Findings Of Fact It is stipulated that Marine Industries Association of South Florida, Inc. (Petitioner), has standing to bring this rule challenge. It is also stipulated that Save The Manatee Club, Inc. (Intervenor), has standing to intervene in this rule challenge. The Department of Environmental Protection (Respondent) has the responsibility of implementing the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Act. 4. Respondent's Rules 16N-22.001(2), 16N-22.002(20) and (21), Florida Administrative Code, set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees. Also, Respondent's Rules 16N-22.010(1)(e) and (g), Florida Administrative Code, establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees. The manatee is an endangered marine mammal residing in the southern United States, principally in Florida, and has been declared by the State of Florida as its state marine mammal. Only 900 manatees are considered to be on the east coast of Florida. Respondent uses all available information on the presence of manatees, which includes actual visual sightings as well as any other method to identify their presence. Respondent refers to this information as "sightings." Respondent's information gathering procedure is consistent with established and accepted procedures for the gathering of information on manatees. Aerial surveys are part of the information relied upon by Respondent for its determinations regarding manatees. It is possible, and not uncommon, that aerial surveys may include sightings of the same mammal on different days. Whether a manatee is sighted frequently involves more than just numbers. It also includes a reasonable expectation that manatees will be seen. Aerial survey data is a minimum count to ascertain where the manatees are, not to determine how many exist or their population. Sixty-one aerial surveys were conducted in the waters of Broward County, excluding the Hillsboro Inlet, by Respondent and Broward County for Respondent. During the aerial surveys from 1988 to 1993, sixty-seven to sixty- nine sightings were made in the northern Intracoastal Waterway (NICW) in Broward County. Also, the aerial survey data showed sightings in seven out of twelve, five out of fifteen, and eleven out of eighteen flights. Manatees occasionally travel in the ocean. The aerial surveys included passes over the Atlantic Ocean. The NICW has lowlight transmission and high turbidity. Manatees travel two to five feet below the surface of the water. Because of water clarity, surface conditions and the fact that manatees must be at or very near the surface to be spotted, manatees are difficult to see in the NICW. The aerial surveys revealed an average of one sighting per flight. Lack of sightings in the aerial surveys reflect survey conditions as much as the absence of manatees. Manatees regularly move in and out of the Hillsboro Inlet zone. Manatees use the NICW in Broward County often and are frequently sighted there. When determining whether manatees inhabit an area, all data bases available should be used. The Intracoastal Waterway (ICW) is used by manatees for travel through Broward County. Aerial surveys of the NICW are performed at a lesser density than those performed of the power plants which are warm water refuges. Regular travel corridors constitute essential habitat. The NICW is a major travel corridor for manatees. They migrate through the NICW. Migration means purposeful movement from one point to another, as well as seasonal movement of species in mass. Manatees use the waters of the NICW and the power plants when moving back and forth between Port Everglades and Riviera Beach, and this exchange is documented. More than 200 manatees use both the Port Everglades and the Riviera Beach Power Plants (both warm water discharge areas) as warm water refuges, making repeated trips back and forth in single seasons. Thirty-Eight to forty-seven percent of manatees on the east coast use the Port Everglades area. Manatees inhabit areas where they are found. As to the waters of the ICW, they inhabit it on a regular basis. Moreover, manatees inhabit the NICW virtually continuously in winter and regularly or periodically in the off-winter months. Manatees inhabit Broward County year round, continuously in the winter months and regularly in the off-winter months. Although to a lesser degree, Respondent considers radio telemetry data in its determinations regarding manatees. Radio telemetry is a data gathering technique which is not experimental, but is less revealing when used with manatees. Telemetry data is hard to acquire in the NICW because manatees' behavior of resting and traveling deploys the tag being used in a way which is not available to the satellite. As a result, every tagged manatee is not seen on every satellite pass. Data from telemetry studies show that manatees predominantly travel the ICW, and extremely infrequently in the ocean, and have a regular exchange between the Port Everglades and Riviera Beach plants. Tagged manatees, when located visually, are found in association with others. The behavior of radio-tagged manatees is representative