The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL 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 21st day of April 1994.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
Findings Of Fact The Problem: A Seawall In Danger of Collapse Applicant is an incorporated condominium association which owns the Gulf front property of Bonita Beach Club, a residential condominium located on the northern portion of a barrier island known as Little Hickory Island. The island is south of Fort Myers and part of Lee County. (Testimony of Truitt, Tackney; R-1.) Applicant's Gulf front property is protected by a 600-foot seawall; that seawall, exposed to wave and storm attack, is now in the beginning stages of failure. Applicant seeks a permit to place a revetment along the entire seaward face of the seawall "to help strengthen the seawall and stop the erosion at [its] . . . base . . . ." (R-1.) (Testimony of Truitt, Tackney, Sharma; R-1) The seawall shows evidence of profile lowering; sand has been scoured from its face, exposing 6 to 7 feet of wall above the sand line. Its face shows abrasions from buffeting by sand and sediment; its joints have begun to separate, allowing sand from behind the wall to leak through the cracks. Under high tide conditions, the seaward portions of the seawall are under water; under other tidal conditions there is no more than 6 to 7 feet of wetsand area between the base of the wall and the waterline. (Testimony of Truitt.) The present condition of the seawall is mainly due to two processes: the long-term shoreline migration of Little Hickory Island, and (2) profile steepening, scouring, and accelerated sand loss in the immediate vicinity of Applicant's seawall. There is a south-to-north longshore or littoral sand transport in the area off Little Hickory Island, a northward flowing "river of sand." This phenomenon has caused sand loss to beaches in front of and south of Applicant's property and sand accretion to the undeveloped northern beaches north of the island. The localized profile steepening and accelerating sand loss at Applicant's seawall is caused by waves hitting the vertical seawall, then rebounding-- causing removal of sand at the foot of the wall and steepening of the offshore profile. This localized sand loss and erosion has been aggravated by the original placement and alignment of Applicant's seawall. 7/ The seawall protrudes further seaward than adjacent seawalls or bulkheads. 8/ This protrusion, together with the wall's irregular shape, disrupts the otherwise straight shoreline and acts as a headland: an abutment which concentrates wave energy and longshore currents and causes accelerated erosion and sand loss in the immediate area. The effects of the northerly longshore drift and the localized sand loss have been dramatic: between 1974 and 1980 the sandy beach in front of Applicant's seawall has receded landward 50-60 feet. (Testimony of Truitt, Tackney, Sharma; P-1, P-2, P-3, P-4, 1-2, R-3, R-4, R-5, R-6, R-7.) In addition, the shoreline of Little Hickory Island is gradually and inexorably eroding. This is due to long-term backyard erosion, a natural )process by which barrier islands gradually migrate landward. (Testimony of Sharma, Tackney, Truitt.) II. Applicant's Solution: Place a Rock Revetment in Front of the Seawall In October, 1980, Applicant applied for a DNR permit to place a rock revetment along the existing seawall. By January, 1981, DNR's Bureau of Beaches and Shores determined that all of the documentation required by its rules 9/ had been submitted and the application was complete. Subsequently, the Applicant agreed to several design changes suggested by DNR and agreed to a permit condition requiring it to dedicate a travel easement to assure continued public access to beaches north of its property. As so modified, DNR proposes to issue the requested permit. (Testimony of Truitt; R-1, -R-11, R-12.) The proposed permit, with conditions, is contained in Respondent's Exhibits R-1, R-11, and R-12. 10/ The proposed shore protection structure is described as a rock toe-scour revetment to be placed along the seaward face of Applicant's existing seawall. The revetment extends 7 feet in the shore-normal direction and approximately 600 linear feet in the shore-parallel direction. It will consist of lime-rock boulders of various sizes stacked on top of each other. The top layer of rocks will be the largest, 75 percent of them weighing greater than 500 pounds. The rock revetment will rest on a layer of Filter-X mat to help stabilize the underlying sand. The revetment's elevation will range from 0.0 feet (NGVD) 11/ at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward. Its slope will be no greater than 3 horizontal units to 1 vertical unit. The mean high waterline will intercept the revetment-seawall interface at a maximum elevation of approximately +1.5 feet (NGVD). (R-1, R-11, R-12.) III. The Effects of the Proposed Revetment The proposed revetment will fulfill its primary purpose: it will protect the Applicant's seawall by reducing the amount of sand that is scoured and removed from its face and it will add significant structural stability to the wall. It will provide these benefits because its sloping surface will intercept and dissipate waves which would otherwise hit and rebound off the vertical seawall. Because wave deflection energy will be lessened, steepening of the offshore profile will be reduced and accelerating longshore currents will be slowed. It will also protect the seawall against storm, but not hurricane, damage. (Testimony of Truitt, Tackney.) However, the proposed rock revetment will not stop the migration of sands from the southern to the northern reaches of Little Hickory Island; the northward flowing longshore currents will continue. Neither will the revetment protect Applicant's property against long-term background erosion; the entire island will continue its steady easterly retreat to the mainland. Scouring at the ends of the existing seawall will be reduced, but not eliminated. Eddy currents at the ends of the revetment will cause some localized scouring to take place. Wave and water action will take its toll on the revetment; it will require periodic repair and rebuilding in the years ahead. (Testimony of Sharma, Tackney, Truitt.) Although the testimony is conflicting, the weight of the evidence is that the proposed revetment will not adversely affect adjacent beaches and the offshore profile. 12/ While localized scouring will not be eliminated, the evidence indicates that the rates will be lessened--that the existing erosion problems will be mitigated, not aggravated. With reduced localized scouring, longshore currents will not accelerate, and the offshore profile will not deepen at increasing rates. The expert witnesses agreed that, at least for the short term, the proposed revetment will protect the existing seawall against at least three-year storm conditions. (Testimony of Tackney, Truitt, Sharma.) While the revetment will not accelerate or contribute to the erosion of adjacent lands, it will impair the public's use of the beaches in front of and to the north of the Applicant's seawall. Because the revetment will protrude 6 to 7 feet seaward from the seawall--intercepting the mean high waterline--the public will be precluded from traversing the beaches in front of Applicant's property. That narrow corridor of wet-sand beach now permits dry passage only during low tide. With placement of the rock revetment on that passageway, it will become impassable to most people who use the Little Hickory Island beaches. 13/ (Testimony of Sharma, Member of the Public.) Generally, rip-rap revetments, such as that proposed by Applicant, do not eliminate erosion or cause sand to accrete. Rather, they tend to increase erosion and escarping beyond that which would occur if a shoreline is left in its natural, unaltered condition. (Testimony of Sharma, Truitt, Tackney.) IV. DNR Coastal Construction Permits: Practice and Policy There may be alternatives to the proposed revetment which will not endanger the Applicant's upland structure or block the public's access to beaches in front of and north of Applicant's property. 14/ DNR does not require the consideration of shore protection alternatives when it processes coastal construction permit applications. Neither, in its view, is public access to adjacent beaches a matter of regulatory concern in this licensing process. 