The Issue Is the City of Mexico Beach (the City or Applicant) entitled to the issuance of a joint coastal permit and consent to use of sovereign submerged land for the Mexico Beach Canal (Main Canal) and a municipal flushing outlet adjacent to 8th Street (8th Street outlet)? Those permits would be issued by the Department of Environmental Protection (DEP) in response to DEP Application File No.: 0124938-001JC and DEP Application File No.: 0129039- 001JC, respectively.
Findings Of Fact Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport are residents of the City of Mexico Beach, Florida. As residents they have access to the Main Canal, the public beaches adjacent to the Main Canal, and beaches adjacent to the 8th Street outlet. Edmond Blount, Jr., and Robert Davenport oppose the issuance of any permits by DEP which would allow the City to conduct dredging and the placement of dredge materials associated with the Main Canal. Those Petitioners and Edmond Blount, Sr., oppose the grant of necessary permits by DEP upon the application by the City to conduct occasional maintenance excavation at the 8th Street outlet to alleviate potential damage through erosion to properties adjacent to the 8th Street outlet. The City of Mexico Beach is a municipality in Florida which serves as the local government for that community. The City owns the Main Canal and 8th Street outlet. DEP is an environmental regulator with authority to issue or deny joint coastal permits and to grant or deny consent to use sovereign submerged lands belonging to the State of Florida. The joint coastal permitting authority and right to grant consent to use is pursuant to Chapters 161, 253, and 373, Florida Statutes, and Chapters 18-21 and 62B-49, Florida Administrative Code. In particular, DEP has joint coastal permitting authority upon sovereignty lands in the State of Florida below the mean high waterline (MHWL) of any tidal water of the State. The reference to sovereign land is an association with lands below MHWL held in trust by the State of Florida. The term tidal waters refers to waters in which there is an astronomical effect on the elevation of that water. The Gulf of Mexico which fronts the City is a tidal water of the State of Florida. The MHWL is established along the coastal regions in Florida, to include the Gulf coast that fronts the City. The MHWL is set based upon charting information concerning the local mean high tide, the average height of the high waters, and where this average intersects the land. PERMIT APPLICATION FOR MAIN CANAL On June 30, 1997, the City applied to DEP for a ten-year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (the Trustees), which would allow the City to maintenance dredge the Main Canal entrance and place the dredge material on the beach east of the canal below the water's edge. This task would be accomplished by the use of hydraulic dredging device. In the course of these activities, approximately 660 cubic yards of material would be removed approximately four times a week. The application file number for the requested permit in the Main Canal project was: 0124938-001 JC. The City, through its application, provided a complete and appropriate application with adequate engineering data to support the proposed project. The Main Canal is located in the western part of the City and is partially located in sovereign submerged lands of the State of Florida where the canal intersects the Gulf of Mexico below the MHWL. On January 13, 1998, DEP gave notice of its intent to issue necessary permits for the activities to allow dredging and the placement of fill in association with the Main Canal. More specifically, the hydraulic dredge the City intends to use in the maintenance dredging of the Main Canal is a floating device which excavates the sand from the bottom of the entrance of the Main Canal and pipes the material onto the beach immediately east of the dredge site. The dredging activities may only be conducted in a manner designed to protect the beach-dune system, water quality and habitat for marine turtles. These restrictions in the conduct of the dredging are in accordance with the proposed joint coastal permit. The dredging activity is to remove and deposit clean beach sand that has been transported by coastal processes and deposited in the lee of the jetty within the Main Canal. There is no intent, nor permission under the proposed permit, that would allow disturbance of any sediments more landward of the extent of the canal. The dredging is necessitated because the entrance of the Main Canal slowly fills with sand being transported from west to east along the shoreline. The Main Canal is stabilized on both sides by jetties. The western-most jetty extends further out than the eastern-most jetty. The Main Canal has seawalls along its inside. A recreational area is located on the western side of the Main Canal. The Main Canal is highly utilized for purposes of commerce and recreation. The Main Canal constitutes an economic support for many residents of the City. The Main Canal in proximity to the Gulf and the Gulf itself are not considered outstanding Florida waters or aquatic preserves. The waters in the Main Canal and Gulf are Class III marine waters when considering the parameters for water quality under DEP statutes and rules. Competent evidence was presented concerning water quality sampling and results in the analysis of those samples for fecal coliform bacteria and total coliform bacteria in relation to the Main Canal at its entrance where dredging would take place under the terms of the permit. Some values for fecal coliform and total coliform exceeded the allowable limits for those parameters as envisioned by Section 62-302.530, Florida Administrative Code, as preexisting conditions. However, the dredge operations will not lead to further degradation of the existing Class III marine waters in the Main Canal and degradation of the Gulf. The relatively clean sand being excavated does not contain fines or organics, which, through the dredging and placement of the sand on the beach following the dredging, would contribute to degradation of water quality standards. The activity associated with the dredging and placement of those materials on the beach will not cause a significant adverse impact to the beach-dune system, nor will the transport of sand from west to east along the beach as it presently exists be interrupted by the dredging and placement of the sand. The dredged material is being placed immediately east of the dredge operation avoiding a disruption of the natural processes of transport. The proposed disposal area is located on the beach at least 100 feet east of the canal below the waters edge at approximately minus 0.5NGVD. Finally, the deposit of the sand on the beach contributes to beach stabilization as opposed to depriving the beach of sand. The proposed permit requires that the dredge pipeline be retracted upon a daily basis during marine turtle nesting season from May 1 until October 31 each year. By this limitation in the operation of the dredge pipeline, marine turtles are not hindered in their behavior nor is their habitat unduly disturbed. The placement of the dredged sand on the beach would not be in the dry upland where the turtles would typically nest. The DEP Bureau of Protected Species Management reviewed the permit application for any significant adverse impact on nesting sea turtles and recommends the approval subject to specific conditions such as have been described. The dredging of the sand from the Main Canal and placement of that material on the beach will not cause significant adverse impact to the property of others. The Main Canal project will not create any significant erosion or turbidity. Given the small volume and coarseness of the dredged sand, elevated turbidity levels are not expected. The dredging of material from the mouth of the Main Canal and placement on the adjacent beach does not block lateral access to the beach, because the hydraulic dredge pipeline is placed at the water's edge with a discharge of dredge material being made at the water's edge in the area of the intertidal zone where water comes up to the beach. The exact discharge point is seaward of the area described as the intertidal zone. Given that the project associated with the Main Canal is located in Class III marine waters, it must not be contrary to the public interest. The project is not contrary to the public interest. PERMIT APPLICATION FOR 8TH STREET OUTLET On June 13, 1997, the City applied to