of the population of manatees as a whole. Manatees travel in groups in the NICW. A congregation of mammals means more than one mammal together, without assigning a reason for the congregation. Manatees congregate in areas where they are sighted in groups of two to three or more. All of the available information taken together indicates that manatees congregate in the NICW, using it on a regular and frequent basis. Respondent considers the entire NICW, including the Hillsboro Inlet zone, as a single unit when interpreting manatee sightings because of the types of manatee behavior observed and the character of the NICW. Respondent also considers anecdotal data in its determinations regarding manatees. Anecdotal data is useful for confirmation of, but not for providing new insights about manatees and their behavior. Anecdotal sighting data are consistent with and confirm what is known by Respondent from other sources about manatees. Motorboats kill, maim and disturb manatees. Manatees have scars on their bodies, which are caused by collisions with watercraft. Virtually all manatees have propeller scars and approximately 900 are documented in what is known as the Scar Catalogue. Scar patterns on manatees indicate numerous collisions, some nine to ten times. The Scar Catalogue also indicates that manatees move back and forth between the Port Everglades and Riviera Beach plants. Since 1974, when Respondent started compiling manatee mortality data, of the manatees recovered for which the cause of death could be determined, 522 were attributed to watercraft collision. Of the 522 watercraft collision deaths, twenty-seven manatees were recovered in Broward County, which represents over one-half of the total manatee deaths in Broward County for which the cause of death could be determined. However, the recovery data fails, and is unable, to show where within the ICW or NICW the manatees were struck. After a collision, manatees will seek out a quiet area. It is not unusual and is expected that injured manatees in Broward County will seek refuge at the Port Everglades. Boat traffic poses a threat to manatees. Increased or higher boat traffic poses an elevated or even greater risk to manatees. Broward County waters are utilized by large numbers of boaters. In addition to Broward boaters whose boat registrations have increased eighteen percent between 1986 and 1991, boaters from Dade and Palm Beach Counties and in winter from out-of-state use Broward waters. Boating traffic in Broward County and the NICW is heavier on weekends than on weekdays. There is no change in the traffic for Broward County in the winter months from November through March. More boating occurs during the day than at night on the NICW. A survey of boaters in Broward County relied upon by Respondent indicated that over fifty percent of boaters leave between 8:00 a.m. and noon and return between 2:00 p.m. and 6:00 p.m.; that eighty-four percent of those surveyed were in favor of speed limits to protect manatees; and that fifty-nine percent of those surveyed were in favor of slow speed for the whole county on weekends and holidays from November to March. Comparatively, Respondent's slow speed rule is substantially less stringent than that which was found acceptable by those surveyed and not as stringent as recommended by the federal Fish and Wildlife Service. Several local governments in the NICW adopted resolutions calling for more stringent regulations than Respondent's rule. In an effort to lessen the interference with boaters while also providing an area of protection for manatees in the NICW, the 25 mph speed limit with the fifty-foot buffer zone was adopted. A slow speed zone in the NICW will enhance boating safety. At slow speed, only boats with propeller-on-shaft and a rudder will exhibit an unsafe condition referred to as wobbling. However, virtually no typical recreation boat which is under thirty feet is configured that way.
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.
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 is whether Vista of Fort Walton Beach, LLC (Vista), should be issued Surface Water Management Permit No. 04-2012-0013G authorizing the construction of an earthen embankment dam and impoundment to impound stormwater runoff from a proposed commercial development in the City of DeFuniak Springs (City), Walton County, Florida.
