Findings Of Fact By application dated October 9, 1984, the Palm Beach County Water Utilities Department applied for a permit to construct a temporary septage receiving facility at a location within Palm Beach County known as Sewage Treatment Plant 2S which is adjacent to and immediately north of Petitioner's neighborhood. It was estimated that this facility would receive between 30,000 and 50,000 gallons of septage each day from septic tanks in Palm Beach County. The specific operation procedure to be used at the site begins with access to the site from Forest Hill Boulevard, located to the north, using an unpaved, curved roadway. Septage trucks arriving at the site are faced with a potentially dangerous situation since the roadway is very narrow in parts, and is somewhat elevated and they therefore have to be very cautious to avoid accidents. The arriving trucks back over an asphalt paved area to a transfer box and discharge septage through a four-inch rubber hose into the transfer box. Septage flows through the transfer port and is distributed over a bar screen. Materials collecting on the bar screen are manually raked onto the drainage place, collected and placed into a dumpster for removal to a landfill. Septage then flows from the transfer box through a twelve inch pipe by gravity into a 120-inch wet well, and is diluted. The septage flows through an 8-inch sewer pipe by gravity into an existing pump station wet well on site. Two pumps then pump the septage into a force main system through which it flows to the West Palm Beach Regional Sewage Plant. The facility for which this permit is sought is intended to receive septage formerly deposited at Dyer Boulevard landfill septage facilities which has ceased operation under a Consent Order between Palm Beach County and the Department of Environmental Regulation. This is proposed as a receiving and transporting facility only, and not a treatment facility. Roy Duke, the Southeast District Manager with the Department of Environmental Regulation, who was accepted as an expert in environmental permitting, testified that in his opinion the site in question is the best site available to Palm Beach County for such a receiving facility. Due to the need to find a suitable replacement for the Dyer Boulevard site, the Department of Environmental Regulation requested that the County Water Utilities Department submit this application and supports the issuance of the permit. In accordance with an Operating Agreement between the Palm Beach County Health Department and the Department of Environmental Regulation, the County Health Department has authority to review and issue permits for sewage collection and transmission systems. Upon receipt of this permit application, the County Health Department requested additional information in the review process, which the County Water Utilities Department provided, in order to determine if "reasonable assurances" were being provided that the receiving facility would not discharge, emit, or cause pollution contrary to applicable standards, rules or regulations. According to Umesh Asrani, a Professional Engineer with the County Health Department, who was accepted as an expert in wastewater treatment technology, and the processing and evaluation of wastewater treatment facility permits, "reasonable assurances" have been given in this permit application. Testimony at the final hearing establishes that the proposed site has already been put into operation by the County with the approval of the Department of Environmental Regulation due to the emergency need to find an alternative to the Dyer Boulevard site. A temporary injunction was sought against this operation by residents of the area but it was not granted. The current operation of the facility is not challenged in this proceeding, but Petitioner points out that adverse effects on the neighborhood resulting from this operation are relevant to the issuance of the permit sought in this case. Specifically, Petitioner Kevin Donovan testified that truck traffic and noxious odors have increased since the operation began and would be expected to continue if the permit is granted. He has also seen evidence of spills at the site, and introduced evidence to establish that "sludge" containing commercial wastes and grease was being deposited at the site as well as "septage." Petitioner expressed his concern that hazardous wastes could be deposited at the site. Roy Duke testified that small amounts of hazardous wastes could be disposed of in residential septic tanks and ultimately collected at this site, but that in his opinion this was not a widespread practice, and the amounts would not present a danger to health or the environment. Petitioner also expressed his fear that the surface and ground water could be contaminated from leaks and spills occurring at the site. Expert witnesses testifying on behalf of Respondents stated that no such discharges were reasonably likely to occur. The greater weight of the evidence supports Respondents' position that reasonable assurances have been given that dangerous amounts of hazardous wastes will not be deposited at the site, and that surrounding surface and ground waters will not be contaminated by operation of the site. With the exception of a pH test which is conducted at the site when septage is received to determine its level of acidity, no tests or treatment are performed on the septage at the site. It is simply deposited and transmitted through the sewer system to the West Palm Beach Regional Sewage Plant for testing, treatment, and final disposal. The amount of septage deposited at this site is very small (30,000 to 50,000 gallons per day) in relation to the total amount treated each day at the Regional Sewage Plant (approximately 40 million gallons per day). Based upon bills of lading for deposits at the site since it was placed in operation, the site is used to receive and collect septage, including grease and sludge, from residences, restaurants, construction sites, digesters, and race tracks.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered issuing the permit sought by the Palm Beach County Water Utilities Department and denying the relief sought by Petitioner. DONE and ENTERED this 2nd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN 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 2nd day of May, 1985. COPIES FURNISHED: Frank A. Kreidler, Esquire 521 Lake Worth Avenue Suite 3 Lake Worth, Florida 33460 Julia D. Cobb, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Thomas C. McEaddy, Jr., Esquire Post Office Box 1989 West Palm Beach, Florida 33402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue Whether the Sherry Petitioners have standing to initiate the proceeding in Case No. 10-0515? Whether the Oceania Petitioners have standing to initiate the proceeding in Case No. 10-0516? Whether the MACLA Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP, the Variance and the SSL Authorization?
Findings Of Fact Setting and Preliminary Identification of the Parties These consolidated cases are set in Okaloosa County. They concern the Consolidated NOI issued by the Department to the County that indicate the Department's intent to issue state authorizations to allow the restoration of a stretch of beach known as the Western Destin Beach Restoration Project (the "Western Destin Project" or the "Project"). In addition to the Western Destin Project, there are other beach restoration efforts (the "Other Beach Restorations") which concern the Gulf of Mexico coastal system along the shores of the Florida Panhandle and about which the parties presented evidence in this proceeding. The applicants for the authorizations in the Other Beach Restorations efforts are either Okaloosa County or Walton County, the coastal county immediately to the County's east, and concern Okaloosa and Walton County property or are on federal property used by Eglin Air Force Base (the "Eglin Projects" or "A-3" or "A-13"). The Eglin Projects have been completed. The source of the sand use in the Eglin Projects is a borrow area designated by the County and its agent, Taylor Engineering, as "OK-A" ("OK-A" or the "OK-A Borrow Area"). The County intends that the OK-A Borrow Area be the source of sand for the Western Destin Project. West of East Pass, a passage of water which connects Choctawhatchee Bay and the Gulf of Mexico, the OK-A Borrow Area is between 4,000 and 5,000 feet off the shores of Okaloosa Island. Okaloosa Island is not an island. It is an area of the incorporated municipality of Fort Walton Beach that sits on a coastal barrier island, Santa Rosa Island. Except for the part of the final hearing conducted in Tallahassee, the final hearing in this case took place in Okaloosa Island. As Mr. Clark put it (when he testified in that part of the hearing not in Tallahassee), "I am in Okaloosa Island. [At the same time], I am on Santa Rosa Island." Tr. 521 (emphasis added). Petitioners in Case No. 10-0515, David and Rebecca Sherry and John Donovan (the "Sherry Petitioners") live along a stretch of beach that is in Okaloosa Island. They do not live along the stretch of beach that is within the area subject to the Western Destin Project. The Sherry Petitioners' stretch of beach is the subject of another beach restoration effort by the County (the "Okaloosa Island Beach Restoration Project"). The Okaloosa Island Beach Restoration Project, in turn, is the subject of another case at DOAH, Case No. 10-2468. The OK-A Borrow Area is much closer to the Sherry Petitioners' property than to the beach to be restored by the Western Destin Project. The Sherry Petitioners recognize the need for the restoration of at least some of the beaches in the Western Destin Project. The Sherry Petitioners initiated Case No. 10-0515, not to prevent the Western Destin Project from restoring those beaches, but because they are concerned that the beaches subject to the Okaloosa Island Project (including "their" beach) will suffer impacts from the dredging of the OK-A Borrow Area whether the dredging is done to serve the Western Destin Project or the other Projects the OK-A Borrow Area has served or is intended to serve. In contrast to the Sherry Petitioners, the Petitioners in Case No. 10-0516 (the "Oceania Petitioners") do, in fact, live on beaches in a section of the Western Destin Project that was slated for restoration when the Consolidated NOI was issued. The Oceania Petitioners are opposed to the restoration of the beaches subject to the Western Destin Project. They initiated Case No. 10-0516, therefore, because of that opposition. Walton County applied authorizations from the state for the Walton County/East Destin Project (referred-to elsewhere in this order as the "Walton Project"). The Walton Project, like the Eglin Projects, is completed. Unlike the Eglin Projects, and the intent with regard to the Western Destin Project and the Okaloosa Island Project, the Walton Project did not use the OK-A Borrow Area as its source of sand. The Walton Project used a Borrow Area to the east of OK-A (the "Walton Borrow Area"). The Walton Borrow Area is in an area influenced by the ebb tidal shoal formed by the interaction between East Pass and the Gulf of Mexico. The MACLA Intervenors (all of whom own property deeded to the MHWL of the Gulf in the stretch of beach subject to the Western Destin Project) together with the Sherry Petitioners and the Oceania Petitioners, seek findings in this proceeding concerning the impacts of the Walton Borrow Area to the beaches of Okaloosa County. They hope that findings with regard to Walton Borrow Area beach impacts will undermine the assurances the County and the Department offer for a finding that the Western Destin Project will not cause significant adverse impacts to the beaches of Okaloosa County. The Holiday Isle Intervenors support the Project. They are condominium associations or businesses whose properties are within the Project. Like the Eglin Projects, the Walton Project is complete. The Walton Project was the subject of a challenge at DOAH in Case Nos. 04-2960 and 04-3261. The challenge culminated at the administrative level in a Final Order issued by the Department that issued the state authorizations necessary to restore the Walton Project beaches. The Walton Project Final Order was appealed to the First District Court of Appeal where it was reversed. But it was reinstated in a decision by the Florida Supreme Court. The Florida Supreme Court decision was upheld when the United States Supreme Court issued a unanimous 9-0 decision less than two months before the commencement of the final hearing in these consolidates cases: Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl Prot., 130 S. Ct. 2592 (2010). The Court held in Stop the Beach Renourishment that the Walton County Project was not a regulatory taking of property that demanded compensation to affected property owners under the Fifth Amendment to the United States Constitution. Stop the Beach Renourishment was argued before the United States Supreme Court in December of 2009, shortly before filing of the petitions that initiated these consolidated cases. The final hearing in these cases was not set initially until July 2010 in the hope that the Stop the Beach Renourishment case would be decided, a hope that was realized. In the meantime, another event threatened to affect these consolidated cases: the Deepwater Horizon Oil Spill (the "Oil Spill") in the Gulf of Mexico. The spill began with the explosion of the Deepwater Horizon oil platform in April of 2010 and continued until August of 2010 when the Oil Spill was stopped while these cases were in the midst of final hearing. The Joint Coastal Permit issued by the Department was revised to address impacts of the Oil Spill. No impacts, however, were proven in this proceeding by any of the parties. The Parties The Sherry Petitioners and Their Property David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [ a condominium unit] of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . . . of Okaloosa County, Florida."2/ Their address is 554 Coral Court, #511, Fort Walton Beach, FL 32548. The Sherrys entered the lease for their condominium unit in May of 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," tr. 840, the unit became their permanent residence. They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified: Tr. 841. This particular area we chose because of the beach quality. Quite frankly, . . . I was surprised when I first saw the place . . . the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen. Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the sugar white sand." Tr. 936 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry's routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island. Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed, I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.] Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it: I . . . swim. I surf on the skim board, float out in the water . . . I help Dave fish, we crab, . . . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen. * * * I've always run barefoot. That's the reason [we chose the beach next to the Surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . . [cross the beach] barefoot. Tr. 939. I actually think the project will impact me, at least, as much as my husband, David . . . my husband is . . . involved with . . . being board president of the Surf Dweller[.] I spend at least as much time as he does on the beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm . . . extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in . . . I don't miss my morning walk. Tr. 950. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island,3/ Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium,4/ is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority and recorded in the Official Records of the County at Book 121, Pages 233-250. See County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4.5/ Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas."6/ Part F of the Protective Covenants and Restrictions, provides, in part, Beach Protection * * * The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority . . . One hundred fifty feet inland from the mean water line, in front of all B1 and B2 Areas, will be public beaches. The next 150 ft. inland will be private beaches as set out on subdivision plats . . . County Ex. 13, at page marked "BOOK 121 PAGE 242." The Surf Dweller Condominium property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller condominium property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions. John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN . . . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA."7/ The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, FL 32548. Petitioner Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island: I've . . . got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf. * * * I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks. Tr. 973-4. In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as: A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF SANTA ROSA ISLAND A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is located) is also in Zone B-2 set up by the Protective Covenants and Restrictions. Block 8, just as Block 5, is governed by Part F, Beach Protection, of the Protective Covenants and Restrictions that places the beaches, for at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County Ex. 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium lies between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat that is the last page of County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," Exhibit P-7, last page (un-numbered), landward of the Gulf of Mexico, that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions, landward of the public beach designated by the same provision. Neither the Surf Dweller Condominium Property in which the Sherrys reside, nor the El Matador Condominium Property inhabited by Mr. Donovan abuts or is a part of the area subject to the Western Destin Beach Restoration Project. The two properties in Okaloosa Island are to the west of the Project. The Sherrys and Mr. Donovan did not initiate Case No. 10-0515 because they oppose the restoration of the beach subject to the Project. They initiated the proceeding because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island and situated in such a way that once dredged it will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches. The Beach, Post-Hurricane Opal and Other Tropical Storms Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. See his testimony quoted, below. The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its ever-changing nature might have on the width of the beaches declared public and private8/ between the MHWL and the Surf Dweller and El Matador condominium properties, however, there can be no doubt on the state of the record in this proceeding that at the time of hearing there existed a 150 foot-wide stretch of beach water-ward of the two condominiums that the public has the legal right to occupy and use. Indeed, Petitioner David Sherry, when asked about the private beach and public beach governed by the Part F of the Protective Covenants and Restrictions in cross-examination conducted by Mr. Hall on behalf of the County, confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife: Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium? A . . . [N]o, they wouldn't have the right to do that. Q . . . [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium? A In that area, no. In the area south of that [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don't have any problem with that. We let people do it -- Q On [the] public beach[.] A On the public beach they're perfectly free to do that. * * * Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct? A Essentially, from the building to the Gulf of Mexico. * * * Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline? A Correct. Q So, there would be enough room today, based on the language of the restrictive covenants to have . . . 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13] now? A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded], yes. Tr. 891-3, (emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach and its width is at least 150 feet.9/ From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See Tr. 986-87. Mr. Donovan is concerned about the erosion and turbidity impacts the borrow site could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. Turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, a change in the beach and shoreline along the El Matador Condominium property as drastic, in Mr. Donovan's view, as that contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium. The Guidry Petitioners and Their Property Roland Guidry, a retired Colonel in the United States Air Force, is co-trustee of the Guidry Living Trust and the President of the Oceania Owners' Association, a condominium association governed by chapter 718, Florida Statutes. The Guidry Living Trust is the owner of Condominium Unit 605 in the Oceania Condominium, a condominium established under chapter 718, Florida Statutes. The address of the unit is 720 Gulf Shore Drive, Unit 605, Destin, Florida, 32541. In his capacity as co-trustee, Mr. Guidry has the independent power to protect, conserve, sell, lease or encumber, or otherwise to manage and dispose of trust assets, which include Unit 605 in the Oceania Condominium. The Oceania Owners' Association is mandated by the Oceania Declaration of Condominium to "maintain, manage and operate the condominium property." Ex. P-6 at 4. The declaration also declares, "[a]ll unit owners shall automatically become members of the association after completion of closing of the purchase of a unit in Oceania, A Condominium." Id. The Guidry Living Trust, therefore, is a member of Oceania Condominium Association. The powers of the officers and directors of the Oceania Owners' Association are set forth in the Declaration of Condominium that governs Oceania: The officers and directors of the association shall have the powers set forth in this declaration and the association bylaws, and shall, at all times, have a fiduciary relationship to the members of the association and shall operate and manage the association in the best interest of its members. Id. Oceania's Declaration of Condominium, furthermore, prescribes that "[t]he association shall have all powers granted by Chapter[s] 718 and 617, Florida Statutes." Id. at 5. Every member of the Oceania Owners' Association Board of Directors approved the initiation of Case No. 10-0516, according to the testimony of Colonel Guidry, but there was no documentary evidence offered that a vote had been taken of the Board of Directors at a board meeting on the issue of whether to file the petition that initiated Case No. 10-0516 or the outcome of any such vote. As an owner of a unit in Oceania, The Guidry Living Trust owns an undivided share of the Oceania Condominium's common property10/ which "comprise[s] all the real property improvements and facilities to Oceania, A Condominium, including all parts of the building other than the units . . . and . . . [certain] easements . . . ." P-6 at 1, 2. The Oceania Condominium real estate is deeded to the "APPROXIMATE MEAN HIGH WATER LINE OF THE GULF OF MEXICO". P-6, Exhibit "B." The Surveyor's Certificate on the survey of Oceania, A Condominium, attached to the Oceania Declaration of Condominium is dated January 16, 1996. The date is more than two months after Hurricane Opal made landfall and damaged the Okaloosa County coastline in October of 1995. Standing of the Oceania Petitioners Colonel Guidry did not appear at hearing in a personal capacity. He appeared in his capacities as co-trustee of the Guidry Living Trust and President of the Oceania Owners' Association. In contrast to the Sherry Petitioners, therefore, Colonel Guidry did not allege his personal use and enjoyment of the beach as a basis for standing. As to injury and standing of both the Guidry Living Trust and the Oceania Owners' Association, Colonel Guidry asserted a number of interests that he believed will be substantially affected by the Project. They fall into four categories of concern. The first concern is with regard to the action of the sand along the shoreline of the Oceania property after the two reaches of beach to the east and west will have been restored under the revisions to the Draft JCP. After construction activities, sand along the shoreline will equilibrate, that is, the sand will move or be transported so as to stabilize the shoreline. This stabilization or achievement of shoreline equilibrium will tend to move the shoreline along the Oceania property waterward. Colonel Guidry expressed his concern as follows: [The Oceania property] would be sandwiched . . . between two public beaches . . . mother nature will fill in what I call the Oceania Gap. Right now the only line we have on our beach is our southern property line [the MHWL of the Gulf][11] . . . . That's the only line I know of that's on our beach or will be placed on our beach. But if sand fills in, then that creates a cloud of confusion, if the State lays claim to this sand that accumulates in the Oceania Gap, as a result of the construction on both sides of us. Tr. 764, (emphasis added). The second category of concern relates to the location of the property post-construction between "two public beaches." Such a location, in Colonel Guidry's view, would make individual units at the Oceania Condominium less valuable. The third category is that the public would be more likely to trespass on private Oceania property. The fourth concern of Colonel Guidry is that the Project will have undesirable impacts to Oceania property owners' littoral rights to accretion and to touch the water. The first three concerns all stem from a decision made by the Board of County Commissioners after this proceeding was commenced to remove the Oceania property from the Project. Oceania Removed The beach and shore in the southern part of the Oceania condominium property,12/ (the "Oceania Beach Segment of Shoreline" or the "Oceania Gap") were originally subject to the Consolidated NOI for the Western Destin Beach Restoration Project. But on the eve of the date scheduled for the commencement of the final hearing in these cases, the Board of County Commissioners for Okaloosa County voted to remove the Oceania Beach Segment of Shoreline from the application for the Project. Taylor Engineering (the County's Agent) submitted a request to the Department that reads: On behalf of Okaloosa County, Taylor Engineering submits its request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project . . . The applicant has decided to remove the Oceania Condominium Property from the beach fill placement area. The revised project, as described in the enclosed permit drawings, includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R-22.6) and Reach 2 extends from approximately 200 feet east of R-023 (R- 23.2) to R-25.5. The Oceania Property defines the gap between Reach 1 and Reach 