DEP for a ten- year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees. This would allow the City to conduct occasional excavation of the 8th Street municipal flushing outlet which connects to the Gulf, having in mind the alleviation of potential damage to adjacent beachfront properties. That potential damage would be expected to occur in the instance where there was an uncontrolled breach of the berm surrounding the 8th Street outlet due to high incidence of rainfall, thus eroding adjacent beachfront properties. With the advent of scheduled maintenance, excavation of the outlet that erosion is expected to be deterred. The application file number for the requested permit in the 8th Street outlet project was File No.: 0129039-001 JC. The City, in its application for necessary permits to conduct excavation at the 8th Street outlet, submitted a complete and appropriate application setting forth adequate engineering details. More specifically, the permit application contemplates the removal of approximately 20 to 40 yards of beach sand per excavation, with the material excavated being placed on the beach near the water's edge. The excavation would be approximately 4 to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily, the frequency of excavation would be one to two times per month. The excavation practices would be by the use of a backhoe other than in the sea turtle nesting season. While sea turtles are nesting, the plans contemplate excavation by hand by use of a shovel or similar tool. In addition, during the turtle nesting season the application contemplates that the excavation would be done during daylight hours, only twice a month, to reduce potential flooding of marine turtle nests due to a meandering outflow from the outlet. Other than in the marine turtle nesting season the excavation would be done on an "as needed" basis. On March 16, 1998, the DEP gave notice of its intent to issue a permit for the dredging at the 8th Street outlet. The conditions associated with the intended permit for dredging of the 8th Street outlet deter any significant adverse impacts to the beach-dune system. In the area of the 8th Street outlet, a large box culvert runs underneath U.S. 98, the main highway in the city. That highway runs parallel to the beach. Once the water flows through the culvert, it accumulates in the outlet south of the road. In the instance where rainfall is diminished, the flushing outlet does not flow to the Gulf and the beach berm, which accretes seaward of the outlet, traps the water that is being released via the culvert. By contrast, in instances where heavy rainfall occurs, the water in the outlet collects to a point that it begins to flow away from the culvert in the direction of the Gulf. If the beach berm has built up over time, the path of that flow in high incidence of rainfall can encroach on buildings that are adjacent to the culvert on the south side of U.S. 98. When the rainfall is sufficient, and the water begins to flow, it reaches a sufficient velocity to move sand as a bed load. Under those circumstances, when the water strikes a ridged object, like a house foundation, the local water velocity will act to carry away the sand more readily from that location where the house foundation is found, by scouring out the sand near the foundation, undermining the building and risking the collapse of the building onto the beach. In the course of this process the water breaches the beach berm and flows towards the Gulf. In the instance where the berm on the beach has been breached, the water that has been released begins to scour the beach and establish a pattern that can run down the beach roughly parallel to the Gulf for a distance before flowing into the Gulf. By contrast, the controlled release of water from the outlet would cause less of an impact, in that it would create an immediate access through the beach berm to the Gulf without creating the potential for harm to upland property or causing erosion or scouring of dunes and vegetation in beach areas, some of which might contain turtle nests. Unlike the circumstances with high incidence of rainfall where adjacent property is eroded and damaged, the use of controlled maintenance excavation to relieve the outlet would not cause significant and adverse impact to adjacent property owners. The controlled release of the water in the outlet, unlike the natural release of that water in high incidence of rainfall, is more in the interest of the public when considering adverse impacts to property. The introduction of the water in the outlet, and its constituents, onto the beach and its consequences, is no more a problem whether based upon the natural event of high incidence of rainfall or the routine release contemplated by the project. Therefore, the alternative method of releasing the water by use of scheduled excavation is not contrary to the public interest. If anything, the use of periodic excavation to relieve the outlet would limit the breadth of discharge and the amount of discharge. The 8th Street outlet and the Gulf area adjacent to that outlet are not within outstanding Florida waters or aquatic preserves. The project site for the 8th Street outlet and the Gulf are within Class III marine waters. The existing Class III marine water quality parameters for fecal coliform and total coliform when considered in accordance with Rule 62-302.530, Florida Administrative Code, have been exceeded in the 8th Street outlet. This is borne out by test results from samples gathered at the 8th Street outlet presented at hearing. However, as with the circumstance with the Main Canal, the effect of periodic excavation to relieve the outlet will not further degrade state waters found in the outlet. The results of water quality tests performed following sampling that relate to the amount of fecal coliform and total coliform in the Gulf that could be expected at the entrance of the Main Canal and as the discharge of water within the 8th Street outlet enters the Gulf show low values for those parameters. Therefore, it is not anticipated that the release of the water from the 8th Street outlet to the Gulf under controlled conditions contemplated by the permit application would cause a violation of the parameters for fecal coliform and total coliform in the Gulf, the receiving body of water, especially when compared to the existing release of water from the 8th Street outlet to the Gulf in high incidence of rainfall. This finding is also influenced by the fact that the most excessive values for total coliform and fecal coliform in the 8th Street outlet system were found 600 to 800 feet up the water course described as the 8th Street outlet. Similar to the Main Canal, the project contemplated at the 8th Street outlet would not require mitigation before being permitted by DEP. The 8th Street outlet project would not create significant adverse impacts on coastal sediment transport. The DEP Bureau of Protective Species Management reviewed the 8th Street outlet application and recommended approval with specific conditions. Those conditions offer adequate protection to marine turtles and their habitat. The conditions include project excavation that does not create parallel trenches in the sand that inhibit movement on the beach by sea turtles. The 8th Street outlet project will not create significant erosion concerns or turbidity concerns. The 8th Street outlet project does not block lateral beach access to the public, in that the excavation to relieve the outlet on a periodic basis is temporary, that is to say only in effect when the water is being released from the outlet to the Gulf. CONSENT TO USE SOVEREIGN SUBMERGED LANDS The 8th Street outlet project, as well as the Main Canal project, involves sovereignty submerged lands below the MHWL constituted of the beach and ocean bottom. The facts show that the City is entitled to consent of use to work on sovereign submerged lands in the Main Canal and 8th Street outlet projects.