Findings Of Fact The District has regulatory jurisdiction over the construction of certain types of impoundments within its boundaries. If an impoundment is at least ten feet high but less than 25 feet in height and has an impounding capacity of at least 50 acre-feet, a general permit is required. See Fla. Admin. Code R. 40A-4.041(1). Vista, a limited liability corporation, owns an odd- shaped parcel in the City on which it intends to build a small commercial development consisting of a 17,000-square foot building, a parking lot, and related amenities. The vacant parcel abuts the north side of U.S. Highway 90 just east of 18th Street and is approximately 1.66 acres in size. The property is partially wooded and has a small wetland area on its northeastern corner. In conjunction with the proposed commercial development, Vista intends to construct an impoundment to control stormwater runoff from the project. Because the impoundment will be ten feet high and have an impounding capacity of at least 50 acre-feet, Vista is required to obtain a general permit. See Fla. Admin. Code R. 40A-4.041(1). Vista filed a permit application with the District on June 8, 2012. On August 8, 2012, the District gave notice that it intended to issue a surface water management permit to Vista. The permit allows the construction of a stormwater retention basin. A mitigation plan for impacts to 0.23 acres of wetlands was also approved but is not at issue in this proceeding. As described in the District staff report, the project will encompass one earthen embankment dam and impoundment to impound the storm runoff. It will operate as a dry stormwater retention basin designed to impound water only during rainfall events. The facility will utilize a pipe and riser spillway system, and the basin outfall will be protected by a rip-rap lined plunge pool. Due to space restrictions, an engineered retaining wall will be incorporated into the embankment's north side slope. The stormwater will discharge through controlled overflow structures into a nearby wetland area that lies northeast of Vista's property and will then be integrated into an existing channel that eventually forms the headwaters of Sandy Creek to the north. Petitioner has resided on her property since around 1932. Her odd-shaped parcel, described as being between five and seven acres in size, lies immediately to the north of Vista's property. A small wetland is located on the southeastern corner of her property. The two parcels share a common boundary line, appearing to be no more than a hundred feet or so. Because the boundary line is lower than the highest part of each owner's property, a "trench" has formed along the line. Wabash Avenue, a platted but un-built roadway that begins on U.S. Highway 90, runs to the northwest through the wetland area and along the eastern boundaries of both properties. As alleged in the Second Amended Petition, Petitioner is concerned that the project will cause flooding on her property. In a broader sense, she appears to be opposed to any commercial development on Vista's property. The back side of the Vista parcel slopes downhill to a recessed area that is adjacent to both properties. Although some fill has already been placed on the property in preparation for the development, the applicant intends to add "a lot" more fill to the entire parcel to create a gradual slope down to the edge of Wabash Avenue. A basin or pond around 0.20 acres in size will be formed within the fill area and a retaining wall consisting of multiple segments will be constructed around the basin. The wall will be separated from Petitioner's property by a 20-foot buffer, while at its closest point the basin will be "35 feet or so" from her property line. The plans submitted by the applicant demonstrate that the system will be built in accordance with all District standards and should operate in a safe manner. Before construction can begin, the District must approve the retaining wall design specifications. During rain events, the first inch of water will be retained on site for treatment. Additional water will be stored in the basin and then slowly allowed to discharge from the basin into the wetlands. The point of discharge from the basin is at a location a minimum of 20 feet south and east of Petitioner's property line. To ensure that the retention system will not discharge runoff at a higher rate than was discharged before development, Vista performed hydrologic calculations demonstrating pre- and post-development runoff. According to accepted models developed by the United States Department of Agriculture and its predecessor, the Soil Conservation Service, the current peak runoff from the Vista property is 2.46 cubic feet per second (CFS) during a two-year, 24-hour storm event. After development, the volume of water will be reduced to 0.74 CFS. During a 25-year, 24-hour storm event, the volume of runoff post-development is anticipated to drop from 12.59 CFS to 6.51 CFS. Finally, during a 100-year, 24-hour storm event, post- development runoff will be slightly reduced from 19.64 CFS to 18.99 CFS. Therefore, as sited, sized, and designed, the project will reduce runoff during all anticipated storm events. The foregoing calculations were not credibly contradicted and satisfy the requirement that an applicant give reasonable assurance that the project will not cause an increased flow such that it will endanger downstream property in times of flood with respect to state or frequency. See Fla. Admin. Code R. 40A-4.301(2)(f). They also confirm that water in the impoundment will not be raised to a level that could be harmful to the property of others. See Fla. Admin. Code R. 40A- 4.301(2)(c). Thus, the potential for flooding on Petitioner's property will be reduced if the project is constructed as permitted. The Department of Transportation (DOT) is currently