a "take." Furthermore, the activity was restricted to a time outside of the marine turtle nesting season. Later in the process when the "take" issue had been raised by others, DEP requested that FWC determine whether or not to issue a take letter. The Department contacted FWC repeatedly about the matter. FWC did not issue a take letter. The Department: No Position on the "Take" Issue At hearing, the Department described its position on the Marine Turtle Take issue as neutral. It continued to have no position on whether the evidence demonstrated a "take" or not in its proposed recommended order.
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 that issues the Modification as reflected in Permit No. BO-612 M1 filed by the Department with its Clerk on September 14, 2011. DONE AND ENTERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2012.
The Issue Whether the Department of Environmental Regulation should grant the application which Anne B. Kavanaugh filed for a dredge and fill permit to construct a 40-slip marina, and dry storage space for 140 additional boats, on the western bank of Egans Creek in the City of Fernandina Beach, Florida?
Findings Of Fact Approximately 1,200 feet from the boundary of the Ft. Clinch Aquatic Preserve, Anne B. Kavanaugh and her husband, William Kavanaugh, propose to construct 40 slips with floating piers accessible by elevated concrete walkways, a T-shaped pier, a fixed concrete travel lift pier for boats less than 30 feet long, a permanent sewage pumpout facility, a fueling facility, and a dry rack storage facility to accommodate an additional 140 boats. The marina is planned for the west bank of Egans Creek, inside the City of Fernandina Beach. Egans Creek comprises Class III water not designated as outstanding Florida waters. Under general DER guidelines, water at a marina must ordinarily "flush" within three or four days. If new water does not completely exchange with old within that time, permitting is problematic. Under these guidelines, water must circulate enough to dilute a contaminant at the marina to 90% of its original concentration, within this three- or four-day period. Tidally influenced, Egans Creek easily meets the guidelines at the site proposed for the marina. Fernandina Beach and environs are Florida's (muted) answer to the Bay of Fundi; the average tidal range is on the order of six feet. Contaminants entering Egans Creek at the proposed site are rapidly dispersed, moving 1200 feet down the creek on outgoing tides into the Amelia River, then through St. Mary's entrance into the Atlantic Ocean. Hydrographic studies, including a dye tracer study, demonstrated that 90% dilution can occur within 50 feet in 50 seconds, and that 100% dispersion of a contaminant can occur within minutes in Egans' Creek. According to the weight of the evidence, water quality standards would not be violated in the aquatic preserve as a result of construction or operation of the marina. The International Marine Institute Guidelines are the industry standard for the design of marinas. These were looked to in designing the marina the applicant proposes. According to Mr. Vorpe's uncontroverted testimony, all applicable rules and regulations were considered when designing the marina. Driving the necessary piles requires the dredge and fill permit in contention here. Since the applicant proposes no dredging or filling in waters of the state, other than removing the existing docks and driving new piles, construction itself is expected to have minimal effect on water quality. No petitioner raised any concern or offered any evidence regarding construction, as opposed to operation, of the marina. The applicant has agreed to certain permit conditions, including taking appropriate precautions to control turbidity during removal of the old docks and installation of the new piling. Fueling Facilities The applicants plan to locate fueling facilities above the mean high water line, and to separate the fuel dispenser from adjacent wetlands by constructing a berm. The dispenser would be at least 85 feet from the dock, and a 10,000-gallon gasoline storage tank would stand still further inland. Attached to the dispenser would be a hose 25 feet long for refueling boats after they are taken out of the water, en route to the dry storage building. A berm would partially surround the dispenser, to direct spillage across the pavement into a retention pond capable of holding 10 to 15 times the volume of the storage tank. The dispenser would have two shut-off valves, part of a system designed to shut off electronically, if fuel begins to flow while the dispenser is unmanned. These shut-off valves could also be activated manually. Some distance away, but still within the 100-year flood hazard zone, the storage tank would be located above ground near the northeast corner of the dry stack storage building, at an elevation of 6.1 NGVD. DER routinely permits fuel storage tanks, including underground storage tanks, in 100-year flood zones. Above ground storage tanks have the advantage that leaks and certain other problems are easier to identify and correct, than they would be if the tanks were buried. Soil borings demonstrated the ability of the soil to bear the weight of the tank when full. A concrete retaining wall designed to encompass more than 11,000 gallons would encircle the tank, which would itself be designed in accordance with the standards laid down by the American Petroleum Institute and The National Fire Protection Association. Vented (with a spark arrester to prevent a stray spark from entering the tank and igniting the contents), the tank is to be fabricated from welded steel, and to be bolted to a concrete slab. The retaining wall is designed to withstand not only the hydrostatic force necessary to contain a spill, but also to resist the force of flood waters outside