1. Additionally, we request the FDEP modify Specific Condition 1 of the Draft Joint Coastal Permit to reflect the modified project area. More specifically, we request that the Mean High Water Line Survey requirement of Specific Condition 1 exclude the Oceania Condominium property. Notice of Filing Request for Modification and Revised, Draft Joint Coastal Permit, Exhibit A. Revisions to the Original Draft JCP In light of the vote and based on the County's request, DEP filed a Revised Notice of Intent on July 26, 2010, which included revision of the Draft JCP (the "First Revised Draft JCP"). The First Revised Draft JCP eliminated the Oceania Beach Segment of Shoreline from the Project and took other action such as requiring the applicant to check for oil in the OK-A Borrow Area prior to construction by both visual inspection and analysis of sand samples because of the ongoing Deepwater Horizon Oil Spill in the Gulf. The revision also included changes to Specific Condition 5 of the Draft JCP.13/ On August 18, 2010, the Department gave notice of another revision of the JCP (the "Second Revised Draft JCP"). The Second Revised Draft JCP changed Specific Condition 1 of the JCP by eliminating the requirement that the County establish a pre-project MHWL prior to undertaking construction activities and instead requires the County to conduct a survey in order to locate an erosion control line ("ECL"). The revisions to the Draft JCP stirred interest in participating in this proceeding among a group of property owners who do not want the beaches along their properties restored: the MACLA Intervenors. The MACLA Intervenors and Their Properties On September 8, 2010, a petition to intervene (the "MACLA Petition to Intervene") was filed by nine putative intervenors: MACLA LTD II, a Limited Partnership ("MACLA"); H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust ("Hughes Trust"); Kershaw Manufacturing Company, Inc. ("Kershaw"); Kayser Properties LLC ("Kayser"); Destin, LLC ("Destin"); Paul Blake Sherrod, Jr., and Cindy M. Sherrod ("Sherrods"); Blossfolly, LLC ("Blossfolly"); 639 Gulfshore, LLC ("639 Gulfshore"); and Laura Dipuma-Nord ("Nord"), (collectively, the "MACLA Intervenors.") All nine of the MACLA Intervenors own real property in the City of Destin within the Project area that fronts the Gulf of Mexico. All nine properties have the MHWL of the Gulf as their southern boundary. MACLA is a Texas Limited Partnership. Louise Brooker is its president. The address of its property is 620 Gulf Shore Drive. The Hughes Trust owns a one-third interest in real property at the address of 612 Gulf Shore Drive. H. Joseph Hughes is a trustee of the Hughes Trust. Kershaw is an Alabama corporation. The address of its property is 634 Gulf Shore Drive. The address of the Kayser property is 606 Gulf Shore Drive. The address of the Destin property is 624 Gulf Shore Drive. The address of the Sherrods' property is 610 Gulf Shore Drive. The address of the 639 Gulfshore property is 6346 Gulf Shore Drive. The address of the Blossfolly property is 626 Gulf Shore Drive. The address of Ms. Dipuma-Nord is 600 Gulf Shore Drive. The properties owned by the MACLA Intervenors are among 18-single family lots located between a rough mid-point of reference markers R-020 and R-021 and a rough mid-point of reference markers R-022 and R-023. See Ex. P-238. These 18 single-family lots are in the approximate middle of the Project. The Oceania property, eliminated from the Project at the time of the filing of MACLA Petition to Intervene, is just to the east of the 18 single family lots in which the properties of the MACLA Intervernors are located. (Reference marker R-023 is set along the shoreline adjacent to the Oceania property.) The MACLA Intevenors' properties and the Oceania property are within the area from R-020.3 to R-023.3 (the "Middle Segment", see discussion of Critically Eroded Shoreline, below). According to an evaluation conducted by the Department on January 7, 2009, the Middle Segment of the beach is one in which "[u]pland development is not currently threatened." Ex. P-238. Timeliness of the MACLA Petition to Intervene The MACLA Petition to Intervene was filed well after the commencement of the hearing. Under rule 28-106.205, because it was filed later than 20 days before the commencement of the hearing, it could only be accepted upon "good cause shown" or if the time for filing were "otherwise provided by law." The MACLA Petition to Intervene was also filed after the Department had entered an order dismissing petitions for administrative hearings filed by three of the MACLA Intervenors14/ to contest the Second Revised JCP. The order of dismissal with prejudice by the Department dated September 7, 2010, was entered on the following bases: First, the Petitioners had a clear point of entry to challenge the proposed permit after it was publicly noticed on January 9, 2010. The Petitioners failed to timely challenge the proposed permit when given the opportunity to do so. Second, it is well settled that any proposed modifications to a proposed permit made during the course of a de novo proceeding to formulate final agency action do not create a new point of entry. Accordingly, the Petition is dismissed without prejudice to amend. Petition to Intervene, filed September 8, 2010, Ex. A, at 2 of 8. The Department was aware that the Western Destin Project "because of its size, potential effect on the environment, potential effect on the public, controversial nature or location, is likely to have a heightened public concern or is likely to result in a request for administrative proceedings." Consolidated NOI, at 13 of 17. The Department therefore took pains to ensure that parties affected by the Western Destin Project would be provided notice of the Project and have an opportunity to timely assert their rights to challenge the permitting and authorization of the Project. The Consolidated NOI required publication within 30 days in the legal ad section of a newspaper of general circulation in the area a public notice of the Consolidated NOI. It also required proof of publication. The County complied on both counts. A notice was published on January 9, 2010, in the Destin Log, in Okaloosa County. The public notice specifically identified the project location as between reference monuments R-16.6 and R-25.5 in Okaloosa County, which includes the segment of the shoreline adjacent to the MACLA Intervenors Property. The Department also provided a detailed statement of the "Rights of Affected Parties," including their right to petition for an administrative hearing pursuant to sections 120.569 and 120.57 within 14 days of receipt of written notice of the Consolidated NOI. The point of entry into the administrative proceedings to challenge the Consolidated NOI, therefore, in the case of affected parties with notice by virtue of the publication on January 9, 2010, expired on January 23, 2010. The section of the Consolidated NOI that governed the rights of affected parties also warned: Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the permit or even a denial of the application. * * * The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S. Consolidated NOI, at 14 of 17. The MACLA Intervenors read the Destin Log at least on occasion and communicated with counsel for the Oceania Petitioners. Some believed they were represented by counsel for the Oceania Petitioners and had contributed to legal fees incurred by the Oceania Petitioners. Despite the foregoing, the MACLA Petition to Intervene was granted (subject to proof of standing) on the basis that the MACLA Intervenors had shown good cause for the filing after the deadline imposed by rule 28-106.205. At the time a point of entry into administrative proceedings was provided by the combination of the Consolidated NOI in December of 2009 and publication in the Destin Log of the notice on January 9, 2010, the Draft JCP called for the applicant to provide a survey of a Pre-project MHWL rather than the establishment of an ECL. Neither notice of the Second Revised Draft JCP, filed on July 26, 2010, nor the Second Revised Draft JCP, itself provided a point of entry into formal administrative proceedings to parties whose substantial interest were at stake. A new substantial interest, however, had been injected into the proceedings by the Second Revised JCP. The Second Draft JCP requires the establishment of an ECL as a condition of the permit in lieu of provision of a survey of Pre-project MHWL. The MACLA Intervenors promptly sought a point of entry to contest what is plainly a drastic change in circumstances with significant consequences to the boundary of their properties toward the shoreline with the Gulf of Mexico. The effect of this change and the difficulty of keeping up with beach restoration activities in Okaloosa County, particularly for affected persons whose permanent residence is elsewhere, was demonstrated by the testimony of Louise Brooker, who lives in Amarillo, Texas. When asked "[w]hy did you wait until September of this year [2010] to file the intervention?," she testified: [O]ur group thought that we were being represented by the Oceania group . . . when I did find out [the JCP had been issued], it was after the 30-day period . . . I hadn't been reading the Destin Log every day because it's very difficult to do, and then it changed. * * * Then it made a huge difference between using the mean high water line * * * And then the ECL being established, which was the ECL that I do not agree with, then that was being put in the permit. So that changed things a great deal. (emphasis added). Tr. 1526-7. Once their petitions for formal administrative proceedings had been dismissed with prejudice by the Department (or in the case of the MACLA parties whose petitions for an administrative had not been dismissed yet but appeared likely to meet the same fate), the MACLA Intervenors promptly sought relief through filing the MACLA Petition to Intervene. When the petition to intervene of the MACLA Intervernors was opposed by the County and the Department, the placement of the substantial interest at stake in the proceeding of a fixed ECL as the southern boundary of their property by the Second Revised JCP and the quick action of the MACLA Intervenors in contesting in contesting it was viewed as good cause for the filing of their petition later than required by rule. The Other Parties Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP, the Variances and the SSL Authorization. The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations. The Holiday Isle Intervenors are businesses and condominium associations, all of whose members own real property or conduct businesses along the segment of the beach to be restored by the Project. Their properties (unlike the Oceania property and the MACLA Intervenors' properties in the Project "gap" between R-22.6 and R-23.2) are along shoreline that has been designated by the state as critically eroded.15/ Critically Eroded Shoreline Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline": "Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects. Fla. Admin. Code R. 62B-36.002(4), (the "Critically Eroded Shoreline Rule"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. Consideration of the Project on this basis leads to the Project being broken into three segments: a segment from R-17 at the west end of the Project to roughly R-20.3 (the "Western Segment"); a segment roughly between R-20.3 and R-23.2 (the "Middle Segment"); and a segment roughly between R-23.2 and R-25.5 (the "Eastern Segment"). Mr. Clark described the impact of a 25-year storm event on the Western and Eastern Segments: [T]hose two areas, based on the evaluation and the projection of the impact of a 25-year storm event, which is a high frequency storm event, showed that there would be erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. Tr. 499. As for the Middle Segment, "the same evaluation did not show that the 25-year storm event would provide that same level of threat." Id. The Middle Segment, however, for the purposes of continuity of the management and design integrity, was also designated as Critically Eroded Shoreline and the entire stretch of shoreline, including all three segments, Western, Middle, and Eastern, was originally included in the Project.16/ The Project With the elimination of the Oceania Gap, the Project calls for the placement of 831,000 cubic yards or so17/ of beach- quality sand along 1.7 miles (less the 600 feet of the Oceania Gap) of shoreline within the City of Destin between reference monuments R-16.6 and R-22.6 and between R-23.2 and R-25.5. The Project is designed to restore the shoreline to conditions that existed before Hurricane Opal in 1995. The useful life of the Project is estimated to be eight years. The Project will restore beach along 32 separate parcels of property, 31 of which are privately owned. The exception is a small area of publicly owned beach at the extreme west end of the Project. The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that work zone, there is a lot of heavy equipment that moves the sand around . . . looking at the Project . . . [from] an aerial view, roughly half the sand will be placed seaward and half the sand . . . landward of . . . [the] Mean High Water Line." Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a back berm and a wide variable berm. The dune has an elevation of 8.5 feet and a crest width of 30 feet. The berm has an elevation of 5.5 feet. The width of the construction varies but averages about 200 feet. Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. "That near shore bar acts as a wave break . . . and dissipates wave energy during storms. So having a good healthy bar out there can definitely provide storm protection." Tr. 140. "Using "two to 250 feet a day,"18/ as a "good approximation for the progress . . . [in] constructing the"19/ Project, construction on any particular individual property should take between one or two days "depending on how . . . wide the property is and how fast the construction progresses." Tr. 141. A property along a lengthier segment of the beach, like the 600 feet at the seaward boundary of the Oceania Property had it remained a part of the Project, therefore, would take "two to three days." Tr. 142. Storm erosion models on the construction berm showed that the Project will provide protection from a fifty-year storm. Selection of the Sand Source: Borrow Area OK-A The engineers of the Project, ("Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore" site. The far-shore site is eight miles offshore and about a mile east of East Pass and is designated "OK-B." The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, it is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately 0.9 miles wide north to south, it covers approximately 700 acres. At its landward-most side, it will be dredged to 10 feet into the existing bottom. Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone.20/ Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf."21/ Tr. 513. It is referred as the near- shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site." The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts. Sand quality is "the number one criteri[on]." Tr. 143. It involves grain size, soil and shell content, and sand color. Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand. If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8 miles distance from shore that it would not impact the shoreline in any way. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely.22/ A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distance. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B. Taylor Engineering (and ultimately the County) selected OK-A as the sand source. The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October of 2009. The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13.23/ The selection of OK-A was not upset by Taylor Engineering's OK-A Borrow Area Impact Analysis. Borrow Area Impact Analysis An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July of 2008. Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion. Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents. The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" Tr. 149. The basis was the 100-year storm data from Hurricane Opal. The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it: Tr. 150. When you use . . . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . . . the propagation of distance of the waves is relatively short. And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . . in applications like [Okaloosa County's for the Western Destin Project], you ignore the effects of bottom friction. The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." Tr. 152. In the case of OK-A, it is intended to serve the Eglin Air Force Base Project, the Okaloosa Island Project and the Western Destin Project. These projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling. With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible. Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." Tr. 152. ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area. Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the borrow area would be negligible whether in normal or "storm" conditions. The Application Coastal Construction Permits and CCCL Permits The Application was processed as one for a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit. Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits. The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053 of the CCCL Statute provides as follows in subsection (9): "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 161.041 [the Shore Protection Statute] " The Department interprets section 161.053(9) to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP. b. The "Written Authorization" Provision Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute. Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1) and (2). Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4). Section (1) of rule 62B-41.008 provides, in pertinent part, as follows: A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department . . . The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" . . . is hereby incorporated by reference . . . . The application shall contain the following specific information: * * * (c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida. * * * (n) Written authorization for any duly- authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application. (emphasis added). Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B-41.008(1)(f), (h), (i), (j), (k), (l), or (m), F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (c) or (n). The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). It did not contain written proof of ownership of any property that will be used in carrying out the Project nor did it contain authorization for such use from the property owner upland of mean high-water, information required by paragraph (c). It did not contain written authorization for any duly-authorized member of the Department staff to enter upon any private property to be used in carrying out the Project for the purpose of evaluating the site conditions prior to final processing of the permit application, information detailed in paragraph (n). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the 31 privately-owned properties within the Project area, including the MACLA intervenors. As part of the Application, however, the County requested a waiver of the requirements related to authorizations. A waiver was requested under number 14 of the Application. It provides: Satisfactory evidence demonstrating that the applicant has sufficient control and interest in the riparian upland property, as described in Section 18-21.004(3)(b), Florida Administrative Code. Governmental entities that qualify for the waiver of deferral outlined in this rule must provide supporting documentation in order to be eligible. If the applicant is not the property owner, then authorization from property owner for such use must be provided. Joint Ex. 1, at 3 of 9. The County, through its agent, Taylor Engineering, responded to number 14 of the Application as follows: Response: The applicants request a waiver of the requested information under Rule 18- 21.004(3)(b), which grants an exception to the upland interest requirement for restoration and enhancement (e.g. nourishment) activities conducted by a government agency. According to Rule 18- 21.004(3)(b), satisfactory evidence of sufficient upland interest is not required for the proposed activity, because the proposed offshore borrow area is not riparian to uplands and the beach fill activities will not unreasonably infringe on riparian rights. Joint Ex. 1, Attachment A, at 3rd un-numbered page. Rule chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004(3)(b) ("the Upland Interest and Riparian Rights Rule") provides as follows: (3) Riparian rights. * * * (b) Satisfactory evidence of sufficient upland interest is required for activities on sovereign submerged land riparian to uplands, unless otherwise specified in this chapter. * * * Satisfactory evidence of sufficient upland interest is not required . . . when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights. (emphasis added). Item number 18 of the Application calls for signatures related to "any proprietary authorizations identified above," such as those identified in item number 14. Consistent with the request for a waiver from providing the requested information with regard to satisfactory evidence demonstrating sufficient control and interest in the riparian upland property, no signatures were provided by the County or its agent. Rule 62B-49.003(3), entitled "Policy" provides: Any application submitted pursuant to this chapter shall not be deemed complete, and the timeframe for approval or denial shall not commence until the Department has received all information required for: a coastal construction permit under Section 161.041, F.S., and Chapter 62B-41, F.A.C.; an environmental resource permit under Part IV of Chapter 373, F.S., and Title 62, F.A.C.; and a proprietary authorization, under Chapter 253, F.S., and Chapters 18-18, 18-20 and 18-21, F.A.C. See the material bound and attached to the Request for Official Recognition filed August 2, 2010, Tab "Chapter 69B-49, F.A.C." The Department deemed the Application complete on December 30, 2009. Amendment of the JCP re: Written Authorizations The petition for formal administrative hearing filed in Case No. 10-0516 challenged the Consolidated NOI on the bases, inter alia, that the Application had failed to "provide 'sufficient evidence of ownership' as defined in rule 62B- 33.008(3)(c), F.A.C., to be a proper applicant for the Permit"24/ and that the County had not "provided satisfactory evidence of sufficient upland interest to be entitled to a letter of consent to use sovereign submerged lands."25/ To support their allegation that the County is not a proper applicant for the JCP, the Oceania Petitioners amended their petition on July 13, 2010, to add the following: The County must provide the Department "[w]ritten evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high-water but not sovereign land of the State of Florida", as required by [paragraph (c) of the JCP Application Specific Information Rule]. The Department must receive "[w]ritten authorization for any duly-authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application", as required by Rule 62B- 41.008)1)(n), F.A.C. The Amendment was made despite the existence in all of the versions of the Draft JCP, the original version and the revised versions, of General Condition Six: This permit does not convey to the Permittee or create in the Permitee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. Joint Ex. III at Tab 9 at 4 of 26. With the filing of the Oceania Petitioners' Second Amended Complaint in Case No. 10-0516, the issues appeared to be fully joined. Before the case proceeded to hearing, however, the County voted to remove the Oceania Property from the Project (see paragraphs 31 and 32, above). The vote led to a formal request from the County to DEP to revise the Project and a revision by the Department of the Project's drawings and the Draft JCP (the "First Revised Draft JCP"), notice of which was filed on July 23, 2010. The revisions to the Draft JCP necessitated by the elimination of the Oceania property from the Project was not the only revision made to the Draft JCP as noticed on July 23, 2010. The Department also revised the Draft JCP's Specific Condition 5. This latter revision prompted the Sherry Petitioners to file a petition for an administrative determination concerning un- adopted rules. DOAH assigned the petition Case No. 10-6205RU. During the final hearing, the Department revised the Draft JCP a second time (the "Second Revised Draft JCP".) The second revision inspired the MACLA Petitioners' petition to intervene. Just as with the Sherry Petitioners, the revision to Specific Condition 5 prompted the MACLA Petitioners to petition for an administrative determination concerning un-adopted rules. DOAH assigned this second un-adopted rule challenge to Specific Condition 5 Case No. 10-8197RU. Case Nos. 10-6205RU and 10-8197RU In general, the revision to the Draft JCP's Specific Condition 5 advised the County that no beach restoration work can be performed on private upland property unless authorization from the owner of the property has been obtained and submitted to the Department ("the Upland Property Authorization Requirement"). The revision also provided an exception to the Upland Property Authorization Requirement: the County could submit an authorization from a court of competent jurisdiction that such an authorization is not required. Case Nos. 10-06205RU and 10-8197RU were heard at the same time as these consolidated cases.26/ A final order was issued with regard to the two cases on November 4, 2010. The final order dismissed the case because the Sherry Petitioners and the MACLA Petitioners had not demonstrated that they would be "substantially affected" by Specific Condition 5 as required by section 120.56(3) for a party to have standing to challenge an agency statement that constitutes a rule which has not been adopted pursuant to the rule-making procedures found in section 120.54(1)(a). Case Nos. 10-6205RU and 10-8197RU were two of three petitions seeking administrative petitions concerning un-adopted rules that were consolidated and heard with the consolidated cases subject to this Recommended Order. The third was a case that had been filed by the Oceania Petitioners earlier in the proceeding: Case No. 10-5384RU. Case No. 10-5384RU Case No. 10-5384RU was filed by the Oceania Petitioners in order to challenge as an un-adopted rule Specific Condition 1 as it appeared in the Original Draft JCP ("Original Specific Condition 1"). Original Specific Condition 1 contained several requirements. In general, it required the County to record a certificate before the commencement of construction associated with the Western Destin Project. The certificate was required to describe all upland properties along the shoreline of the Project. The certificate was also required to be accompanied by a survey of a pre-project mean high water line (the "Pre-project MHWL) along the entire length of the Project's shoreline. The case claimed that the Department had made another statement that constituted an un-adopted rule which violated the rule-making provisions of chapter 120: "that an Erosion Control Line (the 'ECL') is not required to be established pursuant to Section 161.161, Florida Statutes, for a beach restoration project unless 'state funds' are used for the construction (as opposed to just the design) of a beach restoration project." Case No. 10-5384RU, Petition for an Administrative Determination Concerning Unadopted Rules, at 2. During the course of the final hearing, however, the Department filed a notice of a set of revisions to the First Revised Draft JCP. These revisions (the "Second Revised Draft JCP") included a revision of Specific Condition 1. The Second Revised Draft JCP The notice by the Department that alerted the parties to the Second Revised Draft JCP was filed on August 18, 2010. The August 18, 2010, Notice contains two changes to the First Revised Draft JCP. The first change deletes entirely the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5384RU). It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. Thus, the first change noticed by the Department on August 18 deleted the requirement that the County submit a survey of a Pre-project MHWL. It requires, instead, that the county establish an ECL consistent with applicable statutory provisions. The second change was made with respect to Specific Condition 4(c) of the First Revised Draft JCP, which lists items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed (with construction) by the Department. The existing language was deleted in its entirety and the following language was substituted: Id. Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Disposition of Case No. 10-5384RU The same Final Order that disposed of Case Nos. 10- 6205RU and 10-8197RU disposed of Case No. 10-5384RU. The Petitioners in Case No. 10-5384RU were found to lack standing to challenge Original Specific Condition 1 and the petition that initiated the case was dismissed. In addition, the Final Order concluded that had the Petitioners had standing to bring the challenge, the case would still have been decided in favor of the Department. This conclusion was based on the remedy called for by section 120.57(1)(e).27/ That remedy was found to have been achieved when the Department changed Specific Condition 1 to require an ECL rather than a Pre-project MHWL. See Final Order, Case No. 10- 5384RU (DOAH November 4, 2010). In addition to the record made with regard to the three rule challenges during the final hearing on the Sherry and Oceania Petitions, most of the rest of the evidence at the final hearing concerned the application of the regulatory authority of the Department and the Board of Trustees found in the Florida Statutes and the Florida Administrative Code, especially the environmental impacts of the Project as permitted by the Second Revised Draft JCP and as authorized under the Variance and the Sovereign Submerged Lands Use Authorization. Impacts The depth of OK-A should not exceed -49.4 feet, NGVD in an area where the depth of the ocean bottom is roughly -40 feet, NGVD. The excavation of the borrow site is designed in two dredging phases. The first phase, anticipated to provide up to 116 percent of the sand needed by the Project, is designed to a depth of 47.4 feet. "If for some reason, the contractor needs more sand . . ., then he can move into Phase II . . . [at a depth] of minus 47.4 to minus 49.4 feet [NGVD]. . . [,] a two foot deep layer throughout the entire borrow area." Tr. 165. OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area.28/ Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." Tr. 633. Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts. Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally General Wave Dynamics "[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also become involved with diffraction. Shoaling is a growth in height from interaction with the shallow bottom or a shoal. Refraction is a process of alignment of waves with bottom contours. Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features. As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions. Dr. Dally offered the following description of wave changes as they close in on the face of the beach and approach interaction with the shoreline. The description includes the potential impacts of an excavated OK-A on the beaches and shores of Okaloosa Island adjacent to the Surf Dweller and El Matador condominium property: As they pass into the very nearshore . . . they, of course, grow in height. They then break . . . [or] [s]ometimes, as they pass over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation . . . * * * Wave reflection from abrupt bathymetric changes. . . in this case, the landward most . . . notch of the borrow area would be a reflective surface . . . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they will reflect and begin defraction [sic] so that it becomes a . . . complicated wave field . . . . Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport. Sediment Transport "Sand can move along or away from the beach in two ways." Tr. 1141. It can move along the shoreline or it can move offshore. Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, rather than those that break straight onto the beach. The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west. The Sherrys and Mr. Donovan Petitioners own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "[t]hose beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." Tr. 1143. This area of the Okaloosa County's beaches and shores is the area most likely to be affected by an excavated OK- A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site. Borrow Site Impacts Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area. The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," tr. 640, in essence, a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea. The second wave process creates the potential for the waves to become "very, very, complicated." Tr. 640. They could "trip", that is, the notch in the borrow area could break the waves. "[B]rag scattering" (tr. 641) could make the waves deteriorate into shorter period waves. If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport. Just as Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial. The area of shoreline that would be affected by wave impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern . . . increases the size of the shadow zone," tr. 680, to a size much larger "than the actual shadow zone of the . . . borrow area." Id. Along these same lines, if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property. Distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And that's when you can really cause impacts to the beach, both accretive and erosive impacts." Id. (emphasis added). The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that adverse impacts will occur. The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach. In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report. The OK-A Borrow Area Impact Analysis Generally Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report. Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction. The only numerical data analysis specific to the excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report. The Report described its evaluative efforts: [T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes. STWAVE (Steady-State Spectral Wave Model) simulated normal (average) and extreme (100- year (yr) storm) waves propagating over the baseline and post-dredging bathymetries. ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet. County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics. Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data is not measured wave data. Instead, it consists of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data is then placed in a model coded to represent the entire Gulf. The WIS station from which data was collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurement, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurement would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however, If you don't have [field measurement data], then . . . especially over the long-term . . . a year or more [or] if you're analyzing your beach profile data over a 10 year period, you would like to have . . . wave data to accompany that 10 year period. Generally we don’t and that's when we start relying on models to fill in this missing information. Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is . . . limited to [the] deployment period." Tr. 1234. It is not practical to take 10 years' worth of field measurement. As Mr. Trudnak explained: Typically, you would install those gauges for . . . a month or a couple of months . . . you want to use representative conditions . . . you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions. * * * [W]hen you . . . install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you . . . capture representative conditions. Id. (emphasis added). The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data. For its extreme STWAVE modeling, Taylor relied on WIS information generated during Hurricane Opal in 1995. Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County. Criticisms of Taylor's STWAVE Modeling Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction results from its STWAVE models or conduct any sediment transport analysis. Mr. Trudnak offered refutations of the criticisms. For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't . . . feeling the bottom so they're not being affected by the bottom friction." Tr. 1236. The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort. Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling were not sufficient to support an opinion of "no impacts", but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches.29/ See Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models are." Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id. With regard to the modeling used in Taylor's Borrow Area Impact Analysis, Dr. Young summed up: [W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer . . . it's not precisely the right answer, but . . . nobody knows how wrong the answer is. I don't know it, Mr. Trudnak doesn't know and Mr. Clark doesn't know. And that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data. Tr. 1160. In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore Borrow Area Impacts Analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any.30/ Taylor Engineering used STWAVE and not Boussinesq as the model for the Borrow Area Impact Analysis because the Boussinesq Model is typically used where diffraction plays the dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area, making the STWAVE Model, if not more appropriate than the Boussinesq Model, certainly an acceptable model under the Project's circumstances. When asked about the Bousinessq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience (rather than actual testing or modeling the impacts of OK-A as done by Taylor), he was "almost certain," tr. 691, that Bousinessq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion . . . [that is] momentary . . . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial. When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system. Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing. In short, Dr. Dally roundly criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his testimony whether the impacts will be entirely de minimus, see rule 62B-41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County, a system whose ocean bottom, beaches and shores already contain scalloped features. Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project. The Walton Project and Its Borrow Area Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County (East Destin) and western Walton County. Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project. Location and Comparison to the OK-A Borrow Area The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See Ex. P-13. The area between the easternmost point of the OK-A Borrow site and the westernmost point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its easternmost point is roughly one-half mile off-shore. Comparison of the Walton Borrow Area and OK-A shows that OK-A is larger and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water than the Walton Borrow Area. Nonetheless, Petitioners characterize the two borrow sites as similar,31/ mainly because with less than 1.5 miles separating them, they are relatively close to each other. Despite proximity, there are significant differences, however, between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK- A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . . . further offshore . . .[s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." Tr. 306. In addition to distance from shore, the predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . . . and it included the outer flanks of the ebb shoal." Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone. Walton Borrow Area Impact Analysis and Monitoring Taylor Engineering's borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." Tr. 156. The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year. Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach. As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report. Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008. After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend . . . ." Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." Tr. 160. Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier. Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre- construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area. In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area) is having a beneficial impact on the beaches to the west of the project and its borrow area. Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes.32/ In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton Borrow Area which showed erosion early after completion of the Project is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts which are beneficial. Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark. Mr. Clark and The Department's Review of Western Destin Project Borrow Site Impacts Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer. During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water . . . ." Id. He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." Tr. 486. Among his specific duties is the review of "scopes of work and project feasibility studies that are provided . . . by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review of the Western Destin permit application and additional information related to the Project. After review, Mr. Clark reached the conclusion that the "Project is a well designed Beach Restoration Project that's critically needed . . . to restore the beaches of Western Destin to provide needed storm protection, recreational benefits and wildlife habitat." Tr. 488. With regard to his overall conclusion as to the Project's physical impacts, Mr. Clark testified: Id. In my opinion, the placement of 831,000 cubic yards of beach compatible sand fill along Western Destin will provide a positive, beneficial impact to the beach and dune system of Western Destin. The excavation of that material from the proposed borrow area [OK-A], along with the excavation of material for four other fill projects proposed for Santa Rosa Island, three of which have been approved, is not expected to have any adverse impact to the beaches of Santa Rosa Island. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity; extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents. Mr. Clark has reviewed 136 beach restoration projects. Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number" tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas." Id. The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies. Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips. In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project Over his 37 years, Mr. Clark served on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico. Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document" tr. 494, now electronically available to the public on the Department's website. The report prepared by Mr. Clark which led to the designation of the Western Destin Project beach as critically eroded showed that the areas from R-17 to roughly R-20.3 and R- 23.2 to R-25.5 revealed erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. The report is based on evaluation and projection of the impact of a 25-year storm event. The same report did not conclude that a 25-year storm event would provide the same level of threat to the area between R-20.3 and R-23.2 (the shoreline along the MACLA Intervenors' Property and the Oceania Gap) although that stretch of the beach is "potentially threatened by a 50 to a 100-year storm event." Tr. 499. The "R-20.3 to R-23.2" segment was included in the critically eroded designation for design and integrity of the Project and continuity of management of the coastal system. The designation of the Project area as critically eroded was made in 2006 and was updated by the Department at the request of the County in 2008. The 2008 update indicated no need to change the designation. Although not as threatened as the rest of the shoreline in the Project, the shoreline along the Middle Segment, (including the MACLA Intervernors' Property and the Oceania Gap) is erosional. Data obtained as late as October 19, 2009, indicate that there had been more erosion since a Mean High Water Survey located the MHWL in 2008. The data does not show volumetric change, only that "there is a continued trend of erosion" of the shoreline in the Oceania Gap. Tr. 506. With the Oceania Gap eliminated from the Project, elimination of the rest of the property in the Project's Middle Segment (between R-20.3 and R-23.2) would make the remainder of the Project unstable. It would "isolate a 2,000-foot segment between R-23.2 and R-25.5 [the Eastern Segment] . . . and a 2,000-foot fill segment is not long enough to be a stable fill segment." Tr. 507. Although the elimination of all of the Middle Segment would not hurt "the very far west end" of the Project "very much," tr. 508, the elimination of the entire Middle Segment from the Project would also make the very east end of the Western Segment "relatively unstable." Tr. 508. The Middle Segment, therefore, while not critically eroded, would benefit from beach restoration. Restoration will provide protection from the erosion it is experiencing and from 50-year and 100-year storm events should they occur during the life of the restoration. Restoration will include dune work that will provide protection from storm surge and dissipate the wave energy seaward of any structures in the Middle Segment. Recent storm events have been 50-year and 100-year events. In the area of the Project, "Hurricane Opal was comparable to a 100-year storm event." Tr. 509. In Pensacola Beach, Ivan was a 200-year event. In the Destin area, Ivan "probably dropped to just below a 100-year storm event in terms of its magnitude. Hurricane Dennis was probably comparable to a 50-year storm event." Id. The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. The OK-A Borrow Area is an offshore borrow area. Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island. In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area. Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach . . . ." Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." Tr. 520. If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but to the beach to the west of the borrow area the impact would be accretion. Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores of Okaloosa County. For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering. Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island. Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse impact from a borrow area . . . ." Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id. Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young: [W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And . . . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design. * * * We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated. Tr. 1150-1. When asked the question of whether there is a definition of a failed beach restoration project in the literature or that is generally accepted by the coastal engineering community, see tr. 1152, Dr. Young testified, "I have not seen one." Tr. 1152. He added, " I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." Tr. 1152-3. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts. Variance The "Variance" referenced in the Consolidated NOI concerns two related variances: one from rule 62- 4.242(2)(a)2.b., and the other from rule 62-4.244(5)(c). The northern boundary of the proposed borrow area is within Outstanding Florida Waters ("OFW"). That location led the County to seek a variance from the limitation in rule 62- 4.242(2)(a)2.b. that turbidity can exceed background conditions in OFW during permitted construction activity for no more than 30 days. Section (2) of rule 62-4.242 sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows: (a) no Department permit . . . shall be issued for any proposed activity . . . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that: * * * 2. The proposed activity . . . is clearly in the public interest, and . . . * * * b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity . . . , except on a temporary basis during construction for a period not to exceed thirty days . . . . The County also sought a variance from rule 62- 4.244(5)(c) which governs mixing zones in surface waters and reads: In no case shall the boundary of a dredge and fill mixing zone be more than . . . 150 meters in radius in . . . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants. Section 120.54(2) authorizes an agency to grant a variance as follows: Variances . . . shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or violate principles of fairness. Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150 meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150 meter radius, the County "would have had to almost continually be shutting down . . . .[its hopper] dredge," tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150 meter radius. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the variances for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more down time and conditions [could cause] a cutterhead . . . to stop dredging and go into safe harbor into East Pass." Tr. 173. The variance from rule 62-4.244(5)(c), therefore, was needed because the standard size mixing zone would have created a substantial hardship for the County. In addition to outlining the substantial hardship, the County provided two additional bases in its application to justify the variances: (a) no resources in the area, such as hard bottom or sea-grass beds, would be affected by a turbidity plume and an expanded mixing zone; and (b) citation to the Pensacola Naval Air Station ("NAS") project claimed to be similar in that it involved OFW and had received a variance. Upon receipt of the application for the variances, the Department requested additional information to establish whether OK-A, in fact, would be within OFW and more analysis of the comparability with the Pensacola NAS project. The Department's engineering section determined that the comparability of the Pensacola NAS project was not adequately demonstrated because of a lack of detail about the hydrodynamics and mixing zone sizes of the two sites. Nonetheless, the staff responsible for making the final decision on the variances (and ultimately the Department) determined the County's information justifying the variances to be sufficient. In granting the variances, the Department did not rely on the County's comparison of the Project to the Pensacola NAS project. As explained by Dr. Edwards at hearing, "[H]aving the data . . . from an actual project to back up and . . . calibrate a mixing zone is an added bonus, but we just didn't have it in this particular case." Tr. 420. The Department based its decision, in part, however, on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500- meter mixing zone was determined to be appropriate. Independent of the information provided by the County, the decision, therefore, was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that there was a comparable project in the area (not the Pensacola NAS project) that had been allowed a 1500- meter mixing zone. In applying the standard from section 120.54(2) related to the underlying intent of the rules at issue and the statutes, the Department determined that "[t]he Project in the OFW was clearly in the public interests, according to [section] 373.414 and the minimum Water Quality Standards, even within the mixing zone[,] would still be met." Tr. 421-2. There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI. Petitioners presented no evidence to rebut the testimony elicited by the Department and the County that the purpose of the statute underlying the rules from which the variances are sought will be met by other means and that the application of the rules will create a substantial hardship. Changed Site Conditions 267. Rule 62B-49.005(16) provides: If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 9-day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the County's application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico. No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area. The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See tr. 175. Western Destin Erosion Control Line The requirement for an Erosion Control Line is in section 161.161: Once a project is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to . . . locate an erosion control line. * * * In lieu of conducting a survey, the board of trustees may accept and approve a survey as initiated, conducted, and submitted by the appropriate local government if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. § 161.161(3), Fla. Stat. The Draft JCP as originally issued did not require the establishment of an ECL. It required the establishment of a Pre- project Mean High Water Line instead. The Second Revised Draft JCP dispensed with the requirement of a Pre-project MHWL. It requires that an ECL be established for all properties within the 1.7 miles stretch of beach in the Project area subject to beach restoration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order issuing the Joint Coastal Permit, Variance, and Sovereign Submerged Lands Authorization as revised during the course of these proceedings. DONE AND ENTERED this 29th day of June, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2011.