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That DEP issue a final order granting the City the joint coastal permits and consent to use sovereign submerged lands in accordance with application File Nos.: 0124938-001JC and 0129039-001JC respectively, subject to specific conditions contained therein. DONE AND ENTERED this 10th day of November, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1998. COPIES FURNISHED: Edmond Blount, Sr. Post Office Box 13855 Mexico Beach, Florida 32410 Edmond Blount, Jr. Post Office Box 13854 Mexico Beach, Florida 32410 Robert Davenport Post Office Box 13926 Mexico Beach, Florida 32410 Gerard Murnan Post Office Box 13378 Mexico Beach, Florida 32410 Paul G. Komarek, Esquire Daniel and Komarek, Chartered Post Office Box 2547 Panama City, Florida 32402 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John McInnis, City Manager City of Mexico Beach Post Office Box 13425 Mexico Beach, Florida 32410 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On December 12, 1988, Petitioners filed an application with Respondent for a permit to construct improvements to real property seaward of the coastal construction control line (CCCL). Petitioners' property is located at 2400 North Atlantic Boulevard, Fort Lauderdale, Florida. The parcel of land owned by Petitioners measures approximately 50' in width and 140' in depth and is located in a primarily residential area of beachfront property with high property values. On this parcel is a residence that is approximately 1600 square feet in size. The residence is constructed on reinforced concrete pilings. There are many other residential and commercial structures in this area which are also constructed on reinforced concrete pilings. The improvements to this property seaward of the CCCL that Petitioners desire to make and that Respondent finds objectionable is the construction of a poured monolithic reinforced concrete slab patio supported by twenty-one reinforced concrete pilings. The patio would be approximately 27' by 50' in size. On November 17, 1987, Respondent approved an application filed by a previous owner of this property for the construction of a patio to be constructed with concrete pavers. Petitioners arranged to have the previously approved permit transferred to their name. The project contemplated by the subject application employs a different method of construction than the one permitted in 1987 because Petitioners desire to have a patio that is more attractive and is easier to maintain. Petitioners are also concerned that concrete pavers will be hazardous during a storm since they may be subject to being swept along by high winds and water. Petitioners have valid reasons for preferring the method of construction reflected by the subject application based on aesthetic and maintenance considerations. However, Petitioners did not establish that the proposed method of construction was necessary as a safety measure. To the contrary, the greater weight of the evidence was that blocks the size of the pavers to be used for the construction that has been permitted would not be propelled by either hydrodynamic or aerodynamic forces during a major storm as Petitioners contend. Instead, these blocks would likely be undermined during a major storm and, because of their weight, fall as the beach is eroded. Respondent has regulatory authority over the property in question. Respondent's regulatory authority, which includes rule making authority, is conferred by statute. Respondent's responsibilities include the preservation of the beach-dune area within its jurisdiction. There is a relationship between the siting of a structure, in terms of its proximity to the shoreline, and the likelihood that the structure will have an impact on the beach and dune systems. The subject patio is to be located within the beach-dune system. The patio Petitioners propose to construct on concrete pilings would have more of an adverse impact on the beach-dune system than a patio constructed of concrete pavers. During a major storm, greater erosion on the site around the pilings will occur as a result of scour. Following a major storm, the ability of a dune to re-form will be more inhibited if the patio is supported by pilings. Considering the hundreds of thousands of pilings that are already in place along the beach, the effect of the twenty-one pilings proposed by Petitioners, whether considered individually or cumulatively, will be insignificant. A patio is usually considered by Respondent to be a "minor structure". "Minor structures" are non-habitable structures that are generally designed to be expendable during a major storm event. Dune walkovers, viewing platforms, and decks are examples of minor structures. A patio constructed of concrete pavers would be another example. The nature of their construction permits minor structures to be placed more closely to the shoreline than major structures. The patio as proposed Petitioners has been properly categorized by Respondent as being a "major structure" since it is designed to withstand a major storm event. Respondent has not to date permitted any major structure as far east of the CCCL in this area of Broward County as Petitioner's proposed project. All major structures constructed on pilings that are that far east of the CCCL were built before permits were required. Respondent is concerned that the granting of the subject permit will set a precedent that will require the issuance of permits for the construction of other major structures as far seaward of the CCCL as the Petitioners' proposed project, and that such construction would result in a cumulative adverse impact on the beach-dune system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order which denies the subject permit. DONE AND ENTERED this 20th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1-6 and 8-10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 8 are rejected as being argument. The proposed findings of fact in the first sentence of paragraph 11 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in the third sentence of paragraph 11 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being conclusions of law that are unnecessary to the conclusions reached. The proposed findings of fact in paragraph 14 are rejected as being unsubstantiated by the evidence. While Petitioners' application included as a proposed condition to the issuance of the permit, a covenant running with the land that would require the property owner to reconstruct the beach-dune system in the event of destruction by a major storm, the evidence did not establish, as Petitioners proposed, that the covenant would "... protect the interests of DNR and its long term end of protecting the dunes and beaches". The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 5-6, 10-16, 24-27, 30-31, and 33 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 21 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraphs 7-9 and 28-29 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. The proposed findings of fact in paragraphs 17-20, 23, and 32 are rejected as being unnecessary to the conclusions reached. These proposed findings are incorporated in part as conclusions of law. The proposed findings of fact in paragraph 22 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. COPIES FURNISHED: Kenneth G. Stevens 412 Northeast Fourth Street Fort Lauderdale, Florida 33301 Dana M. Wiehle, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Room 1003 Tallahassee, Florida 32399-3000 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ken Plante General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency 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 Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection 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) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue Whether 1800 Atlantic Developers is entitled to a DER fill permit and water quality certification for the creation of a sand beach, approximately 500' long X 100' wide, requiring placement of 2,620 cubic yards of fill, 2,200 yards of which would be waterward of mean highwater (MHW), off Key West, Florida.