repairing the drainage system on U.S. Highway 90 in front of the Vista property. Stormwater from that project drains into the wetlands through an easement deeded to the City at the rear of the Vista property. Petitioner pointed out that after the DOT project began, and fill was added to the Vista property, she has experienced an increase in water on her property. Whether the DOT project is responsible in any way for this hydrologic change is not known. However, accepted testimony by two professional engineers supports a finding that Vista is not responsible for any hydrologic changes on Petitioner's property. Vista was not required to take into account any runoff from the DOT project in making its hydrologic calculations because the amount of runoff from its own property will actually be reduced by the retention system. At hearing, Petitioner contended that a fence she built on the common boundary line with Vista sometime after 1990 was illegally removed by Vista in order to construct the basin. According to Mr. George, who first surveyed the property line in 1990 and then surveyed it a second time a few years ago, the fence was built a few feet beyond Petitioner's property line and lies within the buffer zone between the basin and her property. Petitioner argues that even if this is true, the doctrine of adverse possession applies and she is now the owner of the property on which the fence was built. This type of dispute, however, can only be resolved in circuit court, and not in an administrative forum. See § 26.012(2)(g), Fla. Stat. The District has examined the property records and is satisfied that Vista has ownership of the property on which the impoundment will be built. Notably, the basin will not be located within the 20-foot buffer where the fence once stood and which is dedicated to the City as an easement. Finally, through cross-examination at hearing, Petitioner suggested that any project designed by humans carries with it the remote possibility that it will fail and create a catastrophic situation on her property. In the unlikely event that the design and operation of the retention basin threaten the safety of adjoining property owners, section 373.429 and rule 40A-1.205 enable the District to revoke, suspend, or modify a permit to protect the safety of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Surface Water Management System Permit No. 04-2012-0013G to Vista. DONE AND ENTERED this 11th day of March, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2013. COPIES FURNISHED: Jonathon Steverson, Executive Director Northwest Florida Water Management District 152 Water Management Drive Havana, Florida 32333-4712 Helen J. Crenshaw 61 North 18th Street DeFuniak Springs, Florida 32433-9547 Kevin X. Crowley, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 James Busby Vista of Fort Walton Beach, LLC Post Office Box 760 Fort Walton Beach, Florida 32549-0760
The Issue The issue to be determined in this case is whether the Florida Fish and Wildlife Conservation Commission (“Commission”) is entitled to the requested minor modification of its existing Environmental Resource Permit and Sovereign Submerged Lands Authorization, which would authorize the backfilling of a portion of Fisheating Creek as part of a restoration project.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department has also been delegated authority to process and act on applications for authorization from the Board of Trustees for activities on sovereignty submerged lands. The Commission is the state wildlife management agency. The Commission is the applicant for the minor modification at issue in this proceeding. Petitioner, Save Our Creeks, Inc., is a non-profit Florida corporation with its offices in Lake Place, Florida. Save Our Creeks’ members are interested citizens and groups devoted to the conservation of natural resources, especially creeks and small waterways. Save Our Creeks owns property on Fisheating Creek in Glades County, approximately nine miles upstream of Cowbone Marsh. Petitioner, Environmental Confederation of Southwest Florida, Inc. (ECOSWF), is a non-profit Florida corporation with its offices in Sarasota, Florida. A substantial number of the members of Save Our Creeks and ECOSWF use and enjoy the waters of Fisheating Creek for a variety of purposes, including canoeing, boating, fishing, and wildlife observation. Their interests would be affected by the proposed project. Fisheating Creek and Cowbone Marsh Fisheating Creek flows from Highlands and Desoto Counties south and east through Glades County. The Creek runs in a northeastern direction through Cowbone Marsh before draining into Lake Okeechobee. The Creek contributes approximately nine percent of the flow into Lake Okeechobee. Fisheating Creek is designated as Class III waters. Cowbone Marsh is located about eight miles west of Lake Okeechobee. It is a mile and a half long and two miles wide, covering about 2,500 acres. Fisheating Creek and Cowbone Marsh are within the Fisheating Creek Wildlife Management Area. In 1929, the United States Army Corps of Engineers ("USACOE") prepared a