Findings Of Fact Sarasota County and MPS both filed extensive exceptions to the Recommended Order. I have grouped these exceptions according to the following issues: Manatee Protection, Turtle Nesting impacts, Fisheries impacts, Seagrass impacts, Wetlands Impacted, Water Quality Improvement, Public interest Balancing Test, Miscellaneous Exceptions, Requests For Additional Findings of Fact, and Conclusions of Law. I shall discuss and rule on each exception by the above groupings. 1. Manatee Protection Sarasota County Exception Number 1 and MPS Exception Numbers 6 and 8 are directed to the issue of adverse affects on the West Indian Manatee. Sarasota County and MPS take exception to Finding of Fact ("FOF") No. 24, claiming that there is no competent substantial evidence in the record to support the finding that it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. MPS additionally takes exception to the finding in FOF No. 29 that maintenance dredging will entail a danger to manatees similar to that during the construction phase. At the outset, I note that where a Hearing Officer's finding of fact is supported in the record by any competent, substantial evidence I am not permitted to reweigh the evidence and reject the finding of fact. See, e.g., Florida Debt. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Section 120.57(1)(b)1O., Florida Statutes. In this case the record does contain competent substantial evidence supporting FOF Nos. 24 and 29. The Hearing Officer's finding that increased motorboat traffic is an expected result of opening of the pass is not disputed. FOF No. 34. The area is designated as a critical habitat for the West Indian Manatee. FOF No. 22. The prefiled testimony of Ms. Kimberly A. Dryden states that "[a]n increase in boat/manate collisions associated with increased boat presence in the pass may occur." Dryden, PF-11. Ms. Dryden was admitted as an expert in wildlife biology including expertise in manatees, and her prefiled testimony was accepted into evidence. TR-756-760. Finally, the fact that Sarasota County itself proposed a manatee protection plan involving, among other things, that all project vessels operate at "no wake" speeds, supports the finding that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. Sarasota County and MPS point to the public notice of the U.S Army Corps of Engineers (Hearing Exhibit 26) and a U.S. Fish and Wildlife Service letter (Hearing Exhibit 27) as overwhelming evidence that no adverse effect on the manatee is expected. In essence, Sarasota County and MPS are asking me to reweigh the competent, substantial evidence. As noted above, I may not lawfully do that. The parties do not dispute the Hearing Officer's finding that maintenance dredging is expected to be needed as long as the inlet remains open. FOF No. 21. For the reasons set forth above, the Hearing Officer's finding that maintenance dredging will present a danger to manatees similar to the construction is supported in the record by competent substantial evidence. Sarasota County and MPS also assert that FOF No. 24 must be rejected because it is contrary to a stipulation of fact by the parties. Indeed, the record shows that a prehearing stipulation was filed and accepted into the record without objection at the hearing. TR-8. Stipulation of Fact No. 24 states: With the implementation of recommendations of the U.S. Fish and Wildlife Service, it is not expected that the project will have a significant adverse impact on the manatee or its habitat. Steven Sauers, Director of the Coastal Zone Division for Sarasota County, testified that he believed the County "could adhere to these [U.S. Fish & Wildlife Service] recommendations under a condition of authorization." TR-94-98. I note that when the prefiled testimony of Ms. Dryden was accepted into evidence at the hearing, neither Sarasota County nor MPS objected to those portions dealing with manatee impacts as being contrary to Stipulation of Fact No. 24. I must therefore consider whether the failure to object constitutes a waiver of the stipulation, and whether the Hearing Officer, as the ultimate finder of the facts, is bound by a stipulation of fact when the record contains competent, substantial evidence which conflicts with the stipulation. It has long been the eablished rule of law that stipulations of fact properly entered into are binding on both the parties and the court. See, e.g., Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (where case is tried on stipulation, no further or different facts will be presumed to exist). Where a party seeks to be relieved from a stipulation, he or she generally must file a timely motion, with notice to opposing parties, showing good cause and no prejudice to opposing parties. U.S. Fire insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989); Lopez v. Dublin Co., 489 So.2d 805, 807 n.3 (Fla. 3d DCA 1986); Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), cert. den., 344 So.2d 325 (Fla. 1977); Villa v. Mumac Construction Corp., 334 So.2d 274 (Fla. 3d DCA 1976); Curr v. Helene TransportatIon, 287 So.2d 695 (Fla. 3d DCA 1974). Good cause requires showing of fraud, overreaching, misrepresentation, withholding of facts by the adversary party, or such other element as would render the agreement void. Spitzer v. Bartlett Brothers Roof in, 437 So.2d 758 (Fla. 1st DCA 1983); Citv of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). In this case, neither the Department nor the Respondent Intervenors sought to be relieved from the stipulation, and there is no contention that any basis for good cause exits to be relieved from the stipulation. However, it is also a long established rule of law that failure to contemporaneously object to the admission of contested evidence is a waiver of the right to object. See, e.g., Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980), rev. den., 389 So.2d 1108 (Fla. 1980); Ehrhardt, Florida Evidence, Section 104.1 (2d Ed 1984); Section 90.104, Florida Statutes. in this case the testimony which conflicts with the stipulation was pre-filed before the hearing and the opposing parties had ample opportunity to review it before the hearing. Yet, although Sarasota County did raise objections to certain portions of Ms. Dryden's pre- filed testimony, no objection was raised to the portion relevant to impacts on manatees. TR-754-760. There is also authority for the proposition that when evidence contrary to a stipulation is introduced at trial without objection, the finder of fact is not bound by the stipulation. Special Disability Trust Fund v. Myers, 492 So.2d 788 (Fla. 1st DCA 1986), cause dism'd, 491 So.2d 280 (Fla. 1986); Espada Enterprises Inc. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986); Woods v. Greater Naples Care Center, 406 So.2d 1172, 1173 (Fla. 1st DCA 1981), rev. den., 413 So.2d 876 (Fla. 1982). In consideration of the above authorities and circumstances, I conclude that the Hearing Officer was not bound by the stipulation and could properly consider the relevant portion of Ms. Dryden's pre-filed testimony. Therefore the record contains competent, substantial evidence in support of the above findings of fact. Accordingly, the above noted exceptions of Sarasota County and MPS are denied. Turtle Nesting Impacts Sarasota County Exception No. 2 and MPS Exception No. 7 dispute FOF No. 26, which states that: "Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting." Sarasota County and MPS argue that although a portion of the beach will be removed to create the inlet, the loss of beach will not significantly impact on turtle nesting. Sarasota County and MPS contend that the "overwhelming weight" of the evidence is contrary to FOF No. 26. They are in essence asking me to reweigh the evidence. For the reasons stated above, I cannot do so. If the finding of fact is supported in the record by any competent, substantial evidence, then I am not at liberty to reject it. Florida Department of Corrections, supra; Section 120.57(1) (b)10., Florida Statutes. Ms. Belinda Perry, Projects Coordinator in the Coastal Zone Division of Natural Resources of the Sarasota County Natural Resources Department, testified that she had maintained records of sea turtle nests in the vicinity of Midnight Pass. She testified that on the average over the last eight years there have been four nests per year in the area that the new inlet at Midnight Pass will be located. Perry, TR-537-538; Perry PF-2, 5, 8. This is competent, substantial evidence of an adverse impact on the nesting habitat of sea turtles. Sarasota County and MPS argue that this impact is not "Significant." If I were to consider the "significance" of the loss of 4 nests per year for the purpose of accepting or rejecting FOF No. - 26, I would in effect be weighing that evidence. This I may not do. If the finding of fact is supported in the record by any competent, substantial evidence I may not reject it. Although not articulated, Sarasota County and MPS may be arguing that when evidence which supports a finding of an adverse impact on an endangered or threatened species is "not significant," then such evidence or finding of fact cannot be considered when weighing the seven factors set forth in the public interest balancing test of Section 403.918(2) (a), Florida Statutes. I reject any such argument as contrary to the law. Neither the statute nor any authority requires a minimum threshold weight for any of the factors. The statute merely requires the Department to "consider and balance" the seven criteria. For the foregoing reasons, Sarasota County's Exception No. 2 and MPS's Exception No. 7 are rejected. Fisheries Impacts Sarasota County Exception No. 4 and MPS Exception No. 10 challenge that part of FOF No.-3- that states "the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB." (emphasis added) Sarasota County and MPS contend that this finding is unsupported by any competent substantial evidence in the record. I disagree. Robert L. Stetler, Environmental Administrator, Wetlands Resource Management for the Department's Southwest District testified as follows: Q. What impact on fisheries does the present, i.e., closed condition of the Midnight Pass area have? A. Current conditions in the backwater area of Midnicht Pass as mentioned Before, as quiescent in nature. This influences the fisheries utilization to the competitive advantage of the smaller species and of the early life stages of many of the larger pelagic fish species. The additional cover afforded by seagrass communities and the very shallow water nature of large portions of the site tend to limit successful predation on the smaller specimens. The periphyton communities associated with shallow water areas and seagrass beds also provide large quantities of food to the smaller or younger fish. The conditions now found at Midnight Pass enable it to be classified as a nursery area because they perform the functions of feeding and protecting the early life stages of numerous fish species. Nursery areas like the pass region have been identified as essential to the maintenance of healthy, well balanced fish populations. Q. Does a quiescent estuarine zone provide any particilar benefit to commercially important fish species? A. Under the estuarine conditions, water quality also contributes to the success and/or failure of certain fish species. Many of the estuarine dependent fish species have life histories that include spawning in or near the marine environment and the mitigation [sic] of the larval forms into areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. These harsh conditions are tolerable to a early life stages of several commercially important fish species and further protects them from predation by adult piscivorous (fish eating) fish that cannot tolerate these conditions. Some of the important commercial species exhibiting this life cycle are the Tarpon, Spotted Seatrout, Redfish, Mangrove snapper, Sheepshead and Mullet. Q. What, in your opinion, would be the overall impact to fisheries resources from the opening of Midnight Pass? A. The overall impact of the project to fisheries would be significant. Reactivating an inlet would produce conditions conducive and reintroducing larger, motile, pelagic fishes into the area. increased flushing would likely occur resulting in increased salinities, higher energy conditions from waye and tidal action. The recreational fishery would probably produce more larger fish utilizing the pass as a migratory, spawning and feeding site. However, the direct impact of the project would also result in the loss of significant portions of the nursery habitat previously described. Q. in your opinion, would opening Midnight Pass be in the public interest from a fisheries standpoint? A. No. Q. Why not? A. The expected physical damages associated with reopening the pass -- increased water depths, destabilization of the substrate by tide and wave energy and destruction of existing shallow water habitat will eliminate or significantly change the habitat characteristics and water guality conditions essential to the early life stages of many fish species. Loss of nursery habitat has been a long-term trend to Tampa and Sarasota Bay due to past dredge and fill activities and increased development. This long-term loss results in a need to classify remaining nursery areas, like Midnight Pass, as critical habitat warranting special protection. (emphasis added) Stetler PF-11-13. This prefiled testimony was accepted into evidence. TR-836, 839. When read in its entirely it clearly provides competent, substantial evidence to support the above finding of fact. Mr. Stetler testified that the existing nature of LSB provides a nursery for certain fishes that in the early stages of their life take advantage of areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. Such harsh conditions protect them from predation by adult fish that cannot tolerate such conditions. He further testified that reopening Midnight Pass would result in increased flushing, increased salinity, and the loss of significant portions of the above characteristics with a consequent loss of significant portions of the nursery habitat. This testimony is competent, substantial evidence supporting FOF No. 32. Therefore, i may not disturb this finding of fact. Accordingly, the above noted exceptions are rejected. Seagrass Impacts Loss of Seagrass Sarasota County Exception No. 5 and MPS Exceptions Nos. 10 and 11 take exception to the Hearing Officer's finding that the submerged areas of LSB in the vicinity of the inlet are vegetated with seagrasses (including shoalgrass, turtle grass, manatee grass, and halophila), and that a significant portion of these grasses will be dredged if the proposed project is implemented. FOF No. 33. The Hearing Officer also found that the dredged seagrass areas will no longer serve as a nursery to young fishes. FOF No. 34. Sarasota County and MPS contend that only 10 acres of seagrasses will be dredged, and that the evidence shows that reopening Midnight Pass will cause more dense growth of seagrasses in those areas not dredged. Sarasota County and MPS also contend that the Hearing Officer erred in concluding that all four of the above noted types of seagrasses would be lost. The gist of Sarasota County's and MPS's argument is that the loss of ten acres of seagrss is less than 10% of the total seagrass acreage in the project area, and therefore is not significant. Sarasota County and MPS further argue that even if the loss of 10 acres of seagrass was significant, it would only be a temporary loss because the opening of Midnight Pass would result in greater seagrass growth, density, and diversity in those areas not dredged. Neither Sarasota County nor MPS take exception to the finding that l0 acres of seagrasses will be dredged, and that, due to the depth of the channel to be dredged, seagrasses would not be expected to reseed or colonize in the deep channel cuts. FOF No. 34; Prehearing Stipulation of Fact No. 22. The record contains competent, substantial evidence that in the vicinity of the project there are 108 acres of seagrasses. Lewis, PF-6 (accepted into evidence TR-425-436). A loss of ten acres of seagrasses would be a loss of more than 9% of the total acreage in the vicinity of the project. A loss of seagrass can have an adverse impact on a fish nursery. Leiby TR-507, 509-510. I reject any suggestion that such a loss is not significant. MPS and Sarasota County contend that there will be no net loss of seagrass because the loss of the ten acres will be offset by increased growth, density, and diversity of seagrasses in the areas not dredged. in asking me to reject the above noted findings, Sarata County and MPS are in effect asking me to weigh the evidence of the impact of the loss of ten acres against the evidence that increased growth, density, and diversity of the seagrasses elsewhere will soon offset any reduction in nursery value to young fishes. When I rule on exceptions to findings of fact I cannot reweigh the evidence. If the record contains any competent, substantial evidence to support the finding, I must accept it. Finally, as to issue of the types of seagrasses present, the record contains competent, substantial evidence that all four of the species mentioned in the finding of fact are found in the project area to be dredged. Stetler PF- 6, TR-843-845; Wilber PF-33, TR-908-915; Dryden PF-5-7; Prehearing Stipulation of Fact No. 21. For all of the reasons set forth above, i reject the exceptions of Sarasota County and MPS. Propeller Dredging of Seagrass Sarasota County Exception No. 6 and MPS Exception No. 12 take exception to the Hearing Officer's finding that "increase motorboat traffic which is an expected result of the pass reopening, would also limit grasses from re- establishing in shallower areas due to damage caused by propellers." FOF No. 34. Sarasota County and MPS do not dispute that opening - Midnight Pass will increase motoboat traffic in LSB. Dr. Wilber testified that the "foreseeable increased boat utilization, especially by large boats will increase seagrass bed damage through prop dredging . . . ." Wilber PF-31. There being competent, substantial evidence in the record supporting the above finding, the exceptions of Sarasota County and MPS are denied. Wading Bird Habitat Impacts Sarasota County Exception No. 5 takes exception to the Hearing Officer's finding that "the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass." FOF No. 33. Ms. Dryden testified that wading birds now use the shallow tidal flats and mud flats which are proposed to be removed. Dryden PF-4-8, 10-11. Mr. G. Jeffery Churchill testified that, as a result of the project, approximately 9 acres of wading bird feeding habitat would be lost. Churchill PF-16-17, TR- 485-487. The record contains competent, substantial evidence supporting the above finding. Therefore, Sarasota County's exception is denied. Wetlands Impacted Sarasota County Exception No. 6 and MPS Exceptions Nos. 5 and 12 take exception to the finding that the dredging proposed by the County would eliminate at least 50 acres of wetlands. FOF Nos. 17 and 34. Sarasota County and MPS contend that only 1.1 - 1.3 acres of vegetated wetlands will be lost. This contention appears to be based on the assertion that submerged lands are not "wetlands" within the meaning of Sections 403.91 - .929, Florida Statutes. I reject Sarasota County's and MPS's narrow construction of the meaning of jurisdictional wetlands. Section 403.912(1) sets forth the powers and duties of the Department in permitting activities in wetlands, including activities "in waters to their landward extent . . ." (emphasis added). The term "waters" includes "rivers, lakes, streams, springs, impoundments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." Section 403.031(12), Florida Statutes. the term "wetlands" therefore is inclusive of surface bodies of waters up to and including the limit of the Department's jurisdiction as established by Section 403.817, Florida Statutes and Rule 17-301, F.A.C. Dr. Wilber testified that the project would dredge 43.8 acres for the two access channels, 3.6 acres for the sediment basin, and 7.5 acres of jurisdictional wetlands for the inlet channel. Wilber PF-5-6. Dr. Wilber further testified that habitat within the proposed channels consisted of valuable biological communities of a natural character that would be severely disrupted or eliminated if the project were permitted. Wilber PF-9. The record contains competent, substantial evidence to support the above finding. The exceptions of Sarasota County and MPS are rejected. Water Quality Improvement Sarasota County Exception No. 7 and MPS Exception No. 14 take exception to the Hearing Officer's finding that "the water quality within LSB will not be significantly improved as a result of the reopening of the inlet. "FOF No. 38. it is contended that this finding is immaterial and irrelevant. These exceptions also challenge as irrelevant the Hearing Officer's finding that "it is impossible to conclude that marine environments serve a more useful purpose than estuarine systems." FOF No. 38. I agree that it is not required that the proposed project improve the water quality in LSB in order to be permittable. Permitting of a dredge and fill project in an Outstanding Florida Water requires that the applicant show that the project is clearly in the public interest, and that reasonable assurance has been provided that the project will not cause or contribute to violations of water quality standards, including a showing that the existing ambient water quality within the OFW will not be lowered as a result of the proposed activity. Section 403.918(1),(2), Florida Statutes; Rules 17-4.242(2) (a), 17-302.300, F.A.C. The applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards, and that the project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989). if the applicant is unable to satisfy the applicable public interest test, the applicant may propose or accept measures to mitigate the adverse effects caused by the project. Section 403.918(2)(b), Florida Statutes. 