Findings Of Fact The Proposal By its initial application in April 1985, 1800 Atlantic proposed to place 4,100 cubic yards of fill (manufactured sand) along approximately 460 feet of eroded shoreline facing the Atlantic Ocean and fronting its 168-unit condominium (still under construction) in Key West, Florida. In connection with this project, 1800 Atlantic also proposed a 200 foot jetty at the east property line; a second and smaller jetty (if needed) at the west property line; a 400 foot long (10' high and 20' wide) fishing pier on the western property line; and a 50 x 50 foot art display platform seaward of the new beach. Approximately one and one-half acres would be filled of which 0.9 acres would be below the MHW line. The "proposed use" for the new beach was designated "private multi- dwelling." By affidavit Atlantic 1800 certified that it was record owner, lessee, or easement holder of the project site. 1/ (Atl.Exh.1) On May 7, 1985, 1800 Atlantic revised its application by submitting a new plan view to Teryl Kranzer, DER's field biologist. The modification tapered the beach fill into the shoreline toward the western property line and reduced the size of the westernmost jetty. (Atl.Exh.4) On May 10, 1985, DER sent a "Completeness Summary" to 1800 Atlantic, asking for additional information to complete the application. (DER Exh.5) On June 18, 1985, 1800 Atlantic responded to DER's Completeness Summary by submitting the additional requested information to Douglas L. Fry, Environmental Supervisor of DER's South Florida District. Revised drawings were submitted eliminating the east jetty from the project. The volume of beach fill material was indicated as 2620 cubic yards--420 above MHW, and 2200 below MHW. (Atl.Exh.5) On July 1, 1985, DER sent another Completeness Summary to 1800 At1antic seeking still more information to make the application complete. (DER Exh.6) t 20, 1985, 1800 Atlantic supplied the additional information and modified its proposal by eliminating the art display platforms the fishing pier and the west jetty. The beach fill was also modified by tapering the fill from the corner of the existing seawall at the east property line into the existing shoreline on the west property line. Total beach fill volume was shown as 2700 cubic yards--300 above MHW and 2200 below. The proposed dry beach extended 70 feet seaward (the June 18, 1985 submittal showed an 80 foot wide beach) and the toe of the fill extended 100 feet seaward of the MHW line. In response to DER's inquiry about public access, Edward Swakon, 1800 Atlantic's consulting engineer, stated: will be no provision made to assure perpetual public access to the project area. As we previously stated, the applicant has no intentions of prohibiting public access, however, you should be aware that the appli- cant is the owner of the submerged land and that no guaranteed public access is assured. (Atl.Exh.7) Mr. Swakon, on behalf of 1800 Atlantic, then addressed each of the permitting criteria of Section 403.918(2)(a), Florida Statutes (1985), though contending that they did not apply to the project: project will not affect the public health, safety, welfare or the property of others. On the contrary, as a result of this project the tax base of the City of Key West will be improved and therefore benefit the residents of the community. The beach fill will provide an added degree of protection to the upland development, thereby reducing the potential claims to the Federal Flood Insur- ance Program. In addition, the project provides a beach for 168 residents of the upland development and their many guests. This reduces the impact on the already over crowded public beaches in Key West. project will not adversely effect the conservation of fish and wildlife within the immediate vicinity. The area to be filled is devoid of significant vegetation. It is our opinion that the placement of this fill would result in an imperceptible impact to the marine resources. There are no endan- gered or threatened species or habitats located within the area to be filled. project will not adversely effect navigation, the flow of water or cause harmful erosion or shoaling. On the contrary, the placement of this material will improve the overall shoreline conditions. The filling will not cause any erosion or shoaling in the vicinity. the fill area is barren, it is our opinion that this project will have no impact on fishing, recreational values and/or marine productivity in the vicinity of the project. project will be permanent in nature will be no impact to historic or archeological resources. Id. t 26, 1986, DER received the August 20, 1986 submittal of 1800 Atlantic and the application became complete. r 5, 1985, the District Manager of DER's South Florida District in Fort Myers noticed his intent to deny the permit application. According to Douglas Fry, DER's supervisor of the District's dredge and fill section, the denial was based on information that he had received: I expected that the project would degrade both general water quality standards as established in the intent, including turbidity, biological integrity, transparency, other things noted as well as degradation of fish and wildlife standards as encompassed in part of the public interest requirements; I felt that the project would be contrary to the public interest. (Tr.546) the months that followed, 1800 Atlantic pursued the matter with various DER personnel, including Mr. Fry; Ms. Kranzer, the District biologist who performed the initial biological and water quality appraisal for the project; Steven J. Fox, Director of the Division of Environmental permitting, and William Hennessey, Deputy Director, both located in Tallahassee and supervisors of district permitting operations 2/ and Kenneth L. Echternacht, a DER hydrographic engineer in Tallahassee. Negotiations ensued, various modifications were proposed. Ms. Kranzer, the DER field biologist who had conducted the initial environmental evaluation in May 1985, and had recommended denial in September 1985, never submitted a new report evaluating the subsequent modifications, although she did discuss changes with other DER staff members. At the time she evaluated the project, it had already been modified once--cubic yardage had been reduced; the fishing pier, art platform and both jetties had been eliminated. t of negotiations between DER and 1800 Atlantic, DER reversed its initial position and, on March 27, 1986, gave notice of its intent to issue a permit for the revised project. The proposed permit incorporated changes agreed to by 1800 Atlantic. These changes required that the waterward 1/3 of the fill volume consist of coarse sand or sand aggregate no finer than 2mm in diameter; that approximately 10 percent of the sand range in size from 2mm to 6mm in diameter; and that 1800 Atlantic conduct a seagrass monitoring program for the duration of the permit. These changes were meant to resolve DER's concern that the fill material might migrate seaward and smother offshore seagrass beds. The area below the MHW line to be covered by the fill (approximately 1/2 acre) remained the same as indicated in the last drawings submitted by 1800 Atlantic on August 20, 1985. (Atl.Exh.7) l 1985, the City (of Key West) and the Coalition (Florida Keys Citizens Coalition) timely requested an administrative hearing to challenge proposed issuance of the permit. R had announced its intention to grant the permit, Mr. Fry, DER's District environmental dredge and fill supervisor continue to have concerns about the project: . . . I did not believe that the project still was clearly in a public interest, and that I did not see that the project had been modified enough to eliminate the destruction of aquatic habitat. I was concerned that the project did not encompass any mitigation to offset those, that damage. I was concerned that we had not received reasonable assurances that the project was clearly in the public interest. I was concerned that we had not received reasonable assurances that the beach fill would stay in place, thereby contributing to future degradation, and I had experienced some concerns regarding cumulative impact. (Tr.547) These concerns prompted representatives of DER and 1800 Atlantic to meet in Tallahassee on Friday, June 20, 1986. This was three working days prior to final hearing. Neither the City nor the Coalition were aware off or invited to, the meeting. s meeting, DER and 1800 Atlantic agreed to certain additional project modifications. One addition required construction of a small terminal jetty or groin on the western end of the project to stabilize the fill and replace rocky habitat to be covered by the fill. The specifications for this groin were not subsequently calculated or submitted at hearing. 