15/ At the staff level of DNR, the sole consideration is engineering design of the proposed structure: At the level of staff of the Bureau of Beaches and Shores there are no other con- siderations other than simply engineering judgments on the appropriateness or other considerations of the design. I have no idea what the governor and cabinet or exec- utive director may consider. (Tr. 170.) This view of the agency's duty helps explain why DNR has never denied an application to construct a shore protection revetment, although it has suggested design modifications, as was done in this case. (Testimony of Truitt.) V. Interests of Objectors to Proposed Revetment Project DNR requires applicants for coastal construction permits to provide a map showing the location of the proposed erosion control structure and the shoreline for at least 1,000 feet on each side. Applicants are also required to provide a list of the names and addresses from the latest county tax role of all riparian property owners within 1,000 feet. It is DNR practice, in accordance with its rule, Section 165-24.07, Florida Administrative Code, to mail notice of a proposed project to those riparian property owners. By rule, such interested persons or objectors to a proposed project have the right to appear and make their positions known to the Governor and Cabinet at the time the agency decision is made. Id. (Testimony of Truitt; R-1.) Petitioners, Casa Bonita I and II Condominium Associations, Inc., and Seascape Condominium I and II Associations, Inc., assert that the proposed revetment will adversely affect their rights as riparian owners, that it will cause erosion of their shorelines; they also allege that it will prejudice their recreational use of sovereignty lands--the public's beaches lying below the line of mean high water. Relative to the site of the proposed revetment, Casa Bonita I Condominium Association, Inc., lies 1,350 to 1,400 feet south; Casa Bonita II Condominium Association, Inc., 670 feet south; Seascape Condominium I and II Associations, Inc., lie immediately adjacent to the site. (Testimony of Tackney; R-1, R-14.) No evidence was presented to establish that intervenor Lee County is a riparian property owner within 1,000 feet of the proposed revetment. The Lee County Board of County Commissioners were, however, notified of the instant application and given an opportunity to object. The parties have submitted proposed findings of fact; to the extent such findings are incorporated in this Recommended order, they are adopted; otherwise they are rejected as irrelevant to the issues presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Bonita Beach Club Condominium Association, Inc., for a coastal construction permit be GRANTED, subject to the agreed-upon conditions described above, including the dedication of a travel easement allowing the public to circumvent the 600-foot rock revetment. 21/ DONE AND RECOMMENDED this 16th day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
The Issue Whether Respondents discriminated against Petitioner, Nisrine Smith, on the basis of her disability, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes; and, if so, the appropriate penalty.
Findings Of Fact Respondent Ocean Towers is a residential condominium facility in Volusia County, Florida, with numerous condominium units. Respondent Sentry managed Ocean Towers during the time period relevant to the instant matter, but it no longer serves as the manager of Ocean Towers. Ms. Smith leased a furnished condominium unit from its owner and resided at Ocean Towers, beginning in January 2019. Ms. Smith paid monthly rent to the condominium unit’s owner, which also included all utility charges. Ms. Smith is a person with a nonvisible disability, which she described as post-traumatic stress disorder, depression, and anxiety, who requires the use of an emotional support animal (ESA).3 On September 8, 2019, Ms. Smith brought an approximately 14-week- old female Rottweiler puppy named Vida to live with her at Ocean Towers. At that time, the “Daytona Beach Ocean Towers Rules & Regulations” provided, in part, as follows: Respondents’ Proposed Recommended Order concedes certain dispositive facts, and also includes contradictory factual findings—both within the Proposed Recommended Order itself, as well as when compared to evidence presented—that the undersigned considered and discusses in this Recommended Order. 3 Both Petitioner’s Proposed Recommended Order, as well as Respondents’ Proposed Recommended Order (which, as discussed in footnote 2 above, is largely duplicative of Petitioner’s Proposed Recommended Order), assert—in identical fashion—that Ms. Smith has a disability and requires the use of an ESA. While the evidence at the final hearing was not entirely clear on this point (a point which resulted in FCHR finding no reasonable cause), Respondents, in their Proposed Recommended Order, concede this point. The undersigned has thus based this Finding of Fact on this stipulation. Confusingly, other “original” or “nonduplicated” portions of Respondents’ Proposed Recommended Order state that Ms. Smith never provided documentation to it that she had a disability, which required an ESA, but Respondents have clearly conceded this particular factual finding in their Proposed Recommended Order. PETS: Guests may not have pets in the building. All authorized small pets except certified service dogs must be carried while in public areas of the building and garage. Unless inside units, pets must be on a leash and owners are responsible for cleaning up after their pet while on [Daytona] Towers property. Ms. Smith had not informed Ocean Towers about Vida’s arrival prior to bringing her to Ocean Towers. On September 12, 2019, Maria Montgomery, who was the administrative assistant for Ocean Towers, emailed Ms. Smith concerning Vida. The email stated that “new pets are to be firstly reported to the office and rules apply as I am sure you are aware.” It further states that “Service animal or companion pets all need to have registered papers copied to the office[,]” and further states “[w]e do not need to know ‘why’ if it is a companion animal-we just need to have the authorization on file for Security, etc. in the event someone asks why an animal not in the ‘normal’ pet description of 20 pounds or less is living in the building ” Ms. Montgomery’s September 12, 2019, email to Ms. Smith was likely precipitated by Ocean Towers resident Ms. Honeycutt, who was also the condominium association president in 2019. Ms. Honeycutt—who has been paralyzed since birth and uses a wheelchair—testified that she encountered Ms. Smith and Vida on two occasions. On the first occasion, in an elevator, Ms. Honeycutt testified that Vida jumped on her lap. On the second occasion, in the condominium lobby, Ms. Honeycutt testified that Vida again jumped on her lap, but that she was able to move away from Vida. Mr. Zehrung, who was the manager at Ocean Towers in 2019 (and employed by Sentry), testified that he received numerous complaints from other tenants about an unleashed Rottweiler, and was aware of Ms. Honeycutt’s encounters with the dog as well. After determining that Ms. Smith was the owner of the dog, he informed her of the Ocean Towers “Rules and Regulations” concerning pets; he stated that Ms. Smith did not initially tell him that Vida was an ESA, but did so about one week after this conversation. In response to Ms. Montgomery’s email request, Ms. Smith provided Ocean Towers with a letter, dated September 17, 2019, from the “Medical & Psychiatric Clinic of Florida, Inc.,” from “Yessica Sanchez, Office Coordinator, ARNP.” That letter stated: Ms. Nisrine Smith is currently being treated at the Medical & Psychiatric Institute of Florida, Inc. Ms. Smith presently has her pet Rottweiler, also known as Vida, with her in her apartment. It would be beneficial for her to have her pet if the apartment complex allows her to keep it. The September 17, 2019, letter, which is not from a treating physician, makes no reference to whether Ms. Smith has a disability, and further makes no reference to her dog as an ESA, but rather refers to the dog as a “pet.” Ms. Smith testified that, after submitting the September 17, 2019, letter to Ocean Towers, she felt everything would be “okay,” and that she would be able to keep Vida as an ESA. However, she testified that she was “rudely treated” by other residents, including comments about the dog’s size, and the Ocean Towers rules that require a resident to carry their pet while in the lobby and indoor common areas. Ms. Smith felt that she was being discriminated against by Ocean Towers because of Vida’s dog breed, Rottweiler. Both Ms. Honeycutt and Mr. Zehrung testified that the September 17, 2019, letter that Ms. Smith submitted to Ocean Towers was not a sufficient request for an ESA. They both testified that had Ms. Smith submitted an appropriate “ESA letter” with “correct documentation,” Ocean Towers would have allowed Ms. Smith to keep Vida at Ocean Towers. Mr. Zehrung testified that there were three or four other tenants of Ocean Towers who had ESA’s, with “documentation.” On September 19, 2019, Ocean Towers, through its attorney, sent, via certified and regular mail, a letter to Ms. Smith and the owners of the condominium unit, that stated, in pertinent part: It is our understanding that your current tenant has a rottweiler within the unit. Said possession of the dog in the unit in common elements of the Association is a violation of the governing documents of the Association. * * * The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; however, regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property because it is a dangerous breed on the Association’s insurance and only small animals are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019. Furthermore, prior to the removal of the pet from the property, the owner must carry the pet when the pet is not within their unit, the dog must be on a leash, the dog may not be in the common elements of the Association and must only use the facilities that are designated for relieving pet waste. At no point is this dog allowed to be not on a leash or not hand-carried. In the event that the dog is not removed by