4/ On the other hand, throughout these proceedings Sarasota County has attemptd to justify the project and show that it is clearly in the public interest by asserting the project will improve water quality in LSB. For example, at page 7 of Sarasota County's Proposed Recommended Order it states: Sarasota County has convincingly demonstrated that it meets the statutory criteria for approval of this project in this Outstanding Florida Water. The project will not degrade ambient water quality, and it will cause an improvement in water guality, not only in the immediate vicinity of the Pass but throughout Little Sarasota Bay. This improved water guality will in turn reap substantial benefits to the degraded marine habitat, the flora and fauna, commercial and recreational fishing and the public's general enjoyment and ability to use Little Sarasota Bay. (emphasis added) Similarly, Sarasota County stated in its opening argument at the hearing that: TR-14. We think that there has been a decline in water quality and it will continue to decline and it will continue to get worse. By reopening the pass, we think we can stop that decline. We think that there will be such considerable improvements to the bay to be clearly in the public interest. The Hearing Officer's finding is clearly relevant to Sarasota County's assertion that the claimed improvement in water quality will make or help make the project to be clearly in the public interest. Similarly, since the reopening of the pass will cause the reversion of LSB from an estuarine to a marine ecosystem, the Hearing Officer's finding on the failure to show that a marine ecosystem has a more useful environmental purpose is also, at least arguably, relevant to the public interest test. 5/ The record contains competent, substantial evidence which supports this finding. Nearhoof PF-8-12, TR-891-895; Wilber PF-17-18, TR-920-921. There being competent, substantial evidence to support the finding, I shall not reject it. The exceptions are there denied. Public Interest Balancing Test Sarasota County Exceptions Nos. 8 and 12, and MPS Exceptions Nos. 15 and 17, take exception to the Hearing Officer's finding that "the beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging." FOF No. 39. Exception is also taken to FOF No. 43, which states that it was not established that the project is clearly in the public interest. The gist of these exceptions is that the balancing test is a conclusion of law rather than a finding of fact. Even if that were so, the error in mislabeling would be harmless. Even though I agree that the ultimate determination of the public interest balancing test is a conclusion of law, I do not agree that predicate findings of ultimate facts are not appropriate. Florida Audubon Society v. Cullen, ER FALR 91:018 (DER, Sept. 27, 1990). The Hearing Officer's FOF Nos. 34 and 43 are predicate findings of ultimate facts sufficiently supported in other findings of fact for each of the seven criteria in the public interest balancing test of Section 403.918(2)(a), Florida Statutes. See for example: Department's Response To Request For Admission No. 17, and R.O. at 21 and 23, accepting MPS's proposed finding of fact- No. 74, and Sarasota County's proposed finding of fact No. 50 (project will not adversely affect public health, safety or welfare); (b) FOF Nos. 17, 22, 24-26, 29, and 32-35 (regarding conservation of fish and wildlife, etc.); FOF No. 36 and R.O. at 23, accepting MPS's proposed finding of fact Nos. 134 and 135 (regarding navigation, flow of water, erosion or shoaling); FOF Nos. 32 and 33 (regarding fishing recreational values or marine productivity); FOF No. 21, 29 and 37 (regarding temporary or permanent nature of project); FOF No. 28 (regarding historical and archaeological rsources); and FOF Nos. 30 and 38 (regarding current condition and relative value of functions being performed by areas affected by project). The exceptions are therefore rejected. Miscellaneous Exceptions Sarasota County Exception No. 9 Sarasota County Exception No. 9 contends that there is no competent, substantial evidence for the finding that the Department has not permitted the destruction of a habitat of this size without requiring extensive mitigation. FOF No. 40. Mr. Randall L. Armstrong, then Director of the Division of Water Management of the Florida Department of Environmental Regulation, testified that he had worked at the Department since 1972, and that "[i]n my experience with the Department in issuing permits under those statutes (Sections 403.918-.919] the Department has never permitted the destruction of such a large area of viable habitat without requiring extensive mitigation." Armstrong PF-9, TR-1017. Sarasota County's reliance on the testimony of Mr. Lewis about lack of mitigation in a Key Biscayne project is misplaced since that project occurred before the enactment of the Henderson Wetlands Act in 1984. Lewis TR at 482. in any event, FOF No. 40 is supported in the record by competent, substantial evidence. The exception is denied. Sarasota County Exception No. 11 and MPS Exception No. 16 Sarasota County Exception No. 11 and MPS Exception No. 16 complain about FOF No. 42, yet do not dispute its correctness. The finding is a irrefutable finding that no mitigation is proposed for 10 acres of seagrasses which will be dredged. The exceptions are merely an assertion that mitigation is not necessary for the loss of seagrasses because additional seagrass will grow elsewhere. This contention was addressed above under the heading of Seagrass impacts. Furthermore, the Department has the ultimate authority to determine whether mitigation is required and, if so, whether the proposed mitigation is adequate. 1800 Atlantic Developers v. Department of Environmental Regulation, 522 So.2d. 946 (Fla. 1st DCA 1989). The exceptions are rejected. Sarasota County Exception No. 3 Sarasota County's Exception No. 3 claims to take exception to FOF No. 29 but does not dispute any of the facts stated therein. The exception is rejected. MPS Exception No. 1 This exception quibbles over an immaterial issue of semantics in FOF No. 2, i.e., whether the project is to "dredge an inlet" or to "restore" the past inlet. The exception is rejected. MPS Exception No.2 MPS takes exception to FOF No. 4 which states that LSB was designated an Outstanding Florida Water. The gist of MPS's exception is that the Environmental Regulation Commission excluded Midnight Pass when LSB was designated as an OFW. Since "Midnight Pass" no longer existed as a body of water when LSB was designated an OFW on April 29, 1986, the exception is rejected as immaterial and irrelevant. MPS Exceptions No. 3 and 13 MPS takes exception to the Hearing Officer's finding in FOF No. 7 that prior to the closing of Midnight Pass the "beach along the northern stretch of Casey Key eroded badly." MPS also excepts to the finding that without beach renourishment the restoration will cause "harmful erosion" along Casey Key. FOF No. 37. MPS does not dispute the erosion; rather, MPS complains about the choice of words describing the degree of erosion. The choice of words is not material to the underlying validity of the finding. The exceptions are without merit and are rejected as immaterial. MPS Exception No. 9 MPS takes exception to FOF No. 30, contending that there is no support in the record for a finding that, as a result of the evolution of LSB from a marine to an estuarine system, LSB has a longer freshwater residence time. MPS is misreading FOF No. 30. It is clear that FOF No. 30, when properly read, states that as a result of the closure of the pass LSB has evolved from a marine to an estuarine system, and that this evolution is a consequence of the longer freshwater residence time which was caused by the closing of the inlet. This is supported in the record by competent, substantial evidence. Echernacht TR-707. MPS also takes exception to the finding that levels of dissolved oxygen and salinity within LSB are fairly typical for a healthy estuarine system. FOF No. 30. The record contains competent, substantial evidence to support this finding. Wilber PF-32. The exceptions are rejected. Requests For Additional Findings of Fact Sarasota -County Exceptions Nos. 3, 10, and 13 through 16, and MPS Exceptions Nos. 4 and 18 are in essence asking me to make additional findings of fact, or to accept proposed findings of fact which were rejected by the Hearing Officer. I may not lawfully make an independent determination of a disputed fact. Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3rd DCA 1985). Accord, Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987). See also Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Inverness Convalescent Center v. Department of Health and Rehabilitative Services, 512 So.2d 1011 (Fla. 1st DCA 1987); Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). As to Sarasota County Exception No. 14, which requests a finding of fact that the project will not adversely affect the pubic health, safety and welfare, I note that the Hearing Officer accepted this finding of fact which was proposed in both paragraph 74 of MPS's proposed recommended order and in paragraph 50 of Sarasota .County's proposed recommended order. See R.O. at 21 and 23. Therefore, I consider the requested finding of fact to have already been made by the Hearing Officer. No additional finding is required of me. Sarasota County Exception No. 15 asks me to make specific additional findings of fact in relation to effects of the project on marine productivity. Sarasota County orrectly points out that a finding regarding whether the project will adversely affect marine productivity is needed to conduct the public interest balancing test of Section 403.918(2), Florida Statutes. However, I note that the Hearing Officer's FOF Nos. 32 and 33 are sufficient predicate findings for her to consider and weigh this criteria in the balancing test. Furthermore, the Hearing Officer has considered and ruled on Sarasota County's proposed findings related to marine productivity as set forth in Sarasota County's proposed recommended order paras. 105-108 and 110 (accepted) and para. 111 (rejected as vague). See R.O. at 22. Sarasota County Exception No. 15 is essentially a reiteration of proposed findings of fact which had been asserted before the Hearing Officer. Where the Hearing Officer clearly and specifically addressed and ruled on the proposed finding in the recommended order, I am not required to provide further reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds sub nom., Dept. of Professional Regulation v. Bernal, 531 So.2d 967 (Fla. 1988). I concur with and adopt the Hearing Officer's rulings as being based on competent, substantial evidence, and therefore reject the exception. Sarasota County Exception No. 16 asks me to make specific findings with regard to cumulative impacts. The matter ofwhether the proposed project will have any significant adverse secondary or cumulative impacts was a disputed issue at the hearing. See Prehearing Stipulation at 24, Stipulated Disputed issue VI(A)9. Section 403. 919, Florida Statutes, requires consideration of the cumulative impacts of the project in conjunction with other existing or future projects where there is a "reasonable likelihood" of similar project applications in the same geographic location in the future. Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Reasonable expectation of future projects is the polestar of cumulative impact analysis. Chipola Basin Protective Group v. Department of Environmental Regulation, 11 F.A.L.R. 467, 477 (D.E.R. December 29, 1988). Testimony at the hearing showed that the Department conducted an evaluation of the project for cumulative impacts and was unable to identify any such impacts. Wilber PF-30, TR-949-950; Armstrong TR-1021-1022. A finding that the Department conducted a cumulative impact analysis and concluded that it was unable to identify any cumulative impact was proposed by Sarasota County in its Proposed Recommended Order, paras. 118 and 119. - These findings were accepted by the Hearing Officer (R.O. at 22). Therefore, the requested findings of fact have already been made by the Hearing Officer, and no additional finding is required of me. The exception is therefore rejected. MPS Exception No. 18 asks me to adopt numerous proposed findings of fact which the Hearing Officer expressly rejected. The Hearing Officer expressly ruled on each of these proposed findings of fact. (Recommended Order at 23-24) Where exceptions merely reiterate proposed findings of fact which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, supra. I concur with and adopt the Hearing Officer's rulings on these proposed findings of fact. I therefore reject the above exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Public Interest Test Sarasota County's Exception To Conclusion of Law No. 2, and MPS Exception No. 20 take exception to the Hearing Officer's conclusion of law that "the County has failed to establish that the proposed project is clearly in the public interest." Conclusion of Law No. 6, R.O. at 15-16. As I noted in my earlier discussion on findings of fact, in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. Failure of the applicant to make that showing makes the project not permittable. In order to determine whether the project is clearly in the public interest, the Department must consider and balance the following seven factors set forth in Section 403.918(2)(a): Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to consider and balance these factors it is necessary, of course, to make sufficient findings of fact as to each factor. As I discussed above, the Hearing Officer had accepted or expressly made findings of fact relevant to each of the above factors. in Conclusion of Law No. 6, she considered and balanced those factors in reaching her determination that it was not shown that the project is clearly in the public interest. I am, of course, not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 16 FLW D458 (Fla. 2d DCA, Feb. 20, 1991); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Section 120.57(1) (b)lO., Florida Statutes. I have considered and balanced each of the seven criteria set forth in Section 403.918(2) (a) in the light of the findings of fact discussed above. I concur in the Hearing Officer's conclusion that it has not been demonstrated that the project is clearly in the public interest. In reaching my conclusion I am aware of the holding in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) that no net public benefit need be shown. I conclude that Findings of Fact Nos. 17, 22, 24-26, 29 and 32-35 on balance establish that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Findings of Fact 32 and 33 on balance show that the project will adversely affect the fishing or recreational values or marine productivity in LSB. Findings 30 and 38 on balance sfrthat the current conditiofr of LSB makes it a valuable estuarine ecosystem which will be lost if the project is permitted. Finding of Fact 36 and MPS proposed findings of fact Nos. 134 and 135, which were accepted by the Hearing Officer, on balance show a net benefit to navigation. And, the Hearing Officer's acceptance of Sarasota County's proposed finding of fact No. 50, and MPS's proposed finding of fact No. 74, allow me to conclude that the project will not adversely affect the public health, welfare or safety. I note that there is abundant proof that the project is permanent in nature and that there will be no adverse affect on historical or archaeological resources. When I consider and balance all of these factors and their relevant facts, I conclude that the adverse impacts outweigh any benefits, and therefore donclude that there has been no showing that the project is clearly in the public interest. Since I have determined that it has not been shown that the project is clearly in the public interest, I must also consider any mitigation which Sarasota County has proposed. Sarasota County and MPS contend that no mitigation is needed for the loss of ten acres of seagrasses because reopening the pass will result in recolonization of new areas of seagrass, greater density of growth in existing areas, and greater diversity of seagrass species. Even when I assume that Sarasota County's and MPS cotentions are true, I still conclude that the adverse effects of the loss of ten acres of seagrass will not be mitigated by the proposed project. 6/ Accordingly, I reject the exceptions. Water Quality Improvement Sarasota County Exception To Conclusion of Law No. 1, and MPS Exception No. 19, challenge the Hearing Officer's Conclusion of Law No. 4. Specifically, the exceptions challenge the statement that "[t]he County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging." Conclusion of Law No. 1, R.O. at 14. To the extent that the Hearing Officer may have thought that a showing of improvement in water quality was a requirement for obtaining a permit, she erred. However, for the reasons set forth in my previous discussion of water quality in relation to findings of fact, Sarasota County and MPS had made improvement in water quality an issue in determining whether the project was clearly in the public interest. Rather than erroneously imposing a requirement of improvement of water quality, it appears that the Hearing Officer was merely making a predicite observation prior to conducting the public interest balancing test. Regardless of how one interprets the above matter, it is clear that the issue does not affect the outcome of this case because both the Hearing Officer and I have concluded that there has been no showing that the project is clearly in the public interest. I therefore reject the exception on the basis that the conclusion of law is not erroneous, or if error, then it is harmless error. Having ruled on all of the exceptions it is ORDERED: Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference. Sarasota County's Permit Application No. 581473069 is DENIED. NOTICE OF RIGHTS Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department. DONE AND ORDERED this 4 day of April, 1991, in Tallahassee, Florida. State of Florida Department of Environmental Regulation CAROL BROWNER Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL. 32399-2400
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the permit requested by Sarasota County. DONE and ENTERED this 19 day of February, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of February, 1991. APPENDIX TO CASE NO. 90-3533 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 19 are accepted. Paragraphs 20 through 24 are rejected as irrelevant, speculative or immaterial to the issues of this case. Paragraphs 25 and 26 are accepted. Paragraphs 27 through 29 are rejected as irrelevant. Paragraph 30 is accepted. Paragraph 31 is accepted with the deletion of the quotation marks around the word monitor and with the deletion of the last phrase following the words "survival rate" which is rejected as argumentative or irrelevant or not supported by the record. Paragraphs 32 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 40 are accepted. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraphs 42 through 44 are accepted. Paragraph 45 is rejected as irrelevant or unnecessary to the resolution of the issues of this case. Paragraphs 46 through 48 are accepted. Paragraphs 49 through 53 are rejected as irrelevant, unnecessary to the resolution of the issues, comment, repetitive, or argumentative. Paragraphs 54 through 62 are accepted. Paragraph 63 is rejected as repetitive. Paragraph 64 is rejected as irrelevant. Paragraphs 65 and 66 are accepted. Paragraph 67 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 68 through 73 are accepted.
The Issue At issue in this proceeding is what costs, if any, are recoverable by petitioner as a consequence of its successful prosecution of an appeal from the agency's final order heretofore rendered in the above-styled matter.