survey map which shows Fisheating Creek as an open water route from Lake Okeechobee through Cowbone Marsh and continuing beyond. The accuracy of the course of the Creek as it is depicted in the 1929 map is not disputed by the parties. The 1929 map does not describe the depth or width of the Creek. Some evidence about historical widths and depths was presented, but it was incomplete. There was credible evidence showing that some segments of Fisheating Creek were four to five feet deep and 20 to 30 feet wide. There was also credible evidence that other segments of the Creek were shallower and narrower. The record shows only that canoes, kayaks, and other vessels drawing twelve inches of water or less have been used on the Creek. For a number of years, much of Fisheating Creek has been choked by vegetation and “tussocks.” Tussocks are floating mats of vegetation. Carolina willow now dominates Cowbone Marsh, having replaced areas that were previously open water or covered with herbaceous marsh communities. The vegetation in the Creek made navigation difficult or impossible through Cowbone Marsh. The 1998 Judgment and 1999 Settlement Agreement In 1989, Lykes Bros., Inc., asserted ownership of Fisheating Creek and tried to prevent public access to the Creek. The Board of Trustees responded with a civil action against Lykes Bros., seeking a determination that Fisheating Creek throughout Glades County is navigable and, consequently, the title to its bottom is held by the Board of Trustees as sovereignty submerged lands. Petitioners in this administrative proceeding intervened in the circuit court case on the side of the Board of Trustees. The jury found Fisheating Creek navigable throughout Glades County and the court entered a judgment in 1998 determining that the Creek is sovereignty land held in trust by the Board of Trustees. The judgment did not include any findings about the widths and depths of Fisheating Creek. The court retained jurisdiction to determine the boundaries of the Creek, but the boundaries were never determined. The circuit court case was appealed, but in May 1999, the parties entered into a settlement agreement pursuant to which Lykes Bros. agreed to sell to the Board of Trustees a conservation easement on upland areas adjacent to Fisheating Creek, to be held and managed for the benefit of the public. The conservation area is known as the Fisheating Creek Expanded Corridor. The settlement agreement also called for the Board of Trustees to lease the Fisheating Creek Expanded Corridor to the Commission, who the Board of Trustees designated as the managing agency. The settlement agreement acknowledges the public's "right to boat and canoe on Fisheating Creek throughout the entire Expanded Corridor.” With respect to navigation, the settlement agreement provides: Protection of Navigation. The navigability of Fisheating Creek throughout the entire Expanded Corridor shall be maintained and enhanced through a navigation maintenance program which includes aquatic weed control and removal of fallen logs and similar obstructions. This section does not authorize dredging. The Cookie-Cutter Project In January 2009, the Commission aerially applied an herbicide to kill the vegetation along the course of the Creek. In April 2010, the Commission contracted with A & L Aquatic Weed Control (“A & L”) to “[m]echanically dismantle floating tussocks.” The Commission directed A & L to perform the project by “shredding vegetation and accumulated organic material to re-open the navigation across Cowbone Marsh.” The Commission instructed A & L to re-open a channel "approximately 2.2 miles long and 18-20 feet wide,” and to clear some areas of the Creek “as wide as 35-feet wide occasionally as necessary to turn shredding equipment during the shredding process.” The Commission did not direct A & L to dredge a deeper channel. The vessel used by A & L to perform the work is known as a “cookie-cutter.” The cookie-cutter has two cutting wheels at the front of the vessel to shred and side-cast vegetation. The cutting wheels also act as propellers to propel the cookie- cutter forward. The cookie-cutter can clear woody vegetation up to four inches in diameter. The two cutting wheels can be lowered or raised in order to cut vegetation at various depths in the water. Evidence was presented to show how the cutting wheels could be lowered two to three feet, but it was not made clear whether the cutting wheels could be lowered even more. No evidence was presented to establish how deep the cookie-cutter blades were lowered into Fisheating Creek during the work performed by A & L. No evidence was presented to establish what depth of soil the cookie-cutter was capable of dredging through if the cutting wheels cut into the Creek bottom. The cookie-cutter began on the eastern side of Cowbone Marsh and moved upstream. The parties disputed the point of beginning. Petitioners contend it was farther upstream, but the more persuasive evidence for the point of beginning was presented by the Commission. The cookie-cutter generally followed the course of Fisheating Creek as depicted on the 1929 