September 30, 2019, the Association will file before the Department of Business and Professional Regulation a petition for injunctive relief seeking the permanent removal of the dog. In the event that this is necessary, the Association will be entitled to recover their reasonable attorney’s fees and cost. The September 19, 2019, letter from Ocean Towers to Ms. Smith directly contradicts the testimony of Ms. Honeycutt and Mr. Zehrung in two important ways: (a) it admits that Ms. Smith’s September 17, 2019, letter was a request for an ESA; and (b) it denies Ms. Smith’s request (“regardless if is an emotional support animal”), based on the dog’s breed, labeling it a “dangerous breed on the Association’s insurance[.]”4 The undersigned further notes that the September 19, 2019, letter from Ocean Towers makes no reference to any incident of Vida jumping on Ms. Honeycutt, or any other incident of alleged aggressive behavior of Vida. Although Ms. Honeycutt’s testimony that Vida jumped on her lap on two occasions is credited, Respondents failed to present any other credible evidence that Vida was an “aggressive animal,” or whether Vida posed any direct threat to the safety of the residents of Ocean Towers, as Respondents contend in their Proposed Recommended Order. Additionally, Respondents did not present any evidence that demonstrated that a rottweiler was forbidden under any insurance policy that covered the Respondents. Ms. Smith testified that she felt that Ocean Towers and its residents discriminated against and harassed her, and as a result, she decided to move out of her condominium unit the weekend of September 21 to 23, 2019. She testified that she received the September 19, 2019, letter during the weekend that she moved out. 4 The September 19, 2019, letter also contradicts numerous proposed findings of fact in Respondents’ Proposed Recommended Order which contest whether Ocean Towers ever received “proper documentation” of Ms. Smith’s request for an ESA. Respondents’ Proposed Recommended Order states that the September 19, 2019, letter, and a September 25, 2019, letter “were silent as to the need of an ESA and neither letter addressed that Smith suffered from a disability that would entitle Smith to have an ESA animal[,]” and, ultimately, that “Towers did not discriminate against Smith because Smith never provided documentation to the Association that she had a disability that required her to have an Emotional Support Animal.” Resp. Proposed Recommended Order at p. 5, ? H. The undersigned notes that the September 19, 2019, letter, which contradicts these proposed findings, was written by Ms. Kirian, who is counsel of record in this matter, and who authored the Proposed Recommended Order. Additionally, as stated in note 3 above, Respondents concede, in their Proposed Recommended Order (which is identical to Petitioner’s Proposed Recommended Order on this point), that Ms. Smith “is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA).” Resp. Proposed Recommended Order, p. 3, ? A. After moving out, on September 25, 2019, Ms. Smith provided another letter from the “Medical & Psychiatric Institute of Florida, Inc.,” from “Asad H. Kahn, M.D.,” to Ocean Towers, which stated: Attention: Current Housing Manager Ms. Nasrine [SIC] Smith is currently receiving treatment at our office for psychiatric condition. She has a pet dog. It would not be emotionally beneficial for her to lose her pets at this point. We do not have any opinion on risk of safety of the residential area due to the animal. The safety of the area needs to be assessed by the security of the housing project. Ms. Smith testified that after moving out, she was able to purchase a home. She contends that she incurred moving expenses when she vacated Ocean Towers, and that her current monthly mortgage payments, which do not include utilities, are more expensive than her previous rental payments at Ocean Towers. However, Ms. Smith did not present any persuasive evidence that quantified any damages she contends that she incurred as a result of Respondents’ discriminatory housing practices. The undersigned finds that Ms. Smith established, by a preponderance of the evidence, that Respondents discriminated against her based on her disability, by failing to provide a reasonable accommodation—an ESA—in violation of the FHA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Nisrine Smith’s Petition for Relief, in part, as follows: (a) finding that Respondents engaged in a discriminatory housing practice based on Ms. Smith’s disability, by failing to provide a reasonable accommodation to Ms. Smith in the form of an ESA; (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and tenants who request a reasonable accommodation on the basis of their disability; and (c) ordering Respondents to pay for the reasonable attorney’s fees and costs incurred by Ms. Smith’s counsel in this proceeding. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2021. Nisrine Smith Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Joseph John St. Angelo, Esquire Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200 Orlando, Florida 32801 Laura Qualatone Daytona Beach Ocean Towers, Inc 4188 South Atlantic Avenue New Smyrna Beach, Florida 32169 5143 Taylor Avenue Port Orange, Florida 32127 Marlene Kirtland Kirian, Esquire South Milhausen, P.A. Gateway Center 1000 Legion Place, Suite 1200 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 31st day of May, 1996.
Findings Of Fact On April 23, 1980, the county applied to DER for a permit to place approximately 334,000 cubic yards of sand along the southern 2.4 miles of the eastern shoreline of Key Biscayne to create an additional recreational beach for public use and to control beach erosion. The northern limit of the Project area is the southern boundary of Crandon park, the southern limit is the Cape Florida Lighthouse, and the seaward limit is the "design toe of fill", which results in establishing a new mean highwater line at approximately the 1913 shoreline. No fill will be placed along a 1600-foot area along the shore between 1500-feet and 3100-feet north of the lighthouse, where accretion has occurred since 1913. The re-nourished beach is proposed to average approximately 100 feet in width. On October 15, 1980, DER issued a letter of Intent to deny the requested permit. There are approximately 45 acres of sea grass within the Project Area which are proposed to be covered with sand as a result of the project. Sea grass is a major marine resource in Florida, and the anticipated loss of these 45 acres is one of the primary reason DER proposed to deny the permit application. Transects made by the County in December of 1977, and March of 1978, showed that the sea grass in the Project Area varies in density from "sparse" in approximately half of the Project Area to "dense" in approximately ten percent of the Project Area, with the remainder being considered being "medium" in density. Approximately 25 percent of the area to be filled is barren bottom. Sea grasses serve several important functions in the marine ecosystem. They are a vital and productive link in the marine food chain. By cycling energy from the sun into digestible plant material, sea grasses provide food for various organisms which, in turn, are eaten by other organisms in the food chain. Sea grasses assist in maintaining good water quality by causing a baffling effect which improves clarity, and by assimilating the potentially harmful nutrients from the water column. Sea grass roots bind sediments on the sea bottoms, thereby detering erosion. Additionally, sea grass beds function as prime nursery habitat for juvenile fish and other young marine animals as well as spawning grounds for various marine species. Sea grass beds further provide areas for concealment protection and feeding for all types of marine-creatures. Two types of marine sea grasses predominate in the area off Key Biscayne: Syringodium filiforme, or "manatee grass", and Thalassia testudinum, or "turtle grass". The sea grass beds proposed to be filled by this project are dominated by Syringodium filiforme, a long, slender grass which, when compared to turtle grass, offers less refuge to smaller marine animals because its leaves are slender and round and it does not occur in dense groups. In addition, Syringodium filiforme is not as good a soil stabilizer as turtle grass, due primarily to its root structure. It also offers comparatively less surface area for the attachment of epiphytes and algae. A significant portion of the sea grasses in the northern part of the Project Area are ephemeral: that is, they have grown in since 1967, and could very likely be destroyed during a major storm event. It is unlikely that they will be in place for sufficient periods of time to become a major influence on the grain size of the sand in the area, nor will they have a major influence on the long-term sediment dynamics of the area. The 45 acres of sea grass in the Project Area constitute only about two percent of the approximately 2,000 areas of sea grass habitat located immediately to the east of the Project Area. In addition, there are approximately 150,000 acres of sea grass beds lying within that portion of Biscayne Bay in Dade County, Florida. There is an almost solid belt of turtle grass beginning on the offshore or ocean-side of Key