1800 Atlantic proposes to "field engineer" the groin within these parameters: It would be designed to contain the fill or it would be designed in the field when the material was in place and would be designed with specifications that the rocks really didn't come any higher than the fill itself and would be adjusted so as to allow for some movement of sediment back and forth between it so as to minimize any down drift concerns that might exist. (Tr.121) l hearing, DER and 1800 Atlantic reduced this addition to writing as one of several proposed conditions to the DER permit. These conditions, ostensibly providing precision and specificity to the project changes described at hearing, were received over objection as part of DER's post-hearing Exhibit No. 7. The particular condition describing the groin-type structure to be built at the west end of the beach fill provides in pertinent part: Prior to construction of the beach fill, the permittee shall submit approximately dimen- sioned sketches of the structure, for review, modification as necessary, and approval by [DER]. (DER Exh.7) DER and 1800 Atlantic thus propose that specifications and drawings for this coastal structure be submitted, reviewed, and approved sometime in the future, after the requested permit is issued. The need for specifications is acknowledged, yet submittal and review is put off until after a permit is issued. Hence, detailed specifications for the structure remain unknown or ill- defined; scrutiny of those specifications by the City and Coalition is threatened; APA 3/ processes are frustrated. e which DER and 1800 Atlantic agreed to at the Friday meeting was to taper the toe of the fill on the western one-half of the fill area to more closely match the contour of the existing shoreline. 1800 Atlantic's engineer sketched this change, free-hand, while testifying at final hearing. Hence, it also remains ill-defined and uncertain. Like the groin, this change was reduced to writing and received as part of DSR post-hearing Exhibit No. 7. And like the groin, before construction but after the permit is issued, 1800 Atlantic is to submit a "fully dimensioned and scaled plan view of the revised beach fill limits for review, modifications as necessary, and approval" by DER. (DER Exh.7) The procedural shortcomings of such a procedure have already been noted. e which DER and 1800 Atlantic agreed to at the Friday meeting concerned off-site mitigation. As explained at final hearing, 1800 Atlantic would purchase an upland site equal in size to the area to be covered by the proposed fill and excavate it to tidal or subtidal elevations. (The upland mitigation site could be located as far as Big Pine Key (35 miles away) or elsewhere in the Florida Keys.) If this mitigation measure could not be accomplished prior to placement of the fill, a bond to assure its performance would be posted with DER. But this mitigation measure, when later reduced to writing and received as post-hearing DER Exhibit No. 7, became something quite different. The post-hearing exhibit specified that the upland mitigation site would be at least twice the size of (not equal in size to) the proposed one-half acre fill project. Moreover, the mitigation site was to be inspected and approved by DER prior to placement of the fill. If the mitigation site was not approved prior to filling, a bond (of unknown amount) would be posted to assure purchase and the excavation. With this condition, as with those already mentioned, critical features were left to future review and approval by DER, and so placed beyond the scrutiny of the other parties to this proceeding. The specific nature and location of this mitigation site is not known; neither is the amount of the bond to be posted if filling precedes mitigation. Whether the mitigation will, in fact, offset any loss of plant, fish, and wildlife habitat eliminated by the proposed fill is, likewise, unknown. Finally, the written condition, to the extent it doubles the size of the mitigation site presented at final hearing, is rejected as an unauthorized attempt to present new and additional evidence after the close of evidentiary presentation. (DER Exh.7) s other on-site mitigation measures were agreed to at the Friday meeting. As explained at hearing, algae-covered rocks within the fill area would be moved to a non- vegetated part of the submerged land; a Halodule grass bed within the fill area would be relocated waterward of the fill area; the toe of the proposed fill would be staked prior to construction; and fill placement would occur only during periods of low tide. When later reduced to writing as a post-hearing exhibit, these conditions generally conformed to their description at final hearing. Effect of Fill Project on Fishing or Recreational Values; Navigation; Marine Productivity; and Conservation of Fish and Wildlife t site is located on the southern shoreline of Key West on a narrow strip of beach known as Rest Beach, which includes a 2900 foot shoreline between Bertha Street to the east and White Street Pier to the west. The pier, a 950-foot long solid fill structure, is located 2400 feet west of the project site. Directly west of White Street Pier is another public beach (1400 feet long) known as Higgs Beach. With the exception of the submerged lands at the project site, to which 1800 Atlantic asserts titled all of the submerged lands adjacent to Rest Beach are publicly owned. (Atl.Exh.2-I; DER Exh.4) s at the project site are part of the navigable open waters of Hawk Channel and the Straits of Florida (Atlantic Ocean), designated by DER as Class III waters. On May 8, 1985, the waters in the area of the project (within the boundaries of the Florida Keys Special Waters), were also designated (by rule) as "Outstanding Florida Waters"--thereby imposing DER's most stringent level of protection from degradation of water quality loss of fish and wildlife habitat, and reduction in marine productivity. (Rule 17-3.041(4)(i); DER Exh.4) t site is bordered on the east by Bertha Street, which ends at a seawall facing the ocean. South Roosevelt Boulevard begins at the end of Bertha Street and parallels the shoreline east of the site. A public boat ramp is located on South Roosevelt Boulevard just east of Bertha Street. Just east of the ramp is a long curving jetty or groin at the southern end of a 3350-foot long public beach known as Smathers Beach. This public beach is within a few hundred feet of the project site. (Atl.Exh.6; DER Exh.4) o the west of the project site is an undeveloped parcel of land consisting largely of mangroves separated from the ocean by a sandy berm. Although the berm has been overwashed and tidal connections have opened in the past, no tidal connection was apparent at the time of final hearing. In some places the berm may have been artificially altered west of this undeveloped wetland site. Other residential condominiums are located on uplands to the west. d directly landward to the project site is a 168-unit, four story L-shaped condominium owned and developed by 1800 Atlantic. Recreational facilities, such as a swimming pool and club house, overlook the ocean. A third wing of the condominium (parallel to and abutting Bertha Street) was still under construction in July, 1985. s not the first time a permit has been sought to create or restore a beach at the site. In 1979, the trusteeship of Eugene J. Weiss, a 1800 Atlantic's predecessor in title, applied to DER for a similar "beach restoration" permit. He proposed to place (between groins to be constructed at opposite ends of the property) 1750 cubic yards of sand waterward of MHW and 2500 cubic yards landward. The approximate area to be filled was .59 acres waterward of MHW, .80 acres landward. Curtis Kruer then an environmental specialist with DER, performed a biological and water quality appraisal of the project and recommended denial because the fill would bury vegetated benthic communities that provide habitat and nutrients to marine organisms which, in turn, become a food source for a large number of juvenile fish and shellfish. He also was concerned about the short and long-term cumulative biological effects of a number of such projects on the shoreline of Key West. In April 1982, Eugene Weiss withdrew the application. (Coalition Exh. 3) s at the project site are shallows as the bottom slopes gently seaward. At mid-tide, depths of 1.5 feet are found 100 feet seaward of the MHW line. At low tide, the entire fill area is exposed. Even at high tide, water depths in the fill area range from zero (at MHW line) to approximately two feet at the toe of the fill. Because of the shallow depths, the fill project will have no significant adverse effect on navigation. (DER Exh.4; Atl.Exh.5) f stacked but unstabilized railroad ties separates the upland area (where the condominium and associated structures are located) from the beach slope. The narrow, graveled beach slope contains a mix of sand, rock, rubble and beach plants. Several distinct zones of seawrack are found on the beach slope: Thalassia at the lower portion of the beach face and Sargassum at the base. (Atl.Exh.15, 16) t 100 feet seaward of the MHW line, which includes all of the fill area, consists of small rubble embedded with