USACOE map. However, there are three areas where the cookie-cutter deviated from the 1929 map. One deviation is about 100 feet off-line. The other two deviations are 25 to 30 feet off-line. No explanation was given for the deviations, but the cookie-cutter operator generally followed the path of dead vegetation killed by the aerial spraying of herbicide and the line may have deviated from the true course of the Creek in these three areas. During the cookie-cutter project, water levels within the Creek and Marsh fluctuated. At some point, the project was postponed due to low water conditions. A sandbag dam was placed in the channel to artificially raise the water level so the cookie-cutter could continue. In July 2010, the Department and USACOE ordered the Commission to stop the project due to its adverse environmental impacts, including the draining of Cowbone Marsh. Before the cookie-cutter stopped, it had cleared about two miles of Fisheating Creek. Where the cookie-cutter stopped there is a discernible channel continuing west, but it is shallower and narrower than the channel created by the cookie-cutter. At this terminus, the cookie-cutter was dredging a deeper and wider channel than existed naturally. Additional evidence of dredging along the Creek channel is the soil cast up on the banks, and the removal of peat soils in the bottom of the Creek and exposure of underlying mineralized soil. The cookie-cutter altered the natural conditions of the Fisheating Creek in some areas by dredging the sides and bottom of the Creek. The dredging by the cookie-cutter altered the hydrology of the Creek and Marsh. The Marsh drained rapidly to Lake Okeechobee. In addition, large quantities of soil, muck, silt, and debris disturbed by the cookie-cutter were carried downstream toward Lake Okeechobee. Some of the soil and debris settled out at the mouth of the Creek, causing shoaling. The sides of the channel in many areas is continuing to erode. The Department’s Emergency Final Order In July 2010, the Department issued an Emergency Final Order, which directed the Commission to: (a) remove the cookie- cutter and immediately stop all activities associated with the cookie-cutter; (b) place temporary emergency flow restrictors in the channel to reduce flow velocities and minimize downstream sediment transport, as well as raise the water level to minimize surface and groundwater flow from the adjacent marsh into the channel; and (c) develop a long-term remedial plan to return water levels within the Marsh to pre-impact conditions and apply to the Department for an Environmental Resource Permit to implement the plan. In August 2010, pursuant to the Emergency Final Order, the Commission constructed an aluminum weir in the Creek to decrease flow velocities, reduce erosion, and maintain the hydration of the Marsh. The weir was placed approximately half a mile downstream from where the cookie-cutter stopped. During the wet season of 2010, the aluminum weir was completely submerged. Erosion and shoaling occurred immediately downstream. The Commission determined that the weir was ineffective and removed it. The EPA Compliance Orders In March 2011, the EPA issued an Administrative Compliance Order in which it alleged the Commission had engaged in "unauthorized activities associated with the excavation and construction of a channel within Cowbone Marsh.” The Commission was ordered to construct an initial check dam in the upper reaches of the Marsh to minimize the loss of groundwater and prevent further adverse impacts. In April 2011, EPA issued a second Administrative Compliance Order, directing the Commission to construct five additional check dams. The order describes the check dams as "initial corrective measures" and states that the “final restoration plan will include measures for backfilling the unauthorized cut through Cowbone Marsh.” The Initial Permits In May 2011, the Department issued to the Commission an Environmental Resource Permit and Sovereign Submerged Lands Authorization, which authorized the construction of six earthen check-dams within the portion of Fisheating Creek where the cookie-cutter had operated. The purpose of the check dams was to improve the hydrology of Cowbone Marsh and promote the accumulation of sediments within the channel to restore the natural depth and width of Fisheating Creek. The check dams were constructed using sand bags, marine plywood, coconut matting, and pressure-treated posts. The check dams have ten-foot wing walls which extend into the surrounding marsh. The wing walls are to prevent erosion around the dams and to direct water into the marsh. The installation of the check dams was completed in July 2011. Since that time, some repair efforts have been required to replace lost sandbags and to address erosion that has occurred around the check dams. The check dams have been somewhat successful in maintaining higher water levels in the Marsh. However, they have not restored natural hydrologic conditions, or prevented erosion along the channel. The Proposed Modification In June 2012, the Commission applied for a "minor modification" to