Biscayne extending southward of Key West out to the Merquesas Islands and, with a slight break, to the Dry Tortugas. Unlike Syringodium filiforme, turtle grass serves as a true nursery ground for marine organisms in their early life stages. The portion of the sea grass community proposed to be filled in the Project Area is not a good nursery ground, primarily because of the small amount of turtle grass present. The turtle grass beds present in the Project Area do not constitute a mature stable community comparable to those located slightly farther offshore Key Biscayne. These better turtle grass beds have longer blades that do not show wear from wave action and are covered with epiphytes and other marine organisms. Further, unlike the turtle grass in the Project Area, these beds are dense, with little open space between them, and have little or no other plants growing with them. The sea grass beds in the Project Area are simply not qualitatively as rich as these adjacent beds. These offshore sea grass beds serve as true nursery grounds for marine life. Shrimp and certain game and commercial fish, as examples, are located primarily in nursery grounds in Biscayne Bay and Hawk Channel, where there are more mature and stable turtle grass communities. In light of the extent and condition of the sea grasses in the fill area and the associated sea grass communities both inshore and offshore Key Biscayne, taken together with the design of the overall project as hereinafter described, the total effect of the proposed fill on marine life should be inconsequential. The sand to be placed in the Project Area will be dredged from a borrow area located approximately one mile south of Key Biscayne. This site was selected by the United States Army Corps of Engineers. A consultant retained by the County has recommended that certain portions within this borrow area not be used, and that other areas adjacent thereto be utilized if necessary. This modified borrow area falls within the area described in the County's permit application for the source of the fill material. The depth of the sand above the substrate in the borrow area ranges from 1.0 to 9.5 feet, with a substantial portion of the area having in excess of a five-foot depth of sand. Assuming sand will be removed to a depth of five feet, the sand will be taken from approximately a 2,000 by 1,000-foot site. If done in this manner, only about one-third of the borrow area designated by the Corps of Engineers and modified by the County's consultant will be utilized. The entire borrow area designated by the Corps of Engineers contains approximately one million cubic yards of sand. There are no known corals or hard-bottom communities within the proposed borrow area. In addition, there appear to be very few benthic organisms in this area, which is comprised primarily of shifting sand. The benthic organisms that do exist in the area will, of course, be removed during dredging. However, the borrow area can reasonably be expected to repopulate with these organisms as soon as the dredging operation is concluded. Further, the area from which the fill is proposed to be obtained is well removed from any areas of persistent sea grass cover. There are only five or six patches of sea grass in the borrow area, the largest being approximately 12 feet across. These patches do not contain turtle grass and may be easily avoided during dredging. The record in this case clearly establishes that use of the sand from the borrow area should not have an adverse impact on the environment surrounding that area. The sand proposed to be placed on the beach is similar in grain size and composition to the sand that is on the existing beach, owing probably to the fact that it was at one time located on the beach and has been removed through the process of erosion. This sand is of such quality that there should be only minimal turbidity occurring during the dredging operations. There are very small quantities of fine material within the borrow area, and the chemical and physical composition of the sand there closely matches the chemical and physical composition of the sand on the beach. As stipulated by the parties, it is not anticipated that any turbidity problems will result from a physical or chemical breakdown of the material after it is deposited on the beach, and it is also not anticipated that significant long-term turbidity will result from the actual fill being placed on the beach because of the small quantity of fine material contained in the fill. The sand is proposed to be dredged from the borrow area by means of a hydraulic dredge, and transported in a sand/water mixture via pipeline to the Project Area. The sand will be placed on the beach by a method known as longitudinal diking, which permits most of the sand to precipitate before the water returns to the ocean, thereby keeping most of the sand in the Project Area and reducing the impact on receiving waters. The 45 acres of sea grass in the Project Area discussed above will not be covered immediately by fill. This acreage figure represents the total area of sea grass that will be covered after the fill has reached the "theoretical- toe of fill". The theoretical design profile of the beach cannot be achieved immediately because it is not possible to operate the necessary equipment below the waterline. The project design calls for fill to be placed on the beach in a different configuration than will ultimately be obtained, and allows natural wave action to reshape the sand to achieve the design profile. It is anticipated that the entire process will take approximately two years. This is not a unique process, in that the Crandon Park beach immediately north of the Project Area was renourished in a similar fashion in 1969. The Crandon Park design profile was achieved in 1971, and the record establishes that sea grasses offshore Crandon Park were not adversely affected by the sand placed on that beach. Further, no additional fill has been placed on Crandon Park beach since its original renourishment in 1969, and that beach is still very close to the original design profile. The design profile for Crandon Park beach is identical to that proposed for the Project Area. Accordingly, once the design profile for this project is achieved, the greater weight of the evidence in this cause establishes that the sand in the renourished area should not migrate beyond the design toe of fill. A rock structure referred to as the "terminal groin" is proposed to be constructed in connection with the project at the lighthouse at the southern extremity of the beach. The purpose of the terminal grain is to retain the sand placed along the beach. This structure will extend seaward approximately 350 feet, with a top width of seven feet, and top elevations ranging from plus 2.6 feet mean low water at the most seaward location, to plus 7.0 feet mean low water at the beach. The County proposes to modify the slope of the groin to create additional intertidal and subtidal habitat by placing native limestone boulders along the entire 350-foot length of the south side of the groin. By making this modification, approximately 7,000 square feet of subtidal rock habitat will be provided. In addition, this modification will create approximately 36,750 cubic feet of void space for potential marine habitat. The approximate cost of this structure is $200,000. The terminal groin will provide a type of rocky habitat which naturally existed in the Biscayne Bay area, but which has been largely eliminated by man-made improvements. This type of habitat, of course, will not duplicate the type currently provided by the 45 acres of sea grass proposed to be covered by fill. Specifically, rocky habitat does not serve the nursery and breeding functions which sea grasses provide. Further, it neither contributes food stuff by way of primary productivity nor cycles energy into the marine ecosystem in the same manner as sea grasses. The County, in fact, had at one time considered replanting sea grass to mitigate for the loss of the grass communities in the Project Area, but abandoned that alternative in view of the existing large areas of sea grass adjacent to the project, and the fact that the barren bottoms in the Project Area and in adjacent areas have occurred as a result of high wave energy. As a result, it was felt that any attempt to replant the sea grasses by way of mitigating the effect of the proposed project would be unsuccessful. With a properly designed terminal structure, the renourished beach should last approximately 30 years. The rate of erosion on the beach when the project is concluded should approximate 15,000 cubic yards per year. Accordingly, it is unlikely that the beach would require renourishing in less than ten years following the project. As noted above, the Crandon Park beach was restored in excess of 12 years ago, has not been renourished, and still is very close to the original design profile. Sea turtles nest at Bill Baggs State Park and at Crandon Park. The record in this case establishes that these turtle nests can be fairly easily found and relocated. The Corps of Engineers has a turtle protection program with the U.S. Fish and Wildlife Service under which contractors on beach renourishment projects are required to relocate turtle nests, utilizing persons licensed by the Florida Department