calcareous sediments. The rubble consists of chunks of limestone rock and pieces of concrete less than two feet in size. Scattered among the rubble is anthropogenic debris such as bottles, asphalt and cast iron pipe. (Tr.130) f the limestone rock and rubble found on the submerged project site are residential lag from a fill at the site prior to or during the early 1960s. The boundaries and extent of the prior fill have not been established. It appears, however, to have consisted of a mix of carbonate particles ranging from silt and clay to the rocks, rubble and coarse sand now found on the project site. The fill material on site is what remains from the earlier artificial fill. e rock and rubble in the littoral zone provide attachment sites for various green, brown, and red algae such as Laurencia, Caulerpa, Cymopolia, Digenia, Batoptiora, Padina, Halimeda, Neomeris and Congia. These algal species play a positive role in the marine environment. The near shore contains a coarse sandy-shell substrate. (DER Exh.4; Atl.Exh.16) f seagrasses grow on, and immediately seaward of, the fill site. These include Cuban shoalweed (Halodule wrightii) and turtle grass (Thalassia testudinum). Some patches of seagrass are found as close as 30 feet from the MHW line. 4/ Approximately 95 feet seaward, cuban shoalweed becomes dominant; turtle grass coverage increases as one travels seaward from the site. Some cuban shoalweed patches are dense and healthy, with blades sometimes two feet in length. There is a patch of cuban shoalweed on the eastern portion of the project site. Although 1800 Atlantic has agreed to dig-up and transplant this seagrass to unvegetated portions of its property seaward of the toe of fill, the success of such a transplanting is not assured. Unvegetated bottoms can usually be explained by environmental factors. (DER Exh.4; Atl.Exh.16) s communities play a beneficial role in the marine environment. They provide habitat, feeding, and nursery areas for aquatic organisms. They supply primary nutrients as well as perform nutrient uptake and removal functions. The proposed fill would adversely impact the seagrass communities on the site--by smothering or burying any seagrasses not successfully transplanted. Moreover, the site, once converted to sandy beach for the use of owners and guests of the adjacent condominiums, could no longer support seagrass communities. r shore zone of seagrass and algal communities, adversely impacted by the proposed fill, constitutes a productive shallow water habitat that supports a variety of juvenile fish and crustaceans. These include hares, banded tulip shells, nerites, xanthid crabs, blue crabs, lizard fish, barracuda, parrotfish, killifish, needlefish, grey snapper, sergeant major, tomtates, hermit crabs, shore crabs and blue crabs. c macrofaunal species and diverse species of crustaceans live in the sediment of the in-shore rocky algae and seagrass communities. These species include Scyphoproctus, Notomastus hemipodus, Capitella capitata, Pulliella, Capitomastus, Capitellidae, Chaetozone, Tharvz annulosus, Caulleriella, Carilleriella bioculate, Glyceridae papillosa, Axiothella, Ceratonereis, Nereis Succinea, Nereis Rava, Nereis caudata, Onuphis magna, Protoariciinae, Proscoloplos, Cirrophorus lyriformis, Hasmineira elegans, Jasmineira bilobata, Fabricia, Augeneriella, Faebicola, Minuspio, Prionospio heterobranchia, Prionospio steenstrupi, Nerinides goodbody, Brania clavata, Exogone dispar, Exogone naidina, Odontosyllis, Sphaerosyllis labyrindiophia, Streptosyillis, Typosyllis hyalina, Typosyllis regulata, Typosyllis alternata, Typosyllis prolifera, Langerhansia cornuta, Langerhansia ferrugina, Syllida bansei, Terebella turgidula, Streblosoma hartmanae, Streblosoma abranachiata, Streblosoma, Pista palmata, Arca, Chjione caniculater, Tellina iris, Melita dintata, Elasmopus, Melito, Melita nitida, Rudilembordes, Dexamine, and Erichsonella filiformis. (Coalition Exh. 6) g at the site took place as recently as June 1986. Three petite ponar samples were taken in seagrass beds 150-160 feet seaward of the shoreline; three were taken in the rubble zone just seaward of the toe of the proposed fill; and two were taken in seagrass beds off nearby Smathers Beach. As measured by the Shannon Weaver Species Diversity Index, the level of species diversity in the rock rubble just seaward of the toe of fill was 2.19; in the seagrass beds farther offshore, 4.71; and in the seagrass beds off Smathers Beach, 4.76. A diversity of 4 is in the upper range of food habitat. Although diverse species of benthic organisms are found on the site, the level of diversity is substantially less than the high levels found in the thicker seagrass immediately seaward of the project site. (Atl.Exh.16) t Beach area (including the project site), provides a valuable habitat for migratory birds, wading birds, and shore birds. It is one of the last major stretches of uninterrupted shallow water bird habitat in Key West. Ms. Francis Hamer, a local resident and bird watcher for over 40 years, visits the area regularly. One of her favorite vantage points is on White Street Pier; from there, using a telescope, she observes birds feeding and wading along the Rest Beach shoreline. Although most of the birds she sees gather at the western end of Rest Beach, she has seen sandpipers, including the least sandpiper, twelve species of herons, including the yellow crowned night heron and the blue heron in the vicinity of the project site. When asked where would one go to see Sandpipers if the Rest Beach habitat was eliminated she replied, "I don't know of any other place in Key West." (Tr.645) Ms. Kranzer, the DER biologist, and Mr. Kruer, the U.S. Army Corps of Engineers' biologist, have visited the site many times over the years and observed numerous wading and shore birds in the area. Ms. Kranzer photographed eight herons in the fill area at one time. 5/ Mr. Kruer has observed the little blue heron, the great egret, the cattle egret, the white ibis and the laughing gull, numerous shore birds. The proposed fill would adversely impact this valuable feeding ground for birds. The shallow algae and rubble zone, which supports the crabs and marine organisms which nourish bird life, would be replaced with beach sand. It is also likely that increased recreational use of the beach would drive off bird life. e many natural areas typical to the Florida Keys which, as DER and 1800 Atlantic contend, are more valuable than the project site in biological productivity, and as nursery and feeding grounds for fish, marine life, and wildlife. Nevertheless, this fact does not negate the substantial benefits which the site now provides to juvenile fish, crustacenas, benthic marine organisms, and bird life. l placement of the fill will have no impact on mobile organisms able to retreat to safer waters. Benthic and other organisms on the site which are relatively immobile would be destroyed by the fill. The number killed would be a relatively small fraction of the total of such organisms along the Key West shoreline, and their loss--alone--would not affect the marine environment to an extent which is quantifiable. Effects of the Proposed Fill on Water Quality Standards; Public Health, Safety or Welfare; Significant Historical and Archeological Resources; Endangered Species or their Habitats d project will not adversely affect public healthy safety, or welfare; significant historical and archeological resources; or endangered species or their habitats. (Neither the City nor the Coalition presented any affirmative evidence establishing adverse effect.) l the project degrade or cause violations of DER water quality standards for Outstanding Florida Waters. See Rules 17-3.051, 17-3.061, and 17- 3.121, Fla.Admin.Code. Turbidity will be minimal, since filling would take place at low tide and turbidity curtains will be used. The loss of algae at the site would not cause significant degradation of water quality. (Algae covered rocks would be moved outside the fill area.) c contends that water quality would actually be enhanced by the proposed fill. The seagrasses seaward of the site have beneficial effects on water quality, but their sediment beds are shallow. 