the wall. FEMA publishes maps which depict expected elevations of flood waters. Good engineering practice requires the containment wall to be one foot higher than the 100-year return base flood elevation. The planned height of twelve feet exceeds this requirement. An "ambiguity" in the FEMA regulations requires holes to be placed in walls constructed within a 100 year flood zone in order to allow the flood waters to enter structures without collapsing the walls. This requirement is, of course, incompatible with the purpose of a containment vessel, which is designed to withstand the hydrostatic forces the holes are intended to avoid. Moving the fuel dispensers closer to the relatively nearby site now proposed for the underground storage tank would not be well advised. Mr. Vorpe's testimony that the dispensers are currently planned for the safest place to minimize risk from vehicular traffic, including operation of the forklift, was uncontroverted. Relocating the storage tank further upland would necessitate longer piping, unless the fuel dispensers were also moved. Mr. Odum, the City's expert, conceded a greater potential for problems from increasing the length of the proposed underground piping system than the hazard a 100-year flood would pose to a tank at the proposed location. Mr. Odum agreed that placement of the pipes above ground would render them susceptible to overheating (from direct sunlight in a warm climate) as well as to damage from vehicles, including the forklift. Mr. Odum had no opinion as to whether there is a suitable alternative location for the fuel storage tank. Septic System The applicant has obtained a permit from the Department of Health and Rehabilitative Services authorizing construction of a septic system consisting of a septic tank and an absorption mound. A septic tank is to be placed under the dry stack storage building the required minimum distance from DER's jurisdictional line. Placement of the tank under the building would afford the tank additional protection. The absorption mound would be located on the highest portion of the property, by 14th Street, outside the 100-year flood zone, and more than 200 feet from the nearest marsh. HRS did not require that the mound be constructed to the elevation planned. The applicant wants extra height for added safety and additional filtering action. No discharge into Egans Creek is expected from operation of the septic system. The St. Johns River Water Management District has issued a permit for the extensive storm water management system the project would include authorizing construction of several large retention ponds. Petitioners offered no evidence regarding the design and construction of the septic system or the stormwater management system or any effect on water quality either system might produce. Impacts From Operation Peak boating times include the warmer months (May to December), fishing seasons, weekends and holidays. Perhaps only a tenth of the boats in dry storage would be used even during most of these peak periods. Over the July 4th holiday, considered the "worst day" for boat traffic, up to fifth of the boats in dry storage might go out. If the history of similar facilities is any guide, the dry storage facility might never be filled to more than 80% of the planned 140-boat capacity. Not all the boats used on a given day would enter the creek at the same time. Gasoline, which evaporates more quickly than diesel fuel, would be the only fuel dispensed at the marina. The only other marina operating within the City of Fernandina dispenses both gasoline and diesel fuel over docks from underground storage tanks. (The other marina operating on the island, the Amelia River Yacht Basin, also dispenses fuel from an underground tank sited within the 100-year flood zone.) The applicant has agreed not to fuel boats moored at the dock or to do any fueling over the docks. Although other sources of pollution inevitably attend the operation of marinas, no evidence regarding bottom paint, for example, was adduced. Ms. Altman's proposed recommended order does not constitute evidence. The applicant has agreed to accept several permit conditions intended to keep down pollution from operations. Among these are that a 3:1 ratio of sailboats to power boats be maintained in the wet slips; that no live-aboards be allowed; that no boat maintenance or repair activities be allowed at the marina; that no discharge of fish wastes from fish cleaning stations occur; that there be no fueling over the docks; that gasoline service be provided only to boats in transit to or from the dry rack facility; and that certain conditions for the protection of manatees be implemented, including posting manatee awareness signs and distributing literature to educate boaters about manatees. In addition, the applicant has agreed to enter into a long term contract incorporating the foregoing conditions for operation of the marina. The applicant's intention is that these conditions survive the five-year permit, and bind any successor in interest. To that end, the long-term contract is to be recorded as a public record. Manatees Despite the proposed marina's proximity to the Atlantic Ocean, even boaters headed outside would have to travel through "the known manatee corridor." T.240. Boaters headed the other way travel extensively through the region of the Amelia River where manatees congregate. On the other hand, proposed permit conditions meet or exceed the manatee protection plan requirements of the DNR and the requirements of the manatee protection plan approved by regulatory agencies for the Port of Fernandina. The applicant's expert on manatees was not aware of any manatee deaths or injuries from operation of the Port facility. West Indian manatees who frequent inland waters between Crooked River, Georgia, and Fernandina have been the