Findings Of Fact The Petitioner, Dr. Jack G. Nichols, is a resident of the State of Illinois. He and his parents have, for many years, owned property on Dog island, a barrier island in Franklin County, Florida. Dr. Nichols owns Lots 107 and 108 on Dog Island, and has for many years entertained plans of building a beach house on each lot, consisting of a single-family residence for himself on Lot 108 and such a house on Lot 107 for his parents. Dr. Nichols has the habit of visiting Dog island to inspect his property on his vacations and has done so from time to time prior to April, 1984. Over the years he conceived of the general type of house he wished to build and determined prior to April, 1984 to locate the houses landward of the then-existing Coastal Construction Control Line. Pursuant to Chapter 161, Florida Statutes, the Department of Natural Resources undertook to survey and delineate a new Coastal Construction Control Line for Franklin County. The location of that line is described in Rule 16B- 26.14, F.A.C. and the new jurisdictional line became effective on April 30, 1984. Dr. Nichols came to Dog Island for his vacation in April, 1984, at which time he learned for the first time that the Department of Natural Resources had adopted the new Coastal Construction Control Line. After hearing of this new jurisdictional boundary from other property owners on the island, he sought to determine how that newly-defined boundary would affect his property and his plans for constructing a beach house. He observed aerial photographs depicting the Coastal Construction Control Line which would take effect April 30, 1984. He determined that the sites he had selected for the houses on his lots would be seaward of the new control line, as opposed to the preexisting line which he had taken into account in selecting his original home site. He also learned that if the houses he envisioned were under construction upon the effective date of the new Coastal Construction Control Line then he would be able to proceed with their construction without having to obtain a permit from the Department of Natural Resources. The Petitioner had not originally intended to construct the houses on his lots as early as April, 1984, but he became concerned that if he did not commence construction prior to the effective date of the new control line, he would not be able to place the houses at the location he had previously planned for. Thus, he took steps to retain a contractor and commence construction immediately. The Petitioner contacted Mr. William A. Shults, a contractor with experience building in the coastal areas of Franklin County. Mr. Shults was available and able to undertake construction activities and the two parties entered into a contract calling for construction of a beach house for both lots on approximately April 20, 1984. Mr. Shults immediately had necessary engineering work accomplished, had plans drafted for the structures and retained a construction crew. He cleared sufficient area on both lots to accommodate the residences and thereafter, on April 26, obtained a building permit for the structures. Materials were delivered to the island by landing craft on April 26 and 27, 1984. Mr. Shults also had a truck equipped with an auger or drilling equipment transported to the island and placed on the job site on or before April 27, 1984. The plans called for construction of the houses with a piling or pole foundation, so that the houses would be constructed above the specified flood levels. The poles and other materials necessary for construction of the foundation had all been delivered by April 27, 1984. The foundation lines were marked, the corner "batter boards" placed and other minor site preparation accomplished. The holes for the piling were to have been drilled on Saturday, April 28 but the trucks with the auger machine aboard, suffered a broken axle prior to its being positioned on Dr. Nichols' lots so that it was impossible to get the auger machine to the lots on April 28 or 29. Mr. Shults and his crew attempted to pull the truck to the site, but the difficulty of the terrain rendered that impossible. There was one other piece of auger equipment on the island, but its owner was engaged in construction activity with it at the time. That person agreed to bring his machine to the site on April 29 and begin augering and placing the poles for the pilings. His work became behind schedule however, and his machine was still involved in construction activity at his own site and could not be brought to Petitioner's site on that day. Mr. Shults, upon learning that the augering machine would not be available when needed, began commencing hand-digging of the pilings with post hole diggers on April 29. This method was a slow and laborious process because the holes had to be excavated much deeper than the length of the post-hole diggers. As a result, when the hole was dug as deep as the post-hole digger could reach from the surface of the ground, a hole had to be dug alongside the piling foundation hole so that a crew member could stand down in that hole and thus dig the piling hole deeper, handing the post-hole diggers with each load of dirt up to another crew member on the surface to dump, who would then hand the post-hole diggers back to the lower-placed crew member. This made the process of digging the foundation piling holes much slower than the use of the auger equipment. In this manner, however, Shults succeeded in digging four foundation holes on Lot 105. At that point, the augering machine arrived on the site and four piling holes were dug and the pertinent poles placed in them on Lot 107 as well. Throughout this construction process, Mr. Shults' crew was working on both foundations at one time. This allowed for less costly construction due to the efficiency of undertaking the same kind of work on two structures with the same crew at the same time. Since the two lots and construction sites adjoined each other, one crew could efficiently be used for both construction sites in an economic fashion. On April 30, Shults' construction crew proceeded to work on the structure on Lot 108 to further secure and place foundation posts. The four pilings placed in the holes on Lot 107 the day before remained in place. The construction crew and most of its equipment, and most construction work, was proceeding on Lot 108 merely because of the order of Mr. Shults to his crew to finish placing the foundation posts on that lot first, on that day. During the morning of that day, representatives of the Department arrived on the site and advised Mr. Shults that the construction activities appeared to be illegal and seaward of the Coastal Construction Control Line. They advised him that any further activity of that type would be undertaken at his and the lot owner's risk and expense. Mr. Shults thus ceased activities on both lots for a time, but during the following week, after discussing the dispute with certain Department employees, arrived at the opinion that the owner's construction activities had achieved grandfather status and that no permit from the Department would be required. He thus undertook to finish placing the foundation pilings on both lots. All the foundation pilings were installed on both lots by the end of the second week of May, 1984. Mr. Shults then contacted Dr. Nichols by telephone in Illinois informing him about the progress of the job, including the height of the piling. During this conversation Dr. Nichols became concerned that the pilings on Lot 107 did not project above the surface of the ground as far as he had anticipated, thus obstructing his view of the Gulf of Mexico from the beach house which would be constructed on top of the pilings. The view would be obstructed by the existing sand dune which Dr. Nichols had not wanted to disturb, hence locating his house in the more landward position at issue. In order to provide the desired view of the Gulf over the intervening sand dune, Dr. Nichols instructed Mr. Shults to replace the existing pilings on Lot 107 with longer ones. Mr. Shults purchased new pilings, had them delivered to the site, removed the original poles and installed the new ones in their place in the same holes, including the four holes that were dug prior to the effective date of the Coastal Construction Control Line. Dr. Nichols and Mr. Shults established that the original poles had been placed with the intention that they would be the permanent foundation for the house and no decision was contemplated nor made concerning their removal and replacement with the longer poles until after the foundation was fully constructed. In any event, by its letter of May 21, 1984, advising Dr. Nichols of the alleged violation of the Coastal Construction Control Line, the Department made a "free-form" determination that the construction activities on Lot 107 before April 30, 1984, were not sufficient to confer "grandfathered" status and that the activities were illegal unless a permit was obtained. The subject petition was filed and this proceeding ensued. It is true that Dr. Nichols' original intent was not to commence construction of the beach houses as soon as he did in April, 1984 and that he only began construction at that earlier time when he learned of the impending effective date of the new Coastal Construction Control Line which would require him to obtain a permit before constructing the houses at the sites he had previously selected. However, it is equally true that Dr. Nichols' bona fide intention when he retained Mr. Shults to commence construction was to not merely clear the site and place pilings and then construct the houses at some indefinite later time, but rather to commence construction and pursue construction activities on an ongoing, uninterrupted basis through to completion of both houses on both lots. If the Department had not intervened with its letter to the effect that the Petitioner might be in violation of the Coastal Construction Control Line, construction activities on Lot 107 would have continued to completion in an uninterrupted fashion. Prior to the effective date of