the existing permits, which the Department granted. The modified permits authorize the Commission to backfill the channel cleared by the cookie-cutter with approximately 27,000 cubic yards of sand. The check dams would not be removed. The sand for the backfilling would be excavated from a "borrow" area located about a mile away. Petitioners contend that the borrow area is in wetlands, but the more persuasive evidence is that it is uplands. A 1.164-mile temporary access road would be constructed from the borrow area through uplands and wetlands to a 100-square-foot staging area adjacent to Fisheating Creek where the backfilling would begin. Wetland impacts would be minimized by constructing the temporary access road and staging area with interlocking mats. Petitioners did not show that the route or manner in which the temporary road would be constructed and used would have unacceptable adverse impacts to the environment or otherwise fail to comply with applicable criteria. The sand would be dumped into the Creek and then compacted. As the Creek was filled, the compacted sand would be used as a roadway for the trucks to transport sand to the end of the filled area to dump more sand, until the backfilling was completed. The proposed backfilling would not restore a typical stream profile, deepest in the middle and becoming more and more shallow moving toward the banks. That kind of profile can be seen in the photographs of Fisheating Creek taken before the cookie-cutter project. The proposed modification calls for filling the cut channel from "bank to bank": Final Grade: Fill must be compacted and ground surface elevations must be the same as the adjacent marsh ground surface elevations (within a tolerance of +6/-6 inches) The filled channel would be seeded and fertilized to grow native vegetation. The proposed seed mixture is mostly water grasses, but has some willow included. Compliance with Criteria Florida Administrative Code Rule 62-343.100 provides that a modification is treated as either minor or major depending on the magnitude of the changes and the potential for environmental impacts that differ from those addressed in the original permit: modification shall be considered to be minor only where the modification does not: Require a new site inspection by the Department in order to evaluate the request; or Substantially: Alter permit conditions; Increase the authorized discharge; Have substantially different or increased impacts on wetlands and other surface waters. . . ; Decrease the retention/detention specified by the original permit; Decrease any flood control elevations for roads or buildings specified by the original permit; or Increase the project area. At the final hearing, it was not shown how the modification meets the criteria for a minor modification. The proposed modification does not meet the criteria because it required new site visits, substantially alters the original permit conditions, and has a substantially different impact on wetlands. The criteria applicable to an application for a major modification were not identified, nor was it shown how the evidence presented at the final hearing satisfies the requirements for such an application. The proposed backfilling plan would not restore the natural conditions that existed in Fisheating Creek. The Commission did not show that it made a reasonable effort to determine the pre-disturbance conditions throughout the disturbed area. The proposed modification would not restore the natural depths in the Creek. The backfilling plan calls for a finished grade of plus or minus six inches above the level of the adjacent marsh. A final grade of zero to plus six inches would essentially eliminate Fisheating Creek. The maximum allowed depth of minus six inches below the level of the adjacent marsh would be shallower than the natural depths in portions of the Creek. Even the Department described the Creek was "one to two feet deep" before the cookie-cutter project. Adequate measures are not included in the permits to ensure that after backfilling and planting, the Creek would have the ordinary attributes of a creek. The proposed modification would not restore the pre- existing hydrologic conditions of the Creek. The modified Environmental Resource Permit requires strict compliance with the terms of the 1999 settlement agreement. The modification would not be consistent with the 1999 settlement agreement because the backfilling and planting would destroy the navigability of the Creek. Petitioners want to preserve the current depths of Fisheating Creek, but some of those depths are unnatural, being the result of dredging by the cookie-cutter. However, the proposed backfilling would not restore the natural depths in some parts of the Creek and would not maintain the navigability of the Creek, even for shallow draft vessels such as canoes and kayaks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department deny the requested modification to the Commission's Environmental Resource Permit and Sovereignty Submerged Lands Authorization. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2013. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Alisa A. Coe, Esquire Joshua D. Smith, Esquire Bradley I. B. Marshall, Esquire Earthjustice 111 South Martin Luther King, Jr., Boulevard Tallahassee, Florida 32301 Harold "Bud" Viehauer, General Counsel Ryan Osborne, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Findings Of Fact The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of November, 1994. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