subject of "a number of tagging studies and aerial surveys." T.232. Even though they are more likely to be present in the summer than in the winter, there were 30 or 40 recorded sightings within this study area during February and March of 1988. T.235-236. Two of these recorded sightings were of manatees in Egans Creek. The military has done studies in an effort to assess the effect of naval operations on manatees in the general vicinity. The largest number of manatee sightings reported in published study data, second only to the number at King's Bay Naval Station in Georgia, occurred in the Amelia River "in the project area." T.232. Moreover, "manatee usage of the Fernandina Beach area has been increasing in recent years." T.245-6. Southwest of the site proposed for the marina, manatees congregate in the Amelia River, near a paper mill and at the City's wastewater treatment plant, both of which have warm freshwater outfalls. These "congregating areas . . . are within the areas of boat traffic." T.239. Situated between the outfalls, the City's marina also frequently has manatees in it. No more than ten "documented sightings of manatees have been reported" (T.235) on any given day, however. Manatees graze on sea grasses and on smooth cordgrass or spartina alterniflora, which is abundant in marshes near the freshwater outfalls into the Amelia River. Manatees feed in the waterways meandering through these marshes, such as Bells River, Lanceford Creek and Jolly River. They "have been documented feeding in those areas on numerous occasions." T.235. Accessible to the manatees' known congregating areas, these feeding grounds, unlike the congregating areas, are somewhat protected from boat traffic. Along the western shore of Egans Creek where the project is proposed, spartina alterniflora is not accessible to manatees at low tide, because it is then completely exposed. Published data show, however, "that the manatee in Egans Creek feed on the same shore as the proposed project." Kavanaugh's Proposed Recommended Order, p.31. Boats in slips waterward of the vegetation would create a barrier protecting the area at high tide. Spartina alterniflora also flourishes in the marsh across the creek from the proposed site. No outfall of warm water enters Egans Creek upstream of the site proposed for the marina, and no deaths or injuries to manatees in Egan Creek were proven. The owner of the boat yard next to petitioner's property testified that he had not seen a manatee in Egans Creek near the project area in several years. But the applicant's expert conceded that manatees "are utilizing" (T.248) Egans Creek. The City requested the County to create a no-wake zone in Egans Creek in 1987, but there are currently no restrictions on the number of boats or their speed in Egans Creek. The applicant proposes to require marina tenants to agree in writing not to exceed idle speed in Egans Creek or face eviction. Boats moored in "wet slips" might result in lower boat speeds in Egans Creek: Boaters tend to slow down so as not to throw wakes which might damage boats that are docked. Historically, DER has deemed itself to have obtained "reasonable assurances" that a marina will not affect manatees adversely by including permit conditions recommended by the Florida Department of Natural Resources and the U.S. Fish and Wildlife Service. Regulatory guidelines depend on educating the public regarding manatees and safe boating practices as the primary means of protecting manatees. In the present case, the U.S. Fish and Wildlife Service wrote a "no jeopardy" letter stating that the proposed marina would not be expected to cause manatees' extinction, if certain recommendations were followed. These recommendations have been included in the proposed permit as "standard marina conditions." The Marine Mammals Section, Office of Protected Species of the DNR, concurred in the U.S. Fish and Wildlife recommendations and evaluation, and recommended approval of the project. Past Problems Petitioner Altman questioned the applicant's ability to provide reasonable assurances, citing prior enforcement actions concerning the property where the marina is proposed to be built. In 1986, eroding upland material sloughed into jurisdictional vegetation after heavy rains. DER requested that the owners of the property at the time, which included the Kavanaughs, remove the material from two 3' by 3' areas and one 5' by 5' area, pay a $450 fine, and execute a consent order, which they did. The property was restored to DER's satisfaction. In 1989, lime rock intended as a road surface was deposited in vegetation within DER's jurisdiction, although not on submerged lands, without a permit. Neither of the Kavanaughs had directed the contractor to place any fill material in the marsh and, because a jurisdictional line had not then been established, neither knew that the vegetation lay within DER's jurisdiction. At the time, Mr. Kavanaugh and his wife owned only 25% of the property; and they were not involved in or responsible for the day-to-day operation of the site. The Kavanaughs were out of town when the majority owner of the property met with DER to resolve the matter. Since a jurisdictional line had not been established, there was some confusion over exactly how far upland the material would have to be removed. On their return, once the Kavanaughs learned of the continuing problem, they personally worked with the DER to resolve the matter to DER's satisfaction. Mr. Kavanaugh cooperated with the DER, completed restoration to DER's satisfaction, paid a $1,080 fine, and executed a consent order. Among other things, the consent order required removal of an old pogy boat and other debris from the rip rap along shore, materials which were already on the property at the time the Kavanaughs first purchased an ownership interest. In December of 