the Department's Coastal Construction Control Line, the Petitioner's construction activity, involving the excavation for and placing of the foundation pilings for the residence to be on Lot 107, was undertaken and engaged in a continuous, uninterrupted fashion. The decision to remove the original pilings and replace them with longer poles was not envisioned, intended or made prior to the completion of the entire pole foundation for the house on Lot 107 in the first or second week of May. It was only at this time, when the poles were all installed, that it was determined by the owner and Mr. Shults that the original pilings were not long enough to confer a sufficient view of the Gulf from the house to be constructed on top of them. Thus, the removal of the original pilings and the replacement of them with longer poles in the same holes the original pilings had been installed in, was not an interruption in the construction activities, but was rather the correction of a deficiency in the original materials. This replacement did not involve an alteration or modification of the design, extent and type of materials of the original foundation (except to the immaterial extent that the replacement poles were round instead of square). In short, the construction activity undertaken after April 20, 1984 was a good faith effort to commence construction on the house on Lot 107 and continue it to completion in an uninterrupted fashion. The parties, Dr. Nichols and Mr. Shults, intended from the beginning to use the poles first placed in that foundation as the ultimate foundation for the structure, and did not intend merely placing those original poles, which were later removed, as a subterfuge to obtain a grandfathered status for the construction activity. The construction was landward of the Coastal Construction Control Line as it existed prior to April 30, 1984.
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, therefore RECOMMENDED: That the Department of Natural Resources enter a Final Order determining that the structure on Lot 107, Dog Island, Franklin County, Florida is not in violation of the Department of Natural Resources permitting authority. DONE and ENTERED this 25th day of September, 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 25th day of September, 1985.
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Petitioners' application for a permit to construct a dwelling in Walton County, Florida, should be approved, pursuant to Chapter 161, Florida Statutes. In January of 1984, Respondent Department of Natural Resources provisionally denied Petitioners' application for a permit pursuant to Chapter 161, Florida Statutes, to construct a dwelling on their property in Walton County seaward of the existing coastal construction control line. Petitioners requested a hearing pursuant to Section 120.57(1), alleging that the denial of their application was unlawful on constitutional grounds and that it exceeded Respondent's discretionary powers under Chapter 161. The request for hearing was referred by Respondent to the Division of Administrative Hearings, Case No. 84-0508. Thereafter, Respondent's motion to strike those aspects of the petition alleging the unconstitutionality of the proposed denial was denied on the basis that Petitioners properly may preserve such matters for any appellate review. Thereafter, Petitioners sought to amend their petition to allege the invalidity of certain of Respondent's rules and, although such petition was granted, Petitioners were informed that any administrative determination of the invalidity of rules must be made the subject of a separate petition filed with the Director of the Division of Administrative Hearings. On June 11, 1984, Petitioners filed a petition with the Division challenging the validity of certain of Respondent's rules which were cited by Respondent as the basis for the proposed denial of Petitioners' application for a permit. The petition alleged that said rules were not appropriate to the ends specified in Section 161.053, Florida Statutes, that the effect of the rules was to establish a class of property owners who could be excluded from receiving permits to construct dwellings seaward of the coastal construction control line merely because their lots or parcels of land are larger than their neighbors or other adjacent owners, and that such rules are arbitrary and capricious as they relate to the petitioners because other property owners in Walton County had been permitted by Respondent to construct dwellings similar to hat proposed by the Petitioners beyond the coastal construction control line. DOAH Case No. 84-0508 and the case involving the rule challenge, DOAH Case No. 84-2053R, were consolidated for purposes of hearing. At the hearing, Petitioners presented the testimony of Brett Moore, a coastal engineer employed by the DNR Division of Beaches and Shores, Dennis Evans, an architect, and Petitioner Edward S. Coley. Petitioner submitted ten exhibits in evidence Respondent presented the testimony of Brett Moore, Deborah Flack, Director of the Division of Beaches and Shores, and Ralph Clark, Chief of the Bureau of Coastal Engineering and Regulation. Respondent submitted 21 exhibits in evidence. Posthearing submissions submitted by the parties in the form of Proposed Recommended Orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact In 1981 Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley, Petitioners' Exhibit 1, Respondent's Exhibit 1). At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20). On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984, that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area. . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised Petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16). The height of the dune line on Petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under dead covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to come extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8). Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21). Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10). Although conflicting evidence was received as to whether or not the existing structures east of petitioners' lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioners' Exhibit 1). Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2). The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4).
The Issue Whether Permit Number 9220003617 issued by Monroe County, Florida, to Jeanne and Aldo Faga is inconsistent with the Monroe County Comprehensive Plan and Monroe County Land Development Regulations. Three areas of dispute were involved in this proceeding: Whether the permitted development (as modified by stipulation) is inconsistent with provisions requiring development to be clustered on the least environmentally sensitive portion of the site; Whether the permitted development (as modified by stipulation) is inconsistent with provisions pertaining to construction in mangroves and submerged lands; and Whether the permitted development (as modified by stipulation) is inconsistent with provisions establishing setback requirements from beach berms that are known turtle nesting areas.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Jeanne Faga and the Estate of Aldo Faga, deceased, hereafter referred to collectively as the "Fagas," are the owners of approximately ten acres of real property known as Lots 23 through 32, Block 21, Coco Plum Beach subdivision, Fat Deer Key, in unincorporated Monroe County, Florida. This property, acquired by the Fagas in 1971, has been subdivided by the Fagas into four parcels. Lots 23-24 have been consolidated and will be referred to as Parcel A. The remaining lots have been divided into Parcels B, C, and D. Grill Construction, Inc., is a Florida corporation and is the general contractor for Respondent for the building permit at issue. Monroe County, Florida, is a political subdivision of the State of Florida. Monroe County did not actively participate in this proceeding. THE DEVELOPMENT ORDER AND ITS HISTORY Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Petitioner and by the Administration Commission. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). While Respondent originally applied for a development permit for one residence on each of the four parcels and for an access bridge on Parcel A, the subject of this permit appeal proceeding is the development order for Parcel A only. If the project is permitted, it is contemplated that the access bridge at issue in this proceeding will provide access to the residences the Fagas hope to build on Parcels B, C, and D. The initial permit application for a residence on each of the four (4) parcels and an access bridge on Parcel A capable of use by motor vehicles was denied by Monroe County staff. The Fagas thereafter appealed the staff denial to the Planning Commission. The Planning Commission reviewed the project and affirmed the denial by staff. The Fagas thereafter appealed the denial by the Planning Commission to the Monroe County Commission. On July 28, 1993, the Monroe County Board of County Commissioners adopted Resolution No. 299-1993, which reversed the denial of the appeal by the Planning Commission, and authorized the Fagas to go forward with the building permit applications. On September 23, 1993, Monroe County issued to the Fagas and Grill Construction Co. building permit number 9220003617, the development order that is the subject of this proceeding. This development order includes public works permit number 0764 and building permit number 9220003615, which address the proposed access bridge on the subject site. The development order approves the permit for the access bridge that was issued by the Department of Environmental Protection. This development order authorizes the construction of a 4,501 square foot single family home with 2,426 square feet of porches, a 813 square foot enclosure for parking and storage, fill for a driveway, a separate guest house and an elevated bridge approximately 12 feet wide and 160 feet long. The building permit issued by