1800 Atlantic contends that the finer particles of its fill material, dispersed by waves, would provide needed sediment to the offshore seagrass beds. This ostensible benefit is problematic. The study performed to support this contention did not sufficiently investigate or explain how seagrass beds beyond the reach of nearby beaches (and their sediment) could flourish. Dense and healthy seagrass offshore has not been shown to be endangered due to shallow sediment. It is clearly less than certain that just the right amount (too much would smother, too little would have no effect) of just the right kind of fill (only the fines are needed, not the large or coarser particles) would be delivered to offshore seagrass by natural forces. Impacts on Erosion, Shoaling and Sand Migration h and shoreline at the project site are relatively stable and in equilibrium; no greater erosion is occurring than at other unfortified shorelines in the Key West area. The coarse material and rubble that line the bottom of the site act as a "natural seawall" or armor which prevents or slows down erosion. (Tr.249) Removal of the existing rubble, as proposed, would eliminate this "natural armor." (Tr.260) e in the vicinity at the site faces south to south- southeast. This exposure is relatively windward with respect to winter storms. Gentle prevailing east to southeast winds, however, produce low-energy waves that approach the shore and generate longshore currents moving east to west. (Atl.Exh. 15) f a shallow limestone ridge offshore the Atlantic shoreline in Key West, waves reaching the shore are ordinarily well-dampened. Although subject to storm and hurricane attack by high energy waves, the southern shoreline is characterized as "low-energy." (Atl.Exh.15) vicinity of the project site on the southern shoreline, there is no natural onshore supply of sediments to beaches from offshore. The beaches at Smathers Beach and at the project site (which have been narrowed by erosion over the last 25 years) are artificial, composed of limestone fragments derived from quarries. The fill was placed at both beaches sometime prior to 1962. s have undergone gradual erosion. Fine sand and silt from the beach material is carried seaward, with no natural offshore sediment to replace it. The proposed fill will provide, at least temporarily, an added degree of protection to the upland development by widening existing upland between the condominium and the sea. It will not, however, prevent continued erosion. Over time, it too, will be dispersed by wave action and longshore drift to shorelines to the west. The fill would also temporarily stabilize the public sidewalk and street to the east of the site, currently being undermined. Protection of the public sidewalk and boat ramp from erosion, however, is part of public road maintenance duties. c has neither alleged nor shown that its upland condominium, still under construction, is endangered by erosion or high-energy wave action. Nor has it shown that there are no reasonable methods of supplying an "added degree of protection" to the upland development, methods not requiring elimination of productive habitat for fish, marine life, and wildlife. s net east-to-west longshore transport of sediment along the southern shoreline of Key West. Two groins at Smathers Beach (to the east) and the nearby public boat ramp have, to some extent, interrupted the normal longshore sand transport from the east. As a result, the effects of erosion are more pronounced on the eastern portion of the site, causing a shoreline "discontinuity." Although the proposed fill would partially eliminate this discontinuity, it has not been shown that the discontinuity is a serious problem. While it may trap floating debris, this was not a significant problem in July 1985, when Ms. Krenzer, the DER biologist, inspected the site. Moreover, the proposed groin near the west property line (to stabilize the fill material) would--in itself--add a new shore discontinuity, and may cause more discontinuity to the west if it interrupts the normal longshore movement of sand. (DER Exh.4) s finer than 200 microns tend to move in suspension, while grains finer than 40 microns cause turbidity. Grains coarser than 200 microns tend to move along the sea bottom when sufficient wave or current energy is present. Analysis of onshore and offshore sediment indicates that not much material coarser than 200 microns is moving offshore into seagrass beds seaward of the project site. Most of the material larger than 200 microns found in the seagrass beds is being produced there naturally. d that the proposed fill would migrate seaward and smother offshore seagrasses, seeks a condition (to which 1800 Atlantic has agreed) requiring that the seaward one-third of the fill volume consist of coarse sand no finer than two millimeters in diameter. The evidence is insufficient, however, to eliminate the possibility that constant wave action could gradually pulverize the coarse limestone into smaller particles that, when dispersed, could smother seagrass beds directly offshore and southwest of the site. 0 Atlantic has selected fill material with settling characteristics compatible with the existing beach material on site, placement should not cause an increase in turbidity. Although 1800 Atlantic posits that just enough of the fine sediments would migrate seaward to nourish grassbeds, leaving the coarse material to migrate westward by longshore drift, these results are not assured. Winter storms and high energy waves could remove and disperse even coarse material seaward or pulverize it into smaller particles for wider dispersion. Dispersion of the coarser sand to the west by longshore drift could result in shoaling which would block periodic tidal connections which occur between the sea and the mangrove covered wetlands. n structure toward the west boundary--designed to stabilize and hold the fill material in place--may contribute to erosion to the west by interrupting natural longshore transport. The wisdom of such an artificial structure ("field designed" on-site), which may interrupt the natural longshore transport of beach sands, is doubtful. Even 1800 Atlantic's own experts criticize it. y 1982, the U.S. Army Corps of Engineers completed a "Feasibility Report for Beach Erosion Control" with an accompanying Environmental Impact Statement. This report proposed a beach restoration program on the southern shore of Key West consisting of construction of a level beach berm, four feet above MHW and 100 feet wide along the 3,000 foot length of Smathers Beach; and a beach 25 feet wide along 2,370 feet of shoreline east and 3,400 feet west of Smathers Beach. 1800 Atlantic's proposed fill falls within the boundaries of this proposed beach restoration program. y is the local sponsor of the beach erosion control project described in the Feasibility Report. As late as August 1985, the Mayor of the City sent a letter to DER's dredge and fill supervisor confirming the City's continued support for the overall beach renourishment project. Although 1800 Atlantic suggests otherwise, the City's support of a comprehensive publicly financed beach restoration project along its southern shores (which presumably would assure public access to the restored beaches) is not necessarily inconsistent with its opposition to a relatively small fill project undertaken primarily for the private benefit of the owners, guests, and tenants of an adjacent condominium. h 1981, the Governor of Florida expressed written support for the Corps of Engineers' beach restoration project, but recommended that, in order to protect the marine environment, "any future beach renourishment be done in an environmentally sensitive manner. (Atl.Exh.19) The Governor's endorsement of the public beach restoration program does not, however, equate to his endorsement of the particular and more limited private beach project at issue. Even if it did, a gubernatorial expression of support cannot supplant DER's duty to exercise its regulatory authority in accordance with Chapter 403, Florida Statutes (1985). h fill project proposed by 1800 Atlantic was designed to be consistent with the overall U.S. Army Corps of Engineers beach restoration project described in the Feasibility Report. It should be noted, however, that the Corps project was criticized by federal environmental agencies for adverse impact on seagrass beds and fish and wildlife resources. (Atl. Exh.19, Appendix 3.) c has already received a coastal construction permit for its proposed project from the Florida Department of Natural Resources ("DNR"). This permit, however, was issued by another state agency exercising regulatory authority under a different statute, with different criteria for issuance. Cumulative Impact e no similar applications for beach fill projects in the Lower Keys pending before DER, although inquiries