Findings Of Fact The Petitioner owns property which is adjacent to Lake Serena in Putnam County, Florida. Through his application to the Respondent, the Petitioner is seeking to dredge an area waterward of the ordinary high water line of Lake Serena, and to place the dredged material on another area waterward of the ordinary high water line. The purpose of the proposed dredging and filling is to create a more gradual shoreline sloping from the Petitioner's residence to the shore of Lake Serena. Petitioner proposes to cover the filled area with white sand. He proposes to use the area as a sandy swimming beach. The area which the Petitioner is proposing to dredge and fill is presently dominated by wetlands vegetation, which would be removed by the dredging activity. The Petitioner originally commenced his project without receiving any permit from the Respondent. A large amount of the wetlands vegetation has already been removed. Lake Serena is a relatively pollution-free lake. Much of the littoral or transitional zone vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is now an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding Lake Serena serves an important natural function in preserving the water quality in the lake, and in preserving the natural resources of the lake, including fish and wildlife. The aquatic vegetation serves to filter run-off from uplands areas by assimilating nutrients that are in the run-off. A nutrient scale has been devised for identifying the amount of nutrients in a lake. An oligotrophic lake is low in nutrients. A mezotrophic lake has a moderate amount of nutrients. A eutrophic lake is high in nutrients. In the natural process of aging, water bodies progress from oligotrophic to a eutrophic state. This is a very long natural process taking thousands of years. Lake Serena is an oligotrophic lake. Aquatic vegetation in the littoral zone surrounding Lake Serena serves to maintain this condition. If too much aquatic vegetation is removed from the littoral zone, a buildup of nutrients would result. This buildup of nutrients would cause an algal bloom, or a buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen level of the lake. This is because algae itself uses oxygen, because algae kills oxygen producing plants which thrive on the bottom of the lake due to light being cut off, and because, as the algae dies, it sinks and decomposes using up more oxygen. An algal bloom, and the resulting reduction of oxygen levels in a lake would constitute pollution. Removal of aquatic plants in Lake Serena's littoral zone would serve to diminish fish and wildlife populations in the lake. Small fish use such an area as a nursery ground where they can hide from predators. Without such a nursery ground, the cycle of survival for aquatic wildlife would be cut off. The area from which the Petitioner has already removed considerable wetlands vegetation, and proposes to remove more, is a viable part of the littoral zone of Lake Serena. The area serves the beneficial purposes set out in Paragraph 2 above. It cannot be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Certainly removal of all such littoral zones would drastically change the ecology of the lake and render it polluted. Sixty percent of Lake Serena's shoreline has already been denuded of vegetation. Although it cannot be determined precisely how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. The only effect that the Petitioner's project could have upon the water quality and natural resources of Lake Serene is negative. No evidence was offered at the hearing from which it could be determined that the Petitioner's proposed project would not have an adverse impact upon the water quality and natural resources of Lake Serene. In its notice of intent to deny, Respondent asserted that the proposed project would be expected to degrade the water quality of Lake Serena, and to violate water quality standards because turbidity levels would exceed permissible limits. Respondent is contending that during the pendency of the project turbidity levels will be too high. At the present time the water level of Lake Serena is two to three feet below the ordinary high water line. The area Petitioner proposes to dredge and the area he proposes to fill, while below the ordinary high water line, are above the present water line. From the evidence it appears that steps could be taken so that the proposed project could be accomplished without exceeding permissible turbidity levels. The only purpose that would be served by the Petitioner's proposed project is to provide Petitioner with a sandy swimming beach rather than a natural shoreline.