Monroe County at issue in this proceeding did not include construction on Parcels B, C and D. The Department timely filed its challenge to the subject development order pursuant to Section 380.07, Florida Statutes. STIPULATED PERMIT CONDITIONS The parties stipulated that the following modifications to the development order would be made if the project is permitted: 2/ The subject development permit conditions shall be amended to state that the subject site plan shall include no drainage swales and no concrete slabs. The subject development permit conditions shall be amended such that the site plan shall include no fill or excavation between the proposed structures and the salt water slough, for a driveway or for any other purpose, except for minimal fill necessary for the ramp at each end of the proposed bridge. No fill or excavation shall occur within the existing mangrove habitat as depicted on the site plan and as verified in the field prior to construction. The subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The subject development permit conditions shall be amended to reflect the guest suite be connected to the main structure (single family residence, or "SFR") by an enclosed interior hallway, atrium or the like, so as to form a single habitable unit. In addition, the Fagas will execute a restrictive covenant to run with the land which prohibits rental, sale or lease of the guest suite, or anything less than the entire single family residence. Each stairwell to the SFR will access a deck which provides uniform access to each room in the SFR, and the site plan shall include no additional independent access to the guest suite. Only minimal excavation will be allowed for transplantation on the beach berm, i.e., the absolute minimum amount necessary to transplant the native species identified in the County-approved transplantation plan. The transplantation shall occur in a manner which preserves the contour of the beach berm and ground cover resources on site and restores the area cleared for development to natural conditions which include native plant species transplanted on site. GENERAL DESCRIPTION OF PARCEL A Most of the land constituting the four Faga parcels was "created" in the late 1950s, by depositing seaward (south) of the then existing shoreline spoil material from offshore dredging. The original "beach" in this area of Fat Deer Key (prior to the dredge and fill activities) existed just south of Coco Plum Drive, which now serves as the northern border of the Faga parcel. As a result of this dredge and fill activity, most of the dry land that presently exists on Parcels A-D was created from lands that were submerged. Additionally, the saltwater slough that exists on Parcels A-D was created as a result of this dredge and fill activity. The subject site, Parcel A, is bordered on the north by Coco Plum Drive, on the West by a multistory condominium development, on the South by the Atlantic Ocean, and on the East by Parcel B. Parcel A is rectangular, with the East - West measurement being approximately 215 feet and the North - South measurement being approximately 375 feet. The Eastern third of the central portion of the Faga parcel contains a shallow, manmade water body (the "saltwater slough"), which is fringed with mangroves. Because the saltwater slough was created by the dredge and fill activity, it is appropriate to classify the saltwater slough as a manmade water body pursuant to Section 9.5-4 9(M-4), M.C.C., which defines the term "manmade water body" as follows: (M-4) Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin or channel where its edges or margins have subsequently been modified by natural forces. All of Parcel A, meets the following definition of "disturbed land" found at Section 9.5-4(D-14), M.C.C.: (D-14) "Disturbed Land": Disturbed land means land that manifested signs of environmental disturbance which has had an observable effect on the structure and function of the natural community which existed on the site prior to the disturbance. The remainder of the property, including the sandy beach area and beach berm, will be discussed in detail below. CLUSTERING REGULATIONS Section 9.5-345(a), M.C.C., requires clustering of development as follows: "Clustering": When a parcel proposed for develop- ment contains more than one (1) habitat type, all development shall be clustered on the least sensitive portions of the parcel subject to the maximum net densities of Section 9.5-262, the open space requirements of Sections 9.5-262 and 9.5-269 and the performance standards of this section. For the purposes of this subsection, the sensitivity of habitat types shall be as listed with subsection being the most sensitive and subsection (18) being the least sensitive. The least sensitive part of the parcel shall be fully utilized prior to the distribution of density to the next least sensitive habitat type. High hammock (high-quality); Palm hammock; Cactus hammock; Beach/berm; Pinelands (high-quality); Salt marsh and buttonwood associations; High hammock (moderate-quality); Low hammock (low-quality); Low hammock (moderate-quality); Pinelands (low-quality); High hammock (low-quality); Low hammock (low-quality); Disturbed with hammock; Disturbed with salt marsh and buttonwood; Disturbed beach/berm; Disturbed with exotics; Disturbed with slash pines; Disturbed. Landowners are required to cluster development on the least sensitive portions of their property, subject to open space requirements for the respective classifications and subject to the maximum density for a parcel. An area classified as "disturbed" has a twenty percent open space requirement. Parcel A has a maximum density limit of 2.5 units per acre. HABITAT DETERMINATION -- GENERALLY To determine whether it is necessary to cluster this development, it is necessary to determine the habitat classification for Parcel A. Monroe County has adopted an existing conditions map that purports to show the existing habitat classifications on Parcel A. The existing conditions map reflects two habitat classifications for Parcel A: open water (the area of the saltwater slough) and disturbed with buttonwood and salt marsh. The area designated on the Aslan survey 3/ as the saltwater slough is properly designated as open water. The parties agree that the classification on the existing conditions map for the remainder of Parcel A as "disturbed with buttonwood and salt marsh" is incorrect. The parties disagree as to the appropriate habitat classification for the portions of Parcel A landward and seaward of the saltwater slough. Brian Winchester, on behalf of the Fagas, spent in excess of 80 hours on the four Faga parcels, conducting visual observations and taking core samples. He conducted field surveys of the four parcels during July 9-11, September 23- 24, October 20-22, and November 11-12, 1992. Staff of the Monroe County Environmental Resources Department conducted a joint site visit to the parcels with Mr. Winchester on September 23 and October 21, 1992. Mr. Winchester identified each small area of the parcel that he believed justified a distinct habitat classification and, based on a qualitative and quantitative analysis (which included counting individual stems in some areas), determined whether there was a dominate species for each area. In October and November, 1992, Mr. Winchester staked the edges of each portion of Parcel A that he believed constituted a distinct habitat. Those staked areas reflecting a plant community were then measured by Aslan, Inc. and depicted on the Aslan survey. The Aslan survey also marks the mean high water line on the property and measures the topography of all four parcels. Kathleen Edgerton and Patricia McNeese, the biologists who testified for the Petitioner, disagreed with Mr. Winchester's habitat evaluation. They conducted separate on-site inspections of the property, each with the benefit of the Aslan survey, and each determined what she considered to be the appropriate habitat classifications on Parcel A. Ms. Edgerton and Ms. McNeese were in agreement as to how the habitats of Parcel A should be classified. Petitioner's experts determined the extent of the saltwater slough and the mangrove fringe surrounding it. They determined the extent of the beach berm (which they consider to extend to the mangrove fringe on the seaward side of the slough) and determined the habitat of Parcel A seaward of the mangrove fringe. They then determined the habitat classification for the portion of Parcel A lying landward of the mangrove fringe. Based on their on-site evaluations of the property, Petitioner's experts did not believe that the portion of Parcel A lying landward or seaward of the mangrove fringe justified more than one habitat classification. In resolving the conflicting testimony between Respondents' expert and Petitioner's experts, more weight is given to the opinions expressed by Ms. Edgerton and Ms. McNeese because they have had extensive experience in conducting habitat classifications for lands in the Florida Keys as a part of their official responsibilities. While Mr. Winchester is an accomplished biologist, his experience in making habitat determinations in the Florida Keys is limited. The undersigned is persuaded by the testimony from Petitioner's experts that observations of species on site for making habitat determinations involve the subject parcel in larger perspective than that used by Mr. Winchester. HABITAT DETERMINATION -- LANDWARD OF THE SLOUGH Mr. Winchester expressed the opinion that the following habitat classifications exist on the portion of Parcel A lying landward of the mangrove fringe: a small strip of land adjacent to the road that should be classified as "disturbed"; a larger strip of land that should be classified as "disturbed with exotics"; and a third strip of land that should be classified as "disturbed with salt marsh and buttonwood". Petitioner's experts testified that the entire portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". This dispute is resolved by finding that the greater weight of the evidence establishes that the portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". While exotics, including Australian Pines and Brazilian peppers, exist in different areas of this part of the property, Petitioner's experts established that other vegetation exists and that exotics do not dominate the portions of the property classified by Mr. Winchester as "disturbed with exotics". Likewise, it is concluded that the portion of the property classified by Mr. Winchester as "disturbed with salt marsh and buttonwood" should be classified as "disturbed" since there is little salt marsh and buttonwood does not dominate. Further, there exists in this area trees and vegetation that are not typically found in an area designated as "salt marsh and buttonwood". THE MANGROVE FRINGE AND THE SALTWATER SLOUGH The Department of Environmental Protection (DEP) has claimed jurisdiction of the saltwater slough, an assertion that is not challenged in this proceeding. The parties disagree as to whether the saltwater slough is tidally influenced and whether the mangrove fringe around the saltwater slough meets the definition of a "mangrove community". The salt water slough consists of shallow, landlocked water over mud, sand and marl bottoms. The water level increases with heavy rains and infrequent storm tides, and decreases during periods of drought. The slough has been observed to be dry during time of drought, negating any inference of regular tidal influence. Based primarily on Mr. Winchester's observations and quantitative measurements, it is concluded that there is no regular tidal influence on the slough. That the saltwater slough is ecologically significant and provides a valuable resource for birds, especially during storms, was not seriously disputed at the formal hearing. The birds that normally use the beach will come into the slough, where they can stay within the protection of the mangroves. They feed there, and are not subjected to wave force and wind that they would receive if they were on the outside. The salt water slough is encircled by a fringe of mangroves. Mr. Winchester classified the mangrove fringe as "disturbed with mangroves". This classification is consistent with similar classifications on Monroe County's existing conditions maps, but the classification is not separately listed in the County's land development regulations pertaining to clustering because specific regulations limit development in mangroves. 4/ Whether the areas delineated by the Aslan survey as being the mangrove fringe is classified as "mangroves" or as "disturbed with mangroves" is irrelevant for determining the issues presented by this proceeding. HABITAT DETERMINATION - WATERWARD OF THE SLOUGH Section 9.5-4(B-3), defines the term "beach berm" as follows: Beach berm means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. Parcel A contains a sandy beach, including a seaweed wrack and some low vegetation which is typical of beach berm vegetation as defined in the Monroe County Code. Behind the low vegetation, lies an area of Australian Pine trees that extends to the seaward extent of the mangrove fringe. Petitioner asserts that the beach berm on Parcel A extends to the mangrove fringe and that the proper classification for all of Parcel A seaward from the mangrove fringe is "disturbed beach berm". Respondents assert that seaward from the mangrove fringe on the east side of the parcel there is a small section that should be classified as disturbed with salt marsh and buttonwood, that the area with the Australian Pines should be classified as disturbed with exotics, and that the remaining portion should be classified as disturbed beach berm. The accepted characteristics of beach berm soil, as defined in the LDRs and Comprehensive plan, are "calcareous" and "unconsolidated". Reference to the soil as calcareous refers to its origin, while the consolidation of the soil refers to its compression and its cohesiveness. The soil from the mean high water line to the mangrove fringe seaward of the slough is unconsolidated, calcareous sand. The only area that appears to exhibit consolidated soils is that which has been compacted by vehicular use in the property. Vegetation typical of beach berms is scattered throughout the parcel between the mean high water mark and the mangrove fringe. The area of Parcel A that lies between the mean high water mark and the mangrove fringe seaward of the saltwater slough, is beach berm. This portion of Parcel A is properly classified as "disturbed beach berm" as opposed to "beach berm" because the entire parcel is disturbed lands and because Australian Pines have encroached on a portion of the beach berm. CLUSTERING ANALYSIS Petitioner established that development on Parcel A (with the exception of the access structure to be discussed below) should be limited to the area landward of the slough that should be classified as "disturbed". The Petitioner established that this area of Parcel A is large enough to accommodate a reconfigured version of the development. TURTLE NESTING SETBACK Section 9.5-345(3)(f), M.C.C., provides for a setback of construction from turtle nesting areas in areas designated as disturbed beach berm as follows: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds . . . While no specific sites on Parcel A were identified as active nesting sites, the beach on which Parcel A is located is a known turtle nesting area. The expert testimony from Patrick Wells established that marine turtles most frequently nest within 50 feet of the mean high water line. The expert testimony of Mr. Metcalf established that the setback of fifty feet required in Section 9.5-345(o)(3)f, M.C.C., should be typically measured from the backslope of any beach berm crest. If there is no beach berm crest on a parcel or if the beach berm crest is more than fifty feet from the mean high water line, the setback should be measured from a line that is parallel to and fifty feet landward of the mean high water line. 5/ Mr. Winchester identified the existence of a beach berm "crest" within the area of Parcel A that is designated on the Aslan survey as disturbed beach berm. Mr. Winchester testified that he observed a three or four inch drop behind the crest and was of the opinion that the beach berm crest was formed by wind and wave action. The crest, as identified by Mr. Winchester, is marked on the Aslan survey and is just a few feet from the mean high water line. Petitioner's experts testified that there was no crest and that there was a gradual rise in the beach berm elevation from the mean high water mark to the beginning of the mangrove fringe. This conflict in the evidence is resolved by finding that there is no discernible beach berm crest until it reaches the mangrove fringe. This finding is consistent with the expert testimony presented by the Petitioner, the photographic evidence, and the topographical markings on the Aslan survey. Further, this finding is consistent with the manner in which this property was created by the depositing of fill. Based on the foregoing findings, it determined that the beginning of the setback line should be from a line parallel to and fifty feet landward of the mean high water line. The distance of the setback itself should be fifty feet as required by Section 9.5-345(o)(3)f, M.C.C. The development order at issue in this proceeding does not comply with the turtle nesting setback requirement. THE ACCESS STRUCTURE Section 9.5-345(m), M.C.C., authorizes construction of piers, docks, utility pilings and walkways on areas with mangroves and submerged lands. All structures on any submerged lands and mangroves are required to be designed, located, and constructed on pilings or other supports. DEP has issued a permit for the access structure that, if constructed, will be on pilings that are set in areas of the mangrove fringe and in areas of the slough. As permitted by DEP, the access structure would be 12 feet wide and 160 feet long. As noted above, the parties have stipulated that the subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The DEP permit contains appropriate special and general conditions to assure that the access structure will be constructed consistent with pertinent permitting criteria. The primary objection to the access structure raised by the Petitioner is to the width of the structure. Mr. Metcalf testified, without contradiction, that the acceptable standard in the planning profession for the maximum width for a walkway is six feet. Based on that testimony, it is found that the access structure should be authorized with the conditions imposed by DEP and as modified by the parties's stipulation, but with the additional condition that the width of the structure be changed from twelve feet to six feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and conclusions of law contained herein and denies the subject development order number 9220003617. The permit can be approved if the Fagas choose to modify its application to conform to the findings and conclusions contained herein. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of November 1995.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