of Natural Resources. Dade County also has a turtle relocation program which is currently being utilized in Crandon Park. The record in this case does not establish that the proposed beach renourishment project will adversely affect the nesting of sea turtles within either the Project Area or areas adjacent thereto. Extensive erosion has occurred on the beaches on the eastern shore of Key Biscayne. It is currently not possible, for example, to walk from one end of the beach on Key Biscayne to the other without climbing seawalls and jetties, since portions of the beach are completely under water at all times except during extremely low tidal periods. A substantial portion of the project Area is completely submerged even during low tide. The Hearing Officer personally viewed the extent of the erosion in the Project Area. The placement of fill in the northern 1.2 miles of the project will create public access between Bill Baggs State Park and Crandon Park, which is maintained by Dade County. The project will also create a public beach where currently none exists eastward of the proposed erosion control line for the northern 1.2 miles of the project. Beach renourishment will provide support for and stabilize the restored beach on Crandon Park, thereby enabling that beach to last longer, and will also provide erosion control for the entire length of the eastern shoreline of Key Biscayne. The project, as designed, will protect against a ten-year storm of 24-hour duration, thereby helping to diminish serious injury to property and persons by reason of violent storms. Additional protection will also be provided to the Cape Florida lighthouse, a State historical landmark. Although not a hurricane surge protection project, the beach renourishment program will provide some degree of protection from hurricanes. More protection is provided to upland structures by increasing the distance between them and adjacent water bodies. Pursuant to Section 161.053, Florida Statutes, the Department of Natural Resources has determined that severe beach erosion has occurred along the southern 2.4 miles of Key Biscayne, and that the beach either has been or will be destroyed in the immediate future unless a publicly financed program is undertaken. In 1978, and in 1979, the Florida Legislature appropriated funds for the project, and additional funding has also been approved by the Governor and Cabinet. Tourism is Florida's largest industry. In 1980, approximately 35.9 million visitors spent $17 billion in the State of Florida, generating $785 million in tax revenues and supplying employment for 535,000 people directly employed in the tourist industry. There are primarily four reasons that visitors come to the State of Florida: (1) rest and relaxation; (2) beaches; (3) climate; and (4) other attractions, primarily manmade. Over 60 percent of the visitors to Florida have indicated that beaches are their primary reason for visiting the State of Florida. In 1980, 12.6 million tourists visited Dade County. Of these, 10.3 million were domestic tourists, and 2.3 million were international tourists. these tourists spent a total of $9.5 billion in Dade County, making the tourist industry by far Dade County's largest single industry, directly accounting for 25 percent of employment in Dade County. In 1950, over $4.77 million were collected in the taxable areas of Dade County by imposition of a resort tax of two percent on hotels and motels for transients. Tourism on Key Biscayne contributed approximately $300,000 to the Dade County resort tax collection, which is 6.2 percent of the total tax collection for 1980. 57.2 percent of the domestic tourists in Dade County came to Dade County because of the beaches. Tourists visiting other sections of Dade County used the beaches on Key Biscayne because they are very convenient and pleasing. During the course of this proceeding, the deposition of Dr. Anitra Thorhaug was taken by Petitioners, and the parties have requested that the Hearing Officer, pursuant to the provisions of Rule 28-5.208, Florida Administrative Code, and Rule 1.390, Florida Rules of Civil Procedure, determine a fair and reasonable expert witness fee to be paid to Dr. Thorhaug for her deposition. Having considered the submissions of the parties on this issue, including the actual time spent in deposition of two hours and 55 minutes, and the total time of 4.5 hours devoted by Dr. Thorhaug to the taking of her deposition, it is determined that a reasonable fee for her services is $350.
The Issue The issues to be determined is whether the City of Destin (“City”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0288799-003-JC (“Permit”), in the swash zone east of East Pass in accordance with the Notice to Proceed (“NTP”); and whether the Inlet Management Plan referenced in the NTP is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida. The Surf Dweller Condominium, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island,1/ fronts the Gulf of Mexico, and straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Petitioner, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida. The El Matador Condominium is on Okaloosa Island, fronts the Gulf of Mexico, and is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Intervenor, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, in the vicinity of Monument R-14. Mr. Wilson uses and enjoys the gulf-front beaches between his property on Okaloosa Island and East Pass. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass areas of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the NTP. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. The City is the applicant for the Permit and the NTP, and abuts the east side of East Pass. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and issued the NTP at issue in this proceeding to the City. The NTP was issued on February 2, 2018, without notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioners received a copy of the NTP on October 1, 2018, and filed a challenge more than 14 days later, on November 30, 2018. East Pass Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of the City to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot- long jetty on the west side of the inlet and a 1,210 foot-long jetty on the east side of the inlet. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The Physical Monitoring Plan (“PMP”), which is part of the Permit, and thus, not subject to challenge in this case, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The PMP further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its affect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Evidence to the contrary was not persuasive. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On an average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand and become very hazardous for marine traffic. In December of 2018, the City declared a state of emergency relating to the navigational hazards caused by the accumulation of sand in the navigation channel. The Permit On February 26, 2015, DEP issued the Permit, which authorized the City to perform “periodic maintenance dredging of the federally authorized East Pass and Destin Harbor and navigation channels.” The Permit will expire on February 26, 2030. Notice of the issuance of this Permit was published in the Destin Log, a newspaper of general circulation, on December 24, 2014. No challenge to the issuance of the Permit was filed. As it pertains to the issues in this proceeding, the Permit provides that “Dredged material from . . . maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.” The specific beach spoil placement sites are, as relevant to this proceeding, located “west of East Pass . . . between [DEP] reference monuments V-611 and V-622; and on 2 beach sites situated east of East Pass . . . from R-17 to R-20.5 and from R-23.5 to R-25.5.” Those areas correspond to what have been identified as the “areas of influence,” which are the beach areas east and west of East Pass that are affected by tidal forces generated by the inlet. The specified beach spoil placement sites, being conditions of the unchallenged Permit, are not subject to challenge in this case. The Permit establishes the criteria by which specific work is to be authorized. Specific Condition 5 provides, in pertinent part, that: 5. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Department for each event. At least 30 days prior to the requested date of issuance of the notice to proceed, the Permittee shall submit a written request for a Notice to Proceed along with the following items for review and approval by the Department: * * * Prior to the second dredging event authorized under this permit, and each subsequent event, the Physical Monitoring Data, as specified in Specific Condition 9, shall be submitted to select the appropriate placement locations. Specific Condition 9 provides that: Following the initial placement of material on Norriego Point, fill site selection shall be supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013). All physical monitoring shall be conducted in accordance to the Approved physical monitoring plan dated August, 2014. A notice to proceed for specific projects shall be withheld pending concurrence by the Department that the data support the proposed placement location. The purpose of Specific Condition 9 is to identify, using supporting monitoring data from the eastern and western areas of influence, the “adjacent eroding beach” most in need of sand from the inlet. The requirement that physical monitoring data be used to determine which of the beach spoil placement sites identified in the Permit’s Project Description will receive the spoil from any particular periodic dredging event was to implement section 161.142, Florida Statutes. That section mandates that “maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches,” and establishes the overriding policy of the state regarding disposition of sand from navigational channel maintenance dredging. East Pass Inlet Management Implementation Plan The East Pass Inlet Management Implementation Plan (“East Pass IMP”) was adopted by Final Order of DEP on July 30, 2013.2/ The East Pass IMP was not adopted through the rulemaking procedures proscribed by chapter 120, Florida Statutes, or DEP rules. Despite a comprehensive Notice of Rights advising persons whose substantial interests could be affected of the means by which the East Pass IMP could be challenged, it was not. There are 44 maintained inlets in Florida. About half have individual inlet management plans. The East Pass IMP is not applicable to any inlet other than East Pass. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in the Permit. Rather, the disposal site is to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. The critical element of the IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The East Pass IMP, being applicable only to East Pass, is not of “general applicability.” Furthermore, the East Pass IMP does not implement, interpret, or prescribe law or policy. The Notice to Proceed On January 30, 2018, the City filed its Request for Notice to Proceed (“Request”). The Request addressed the criteria in Specific Conditions 5 and 9 of the Permit. Upon review, DEP determined the conditions of the Permit were satisfied and issued the NTP on February 2, 2018. The analysis of data submitted as part of the Request was designed to show areas of erosion and accretion within the eastern and western areas of influence in order to identify “critically eroded beaches.” The shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate3/ shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall, and thick vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. The shoreline east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5 and R-23.5 to R-25, except for the area immediately abutting the eastern jetty, is highly erosional. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the east of East Pass are critically eroded, a condition that is influenced by East Pass and or its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. Data in Support of the NTP The data submitted by the City to DEP in support of the Request included monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017, and additional data from the Holiday Isle Emergency Beach Fill Two-Year Post-construction Report. DEP was also provided with historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017, and the Potential Borrow Area Impact Report, which included data from 1996 through 2012. DEP has also received recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of survey date, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. The data submitted in support of the Request was sufficient to meet Specific Condition 9 that fill site selection be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP. Petitioners argue that the City failed to comply with the PMP, which requires, among other things, that the analysis of the dredged material disposal area include “preconstruction survey data and the most recent survey conducted at least five years prior.” The PMP establishes that “[p]reconstruction surveys shall be conducted no more than 90 days before construction commences. A prior beach monitoring survey of the beach and offshore may be submitted for the pre-construction survey if consistent with the other requirements” of the PMP. The City submitted a prior beach monitoring survey of the beach and offshore that is consistent with the PMP. Petitioners argue that the City violated a temporal limitation which provides that the City “may submit a prior beach restoration monitoring report for the west or east beach areas (Walton-Destin or Western Destin Beach Restoration Project) if the monitoring data is collected within 1 year of the proposed maintenance dredging event and if consistent with the other requirements of this condition.” Petitioners acknowledge in their PRO that the beach restoration monitoring report was timely when the Request for NTP was submitted. The information contained therein was sufficient to support the notice of proposed action on the NTP. The otherwise compliant data is no longer within one year of the proposed dredge. In that regard, the litigation in this case, initiated by Petitioners, has been ongoing for almost one year. Work authorized by the NTP cannot go forward when subject to challenge. If the PMP, which is not a rule, is unreasonably read so as not to account for delay caused by litigation, such delay becomes a tool for use by, and a reward for, a person dissatisfied with DEP’s outcome. In this case, the NTP was lawfully issued pursuant to compliant data, surveys, and analysis. As with any permit or license subject to a third- party challenge, the terms of the NTP are tolled pending Petitioners’ litigation, and do not become a ground for denial of the otherwise compliant Request. See § 120.60(1), Fla. Stat. (“An application for a license must be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period is tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license which is not approved or denied . . . within 45 days after a recommended order is submitted to the agency and the parties, . . . is considered approved unless the recommended order recommends that the agency deny the license.”).4/ Furthermore, DEP has now received recent profile data from April 2019. The evidence establishes that the data provided to DEP as part of the Request includes the latest physical monitoring data over a period of greater than five years, and that the data collection met the standards for conducting physical monitoring. Fill Site Selection The NTP authorized “placement of dredged material in the swash zone east of East Pass.” In accordance with the Permit, that authorized area extends eastward from R-17 to R-20.5 and from R-23.5 to R-25.5, in Holiday Isle. The evidence is persuasive that placing dredged material on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, dredged material placed to the east of East Pass would, if the lateral shoreline drift is east to west as asserted by Petitioners (though not supported by a preponderance of the evidence as set forth in paragraphs 11 through 13), be introduced into the ebb shoal and likely move faster to the west as opposed to it being placed directly at the base of the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, more likely than not, accomplish the beach effect objectives set forth in the Petition. The Eglin AFB Beach Restoration Project Petitioners relied heavily on photographs taken in 2010 and 2019 from roughly the same location in the vicinity of Monuments V-607 to V-608 to demonstrate that the beaches of Santa Rosa Island are eroding. The area depicted is outside of the area of influence of East Pass, and outside of the western beach placement area under the Permit. Those photographs depict a wide expanse of beach in 2010, with a seawall well upland from the shore in 2010. Then, in 2019, a photograph depicting the same stretch was offered that showed the same seawall, now at or below the water line. The photographs were, ostensibly, designed to depict naturally occurring erosion in the area. Mr. Clark testified that the seawall and boulder mound structure depicted in both photographs protect an Air Force mission-critical tracking facility. The seawall was originally constructed in 1979 after Hurricane Frederick, was constructed at that time to extend into the water, and was maintained in that configuration through the 1990s. One could not walk around the original seawall. Rather, for most of its history, passage around the seaward side of the seawall could only be accomplished by swimming or wading. The original seawall was damaged by Hurricane Opal, and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005. The Air Force, needing to reconstruct the wall, applied for and received a joint coastal construction permit, allowing the structure to be constructed on sovereign submerged land below the line of mean high water. The seawall was rebuilt and, as stated by Mr. Clark, “it was in the water.” In 2010, the Air Force performed the small Eglin Air Force Base Beach Restoration Project, which placed artificial fill in front of the seawall, thereby creating a temporary beach. That beach fill project was “a one-shot deal,” did not involve any subsequent maintenance, and is now essentially gone, as was expected. Mr. Clark was neither surprised nor concerned with the fact that the area returned to what he described as its natural state, with the seawall below mean high water. The 2019 photograph was presented as evidence of erosion caused by East Pass. That was not