Findings Of Fact Background On January 14, 1988, respondent, Key Biscayne Limited partnership, formerly known as Biscayne Beach Hotel Association, Ltd. (the "Hotel") , filed an application with Respondent, Department of Natural Resources (DNR), for a coastal construction control line (CCCL) permit authorizing it to conduct construction activities seaward of the Dade County CCCL on Key Biscayne, Florida. As proposed, the Hotel, which currently owns the Sonesta Beach Hotel on Key Biscayne, sought authorization to construct a nine-story 124-unit habitable addition and a one-story non habitable addition, with understructure parking, to its existing facility. Incident to such construction, the Hotel also sought authorization to construct a deck and jacuzz-type hot tub south of the addition, and authorization to excavate approximately 1,400 cubic yards of fill for the pile foundation and caps, and to deposit such fill seaward of the CCCL. Excavation for the foundation would extend a maximum of 177 feet seaward of the CCCL and placement of the excavated material would extend a maximum of 300 feet seaward of the CCCL. On August 11, 1988, DNR issued a notice of intent to approve the Hotel's application and to is sue a CCCL permit subject to the following special conditions: The issuance of the permit placard shall be withheld pending staff receipt and approval of: Two sets of specifications and final certified construction plans accurately dimensioned with elevation referenced to NGVD. Details of the foundation of the 9-story and single- story addition, pile/pile cap/column connections, column/floor slab and roof slab connections, cantilevered balconies, garage floor slab, breakaway walls, storm drainage and domestic waste disposal, and fences shall be included in the plans. Two sets of certified dimensioned site plans showing the location of the control line, existing sea grape trees, the placement of excavated material seaward of the control line, and species of salt-resistant vegetation. The site plans shall be subject to review and acceptance by the Bureau staff. Evidence that written notice has been recorded in the deed covenants and restrictions for the subject property that: The construction of any future rigid coastal protection structures on the property shall be prohibited. The deed covenants and restrictions shall be recorded in the public records of Dade County. Such deed covenants and restrictions shall be enforceable and shall not be altered unless approved by the Department of Natural Resources. The use of gravel or other similar materials or structures with the potential for becoming aerodynamically propelled missiles shall not be included in the construction of the roof. Salt-resistant vegetation such as sea oats, sea grape, panic grass, salt jointgrass, and/or other approved salt- resistant species shall be planted on the fill area. In addition, the permittee shall irrigate and apply fertilizer as appropriate for the particular species planted until the vegetation is established. A 75 percent survival rate of the vegetations shall be ensured and replanting shall be conducted until a 75 percent overall survival rate is attained and until any sizeable barren portions of the area are covered. The excavated fill material to be placed on the beach shall consist of material compatible in grain size and coloration as the native beach sand and shall come from a source located landward of the coastal construction control line. The main structure of the addition shall not extend further seaward than the projected line of the existing retaining wall located seaward of the existing swimming pool. Petitioner, Key Biscayne Council (the "Council"), filed a timely protest of DNR's action. Essentially, the Council contended that the location of the proposed construction would be seaward of the 30-year seasonal high-water line and, therefore, prohibited by Section 161.053(6)(b), Florida Statues; that the proposed construction would adversely impact the beach-dune system and adjacent properties; that construction of similar projects along the coast would have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline; and that the proposed construction failed to comply with the setback requirements or zoning or building codes of Dade County. The Key Biscayne Council In Its petition for formal hearing, the Council alleged that it was a not-for-profit Florida corporation which had, as one of its purposes, the preservation of the environment of Key Biscayne, including its beaches. The proof at hearing failed, however, to demonstrate that the Council enjoyed corporate status but, rather, demonstrated that it was an association formed in November 1987 to give the residents of Key Biscayne a more effective voice on matters of local interest, including the preservation of the environment of Key Biscayne. The Council is governed by nine individuals who are residents of Key Biscayne. These individuals are elected to their positions by the resident members of the association, who are also registered voters in Dade County. 4/ The Council meets at least once each month, and its meetings are open to the public. The agenda for each meeting is published in the local Key Biscayne newspaper, The Islander, the week before each meeting. Of particular interest to the Council is the preservation and protection of the beaches of Key Biscayne which form an important part of that community's and the Council members' lifestyle. To date, the Council has been a motivating force behind the enactment of Dade County Ordinance No. 89-23 discussed infra, which established the CCCL as the mandatory setback line for new construction on Key Biscayne, as well as efforts to fund a cleanup of the beaches, to establish a vegetation dune system, and to protect the sea turtle population. Here, by unanimous vote of the Council, it elected to contest the propriety of DNR's proposal to approve the Hotel's application to construct the proposed additions seaward of the CCCL. Key Biscayne and the surrounding topography Key Biscayne is the southernmost barrier island in what is now a chain of barrier islands extending southward from Miami Beach. Historically, Miami Beach was connected to some extent with Virginia Key, which lies to the north across Bear's Cut from Key Biscayne. In 1835, however, a hurricane struck the area, breached whatever connection existed between Miami Beach and Virginia Key, and formed what is now known as Norris Cut. The topography of the area was further altered in 1905 when construction of Government Cut, the navigational channel for the Port of Miami, was begun. Construction of that cut severed the southern tip from Miami Beach, and formed what is now known as Fisher Island. By 1927, a jetty had been constructed on the north side of Government Cut that created an effective barrier to any along shore sediment transport to the south. Over time the channel in Government Cut was deepened and jetties on its north and south sides extended. Today, the channel is 42 feet deep and extends two miles into the ocean. The north jetty extends 3,000 feet into the ocean, and the south jetty extends 2,750 feet into the ocean. Key Biscayne, which lies to the south of Government Cut and the other islands, is a sand island, roughly "drum-stick" in shape, formed on a limestone base, with elevations ranging from 5 1/2 to 6 1/2 feet. The northern and southern portions of its eastern shore are dominated by Crandon Park and Cape Florida State park, respectively, with development concentrated in the central portion of the island. It is along this central part of the island that the Sonesta Beach Hotel exists, and where the proposed construction is to occur. Immediately north of the existing hotel lies the Silver Sands Hotel and Sand Dollar Restaurant. To the south of the hotel lies the Sheraton Beach Hotel and Beach Club and, further south, the Key Biscayne Hotel and Villas. 5/ Although Key Biscayne is generally subject to mild weather conditions and a low energy environment, it has been subjected to erosion along its eastern shore, with the more severe erosion occurring along the central portion of its shoreline. Seaward of the northern and southern portions of its eastern shore, sand shoals exist which tend to dampen the force of wave energy that would otherwise be exerted against that stretch of coast line. The center of the island is not, however, accorded similar protection and the consequent concentration of wave energy causes sand to be transported from the center of the island to its outer ends. As a result, the central portion of the island, where the subject development is proposed, has historically eroded at a faster rate than the north or south ends of the island. In September 1984, as a consequence of the severe erosion suffered to the eastern shore of Key Biscayne, Dade County was authorized to place over 411,000 cubic yards of sand along approximately 10,000 feet of shoreline on Key Biscayne, and to construct a terminal structure at the south end of the island. The beach was restored by hydraulically pumping sand onto the beach from an offshore dredge and then redistributing the sand with a bulldozer. The resulting beach is characterized as "plan form," and is expected to assume a natural profile over time by responding to the natural forces of wind and waves. The fill pipes which were used to pump sand onto the beach were removed from the area of the Sonesta Beach Hotel on July 3, 1987, and the reprofiling or redistribution of sand in that area was completed around July 20, 1987. On September 26, 1987, the renourishment project was certified complete. The 30-year erosion projection Section 161.053(6)(b) Florida Statutes, provides that DNR may not issue a permit for construction seaward of the CCCL, except for certain specific structures not pertinent to this case, if the structure is "proposed for a location which, based on the department's projections of erosion in the area, will be seaward of the seasonal high-water line within 30 years after the date of application for such permit." The "seasonal high-water line" is a creature of statute, and is defined by Section 161.053(6)(a), Florida Statues, as "the line formed by the intersection of the rising shore and the elevation of 150 percent of the local mean tidal range above local mean high-water." Here, the seasonal high-water line, which is established as an elevation, calculates to approximately 5.4 feet NGVD, and according to the survey dated August 1, 1987, which was submitted with the Hotel's application, currently derives a line that is approximately 375 feet seaward of the proposed construction. To establish the 30-year erosion projection, DNR proposes to horizontally shift the profile which was depicted on such survey in a landward direction a distance equal to the expected erosion rate over a 30-year period. Ordinarily, DNR would calculate a 30-year erosion projection based on historic erosion rates, referred to as "horizontal change rates" in Rule 16B- 33.024, Florida Administrative Code, by reviewing two or more historical surveys taken over a period of time, and measuring the amount of shoreline recession that had occurred during that period. From that figure, an erosion rate would be derived by dividing the number of years which elapsed over the period of record chosen into the amount of shoreline recession that occurred during that period. The result would be the historic erosion rate which, when multiplied by 30, would establish the location of the 30-year seasonal high-water line. However, where, as here, the beach as been renourished, consideration of the effect and performance of such project must also be considered in making the 30- year erosion projection. Rule 16B-33.024(3)(e), Florida Administrative Code. Accordingly, to determine the expected location of the seasonal high-water line in 30 years in this case, it is necessary to establish a historical shoreline change rate and to evaluate the effect and performance of the beach renourishment project. To establish an appropriate historical erosion rate for the subject site, consideration must be given to both the tidal datum relied upon to obtain the rates, and the time period selected as the period of record for analysis of historic shoreline change rates. With regard to tidal datums, the Department's rule provides that horizontal shoreline change rate values may be obtained from one of several available tidal datums, including mean high-water, mean sea level, and mean low-water. Rule 16B-33.024(3)(a), Florida Administrative Code. However, the preferred and more reliable tidal datum to use in assessing historic erosion rates is the line of mean high-water. The time period used in calculating the historic shoreline change rate is required by DNR's rule to extend from the date of the field work for the applicant's survey, which was submitted as part of the application, to the earliest date for which reliable information is available. Rule 16R- 33.024(3)(b) Florida Administrative Code. The historic shoreline change rate analysis should generally include data from points 3,000 feet on either side of the proposed construction, with the change rate for each point averaged for the time period chosen. Rule 16R-33.024(3)(g), Florida Administrative Code. In the event that coastal or shoreline protection structures exist which have influenced the shoreline data for any of the reference points, such influence must be addressed, and if such influence renders the data unreliable the rate data obtained from that point during the period of influence must be rejected. 6/ Rule 16B-33.024(3)(c), Florida Administrative Code. Historic shoreline change rates for the subject project are properly determined by reference to DNR reference monuments R-101 to R-106, located on Key Biscayne. Monument R-104 is the closest monument to the project site, lying approximately 180 to 200 feet south of the site, with the project lying between monuments R-103 and R-104. To facilitate an accurate determination of historic shoreline change rates, DNR has created the Beaches and Shores Growth Management Data Base (DNR Data Base), which consists of data from primary source maps from various governmental agencies, including the United States Coastal and Geodetic Survey, National Ocean Survey, and United States Geologic Survey. These maps have been digitized relative to the DNR monuments, which are located along- the coast at- approximately 1,000-foot intervals, and the resulting data is used to assess shoreline changes over time. Inherent in these shoreline changes are the effects of natural forces on the shoreline, such as wind, wave height, and temperature. Pertinent to this case, the surveys available in the DNR Data Base prior to 1989 were those of 1851, 1919, 1927, 1935, 1945, and 1962. In or about February 1989, DNR contracted with Florida State University to redigitize maps of Key Biscayne. As a consequence, the accuracy of existing data was enhanced and a new survey, the 1913 United States Coastal and Geodetic Survey Map, was added to the DNR Data Base. The addition of the 1913 survey to the DNR Data Base is significant to this case, since the proof demonstrates that the data derived from the 1919 survey is unreliable and should be disregarded. Accordingly, the surveys that may be reasonably relied on in this case are those of 1851, 1913, 1927, 1935, 1945, and 1962. In selecting the appropriate period to determine the historic change rate in this case, several factors should be considered. First, in 1926 a hurricane, which came very close to Key Biscayne, resulted in severe damage to the beach. This storm was reported as at least a 100-year storm event, and is the major storm of record for the area. The 1926 storm, as a naturally occurring event, should be taken into consideration in arriving at an historic erosion rate, but should not be allowed to bias the data. Accordingly, any survey immediately preceding it should not ordinarily be used as a starting point for determining an historic erosion rate, because it would overestimate the historic change rate. Similarly, the immediate post-storm survey of 1927 should not be used as the starting point for determining the historic change rate, since this data would overestimate the effects of the post-storm rebound (accretion), but ignore the erosion caused by the 1926 storm and artificially lower the erosion rate. Finally, the 1962 survey should be the most recent survey used to establish an historic erosion rate, since it marks the end of the predevelopment phase of the study. In the mid-1960's, shoreline structures (seawalls) were erected along portions of the coast, and a beach renourishment project was carried out at Crandon Park in 1969 resulting in filling at DNR Monument R-101. These events render post 1962 data unreliable in assessing an historic change rate. Here, the proof demonstrates that the appropriate time period for analyzing the historic change rate is 1851 to 1962. Based on an analysis of the historic change data for such period, the appropriate historic erosion rate for the project site is -2.3 feet per year. In reaching the foregoing conclusion, the Council's contention that pre-1919 survey data should be rejected in deriving an historic change rate because the construction of Government Cut had, by 1927, interrupted a littoral supply of sand in the neighborhood of 200,000 to 400,000 cubic yards of sand to the south has not been overlooked. However, the more credible proof demonstrates that the littoral transport of sand along this area of Florida's coast is approximately 10,000 cubic yards per year, and that little of that sand ever reached Key Biscayne. Accordingly, the construction of Government Cut had little, if any, impact on Key Biscayne. Also, notable to this conclusion is the fact that an analysis of the historic change rate from 1913 to 1962 calculates an historic erosion rate of -2.5 feet per year, an insignificant difference from that calculated for the period of 1851 to 1962, and the existence of an erosional trend at the central portion of Key Biscayne prior to the construction of Government Cut. Following the establishment of an historic erosion rate, the next step in assessing the expected location of the seasonal high-water line in 30 years in situations where, as here, the beach has been renourished, is a consideration of the effect and performance of such renourishment project. The importance of this analysis cannot be gainsaid, since a beach nourishment project may behave differently than the natural beach, as the nourishment may erode faster or slower than the natural beach or it may accrete. Factors which may cause a beach nourishment project to behave differently than the natural beach include project design, such as the length and width of the project, the seaward slope of the fill material, and the nature of the fill material; and, natural and manmade factors, such as offshore shoals, jetties, and breakwaters. The length and width of a project is very significant in terms of how long the project will remain in place. A project which is short in length will have a tendency to erode at a faster rate than a long project or the natural beach. This loss, referred to as "end losses" or "spreading-out losses," is not necessarily a loss of material from the system, but rather a redistribution of the sediment to the outer edges of the nourishment project. These spreading-out losses are caused by the project's exposure to waves that occur from offshore. As a nourishment project is exposed to waves, it reacts to the force of those waves by spreading out in an alongshore direction, resulting in a reduction in the overall width of the project. A longer project, such as the nourishment project in the existent case, will erode from the ends more slowly than a small project and, consequently, maintain its width and life for a greater period of time. The seaward slope of the nourished beach will also affect the project's performance. When a nourishment project is constructed, the seaward slope of the beach may initially be steeper than the slope which existed prior to nourishment, and may be irregular in shape compared to the natural shoreline. During the slope adjustment process, gravity and waves act on the shoreline to create a more natural slope and shape. During this process, the upland portion of the beach, as well as any irregularities in the shoreline, will experience shoreline recession, with the material being redistributed along shore and offshore. This adjustment process, and the effects it will have on the project's performance, may extend over several years after nourishment is completed. The grain size of the material used in the nourishment project can also affect the performance of the project. If the sediments used to construct the nourishment project are essentially of the same grain size and quality of the sediments which existed on the natural beach, then the nourished beach can be expected to perform, after initial slope adjustment, in much the same manner as the natural beach.. Natural features or manmade structures which may affect the performance of the nourishment project include the shoreline and offshore characteristics of the area that can increase or slow the rate at which the material may otherwise erode, or a groin or natural feature that would tend to confine the project and prevent or minimize spreading-out losses. Here, the nourishment project is a long project, approximately 10,000 feet in length. This factor will contribute favorably to the project's longevity. The material used in the nourishment project is very similar to that which existed on the natural beach. Therefore, after initial slope adjustment, the nourished beach should perform in a manner similar to the natural beach. Finally, the portion of