Findings Of Fact Petitioner, Wingfield Development Company (WDC), is a real estate development company located at 390 North Orange Avenue, Suite 1800, Orlando, Florida. In late 1982 or early 1983, WDC began developing a resort project known as Turtleback Beach Club (the project) in Indian River County. When completed, the project will consist of a 256 unit hotel, 68 villas, two swimming pools, a number of cabanas, a reverse-osmosis water plant, and other amenities which will cost approximately $50 million. All structures were designed to be constructed landward of the then existing coastal construction control line (CCCL). The date of establishment of the original CCCL is not of record. From late 1982 or early 1983 until 1987, WDC expended approximately $1.4 million on the project. Among the expenditures were the preparation of extensive cite and design plans, the installation of off-site utilities, and the fabrication and installation of some two hundred pilings and a number of pile caps. All such work was performed landward of the then existing CCCL. On March 5, 1987 respondent, Department of Natural Resources (DNR), reestablished the CCCL in Indian, River County. The new CCCL was more landward than the original CCCL. This resulted in several portions of the project, including all or parts of the villa and hotel, being seaward of the new CCCL. In November 1987 WDC was advised by the Indian River County Building Department to cease construction activities because, after consultation with DNR, it has decided not to make any further inspections. On April 4, 1988 DNR advised WDC by letter that, after making a site review of the project, it had determined that: the foundations for the hotel structure and the cabana located in the southeast portion of the property were `under construction' pursuant to the definition contained in Subsection 16B-33.002(56), Florida Administrative Code, at the time of the reestablishment of the coastal construction control line on March 4, 1987, ... (and that) the remaining five proposed cabana structures located on the south half of the property and shown to be seaward of the new control line, the proposed swimming pools, decks and gazebos, parking areas also shown to be seaward of the new control line and any other proposed landscaping work were not `under construction' pursuant to the definition. The letter added that the: staff shall consider the exemption status for the hotel and the one cabana under construction void if construction activity on these structures remains idle for a period of six months from the date of receipt of this exemption determination and prior to completion of the structures. Finally, the letter required petitioner to submit: a proposed `build out' schedule (that) would entail providing (the) staff with specifics of where (petitioner) expect(s) the overall project to be at ninety (90) day intervals up through completion of the structures located seaward of the coastal construction line. The staff feels that two years should be more than ample time with which to complete that portion of the project located seaward of the coastal construction control line. Progress must be maintained on each structure during each six month interval. Additionally, should your project fall short of any ninety day progress levels to be referenced in your `build out' plan, your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes. Because the letter offered a point of entry to contest the proposed agency action, WDC requested a section 120.57(1) hearing. At the same time, it continued construction on the project. On November 25, 1988 DNR issued further proposed agency action in the form of a letter advising WDC that, based upon a review of WDC's exemption file, the exempt status of the project had been "lost" and that any further construction activity seaward of the CCCL would require a permit from DNR under section 161.053. The receipt of this advice prompted WDC to file a second request for a section 120.57(1) hearing and a petition seeking to invalidate what it perceived to be an illicit rule, or in the alternative, the two rules from which the statements were drawn. WDC contends that DNR's requirement that, once a project is given an exempt status, it must remain under active construction and the owner must submit for DNR's approval a "build out" schedule, is an illicit rule since such a requirement is not contained in DNR's rules. Under state law, as implemented by DNR, no construction activity may take place seaward of a CCCL without a permit from DNR. However, any projects that are under construction at the time of the establishment of the CCCL are exempt from such permitting requirements. Under the current DNR organizational structure, the Division of Beaches and Shores (Division) is charged with the responsibility of administering and enforcing the CCCL regulatory program. The Division's Bureau of Coastal Engineering and Regulation has been assigned the task of performing a site review of all projects for which local building permits have been issued at the time of the establishment of a CCCL. If a project is under construction, as defined in DNR rules, at the time of the establishment of the CCCL, the owner may continue his activities even if the structures are seaward of the CCCL. A determination as to whether a structure is under construction at the time a CCCL is reset does not take into consideration the impacts the structure will have on the beach and dune system. This is because DNR considers such a determination to be regulatory in nature, and such impacts would be irrevelant to that decision. The Division construes its authority as also permitting it to require an exempt project to remain under active construction once it receives an exempt status. It does so on the notion that this insures that the exemption status was obtained in good faith, and the builder intended to go forward with the construction in a timely manner and as originally conceived. It has been DNR's experience that some property owners have engaged in a minimal construction program to circumvent the regulatory process. To prevent this, DNR has imposed a requirement that, if construction activity ceases for a period of six months or more, the exempt status will be lost. A six month time period was used because DNR realized that short, unforeseeable delays of less than six months were not uncommon. This policy has been uniformly applied, without discretion to agency personnel to do otherwise, on all projects classified as exempt. In addition, DNR has required project owners to submit to DNR staff a so-called "build out" schedule containing a construction schedule at ninety day time intervals with a time certain for completion of the project. This requirement, although infrequently used, has been uniformly imposed, when needed, upon all exempt projects, including that of WDC. The agency concedes that there is no specific statutory language authorizing the above requirements. However, it takes the position that these requirements are authorized and sanctioned by chapter 161 as a whole and by rules 16B-33.002(56) and 16B-004(1), which happen to be the rules challenged by WDC. Those rules read as follows: 16B-33.002 Definitions. (56) "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure seaward of the established coastal construction or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site in anticipation of construction, site surveying, continuation of site work beyond the limits of the foundation including landscape work or construction of nonhabitable major structures or rigid coastal or shore protection structures, or reactivating construction after substantially all construction activity has remained stopped for a period of six months or more. 16B-33.004 Exemptions from Permit Requirements. (1) Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 160.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. Respondent acknowledges that there is nothing in rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. However, it relies upon that part of the rule which reads "except as noted in Subsection 161.053(12), Florida Statutes" as implicitly authorizing this action. That statute removes the exempt status of a project if there are any subsequent modifications which "require, involve, ,or include any additions to, or repair or modification of the existing foundation of that structure." According to the Division director, it construes that language as authorizing it to make a determination as to whether the project owner has made any substantial changes in the nature of the project or if construction has been continuous. Respondent also relies upon rule 16B-33.002(56) which defines the term "under construction" as being "the continuous physical activity of placing the foundation or contination of construction above the foundation of any structure seaward of the established coastal construction control or setback line." The Division interprets this language to mean that construction must be continuous and without a cessation of activities of more than six months. This rule language is bottomed on subsection 161.053(9) which reads in pertinent part that "the provisions of this section do not apply to ... structures existing or under construction prior to the establishment of a coastal construction control line as provided herein; provided such structures may not be materially altered except as provided in subsection (5)." Finally, the agency relies upon subsection 161.053(1)(a) which sets forth the legislative intent behind the establishment of CCCLs. Among other things, the purpose of a CCCL is to protect, the beaches and dunes from imprudent construction which can "provide inadequate protection to upland structures." In the words ,of the Division director, DNR interprets this language to mean that it has the authority to "go back and look at projects once they are declared exempt, and to make sure that they remain exempt under the statute." The DNR documents which grant exemptions do not contain any reference to requirements that there be continuous construction on the project and that a build out schedule be submitted thereafter. Even so, DNR contends it is merely granting a "conditional" exemption conditioned on the project owner maintaining active and continuous construction. It posits further that, without such authority, its regulatory program would be rendered ineffective. However, the Division director conceded that, even without the imposition of these requirements, DNR still has authority to regulate all structures which are constructed seaward of the CCCL and to prohibit any material changes to an existing or partially completed structure. Petitioner intends to complete its project, but contends it cannot do so at the pace required in DNR's build out schedule. Also, WDC points out that it is unable to secure permanent financing for the project since lender's are uncertain if DNR will approve the build out schedule and allow construction to go forward or instead precipitously halt the construction. There have been no construction activities on the project since November 1988.