the case. Rather, the 2010 photograph was evidence of an artificial and singular event, and the 2019 photograph depicts the natural state of the shoreline. Rather than depicting erosion, the 2019 photograph depicts a return to the stable shoreline that exists all along Santa Rosa Island to the west of East Pass. The photographs of the site of the 2010 Eglin Air Force Base Beach Restoration Project do not support a finding that the beaches of Santa Rosa Island are anything but stable, if not accretional, nor do they support a finding that the beaches of Santa Rosa Island are eroding. Ultimate Factual Conclusion Specific Condition 9 of the Permit requires the location of the spoil disposal be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP and the PMP. The greater weight of the competent substantial evidence establishes that the City submitted physical monitoring data consistent with the requirements of Specific Condition 9. The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5 and R-23.5 to R-25.5, are critically eroded, a condition influenced if not caused by the East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the City met the standards for the NTP as proposed for issuance by DEP on February 2, 2018. Evidence to the contrary was not persuasive. Thus, the NTP should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the February 2, 2018, Notice to Proceed for the maintenance dredging of East Pass as authorized pursuant to Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 50-0126380-005-EI and State- owned Lease No. 0288799-003-JC, subject to the general and specific conditions set forth therein; and Denying the City of Destin’s Motion for Attorney’s Fees, Expenses and Costs pursuant to section 120.595(1). DONE AND ENTERED this 14th day of October, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2019.
The Issue The issues to be determined are whether the U.S. Army Corps of Engineers (“Corps”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to Department of Environmental Protection (“DEP”) Permit Modification No. 0288799-006-JN (“Permit Modification”), as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action (“Proposed Change”) in the nearshore zone east of East Pass; and whether the East Pass Inlet Management Plan (“East Pass IMP”) is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioner, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island1, and fronts the Gulf of Mexico. Petitioner’s property is in the vicinity of Monument R-14, which is roughly 2.3 miles west of DEP Virtual Monument V-611, and 4.3 miles west of the west side of East Pass. Mr. Wilson uses and enjoys the gulf-front beaches between his property in Okaloosa Island and East Pass. Intervenors, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. 1 Okaloosa Island is the name of an unincorporated community that stretches about 2.8 miles along Santa Rosa Island from DEP reference monument R-1 through R-16, and is across Santa Rosa Sound from the mainland community of Ft. Walton Beach. Okaloosa Island is the name of the unincorporated community, while Santa Rosa Island is the name of the much longer island of roughly 40 miles in length, which includes U.S. Air Force/Eglin AFB property that extends from the Okaloosa Island community to East Pass. The Surf Dweller Condominium straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Intervenor, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. The El Matador Condominium is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Petitioners’ residential properties do not abut either the area established as the zone of influence of East Pass or the stretch of beach that is adjacent to the west fill placement site. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass area of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the Permit Modification. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. Respondent, DEP, is an agency of the State of Florida pursuant to section 20.255, Florida Statutes, having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Chapters 62 and 62B, regarding activities in surface waters of the state. DEP has been designated by the legislature as the beach and shore preservation authority for the State of Florida and is authorized to take all necessary initiatives to implement the provisions of chapter 161. See § 161.101, Fla. Stat. DEP is the permitting authority in this proceeding and issued the Permit Modification at issue in this proceeding to the Corps. Respondent, the Corps, is a federal agency responsible for maintenance dredging of East Pass, and is the applicant for the Permit Modification. The Corps and DEP are parties to an Interagency Agreement pursuant to which the Corps has agreed that for joint coastal permits, beach compatible dredged material shall be disposed on Florida’s beaches consistent with chapter 161 and other beneficial use criteria specified by the Department and federal standards. Pursuant to the Interagency Agreement, if DEP determines that a permit modification is required to meet state standards, as was the case here, the Corps agrees to apply for and obtain the modification. Intervenor, Destin, is a municipality in Okaloosa County, Florida, and abuts the east side of East Pass. Intervenor, Okaloosa County, is the local sponsor of the federally authorized East Pass Navigation Project. It has a substantial interest in the safety and navigability of the East Pass Navigation Channel and its protection from effects of tropical storm systems. Okaloosa County also has a substantial interest in preserving its recreational and environmental resources. The Permit Modification was issued on November 14, 2016, without publication, or a notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioner, Mr. Wilson, alleged that he received a copy of the Permit Modification on or after May 22, 2019. There was no evidence to the contrary. He, thereafter, filed a challenge with DEP on June 5, 2019, no more than 14 days from the date on which he received notice. East Pass The issue in dispute in this case, as it was in 19-1844, is the determination of whether beaches adjacent to the East Pass inlet are eroding, stable, or accreting, for purposes of meeting the statutory objective of section 161.142. Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of Destin to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot-long jetty on the west side of the inlet, and a 1,210 foot-long jetty on the east side of the inlet. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand. Although there was a suggestion that recent storms may have opened the channel to some extent, the evidence was not sufficient to alter the findings based on the 19-1844 record that the channel remains hazardous for marine traffic. East Pass Inlet Management Implementation Plan The East Pass IMP was adopted by Final Order of DEP on July 30, 2013. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in permits issued by DEP. Rather, disposal sites are to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. Areas of influence are the beach areas east and west of East Pass affected by tidal forces generated by the inlet. The critical element of the East Pass IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The Permit Modification On October 28, 2009, DEP issued Permit No. 0288799-001-JC to the Corps to perform maintenance dredging of the East Pass Navigation Channel and the Old Pass Lagoon Channel, and to rehabilitate the eastern and western jetties. Materials dredged from the Main Channel south of the U.S. Highway 98 bridge would be primarily bypassed to a portion of the beach on Eglin Air Force Base west of East Pass. As originally issued, the 2009 Permit limited placement of dredged sand to sites west of the inlet, and prohibited placement to the east of the inlet. Contrary to the 2008 amendment to section 161.142 and the 2013 East Pass IMP, the 2009 Permit did not require that sand dredged from the federal navigation channel be placed on the adjacent eroding beach, nor did it extend the life of the proximate West Destin Beach Restoration Project. The Corps requested the Permit Modification in furtherance of an inter-agency agreement between DEP and the Corps, by which the Corps agreed, to the best of its abilities, to act in a manner consistent with state requirements. Pursuant to section 161.142(5), beach compatible sand dredged from federal navigation channels is to be placed on the adjacent eroding beach. On November 14, 2016, DEP issued the Permit Modification to the Corps. The Permit Modification did not change the authorization or requirements for the dredging, but allowed dredged material to be placed on “the Gulf-front beaches on the eastern and western sides of East Pass.” On August 21, 2019, DEP filed the Proposed Change, which amended the Permit Modification to require that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass.” The Permit Modification provides that, for the first maintenance dredging event following issuance of the Permit Modification, dredged material is to be placed at fill sites east of East Pass, the condition that Petitioners’ find objectionable. The Permit Modification then provides that “[f]or all subsequent maintenance dredging events conducted under this permit, disposal locations shall be supported by physical monitoring data of the beaches east and west of East Pass in order to identify the adjacent eroding beaches that will receive the maintenance dredged material, providing consistency with section 161.142, Florida Statutes.” Thus, the placement of dredged material to the east of East Pass authorized by the Permit Modification applies to the next dredging event, and not necessarily to subsequent periodic dredging events authorized by the Permit Modification. Fill Placement Site The eastern fill placement site authorized by the Permit Modification extends from R-17 to R-20.5. The shoreline adjacent to the eastern fill placement site has been designated as critically eroded for more than ten years. The eastern fill placement site is within the Western Destin Beach Restoration Project and designated as “Reach 1.” The fill placement site west of East Pass is located between V-611 and V-622. The shoreline landward of the western fill site has not been designated as critically eroded by the Department. There are no current beach restoration projects in or adjacent to the western fill site. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The evidence in this proceeding, which includes the evidence adduced in 19-1844, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The evidence further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its effect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Competent substantial evidence in the record of this proceeding includes monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017; data from the Holiday Isle Emergency Beach Fill Two-Year Post- construction Report; historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017; the Potential Borrow Area Impact Report, which included data from 1996 through 2012; and recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of data, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate2 bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline, indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the persuasive testimony offered by Mr. Clark, Mr. Trammell, Mr. Garis, and Mr. Trudnak (who testified in 19-1844), collectively establishes, by a preponderance of the evidence, that the beaches east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5, except for the area immediately abutting the eastern jetty, are critically eroded, a condition that is influenced by East Pass and its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. The evidence demonstrates that the shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate 2 “Having an irregularly wavy or serrate outline.” See “crenulate,” Merriam-Webster Dictionary, https://www.merriam-webster.com/ dictionary/crenulate (last visited February 2, 2020). shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall and thickly vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” Mr. Trammel’s photographs offered in 19-1844 were supplemented by a series of photographs taken from several of the same locations after the passage of Tropical Storm Nestor in October 2019. Those photographs are consistent with a finding that the beaches to the east of East Pass are highly eroded and erosional, and that the beaches to the west of East Pass are not. The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establish, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. Petitioners offered testimony of Dr. Douglas and Dr. Young in an effort to shore up weaknesses in the evidence offered in 19-1844. Their testimony and the evidence discussed therein was largely, if not exclusively designed to demonstrate that the direction of lateral sand transport in the vicinity of East Pass was predominantly east to west, which was the prevailing theme of Petitioners’ argument in 19-1844. The evidence adduced from Dr. Douglas was, in many respects, cumulative of that previously offered by Dr. Walton in 19-1844, and considered in the development of the Recommended Order in that case. For example, both Dr. Walton and Dr. Douglas reviewed and assessed information from the Taylor study, the Morang study, and the CP&E report in developing their opinions. Both agreed that sand placed in proximity to the jetties would tend to stay in place. Both ultimately concluded that sand placed to the west of the East Past west jetty would migrate to the west. Dr. Douglas offered new opinion testimony largely based on the Wave Information Study (“WIS”), which is an estimate of wave height and direction from a location two miles off-shore of East Pass. The data is a mathematical estimate, and does not rely on physical measurements from buoys or wave gauges. The wave estimates were then used as inputs in a model developed by the Coastal Engineering Research Center (“CERC”). Dr. Douglas candidly testified that the CERC model, even with normal input data, involves a substantial degree of uncertainty -- up to an order of magnitude. Adding to that uncertainty is that the CERC model assumes bottom contours and offshore volume calculations that were either inapplicable to the area around East Pass, or unavailable. Dr. Douglas was convincing that the CERC model is a tool commonly used by coastal engineers. His testimony, and the evidence on which it was based, was not unreasonable. However, it was not sufficient to outweigh the evidence introduced in support of the Permit Modification. In particular, and in addition to the evidence and testimony introduced in 19-1844, the testimony of Mr. Clark, whose extensive and direct knowledge, observations, and familiarity with the area, and of the data and information collected over periods of years, is found to be more persuasive regarding the processes and conditions in and around East Pass, and supports a finding, by a preponderance of the evidence, that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. Similarly, the evidence adduced from Dr. Young was largely cumulative, a fact that resulted in sustained objections to questions eliciting such information. He did provide testimony regarding time-lapse images from Google Earth Engine, and a critique on how to balance a sediment budget, though without providing a budget. As was the case with Dr. Douglas, Dr. Young’s testimony and the evidence discussed therein, was not sufficient to outweigh the more persuasive evidence introduced in support of the Permit Modification that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. The evidence is persuasive that placing dredged material at R-17 to R-20.5 in Holiday Isle on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, some -- but certainly not all -- of the dredged material placed on the eroding beaches to the east of East Pass can be introduced into the ebb shoal and move to the west. In that regard, the Google Earth Engine images depict sand moving across the ebb shoal to the western side of the inlet and attaching at various distances from the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, to some degree, accomplish the goals of allowing sand transport to the western beaches, as was the relief sought in the Petition. The evidence was convincing that depositing dredged material onto the eroding beaches east of East Pass, as authorized by the Permit Modification, will not result in significant adverse impacts to areas either east or west of East Pass, nor will it interfere with the use by the public of any area of a beach seaward of the mean high-water line. Furthermore, the evidence introduced in this case and 19-1844 provide reasonable assurance that the Permit Modification is consistent with section 161.142 and will ensure that net long-term erosion or accretion rates on both sides of East Pass remain equal. Ultimate Findings of Fact The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5, are critically eroded, a condition influenced, if not caused, by East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the placement of dredged material on the eastern side of East Pass will extend the life of the proximate West Destin Beach Restoration Project. The greater weight of the competent substantial evidence establishes that the Corps met the standards for the Permit Modification as proposed for issuance by DEP on November 14, 2016, and August 21, 2019, including section 161.142 and rules 62B-41.003 and 62B-41.005. Evidence to the contrary was not persuasive. Thus, the Permit Modification should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the November 14, 2018, Permit Modification No. 0288799-006-JN, as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action, for the maintenance dredging of East Pass, subject to the general and specific conditions set forth therein. DONE AND ENTERED this 20th day of February, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2020. COPIES FURNISHED: Joseph Alexander Brown, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) D. Kent Safriet, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) Marianna Sarkisyan, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Winifred L. Acosta, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 (eServed) Kathryn Drey, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 Kenneth G. Oertel, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Carley J. Schrader, Esquire Nabors Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Elizabeth Desloge Ellis, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