have been made by a nearby landowner. least the last two years, DER has not issued a permit in the Keys for a fill project similar to the one proposed by 1800 Atlantic. l may be placed on submerged lands (not previously conveyed to private ownership) without the consent of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund--the owner of sovereignty lands. The Trustees have not approved an application to place beach fill on sovereignty lands in the Florida Keys for the last three years. Nor are there any pending applications for approval to do so. (As already noted, except for the project site, all remaining submerged lands in the Rest Beach area are publicly owned.) h serves as the staff for and makes recommendations to the Trustees, has a general policy of opposing the creation of unnatural beaches in the Keys on publicly owned submerged lands. As stated by Casey Fitzgerald, Chief of DNR's Bureau of State Lands Management: [Mr. Fitzgerald] A. So in a general sense, our recommendations would typically be negative, unless shown for some public interest purpose that it should be otherwise. Q. By that latter comment, do you mean, in connection with, for example, an overall publicly sponsored beach restoration project? A. That would be one example, yes. (e.s.) (Atl.Exh.20; p.8) Whether the Proposed Fill Would be Clearly in the Public Interest y for a DER permit, 1800 Atlantic must provide "reasonable assurance that the project will be clearly in the public interest." Section 403.918(2), Fla.Stat. (1985). In deciding whether a project is "clearly in the public interest," several statutory criteria must be considered and balanced. The issue though broadly phrased--is fundamentally a factual one, and must be decided on a case-by-case basis. 6/ Section 403.918(2)(a) Fla.Stat. (1985). d in light of the seven statutory criteria, it must be concluded that the applicant has failed to show that the proposed fill would be "clearly in the public interest." t should not cause violations of water quality standards or significantly degrade state waiters. Neither should it adversely affect (1) the public health, safety, or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) navigation or the flow of water; or (4) significant historical material and archaeological resources. Nevertheless, the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity. The site, which would be permanently covered with beach sand, now provides viable intertidal marine habitat and a feeding ground for migratory, shore and wading birds. It supports numerous species of juvenile fish and crustaceans, a diverse benthic and algae community, and patches of seagrass which benefit water quality and enhance the ecology of the marine environment. This shallow water habitat, gently sloping to the sea from an extended unfortified shoreline, is a diminishing resource in Key West. The existence of other submerged areas which are more biologically productive and support an even greater diversity of marine life do not diminish the positive value of the undisturbed project site to the marine environment. r adverse environmental impacts could occur. The proposed groin could cause increased erosion on property to the west by interrupting longshore sand drift. Shoaling could block tidal connections which periodically occur in the adjacent mangrove wetlands. Fill sands, pulverized and dispersed seaward by hurricanes or violent winter storms, could smother offshore seagrasses. y for the fill project has been shown. Though erosion has occurred over the last 25 years, the shoreline is stable, in equilibrium, and protected by a "natural armor" of coarse material and lag rubble. 1800 Atlantic has neither alleged nor asserted that the structural integrity of its upland condominium (still under construction) is threatened. The proposed fill would widen the upland between the condominium and the sea, providing an added degree of protection. While this benefits the upland structures, it is a benefit which would seemingly result whenever a fill project converts submerged land (seaward of a structure) to dry upland. Further, no necessity for an expanded private beach has been shown since there is a convenient 3000 foot public beach within a few hundred feet of the site. n measures proposed by 1800 Atlantic are insufficient to offset the known and potential adverse effects. These measures are vague, ill- defined, and uncertain. The design of the groin is left to "field engineering;" the adequacy of other mitigation measures is left to future review and decision by DER. The specific location and nature of the upland mitigation site (to be converted to submerged lands) is unknown, as is the amount of the bond to be posted if the beach fill project precedes mitigation. n expanded beach would provide recreational benefits to the owners, guests and tenants of the upland condominium, it has not been shown that similar benefits would inure to the general public. 1800 Atlantic does not guarantee that the public will have access to the beach. (It asserts only that any right of access which the public may have will not be infringed.) 1800 Atlantic's affidavit of ownership, which must be taken as true, asserts ownership of the submerged lands presumable by previous conveyance from the Trustees of the Internal Improvement Trust Fund. It is entirely possible that 1800 Atlantic, as owner of the submerged lands and upland beach, could deny access to the general public. 1800 Atlantic has not shown that the general public has any existing right to enter upon and use the submerged lands and existing beach. By promising no greater access right than the public now has, and by failing to show that the public has any existing right to enter and use the submerged lands and shoreline, 1800 Atlantic has failed to demonstrate that its beach project would provide recreational opportunities to the general public. c benefit asserted by 1800 Atlantic is that the fill would eliminate an existing shoreline discontinuity, a discontinuity that has not been shown to be a significant problem. 1800 Atlantic would replace it with a new discontinuity created by a proposed groin at the west end of the property--a groin with uncertain effects on the shoreline to the west. Another claimed benefit is that needed sediment--of the correct quality and quantity--would be contributed to offshore seagrasses; but whether this would actually occur is uncertain. c also points out that its privately funded beach restoration project is consistent with and falls within the boundaries of a proposed public beach restoration project proposed by the U.S. Army Corps of Engineers, supported by the Governor, and sponsored by the City. Any public benefit to be derived from this consistency is also doubtful. It was not shown that the Corps of Engineer's project involving Smathers Beach and Rest Beach has been finally approved and funded, or when (if at all) it would take place. Federal environmental agencies have pointed out the adverse environmental effects of such a project. A main benefit of the Corps project--expanded beach recreational opportunities for the general public--has not been shown to be a benefit which would result from 1800 Atlantic's fill project. , 1800 Atlantic has not affirmatively shown that, on balance, its proposed fill would be clearly in the public interest. The fill would have significant adverse environmental impacts--some certain, others possible. Measures offered to mitigate these impacts are vague, ill-defined, and inadequate. While benefits would inure to private upland owners, guests, and tenants, benefits to the general public are illusive or inconsequential. No necessity for the project has been shown, alternate methods of providing additional protection to the condominium may be available. A Corps of Engineers' beach restoration project for the entire area has been proposed and studied. While such a project would have adverse environmental effects at the 1800 Atlantic site, increased beach recreational opportunities would benefit the general public. 1800 Atlantic has not shown that its beach project would confer a like benefit.
Recommendation Based on the foregoing, it is RECOMMENDED: that the application for a fill permit and water quality certification filed by 1800 Atlantic be DENIED, based on failure to provide reasonable assurances that the project is clearly in the public interest. DONE and ORDERED this 3rd day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1986.
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