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Squeeze Me Inn, LLC, is a limited liability corporation incorporated in the State of Florida. Kurt Kroemer is its managing member. Squeeze Me Inn, LLC, owns a single-family home at 8170 Estero Boulevard in Fort Myers Beach, Florida, and pays taxes on the property. Mr. Kroemer purchased the property through Squeeze Me Inn, LLC, based on his enjoyment of the beach. He visits the property five times per year on average, and intends to retire there. Texas Hold’Em, LLC, is a limited liability company incorporated in the State of Florida. Edward Rood is its managing member. Texas Hold’Em, LLC, owns a single-family home at 8150 Estero Boulevard in Fort Myers Beach, Florida, and pays taxes on the property. Mr. Rood uses the home four to five times per year. He enjoys visiting the Gulf of Mexico and the adjacent beach area behind his house. DEP is an agency of the State of Florida, pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and has issued the Consolidated Permit, the CCCL Waiver, and the CCCL Permit at issue in this proceeding to the Applicants. DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under chapter 373, part IV, for which DEP has permitting responsibility. § 253.002(1), Fla. Stat. DEP has been delegated the authority to take action, without any input from BTIITF, on applications for authorization to use sovereignty submerged lands necessary for an activity regulated under chapter 373, part IV, for which DEP has permitting responsibility. § 253.002(1), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). Audubon is an organization incorporated in the State of Florida. Audubon has roughly 20,000 members statewide, and 5,000 members in Southwest Florida, some of whom it contends are in the “direct vicinity” of the project. Audubon’s mission statement is to protect birds and their habitat for the benefit of people and wildlife. The Town is an incorporated municipality located on the west coast of Florida along the Gulf of Mexico. The proposed dune walkover is within the Town limits. Standing3/ Audubon considers the LEICWA and its surrounding areas important, because it is “important to the birds.” Audubon was involved in the process of establishing the LEICWA, and its members volunteer to help monitor and manage the LEICWA. The LEICWA is a renowned bird-watching site. Audubon members have assisted in “posting for nesting birds, as well as fielding volunteers who are bird stewards. They chaperone the colony to protect it from disturbance, especially on busy beach going weekends.” The interest in areas outside of the LEICWA is less apparent, though Audubon alleged that the areas around the LEICWA are important to the birds and, thus, Audubon’s members, since “birds unfortunately don’t recognize boundaries.” In addition, Audubon alleged that the dune walkover would irreparably harm the lagoon and the coastal habitat seaward of it, which is important habitat for imperiled species that are critical for the enjoyment of Audubon’s members. Audubon’s interest in contesting the CCCL and the Waiver is tied to the reasons for its ERP and SSL standing. The Town’s interest in the Consolidated Permit and the CCCL Permit was related to the importance of the Ft. Myers Beach beaches, including those in the LEICWA, to the Town’s economy from ecotourism. The Town’s interest in shorebirds is that they contribute to the Town’s economy by “draw[ing] people to select to visit Fort Myers Beach versus other areas of the state.” The Town spends money for beach maintenance to compete for tourism dollars, but does not track the number of visitors to the beach where the Project would be located.4/ The Town’s interest in challenging the CCCL Waiver was that “it goes outside the normal process” and “creates confusion among applicants and the public.” However, the CCCL Waiver would have no effect on the Town’s processing of development orders. In addition, the Town was concerned that the boardwalk, as a frangible structure, could cause damage to the property of nearby private individuals. The interest in that regard was not to the property or resources of the Town, but to “[o]ur residents and our property owners.” Both the Town and Audubon participate in a program that coordinates volunteer efforts to educate beachgoers on nesting birds in the general vicinity of the proposed dune walkover. The Project Area Little Estero Island is part of a barrier island system that has developed over decades through the gradual accretion of sand onto the shoreline. The proposed dune walkover is proposed to be constructed on property just west of Big Carlos Pass, a maintained navigational channel that connects inland coastal waters to the Gulf of Mexico. Big Carlos Pass is a tidally dominated inlet, which results in a very dynamic shoreline in its immediate vicinity. Creation and Fate of the “Lagoon” and Current Shoreline Fort Myers Beach experiences offshore sediment transport that transfers sand along the shoreline from Estero Island towards Big Carlos Pass. In addition, movement of water through Big Carlos Pass agitates and suspends sand, creating an “ebb shoal” at the Gulf side of the pass. Currents generated by wave action transport sand from the ebb shoal offshore along the shoreline on both sides of the pass. The sediment transport results in the development of shoals and swash bars offshore from the Project site. Those features are gradually pushed towards the shore, and eventually “weld” onto the shoreline. Big Carlos Pass was recently (after the October 20, 2015, issuance of the authorizing permit) dredged to maintain, realign, and straighten the inlet channel. The dredged material, consisting of approximately 350,000 cubic yards of sand, was deposited along 4,500 linear feet just offshore to the west of the Project vicinity. The process of accretion, and the “welding” of a shoreward-moving sandbar has resulted in the creation of an enclosed and shrinking body of water between the shoreline and the upland. What was previously the shoreline of the Gulf of Mexico is, for now, the landward shoreline of the “lagoon.” During significant storm events, the area can experience overwash, when storm-driven tides and waves overtop the existing Gulf shoreline, spilling into the lagoon. The overwash pushes sand into the lagoon, creating “fans” of sand and sediment, in a process by which the lagoon is continually filled in and narrowed. As established by Mr. Dombrowski, “what we would anticipate over time is that you keep on getting this over-topping of sand that keeps on filling in on the back side of the lagoon which will eventually fill in with sand.” In addition to overwash, rain and stormwater can fill the lagoon, which can result in the creation of temporary drainage outlets. For example, the area was impacted by Tropical Storm Alberto on Memorial Day 2018. Ms. Burns visited the area after the storm, in June 2018, and observed more water in the lagoon and in surrounding areas, including the sandy areas within the LEICWA. By July 18, 2018, at which time the photographs that comprise Petitioners’ Exhibit 7 were taken, the water levels in the lagoon were lower. During a visit nearer to the date of the hearing, there was less water in the lagoon due to diminished rainfall, and water no longer flowed through the remnants of the drainage channels. Thus, stormwater drainage, rather than tidal connection, is the most likely cause of the swashes observed in the series of photographs taken on July 18, 2018. In order for the lagoon to be considered “tidal,” there would have to be an established connection between the lagoon and the Gulf of Mexico to allow for the regular periodic exchange of waters through tidal ebbs and flows. Mr. DeGraff took a series of “water shots” of the levels in the lagoon and the Gulf of Mexico. Whereas water levels in the Gulf of Mexico changed with the tides, the water levels in the lagoon remained constant, which supports that there is no connection between the two. Overwash and storm events may temporarily open one-way connections and outfalls of water between the lagoon and the Gulf of Mexico as a result of accumulation of water in the back barrier environment. If enough water is pushed into the lagoon, it will find an exit, but the flow is “not back and forth again through a particular cut,” as would be the case with an established and regular tidal connection. The preponderance of the evidence demonstrates that the “lagoon” is not tidally connected to the Gulf of Mexico but is, rather, a feature that experiences no tidal ebb and flow and is, under normal conditions, disconnected from the Gulf of Mexico. The “big picture” view of the process of shoaling, welding, filling, and narrowing of the “lagoon,” and ultimate reestablishment of the previously existing shoreline is depicted in Petitioners’ Exhibit 44, which images can be viewed as a fascinating and visually compelling time-lapse of the Petitioners' Exhibit 44 images at https://earthengine.google.com /timelapse/#v=26.40708,-81.89551,11.491,latLng&t=0.00. The persistent narrowing of the temporary lagoon is well-depicted in Petitioners’ Exhibit 43. That exhibit, consisting of a series of aerial photographs, demonstrates convincingly the accretional nature of the area in front of the Applicants’ property, and offers support for evidence that “over the last 50 plus years . . . and especially within the last ten to 15, is that this shoreline has been accreting.” Competent, substantial evidence establishes that the accretional trend will naturally continue and may be further influenced by the deposition of dredged spoil from Big Carlos Pass, and supports the testimony of Mr. Dombrowski that the lagoon will naturally fill in with the cycle, at some future time, repeating itself. In the area of the Project, the shoreline has been accreting at a rate of around 28 feet (or more) per year between 1999 and 2011. In the last 52 years, the shoreline to the east of the Project area has grown by more than 600 feet. To the west of the Project area, within the LEICWA, overwash events and alluvial