the beach fronting the hotel is bordered to the north and south by areas which are historically stable or accreting. This factor should stabilize the ends of the project, and reduce the alongshore spread which would otherwise occur. In sum, after the slope and shoreline have adjusted to a natural profile and shape, the nourishment project should perform in a manner very similar to the pre-nourishment beach. While the nourishment project should ultimately perform similar to the pre-nourished beach, little time has elapsed since completion of the project for slope and shoreline adjustment or to demonstrate stabilization. Here, the nourished beach was profiled by man (bulldozers), with the reprofiling in she area of the hotel being completed around July 20, 1987. The Hotel submitted its application for the subject permit on January 14, 1988, together with a survey of the area dated August 1, 1987. Based on this survey, DNR proposes to establish the 30-year seasonal high-water line by horizontally shifting the profile depicted on the survey in a landward direction. To predict the performance of the beach nourishment over time, the Hotel offered the results of an analytical computer model run by Dr. Robert Dean, an expert in coastal and oceanographic engineering and coastal processes. That model predicts spreading-out losses," and considers site specific factors that will affect the nourishment project, including pre-existing shoreline conditions, size and quality of the beach fill, volume, length of the project, conditions at the end of the fill, and the affect of wave forces on the coast. The wave data relied upon by Dr. Dean to drive his model was derived from a wave gauge located just north of Government Cut. The wave characteristics at Key Biscayne are, however, dissimilar to those experienced off Miami Beach due to the wave damping characteristics of the offshore area of Key Biscayne. While dissimilar, Dr. Dean opined that the data from Miami Beach could be reliably used as a conservative estimate of the force of waves at Key Biscayne, and that his model would, thereby, present a worst case scenario or prediction of spreading-out loss of sediment on the nourished beach. Based on such analysis, Dr. Dean predicted that shoreline recession on the nourished beach, attributable to spreading-out losses, would amount to 28 feet over the next 30 years, most of which would occur in the early years of the project. When combined with the historic change rate of -2.3 feet per year for 30 years, Dr. Dean calculates that 97 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 102 feet landward of the seasonal high-water line. DNR also made an erosion projection to predict the performance of the beach nourishment over time. In its analysis, DNR relied on monitoring data Dade County had gathered regarding the performance of the project. Such data measured, at various monuments, the amount of accretion or erosion that had occurred within the first 6 months of the project, and the amount of accretion or erosion that had occurred over the next 12 months of the project. The data was not, however, complete for all monuments within 3,000 feet of the hotel, and was otherwise unpersuasive for reasons hereinafter discussed. In performing its analysis, DNR chose to focus on one monument, PL-5- DC, which is located 200 feet north of the hotel. The data at that monument showed that within the first six months the mean high-water line (MHWL) had receded 22 feet, and that over the next 12 months it had receded an additional 10 feet. Assuming a constant rate of erosion based on those two time points, DNR concluded that initial slope adjustment or stabilization would occur within four years, and that shoreline recession on the nourished beach over that 4-year period would amount to -41.6 feet. When combined with an historic change rate of -2.3 feet for the next 26 years, DNR's methodology calculates that 101.4 feet of erosion will occur at the subject site over a 30-year period, and that at the end of that period the proposed addition will be 99 feet landward of the seasonal high-water line. 7/ While Dr. Dean's model and DNR's analysis of Dade County data may yield similar results, neither methodology is, under the circumstances of this case, persuasive proof of how the nourishment project will perform or where the 30-year seasonal high-water line will be located. Here, the proof demonstrates that Key Biscayne enjoys a low-energy environment, and that the only force of significance ordinarily exerted along its coast occurs during the winter months when northeasters impact its shoreline. It is this wave energy that would, under normal circumstances, mold or adjust the seaward slope and shoreline of the nourishment project until it reached a more natural slope and shoreline, and after which the rate of erosion would be consistent with the historic change rate. However, since completion of the nourishment project, Key Biscayne has enjoyed unusually mild weather conditions, and the usual winter storms have not occurred. Consequently, the nourishment project has yet to be subjected to the forces of nature which can be reasonably expected to ultimately mold or adjust its seaward slope and shoreline. DNR's conclusion that the nourishment project will reach stability within four years, based on its analysis of the meager data provided by Dade County, is simply unpersuasive. That data, which appears on page 6 of DNR's exhibit 5, showed that at monument PL-5-DC the MHWL had receded 22 feet in the first six months of project existence and 10 feet over the course of the next 12 months. Based solely on these two measurements, DNR calculated a straight line decreasing rate of erosion to conclude that within four years the project would erode at the historic change rate. DNR's methodology and assumption, based on only two points of measure within the first 18 months of project existence, is not credible or persuasive proof of how the nourishment project will perform, and is rendered even less persuasive In view of the mild weather that affected Key Biscayne during such time period. Dr. Dean's opinion, based on his analytical computer model, which assessed shoreline recession on the nourished beach attributable to spreading- out losses, is likewise unpersuasive proof of how the nourishment project will perform. While Dr. Dean considered spreading-out losses and the historic change rate in reaching his conclusion, he failed to address offshore losses of sediment that will occur as the seaward slope of the project adjusts to a more natural profile. Here, the proof demonstrates that the seaward slope was constructed much more steeply than the natural slope, and that in the first 18 months of project existence significant quantities of fill have been lost offshore. At monument PL-5-DC the slope remains steep. Notably, while Dr. Dean calculated a spreading-out loss for the life of the project of 28 feet under what he termed a worse case scenario of wave height, the MHWL at the nourishment project has already receded 32 feet, under mild weather conditions, in the first 18 months of existence. Compared with Dr. Dean's and DNR's conclusions, the Army Corps of Engineers (Corps), which designed the nourishment project, calculated a loss rate of approximately 22,000 cubic yards of fill each year. Should the project perform consistent with the Corps' estimate of project life, it will have receded to the Dade County erosion control line within 10 years, and over the course of the next 20 years to a point such that the proposed addition would lie seaward of the 30-year seasonal high-water line. Under the circumstances of this case, a calculation of the probable location of the 30-year seasonable high-water line, based on the Corps' estimate of the performance of the nourishment project, is more compelling than that of Dr. Dean or DNR. 8/ Impact on the beach and dune system Where, as here, construction is proposed seaward of the CCCL, Section 161.053(5)(a)3, Florida Statutes, requires DNR to consider the potential impacts which the location of the proposed structures or activities may have on the beach-dune system. That system includes the beach, the dunes, and the overwash areas, which are interrelated by the sediment erosion and accretion process. 9/ DNR's analysis of potential impacts to the beach-dune system includes both short-term and long-term impacts of proposed construction. Short-term impacts are those which may arise during construction of a project and are often a concern in sensitive areas, such as those areas characterized by natural dune features and dune-stabilizing vegetation. Long-term impacts of a project may include increased flooding caused by a lowering of dunes and increased erosion caused by a lowering of dunes or by a net loss of sand from the beach-dune system. Impact to the beach-dune system can also be caused by increased pedestrian traffic associated with the construction of a major habitable structure. Pedestrian-caused impacts are, however, a potential concern only in areas where there are dune features and stabilizing vegetation which could be destroyed. In the absence, of these dune features, pedestrian traffic has no significant impact to the beach-dune system. Here, the site of the proposed construction does not have any prominent dune features or stabilizing dune features or stabilizing dune vegetation. In fact, the site is the present location of an asphalt parking lot, which extends 40 feet seaward of the footprint of the proposed construction. Construction of the project will not result in any net excavation of material. Since dunes will not be lowered and there will be no net loss of material, there will be no increased flooding or erosion caused by the project. Under such circumstances, the proof demonstrates that there will be no long-term or short-term impacts to the beach-dune system occasioned by the project. Adverse cumulative impact on the beach-dune system Section 161.053(5)(a)3, Florida Statutes, also requires DNR to assess the potential cumulative impacts to the beach-dune system that may be caused by construction seaward of the CCCL. Here, the proof demonstrates that the proposed project, either singularly or in combination with other existing or similar projects, would not have any adverse impact to the beach-dune system. Impact on adjacent property Construction activities proposed for a location seaward of the CCCL are also analyzed by DNR to assess their impact on adjacent properties. Rule 16B-33.007(2), Florida Administrative Code. Such analysis includes a determination of whether construction activities will be confined on-site; whether a lowering of dunes will occur such that increased flooding on adjacent property could occur; whether elevations on the proposed construction site will be lowered such that flooding of adjacent property could occur; and whether proposed construction, in the event of a major storm event, would potentially increase erosion on adjacent property. Here, the proof demonstrates that construction activities will be confined on site, there will be no lowering of the dunes or elevations, and that there will be no net excavation of materials such that any increased risk of flooding or erosion could occur to either the project site or to adjacent properties. Interference with public beach access One purpose of CCCL permitting is to preserve public beach access. Sections 161.053(1) and (5)(e), Florida Statutes. "Public access" is defined as "the public's right to laterally traverse the sandy beaches of this state where such access exists on or after July 1, 1987." Section 161.021(1), Florida Statutes. The public presently does not have east-west access to the beach at the Sonesta Beach Hotel, and is not entitled to such access by law. The Hotel does not propose to hinder existing north-south (shore parallel/lateral) beach access, and the proposed project would not impede such access until the seasonal high-water line receded to the project. 10/ While the project might limit lateral access at times once the seasonal high-water line recedes, such impact would be de minimis in the instant case since construction of the project would not be seaward of existing structures on the Hotel's property. Compliance with local zoning requirements In order for a permit application to be deemed complete, an applicant must provide DNR with written evidence, provided by the appropriate local governmental-agency having jurisdiction over the activity, that the proposed development does not contravene local setback requirements or zoning or building codes. Rule 16B-33.008(2)(c), Florida Administrative Code. By letter dated February 10, 1988, the Hotel submitted to DNR a letter from Metropolitan Dade County's Department of Building and Zoning which indicated that the site plan for the proposed project was consistent with existent regulations. On April 21, 1988, DNR deemed the Hotel's application complete. While not contesting the consistency of the proposed project with local regulations at the time the Hotel's application was deemed complete, the Council contends that subsequent events have rendered its proposal inconsistent with such regulations. In this regard, the proof demonstrates that the Hotel received site plan approval for the proposed addition from Dade County in November 1988, but that its application for a bull ding permit was denied and returned to the Hotel for further action. To date the Hotel has not sought to further process such application with the County. On April 4, 1989, Dade County enacted Ordinance No. 89-23, effective April 14, 1989, relating to construction seaward of the CCCL on Key Biscayne. Pertinent to this case, the ordinance prohibits the new construction of major habitual structures and severely restricts the construction of nonhabitable structures seaward of the CCCL, absent a variance. At hearing, no proof was offered that any portion of the proposed project would qualify for a variance, or that the nonhabitable portion of the project complied with the requirements of the new ordinance. 11/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the Hotel's application to construct and excavate seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
The Issue Whether Petitioner proved, by clear and convincing evidence, just cause to terminate Respondent's employment.
Findings Of Fact Hill was a School Board employee from 1978 up to and including December 15, 1999. In the 1999-2000 school year, Hill was assigned to Palm Beach Gardens High School. Although classified as a "teacher on special assignment," his employment responsibilities paralleled those of an Assistant Principal. Hill's job responsibilities included monitoring the halls, supervising the campus and working with students in various functions. He was also responsible for student discipline. Hill enjoyed his work with students and was good at it. He was very well liked by students and interacted positively with them. His authority was rarely challenged. In his last two annual evaluations, Hill was described as a "team player" who "maintains excellent rapport with all students" and serves a "vital role" in the operation of the school. Hill's life and previously unblemished career began to unravel on the night of December 16, 1999. Sometime around midnight, Hill was the subject of a traffic stop. Hill was driving a car owned by his sister, and was alone when pulled over on Atlantic Avenue, Delray Beach, Florida. Hill was detained because a Delray Beach police officer had observed that Hill's driving was erratic; that his left taillight was out; and the car's license tag was out of date. At all times during the traffic stop and the events which transpired after, Hill conducted himself as a "perfect gentleman." He was polite and fully cooperative with the police. After failing a roadside sobriety test, Hill was arrested and taken to the Palm Beach County Jail. Hill consented to a breath test, which revealed an unlawful blood alcohol level of .159/.158. The test result triggered an automatic suspension of Hill's driving privileges; however, those privileges were reinstated by the Department of Highway Safety and Motor Vehicles when it came to light that the so-called Intoxilyzer breath analysis machine on which Hill's test was performed had not been maintained in the manner required by law. While being held in custody, Hill's personal belongings, including the contents of his pockets, were taken from him at the jail. During this process, police claim to have found a baggie weighing 7.4 ounces and containing cocaine. The evidence established that at least two Delray Beach police officers were involved in the portion of the booking process which resulted in the alleged discovery of a "dime bag" of cocaine; however, at the final hearing, Delray Beach Police Officer Scott McGuire (McGuire) was the only witness produced by the School Board who claimed knowledge of the circumstances surrounding the alleged discovery of the baggie, which allegedly contained 7.4 grams of cocaine. McGuire's testimony fell far short of clear and convincing evidence that Hill did in fact possess a dime bag, a baggie, 7.4 grams of cocaine, or 7.4 grams of a substance containing cocaine. McGuire's testimony alternated general statements about what usually happens during the booking process with what happened with respect to Hill's booking on the night of December 16, 1999. McGuire's casual demeanor while testifying, coupled with the imprecise nature of the questions asked and the answers given by him, rendered the undersigned unable to conclude that an appropriate chain of custody had been maintained. In other words, the School Board failed to establish by clear and convincing evidence that the contents of Hill's pockets--and only the contents of Hill's pockets--were at all times accounted for and handled in a manner adequate to assure that no items were removed or added. Initially, the School Board, relying solely upon police reports, asserted that the baggie alleged to have been found in Hill's possession contained 7.4 grams of cocaine. That assertion was negated by Gina Evanzia (Evanzia), Senior Forensic Scientist for the Palm Beach County Sheriff's Office Crime Laboratory and the only School Board witness with personal knowledge of the actual baggie alleged to have been found among Hill's possessions. Evanzia testified that the baggie which the School Board attributed to Hill was not large enough to hold 7.4 grams of anything. The baggie provided to Evanzia for testing and alleged to have come out of Hill's pocket contained 18 milligrams of a substance which contained cocaine, and not the 7.4 grams alleged to have been found in Hill's possession on the night of December 16, 1999. At the time of Hill's arrest and at final hearing, neither McGuire nor any other witness provided a useful physical description of the baggie alleged to have been in Hill's pocket. The gaps in McGuire's testimony coupled with the unexplained discrepancies between the 7.4 gram baggie alleged to have been found in Hill's possession and the much smaller baggie about which Evanzia testified makes it impossible to determine what, if any, contraband was found on Hill's person. The alleged discovery of the 7.4 gram baggie resulted in the police recommending that Hill be charged with introducing contraband into a correctional facility. Declining to do so, the State Attorney instead charged Hill with possession of cocaine. Prior to the time Hill was transported to the jail, the arresting officers searched Hill's sister's car for contraband. Finding none, the police made arrangements for the car to be impounded and towed to a privately owned lot for storage. After the car was placed in the custody of the towing company, one of its employees claimed to have found two more baggies alleged to contain significant amounts of cocaine in plain sight on the floorboard of the car. Police tested the baggies for fingerprints but found none. There is no credible evidence that there was any cocaine on the floorboard of the car while it was in Hill's possession and control. The testimony of Officer V. Gray (Gray) that he failed to spot the baggies "[because he] didn't have a flashlight to go through the car real good" was so implausible that Gray was readily cross-examined out of it on the next page of transcript. 1/ No criminal charges were brought against Hill on account of these baggies. Although Hill had substantial and legitimate defenses to the criminal charges which the State Attorney did elect to file, Hill accepted responsibility for the arrest by accepting the State Attorney's offer to enter into a plea bargain which would take into account Hill's previously spotless record. The State Attorney, believing that Hill should be afforded an opportunity to atone for the aberrational events of December 16, 1999, and to rehabilitate himself, permitted Hill to plead guilty to a misdemeanor charge of driving while intoxicated, and to dispose of the cocaine charge by entering a pretrial intervention (PTI) program. At the time of the final hearing, Hill was in full compliance with all of the terms of the PTI agreement. At all times material to this case, Hill was appropriately contrite about the DUI arrest. He was and is willing to demonstrate his contrition and his commitment to public service by accepting any assignment, coupled with any degree of probation and/or supervision deemed appropriate by the School Board, to assure that he is fully rehabilitated before being allowed to resume contact with students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order reinstating Hill's employment with the School Board with back pay and benefits retroactive to the date of termination. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 13th day of June, 2001.