1989, Mr. and Mrs. Kavanaugh became sole owners. In 1990, Mr. Kavanaugh received a warning letter from the DER regarding a boat house on the property. A complaint had been called in nearly a year after restoration work on the boat house had been completed, even though Mr. Kavanaugh had obtained permission from the Department of Natural Resources to do the restoration work. When DER learned that the Department of Natural Resources had given prior permission for the restoration work, no further enforcement action was taken. DER sent another warning letter in 1992 regarding shrimp doors and other debris, which shrimpers docking at the marina had placed on the property along the shoreline. Kavanaugh removed all debris from the bank and, after a reinspection by DER, was advised that the site was in compliance. One of the shrimpers no longer docks at the marina. The other shrimper has been admonished. Mr. Kavanaugh has placed "no trespassing" signs and asked the owner of the adjacent boat yard to watch the property, in attempts to stop further unauthorized dumping at the site. The Kavanaughs and the Department of Natural Resources were parties to litigation regarding the boundary of the proposed site as a result of which jurisdictional lines delineating the regulatory authority of the environmental agencies were established. Flags on PVC staffs marking these lines were still in place at the time of the hearing. The Kavanaughs have not knowingly placed illegal fill, nor was any still on site, at the time of the hearing. Unauthorized dumping at the site should decrease after construction of the marina. The plan is to retain full-time employees to maintain the property and police it regularly. Owners of the sailboats using the wetslips may assist in policing the area. Construction plans for the marina also include erection of a fence with a gate which will be locked daily to protect the dry stack storage area and other improvements at the site. Miscellaneous The City offered portions of its Comprehensive Plan in evidence to establish the City's policy regarding marinas. But the City did not adduce testimony to show that the proposed marina is contrary to City policy or otherwise violates what the City considers to be the public interest. No determination has been made regarding the compliance of the applicant's project with the comprehensive plan. Construction of the marina is expected to benefit the local community by making additional fire protection available: Extending the city water supply system to the property would entail laying water lines to properties not previously supplied water by the City.
Recommendation It is, accordingly, RECOMMENDED: That DER grant the application for dredge and fill permit on all applicable proposed conditions, and on the additional condition that the marina be restricted to sailboats. DONE AND ENTERED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II 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 27th day of January, 1993. APPENDIX The City's proposed findings of fact Nos. 1, 3, 4, 5, 7 and 11 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 2, the testimony also described it as the west bank. The City's proposed finding of fact No. 6 amounts to speculation. The City's proposed finding of fact No. 8 pertains to immaterial matters. With respect to the City's proposed findings of fact Nos. 9 and 10, increased length of pipe is a countervailing consideration. Joan Altman's proposed findings of fact were not numbered. DER submitted proposed conclusions of law but did not submit proposed findings of fact. Anne B. Kavanaugh's proposed findings of fact Nos. 1-5, 14, 25, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 61, 62, 66, 75, 76, 77, 78, 80, 81, 82, 87, 90, 92, 97, 98 and 101 pertain to subordinate matters except to the extent of facts found in the recommended order. Ms. Kavanaugh's proposed findings of fact Nos. 6, 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22, 23, 24, 26, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44, 50, 56, 57, 58, 59, 60, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 79, 85, 89, 96, 99 and 100 have been accepted, insofar as relevant. With respect to Ms. Kavanaugh's proposed finding of fact No. 20, temporary turbidity would be contained. With respect to Ms. Kavanaugh's proposed finding of fact No. 41, there is a one percent chance each year. With respect to Ms. Kavanaugh's proposed finding of fact No. 83, her expert described the known congregating area as "in the project area." T.232. With respect to Kavanaugh's proposed finding of fact No. 84, the study was done in February and March, which are not summer months. Kavanaugh's proposed finding of fact No. 86 is better characterized as a proposed conclusion of law, which does not reflect recent case law. With respect to Kavanaugh's proposed finding of fact No. 88, a "no jeopardy letter" does not predict a lack of adverse affect. With respect to Kavanaugh's proposed finding of fact No. 91, the sail to power ratio is misstated. Kavanaugh's proposed finding of fact No. 93 has not been established by the evidence. See T.255. With respect to Kavanaugh's proposed finding of fact No. 94, Mr. Howard was not aware of any, but it was not established that none had been reported. With respect to Kavanaugh's proposed finding of fact No. 95, proposed data do not show that manatees do not feed on the eastern bank. Kavanaugh's proposed finding of fact No. 102 pertains to an immaterial matter. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Joan Altman 212 Estrada Street Fernandina Beach, Florida 32034 Clyde W. Davis, Esquire 13 North Fourth Street Fernandina Beach, Florida 32034 Deborah D. Barton, Esquire BAUMER, BRADFORD & WALTERS, P.A. Box 4788 Jacksonville, Florida 32201 William H. Congdon, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