Findings Of Fact In April, 1976, Petitioner City of Miami, Florida (hereinafter "City"), filed application with Respondent Department of Environmental Regulation (hereinafter DER), for a construction permit and water quality certification to fill submerged land which it owned in Biscayne Bay adjacent to the City's Bayfront Park. The proposed project, as finally developed, was described by DER as follows: The project would involve the filling of 2.06 acres of submerged land, owned by the City of Miami, in Biscayne Bay. A dock, varying in width from 15 to 45 feet, would be constructed adjacent to the bulkhead to provide temporary berthing space for 5 to 6 boats. Riprap would be placed waterward at the bulkhead and an artificial reef constructed next to the bulkhead/riprap. The stated purpose of the project by Petitioner in its letter of April 2, 1976, transmitting the application, was for the "redevelopment and eastward expansion of the present Bayfront Park." The application enclosed approval of the proposed project by the City Commission of the City of Miami and a biological assessment of the proposed construction by the Department of Natural Resources. (Exhibit 15) The project assessment by the Department of Natural Resources was set forth in a letter to the City, dated April 16, 1975, and was predicted upon an original proposal to fill some 6 acres of submerged land. The agency stated that the sparsely vegetated intertidal zone of the proposed fill area was of limited biological significance, but that filling open-water area would permanently remove it from the Biscayne Bay Aquatic Preserve, and that the cumulative effect of many such fill projects could have massive adverse biological effects on the preserve. It concluded that restoration of productive intertidal communities should be encouraged by the addition of sloping riprap along the face of the existing seawall. The Florida Game and Fresh Water Fish Commission contributed its views to the DER by a letter, dated July 14, 1976. It agreed that the area had limited biological productivity, but that filling it would result in permanent removal of open-water habitat from the preserve and set a precedent for similar projects. It therefore recommended that a permit not be issued. The Director of the Metropolitan Dade County Environmental Resources Management, by letter of July 12, 1978, also provided an evaluation of the application to DER. He and his staff found that the proposed construction represented the least amount of filling necessary to eliminate an existing shoreline configuration which served to trap a variety of floating debris, and would eliminate an aesthetically undesirable condition adjacent to the park by improving water circulation. It also stated that the low biological productivity of the area was due to the lack of a suitable habitat for the establishment of a viable benthic community, and that the proposed riprap and artificial reef should provide such a habitat and thus increase the productivity of the area. He stated that the proposed shoreline treatment would allow greater access to the Bay by the non-boating public and additional access to the park by boaters using the proposed dock area. Accordingly, that agency recommended approval of the permit subject to certain conditions as to the method of construction and the prevention of turbidity during the construction process. A further report of the Director, dated July 25, 1978, stated that an underwater survey of the proposed area showed a low diversity of benthic invertebrates and concluded that filling the area would not destroy a viable productive community, but would cover a sparsely populated, unproductive, barren mud bottom. (Exhibits 4-5, 12-13). The DER staff evaluation of the project, as contained in a report of Doctor Thomas L. Hart, agreed that the sparsely vegetated area which supported only small populations of various marine life would improve by the placement of riprap and an artificial reef by providing a habitat for a variety of invertebrates and protective cover for small fish. This report further found that filling the cove area would not destroy a productive marine community or produce a significant adverse water quality condition if proper techniques were used in the fill operation. Dr. Hart therefore concluded that the project met the requirements for a permit under Chapters 253 and 403, Florida Statutes. However, he concluded that the project would not qualify for an exemption under Section 258.165, Florida Statutes, the Biscayne Bay Aquatic Preserve Act. He found that placement of riprap for seawalls was required under that Act and any benefits derived from the construction of the artificial reef could not be used to justify filling the submerged land. He also stated in his report that elimination of the cove area to prevent the collection of debris was unnecessary since alternative means of removing the unsightly material could be developed. Dr. Hart therefore recommended that the permit application be denied. This recommendation was adopted by the DER in its Intent to Deny and Proposed Order of Denial issued to the City on October 27, 1978, which predicated its proposed denial on the inability of the City to demonstrate compliance with Section 258.165, Florida Statutes. (Exhibits 11, 17). The project will eliminate a cove created by the construction of Miamarina which is adjacent to the project area. The cove is bounded on its northern side by a 300 foot riprap revetment, on the western side by vertical sheet steel bulkhead fronting Bayfront Park, and on the eastern side by Biscayne Bay. A 1977 study of hydrodynamic factors affecting the area by an expert in oceanography and tide hydraulics showed that the cove was a "dead pocket" that, together with the adjacent riprap, collected floating debris in an eddy from lack of water circulation. He found that the debris, such as paper cups, old tires, and dead animals, and the like, was moved to the cove area by wind and that there was insufficient tidal action to flush it out of the area. He concluded that by redefining the shore to provide a straight line and extension of the outer bulkhead of the Miamarina to where it would meet the existing Bayfront Park bulkhead would provide maximum current velocity to move debris along the new bulkhead and eventually carry it into the Atlantic Ocean. He is of the opinion that any area of fill less than the 2.6 acres created by such a bulkhead would not sufficiently eliminate the existing problem of water circulation. Biological studies of the site by experts in the field show that it is a low area of biological productivity which is primarily attributable to turbidity of the waters and the silt-clay bottom which is anaerobic and receives stagnant material, thus providing degraded water quality and a poor habitat for the growth of plant and animal life. The proposed placement of riprap and the outside artificial reef below the low tide mark will provide places for attachment of marine organisms and an excellent refuge for a greatly increased variety of marine species. The marine organisms presently found in the area are much sparser than those in a normal area of the Bay. They are found mainly in the dredged mud bottom which is not considered to be a natural shoreline area. The collected debris at the site presents a serious maintenance problem for the City and engenders complaints from the public. Although greater than normal efforts are made to keep the area free of such litter, it is a continuing maintenance problem and detracts from the aesthetic value of the park and Biscayne Bay. (Testimony of Michel, Morrisey, Voss, Howard, Exhibits 1-3, 7-10, 14, 16). The proposed project is part of a comprehensive plan to enlarge and restore Bayfront Park to integrate its facilities in the environment, improve the appearance of the area, and increase use of the Bay. It is planned that an amphitheater, restaurant, and promenade will be constructed at the filled site sometime in the future. (Testimony of Ambruster) DER staff personnel who testified at the hearing agreed with the City's experts that the project site is not a natural condition and that conditions there are not conducive to the support of a large benthic population. They also agreed that the proposed construction has the potential for increasing biological productivity of the area. However, they were of the opinion that the project was unnecessary, would result in a loss of a portion of the Bay, and therefore was contrary to the intent of the Biscayne Bay Aquatic Preserve Act. (Testimony of Jones, McWilliams, Hart)
Recommendation That the application of the City of Miami, Florida for the requested permit be approved, subject to standard and customary conditions attached to the issuance of such a permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 14th day of August, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Randall E. Denker, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 G. Miriam Maer, Esq. Assistant City Attorney City of Miami 174 East Flagleer Street Miami, FL 33131 Jacob Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CITY OF MIAMI, FLORIDA, Petitioner, vs. CASE NO. 78-2183 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, ET AL., Respondent. / BY THE DEPARTMENT:
Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
Findings Of Fact Petitioner, JOHN C. GROSS, a citizen and resident of Edgewater, Florida, owns approximately 114 acres of submerged and semisubmerged land, which at times extends from 3 to 9 feet above the water and which lies in the near vicinity of Ponce de Leon Inlet, New Smyrna Beach. His property is located due southwest of the inlet and west of the Intracoastal Waterway. The Intervenor, FRANCES TURNER PRICE, is the owner of an oceanfront house and lot located at 2113 Ocean Drive, New Smyrna Beach, Florida, which is directly adjacent to and west of a portion of the proposed spoil disposal area referenced herein. The Ponce de Leon Inlet was first dredged by the COE in 1968, pursuant to a 1965 Act of Congress, and has been dredged periodically since that time. No dredging has taken place there since March, 1978. During the past several years, numerous complaints have been received by the COE from users of the waterway concerning the increased clogging of the inlet channel. These users include operators of relatively large boats, such as commercial fishermen and shrimpers, large yacht owners, and the United States Coast Guard, which maintains and operates a station in the area. Based on these complaints, Mr. Aston, COE Navigation Branch, caused an investigation to be made which revealed an extensive and worsening shoaling which, if not corrected, would further reduce the channel opening. This investigation included several hydrographic surveys using Fathometers (accomplished in November, 1952, and subsequently thereto). The channel, which runs basically east and west from the Intracoastal Waterway to the Atlantic Ocean, is currently navigable (but not safely) by larger draft vessels such as are described above. Because of the prevailing winds from the northeast, larger vessels come in from the northeast; have to come around the jetty, which juts into the ocean north of the channel; and then have to stay close to the jetty to avoid the heavy shoaling in the dredged channel originally in the center of the inlet. 1/ This is dangerous because sport fishermen are frequently anchored in the water just south of the jetty, in the way of the boats going in and out. This danger is compounded by the fact that boats going in and out cannot see each other, because of the jetty to the north and the land to the south, until they both are committed to the channel. Therefore, once in and committed, they are in danger of collision because of the narrowness of the passage and the need to avoid the small fishing boats anchored therein. As a result, the original channel, which provides safer passage, needs to be dredged again immediately to prevent more groundings and collisions with resultant loss of life and property damage such as the 50 which have already occurred there within the past 15 months. In the opinion of Mr. Aston, the situation in the Ponce de Leon Inlet, as it pertains to shoaling, is the worst he has seen in any federal channel in 19 years. It is for these reasons that during the 1982-83 time frame, the COE decided to seek permission to proceed with a dredging project. Initially, three different areas were considered for disposal of the 800,000 or so cubic yards of spoil which would result from the dredging. These were: off the beach north of the north jetty; just south of the weir to which the north jetty is attached; and the beach area approximately one mile south of the inlet. For various reasons, Options (a) and (b) were rejected, and Option (c) was the area then intended for the spoil disposal. The initial application, submitted on November 10, 1982, called for the spoil to be transported by pipe over easements down the beach to the disposal area, where it would then be dumped on the beach to fill in the area of beach eroded and eroding. However, because of public objection to that plan, the COE agreed with the local beach advisory board to move the spoil 1,000 feet offshore to an area approximately 800 feet by one mile long, adjacent to the beach approximately one mile south of the inlet. In any event, both the original application and the amendment thereto (to change the location of the spoil disposal area) called for only one procedure--not multiple dredgings and disposals. This proposed permit, which is objected to by Petitioner and Intervenor, indicated permission for more than one procedure. Intervenor protests this even if permission is to be given for the initial dredging. However, Dr. Collins, from DER, indicated that since a determination was made that the action would have no adverse impact on the environment, there was nothing wrong with giving permission for multiple dumpings. In fact, the Notice of Intent to Issue contains Provisions for monitoring the turbidity caused by the operation and also provides for DER modifications to the conditions or other provisions of the permit as necessary, and recognizes COE's assurances that the immediate and long-term effects of the project will not violate state water quality standards. The spoil, which consists almost exclusively of beach quality sand and which is highly valuable, will be laid down in a berm-shaped deposit the top of which will, at low tide, be no less than 6 feet below the surface of the water. In that configuration, it could not be seen from shore and would in no way impede navigation. The decision to dispose of the spoil in this fashion was made partially on the basis that it would tend to put sand back on the eroded beach in the area. Intervenor theorizes that the spoil (sand and water) will not form this neat berm, but will spread out when it comes out of the dredge pipe below the surface of the water. COE indicates that the contractor on this project will use some sort of a buffer to contain the spread upon discharge. It is anticipated that this project will have to be repeated again and again to keen the channel clear. Though the 800,000 cubic yards anticipated for removal on this occasion is great, so much has never been taken out here at one time before. This is because, as was stated previously, the last dredging was in March 1978, and COE estimated that dredging should take place every 16 months or so. If done on that schedule, succeeding dredgings will be of a far less significant amount. Petitioner, whose profession is as a real estate developer, but whose avocation is as a conservationist of marine life, contends he has been involved in environmental research and protection all his life (he is at least 70). He has, he states, developed several environmental concepts which have, he contends, never been disproved. They are not, however, enjoying widespread acceptance, either, though he contends the Rosenstiel School at the University of Miami has said his environmental concepts are sound. This well may be so; however, Mr. Gross neglected to produce any evidence as to what these concepts are or indications of their soundness. Though he admits to having no formal training in any of the sciences or in engineering, and his research consists of bathing and fishing in the area (he uses a device to gather bait which results in his picking up a part of the sea bottom) he has published. The Petitioner's publication introduced into evidence consists of the reward notice reproduced herein. $2,000 REWARD To make the public aware of hypocritical groups who mislead and misinform the public about environmental protection, I will donate $1,000 to the first organization, agency, student or individual who produces evidence to prove beyond reasonable doubt that excessive nutrients consisting of mangrove leaves and pods, algae, slime, scum, silt and bacteria, and decaying bodies of all types of insects and creatures emanating from mangrove swamp area DOES NOT cause destruction of shellfish and all forms of marine plant life when infused in excessive amounts into rivers and estuaries by extremely high tides and heavy rainstorms. $1,000 to the first organization, individual, or student who provides evidence to prove beyond reasonable doubt that recent high tides caused by full moon and heavy rains washing through mangrove swamps DID NOT cause most of the crabs, shrimp, and fish to be destroyed or leave this area when the river became polluted with all types of slime, scum, silt, sludge, and mangreve debris, and droppings of birds and animals and all types of decaying material from the mangrove swamps carried into the river by the tide. John C. Gross PO Box 596 New Smyrna Beach, Fl 32069 Though Petitioner was offered the opportunity by the Hearing Officer to submit additional publications when he indicated he had many and was reminded of this later in the hearing by the Hearing Officer, none were forthcoming. Petitioner professes to be very familiar with the area where the dredging and disposal are to take place, and no doubt he is. He contends the area is in a constant state of change, differing from month to month, and populated by a sea life consisting primarily of shellfish, shrimp, and fish. The beach in the area proposed for disposal, he contends, has already built out some 400 to 500 feet since the jetty was built and has naturally built up dunes which, in his opinion, are due to the COE dredging in the past. This beach buildup is a concern of the Intervenor, as well, who indicated that she can no longer see the ocean from her "oceanfront" house due to the large dunes that have built up between her house and the ocean during the years since the construction of the jetty. She is also fearful that the spoil dumped offshore of her property will come ashore there and add to the already expanded beach. Her concerns and those of her neighbors, including Mrs. Speer, who testified in support of Intervenor's position, include the blocked view already mentioned, the fact that the higher dunes are difficult for older people to climb, the fact that it is further to the water with the new sand, and the concern over who will own the new land built up seaward of the vegetation line. 2/ People are already building closer to the water than she did, blocking her lateral view; and all of this will have, she fears, a negative impact on the value of her property. It is without question that dunes have built up and beach area has accreted since the jetties were put in. This is explained by Dr. Dean as a relatively temporary situation resulting from the movement ashore of a preexisting tidal shoal, formerly located outside the entrance to the Ponce de Leon Inlet, which was destroyed by the interruption of the wave action when the jetty was built. The sand from this shoal came ashore at and around the Intervenor's property, as well as north and south of it, adding to the beach and building the dunes. This accretion has stopped, however, and even reversed, and a beach erosion has begun. In any case, according to Dr. Collins of DER, accretion is not usually a consideration in the decision-making process regarding a permit of this nature. Petitioner indicated his understanding that the spoil was to be deposited 3 feet deep over the bottom in the disposal area and believes this will destroy marine life. As will be seen later, competent expert testimony clearly disproves this one theory. He also does not believe anyone can predict where the spoil will settle, but wherever that is, in his opinion, it will have a devastating effect both on the marine life in the area and on the adjacent beaches. He questions the COE's representation that because of the literal drift's prevailing direction from north to south, the spoil will ultimately settle south of the spoil dumping area. Expert testimony, discussed in detail below, will indicate the correctness of the COE's representations. Petitioner further contends that insufficient surveys have been made of the area. In his opinion, the two or three borings that have been done (in actuality, there were more) are not sufficiently extensive since the area in question is too broad and the bottom is not uniform. Therefore, many more borings are needed, he urges, to accurately determine the makeup of the sea bottom. This bottom makeup has an effect on water quality. Sludge, slime, and silt adversely affect water quality. Clean sand is acceptable. However, Petitioner feels that the dredging proposed may, if the bottom where they dredge is of peer quality, be very bad for the bottom in the deposit area. In that regard, it has been shown that the tests done already indicate that the material to be dredged out of the channel is beach quality sand. Other evidence, in the form of samples of the bottom taken in the disposal area, show it is made up of sand with small shells. In neither location is there any evidence of silt, sludge, or slime. In fact, the expert testimony indicates clearly there would be no damage to water quality in either area. A more comprehensive discussion of this subject will be presented below. Petitioner also fears for the manatees and the sea turtles which sometimes come into the area. The expert testimony to be discussed further below readily shows these fears are groundless. It would appear that there may be some reason for Petitioner's interest in this project other than the stated environmental and ecological concerns stated above. By his own testimony, he revealed he had offered to buy this highly valuable 3/ spoil for $400,000. Mr. Aston, of COE, further testified that as late as one week prior to this hearing, Petitioner called him and indicated the matter could be disposed of quite easily if the COE would put the spoil on his property. The Notice of Intent to Issue and the permit to which it relates are not for a one-time dredge. The permit will be for 5 years, but it 15 subject to extension by letter for an additional 5 years. In the analysis of the application, the environmental concerns and the concerns of the public were not taken lightly. The DNR, by letters dated March 9 and June 28, 1983, expressed its lack of objection to the proposal and granted the authority required under Section 253.77, Florida Statutes. The contract is to begin in September, 1984, and be completed by April, 1985. These months were chosen because (a) they take advantage of the northeast winds prevailing then; and (b) there is no sea turtle nesting during this period. Consequently, there would be no risk of harm to the sea turtles. In addition, the risk of harm to the manatees is minimal. They, as a rule, do not frequent these waters, preferring the quiet backwaters of the rivers and bays to the fast moving waters of the channel or the ocean, and they are generally fast enough to avoid both the dredge and the dump. To be doubly safe, however, the contract calls for a "manatee watch" to be conducted and a log kept of all manatees sighted. Another area covered in the contract is water turbidity. Turbidity will be monitored and actions taken to maintain state water quality standards outside the mixing zone--that area inside of which the water temporarily does not meet state standards and outside of which it must. In this case, this zone would extend not more than 150 meters from each point of interest. COE's application contained reasonable assurances that the state's turbidity standards would not be exceeded more than 150 meters from both the dredge and spoil areas. Tests already run on anticipated turbidity show a rapid (4-minute) settlement out due to the fact that the substance being dredged is heavy sand, not light silt. Continuing with an analysis of the impacts of the project which cannot be avoided, on life in both the dredge and the fill areas, it is seen that: Some nonmobile animal life attached to the sea bottom (worms, etc.) in the spoil area which cannot escape being covered by the spoil will be killed. Some sea life sucked up by the dredge and moved will be killed even though they are dumped back into the water in the spill area. However, wherever some death occurs, it will be individuals, not entire populations, and the dump area will be quickly repopulated by sea life from the surrounding area in addition to the live population brought through the pipeline. Full repopulation can be expected within six months. In a more detailed discussion of the disposal site, it is clear that because of the wave action and the hard bottom, one would expect no grass beds, and there are none, nor are there any natural reefs. A survey of the bottom in the disposal area was done by utilizing loran to accurately locate 12 stations throughout the spoil disposal area with three samples to be taken at each site. At seven of the twelve stations, the scientists found the bottom hard and no sample was produced. At only one of the stations, Station 6, some samples were gathered, and what was acquired was very similar to the surf area near the shore. Dr. Atmar admits that the dumping will create some damage to the bottom life and repeated dumping may have a cumulative effect. However, since, as was stated above, complete repopulation can be expected within six months, the damage caused by dredging and dumping every 16 months, even of large amounts of spoil, will be, in his words, "inconceivably insignificant," and that which does occur will be short-lived. Turning then to the question of the impact of the spoil disposal on the beach property adjacent to the disposal area, Dr. Dean explained the prospective results, as well. In conjunction with other experts in sediment transport and based on at least 20 years of accumulated documentation, he developed a model which, when applied to a given situation with variables, can generally permit accurate predictions of what will happen. Applying this model to the dredging area, it is seen that the primary factor which leads to sediment transport here is the wave action which primarily comes from the northeast. This will transport sediment from the north to the south. When the present channel was dug, it interrupted the normal cycle, which, in an attempt to return to the natural flow, fills up the channel. This necessitates new dredging. Applying the model to the disposal area, again the waves play an important part. Based on all available pertinent information, the spoil deposited would generally transport to the south with a very minor amount, + 5 percent going west and another + 5 percent going north. Both the westward and the northward movement would be very slow. The remaining 90 percent of the spoil would move to the south and would reach the shore a mile or two south of the southern boundary of the proposed disposal area. Of this 90 percent, 50 percent would reach the beach within three to four years--the remainder would take longer. The amount of deposited spoil that would go due west to the adjacent beach would be less than would accrete during the normal seasonal accretien. What is more, the proposed disposal activity would have an imperceptible effect on the elevation of the dunes which already exist. The difference between Dr. Dean's estimate of 10 Percent drift to the north and west and COE's estimate of 20 percent sand drift in those two directions is not significant. Both are estimates, and not specifics. As was stated previously, the spoil in question here is a highly valuable beach quality sand with no evidence of muck, slime or silt. If it were to be deposited further out to sea than is proposed here, where the wave action could not get to it, it would be lost to the littoral transport action and would never come to the beach. This would result in the loss of a high quality resource to the beach in an area to the south where the beach is in need of replenishment, and further beach erosion to the south where the existing dunes are eroding due to the effect of the building of the previously mentioned jetty and because of the worldwide rise in the sea level. Admitting he was hired to testify by the COE after the decision was made as to where to deposit the spoil, Dr. Dean contends that had he been asked where to put it before the decision was made, he would have recommended a site closer to shore, but at the same latitude.