fans associated with such events demonstrate the accretional nature of the shoreline. Mr. Kroemer owns a Hobie Wave Runner sailboat, which requires about 12 inches of water, and two kayaks, which require two to three inches of water that he uses in the Gulf of Mexico. To access the Gulf, Mr. Kroemer paddles or pushes the boats - depending on the season - through the lagoon and then takes them over land to the Gulf. The water levels in the lagoon are not sufficient to allow for the sailboat to traverse year round. The greater weight of the evidence supports a finding that the water area over which the dune walkover is proposed will, as a process of accretion, fill with sand creating an unimpeded pathway to the Gulf of Mexico, as was the case prior to the most recent accretionally welded sand bar. The suggestion that the shoreline will erode and ultimately become open water is not supported by the evidence. Vegetation The vegetative species in the vicinity of the proposed dune walkover and surrounding the lagoon include mangroves; shrubby plants, including bay cedar and marsh elder; and facultative grass species, such as hurricane grass. The Project area is becoming increasingly more vegetated, with plant communities pioneering at the ground cover level, followed by shrubs and small trees. The area is generally undergoing natural ecological succession. The vegetation in the areas over which the proposed dune walkover is to be constructed, including the ground cover, is too thick to be conducive for shorebird nesting, which generally occurs in areas that are open, and sandy or shelly. The mangroves that fringe the lagoon range from five to seven feet in height, and the shrubby vegetation in the Project area can be up to four feet in height. Wildlife The beaches in the area are used by shorebirds and migratory birds for nesting, foraging, and loafing. Birds that have been observed in the general vicinity of the LEICWA include Snowy Plovers, Wilson’s Plovers, American Oystercatchers, Black Skimmers, and Least Terns. Snowy Plovers, American Oystercatchers, Black Skimmers, and Least Terns are designated by the FFWCC as threatened bird species. Those species are also identified by DEP as “Listed Wildlife Species that are Aquatic or Wetland Dependent and that Use Upland Habitats for Nesting or Denning” in A.H. Table 10.2.7-1, with Snowy Plovers and Least Terns listed as “State-designated Threatened,” and American Oystercatchers and Black Skimmers listed as “State Species of Special Concern.” Wilson’s Plovers are not a species listed as threatened, of special concern, or of any other protected classification by the FFWCC or DEP. Snowy Plovers, American Oystercatchers, Black Skimmers, and Least Terns prefer clear, open sand for nesting. They lay their eggs on the sand or in shallow “scrapes” or depressions in the sand. The eggs generally match the substrate, and the coloration of the chicks allows them to blend in with the sand, providing a camouflaging defense against predators. Those species are colony nesters, nesting in groups as a reproductive strategy. Wilson’s Plovers also prefer open sandy areas, but will occasionally nest in nearby sparsely vegetated areas, referred to by Mr. Johnson as “salt and pepper” coverage, which have pockets of open sand. Such areas exist waterward of the proposed terminus of the dune walkover. Wilson’s Plovers are solitary nesters. Shorebirds will typically not nest in areas with vegetative cover. Mangroves and other tall, woody species of plants create perching opportunities for crows and other avian predators, while ground-dwelling predators like snakes can move through vegetation and predate shorebird nests. Applicants’ Exhibits 6 and 9 depict the extent of shorebird utilization, including nesting, of habitat in the immediate Project vicinity based on a series of 2017 and 2018 site visits, historic aerial photographs, and FFWCC shorebird data. Applicants’ Exhibit 6 provides a visual representation of the wide utilization of the open raked beach area east of the Project for nesting, with only scattered use of “salt and pepper” vegetated areas by non-threatened Wilson’s Plovers. Applicants’ Exhibits 6 and 9, in combination with Mr. Johnson’s testimony and field notes, is found to be the most accurate and representative depiction of the utilization of the Project area by shorebirds. There have been shorebird sightings on the sandy shoreline waterward of the terminus of the proposed dune walkover. The closest recorded bird sighting to the Project area, involving a Wilson’s Plover nest scrape and, subsequently, a nesting female at that location, was approximately 150 feet southwest of the waterward terminus of the dune walkover in an area of “salt and pepper” vegetation. During his site visits in 2017, Mr. Johnson observed considerable pedestrian traffic along the shoreline waterward of the Project area. It was in this general area that he had noted the presence of Wilson’s Plovers. He explained that Wilson’s Plovers can tolerate pedestrian traffic as long as it does not “get right up on” their nests. When nesting areas are roped off, Wilson’s Plovers can tolerate pedestrian traffic up to the protective barrier as long as it does not encroach into the protected area. Sea turtles also have the potential to nest just above the high tide mark in the dunes waterward of the proposed dune walkover. A staked sea turtle nest west of the Project area was observed by Ms. Burns during her July 2018 visit to the area. Sea turtles do not typically nest in vegetated areas. Given both the distance to and vegetative cover at the waterward terminus of the dune walkover, sea turtles would be unlikely to migrate to the Project area to excavate a nest. There was no evidence that pedestrian access to the location at which Ms. Burns observed the staked sea turtle nest was restricted. Rather, the evidence establishes that pedestrian traffic is allowable and common along the shoreline. People walking along the shore could easily happen upon the staked area, just as Ms. Burns did, and just as Mr. Johnson did during his visits to the area. In that regard, the Applicants, even if they were to take a longer and more circuitous route to the shoreline, would not be restricted in walking along the shoreline in the vicinity of the nest. The preponderance of the evidence establishes that the proposed dune walkover will have no adverse effect on nesting sea turtles in the area. The LEICWA Property to the west of the proposed dune walkover has been designated by the State of Florida as the LEICWA. The LEICWA includes some vegetated land adjacent and parallel to the footprint of the proposed dune walkover. The proposed dune walkover is not within the boundary of the LEICWA. At times, portions of the LEICWA are roped off by the FFWCC to demarcate shorebird nests and nesting colonies, and to channel pedestrian access through the LEICWA. There was no persuasive evidence that pedestrian traffic through the LEICWA is disruptive to the birds using the LEICWA or to their nesting patterns. Posted and roped-off areas are not intended to identify the geographic extent of the LEICWA, and are often not specific to shorebird nest sightings, but instead represent larger areas “to allow the birds to have more availability to choose where they’re going to nest.” Roughly 300 feet east of the Project area and the LEICWA boundary (as scaled using Petitioner’s Exhibit 6) is a large raked, sandy area which is maintained free of vegetation. A large number of shorebirds and shorebird nests have been documented on the open, sandy area. The open, sandy area is directly abutted to its north by homes and by what appear to be larger multi-family structures. In addition, the open area is “preferred by a lot of beach goers to have open sand to walk through instead of walking through vegetation. So it's been manipulated mechanically to be open.” There was no evidence that the direct proximity of such residential structures, their inhabitants, and beachgoers have any disruptive affect on the large nesting colonies inhabiting that area. A four-foot-high, three-foot-wide education kiosk placed by the FFWCC is located on the shore side of the LEICWA. A roughly seven-foot-high, 15-inch-wide sign, educating beachgoers about the LEICWA and of the needs of the birds that frequent the area has been placed at the edge of the LEICWA. Neither of the signs incorporate any features designed to discourage their use as perches. Both of the signs provide an elevated and unobstructed vantage point into the LEICWA’s primary nesting area. The signs, which are much greater in height and nearer to the LEICWA’s preferred shorebird nesting habitat than the proposed dune walkover “can serve as perches” for predatory birds in the area. Although there was evidence that Petitioners’ members and employees monitor the signs for evidence that they are being used as perches, there was no evidence to suggest what might happen if they were. Although the dune walkover is not within the boundary of the LEICWA, Ms. Wraithmell testified that “[t]he birds unfortunately don’t recognize boundaries.” While birds may not recognize boundaries, regulators must. Standards that apply within a designated critical wildlife area do not apply outside of a critical wildlife area, even within feet of the boundary. That is why boundaries, including legal descriptions, are set. Since the proposed dune walkover is not within the boundary of the LEICWA, standards applicable within critical wildlife areas cannot be applied. The Proposed Dune Walkover The dune walkover is proposed as a 1,491.50 square- foot (298.3 feet in length by 5 feet in width) piling-supported wooden walkway five feet in width. Its original six-foot width was reduced to five feet, which remains adequate to accommodate an anticipated need for the use of a wheelchair or mobility device by one of the Applicants. The steps at the waterward end of the proposed dune walkover were replaced with ramps, also for use by a wheelchair or similar device. The replacement of the initially proposed stairs with a ramp will also reduce “lift” forces in the event of a storm. The dune walkover will serve to minimize foot traffic on the native dune vegetation, and will channel the foot traffic from its terminus to the shore of the Gulf of Mexico. As such, the dune walkover will have a beneficial effect on the native vegetation in its immediate area. As originally proposed, the dune walkover was to have been three feet, ten inches above the ground surface, with three-foot-high handrails. In order to meet the concerns posed by others, particularly the FFWCC, the height was lowered to two feet, six inches above the ground surface, which is the maximum height for a structure to be built without handrails. The handrails were removed in their entirety, and the design does not contain any pickets or other “non-structural members.” Thus, the proposed dune walkover is, at its highest point, two feet, six inches above the ground surface. Mangroves in the vicinity of the dune walkover are generally from five to seven feet in height, and commonly occurring shrubby vegetation of four feet in height was observed in the area. Thus, the dune walkover is well below the elevation of the surrounding vegetation. The dune walkover, as currently proposed, has no value as a perch or vantage point for avian predators. The posts that support the structure will be round, six inches in diameter, and installed five feet deep into the sand. The posts will not be encased in concrete, and will be wrapped to prevent leaching of any potentially toxic compounds into the environment. The walking surface of the dune walkover will be made of slatted decking, with a one-half inch space between each deck board. The proposed ERP indicated that gaps will allow sufficient light penetration to maintain the underlying vegetative habitat. There was no persuasive evidence to the contrary. In its final configuration, the proposed dune walkover is fully compliant with, though substantially smaller and less intrusive than, the generally acceptable siting, design, and elevation provisions set forth in the DEP Beach and Dune Walkover Guidelines. As originally proposed, the dune walkover would have crossed the LEICWA boundary, though in an area of minimal value to shorebird nesting or feeding. Nonetheless, in order to address the concerns expressed by others, including the FFWCC, the Applicants modified the configuration of the proposed dune walkover so that it is now completely outside of the boundary of the LEICWA. The construction plans do not require the use of vehicles, other than to deliver the material to the site. There will be no placement of fill. There will be no lighting, either in construction or in operation. As mitigation for the minimal impacts associated with the crossing of the lagoon, and at DEP’s direction, the Applicants purchased 0.01 saltwater forest and 0.1 saltwater herbaceous mitigation credits in the Pine Island Mitigation Bank, to offset for any remaining impacts not avoided through the design modifications. It was established, by a preponderance of the competent, substantial, and persuasive evidence adduced at the hearing, that the proposed mitigation was sufficient to offset any environmental impacts resulting from the proposed Project, even before its width was decreased from six feet to five feet. The alterations to the proposed dune walkover as described herein were largely made to address the concerns expressed by the FFWCC in its comments of August 27, 2015; July 20, 2016; and July 27, 2017, and the proposed ERP and CCCL Permit incorporates all of the conditions requested by the FFWCC. It was established that the Applicants have addressed and met the FFWCC’s concerns regarding the proposed Project. Environmental Resource Permit The issuance or denial of an ERP is generally governed by section 373.414, chapter 62-330, and the Environmental Resource Permit Applicant’s Handbook, Volume I (“A.H.”). Section 373.4131(1) requires DEP to adopt statewide environmental resource permitting rules. DEP has done so through the adoption of rules 62-330.301 and 62-330.302. Under the burden of proof discussed in the Conclusions of Law herein, the Applicants met their burden of demonstrating that they met all applicable standards and were entitled to issuance of the ERP by entering the application and DEP’s notice of intent of issue the ERP in evidence. Therefore, a finding that there was insufficient evidence introduced by Petitioners to rebut the prima facie case is sufficient to establish that the grounds for issuance have been met. Based on the entirety of the record of this proceeding, the Applicants provided reasonable assurances that the proposed dune walkover meets the requirements for the ERP. Rule 62-330.301(1) Rule 62-330.301(1) provides that an applicant for an ERP must provide reasonable assurance that the permitted activity will not cause adverse affects. The standards established by rule are further described in the A.H. Water quantity impacts: Rule 62-330.301(1)(a) and A.H. Section 10.2.2.4 Piling supported structures do not typically impact a water body’s depth or flow. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the piling-supported dune walkover would reduce the depth, duration, or frequency of inundation or saturation in the lagoon; would increase the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to the lagoon or by impounding water in the lagoon; or could have the effect of altering water levels in the lagoon. To the contrary, there was substantial testimony, and it is found, that the proposed dune walkover will not cause adverse water quantity impacts to receiving waters and adjacent lands. Adverse flooding: Rule 62-330.301(1)(b) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse flooding to on-site or off-site property. Adverse impacts to existing surface water storage and conveyance capabilities: Rule 62-330.301(1)(c) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to existing surface water storage and conveyance capabilities. Adverse impacts to the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters: Rule 62-330.301(1)(d) and A.H. Section 10.2.2 The A.H. provides that “[i]n evaluating whether an applicant has provided reasonable assurances under these provisions, de minimis effects shall not be considered adverse for the purposes of this section.” In accordance with the A.H., DEP provided information to the FFWCC and solicited comments on the proposed dune walkover in its various configurations. The Applicants met every listed substantive concern expressed by the FFWCC in its comments of August 27, 2015; July 20, 2016; and July 27, 2017. The proposed ERP incorporates all of the conditions requested by the FFWCC. The A.H. section 10.2.2 also provides that “[t]he need for a wildlife survey will depend upon the likelihood that the site is used by listed species and the bald eagle, considering site characteristics and the range and habitat needs of such species, and whether the proposed activity will impact that use.” In its August 27, 2015, comments, the FFWCC requested that the Applicants provide an assessment of anticipated impacts to wildlife. Thereafter, on December 2, 2015, Mr. Rood provided information to DEP explaining, accurately, the densely vegetated nature of the proposed dune walkover location, and its lack of value to nesting shorebirds. He correctly noted the general distance, i.e., 100 to 150 yards, from the terminus of the proposed dune walkover to the nearest shorebird nesting area and “roped off nesting areas.” The A.H. provides that “[t]he need for a wildlife survey will depend upon the likelihood that the site is used by listed species and the bald eagle, considering site characteristics and the range and habitat needs of such species.” As a result of Mr. Rood’s explanation of the characteristics of the Project location, on December 11, 2015, the FFWCC withdrew its request for the survey and wildlife assessment. As set forth herein, the preponderance of the competent, substantial, and persuasive evidence demonstrates that there will be no adverse impacts to the value of functions provided to any species of concern provided by the lagoon and associated wetlands that will result from the construction and use of the proposed dune walkover. Shorebirds, whether or not they are protected species, will not be impacted by the Project. There was no evidence to support a finding that wading birds foraging in the lagoon, as depicted in photographs taken by Ms. Burns, would be affected in any way. Water quality impacts: Rule 62-330.301(1)(e) and A.H. Section 10.2.4 An ERP applicant must provide reasonable assurance that the project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. DEP required turbidity control to address short-term water quality issues attendant with construction. Best management practices to minimize construction-related turbidity are required. The sand in the area is coarse, with a small percentage of sands and clays, further minimizing the potential for turbidity. The pilings are required to be wrapped to prevent any chemicals used to treat the pilings from leaching into the soil or water. The structure will be constructed outward from the boardwalk deck, thus, minimizing impacts to surrounding vegetation and surface waters. The ERP is conditioned on adherence to Best Management Practices to ensure that oils, greases, gasoline, or other pollutants are not released into the wetlands or surface waters. The preponderance of the competent, substantial, and persuasive evidence demonstrates that there will be no adverse impacts on water quality associated with the construction or use of the proposed dune walkover. The evidence introduced by Petitioners was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to water quality. Secondary impacts: Rule 62-330.301(1)(f) and A.H. Sections 10.1.1(f) and 10.2.7 An ERP applicant must provide reasonable assurance that the Project will not cause adverse secondary impacts. The secondary impact criterion consists of four parts as established in A.H. section 10.2.7(a) through (d). The proposed dune walkover will not have any lighting so as to impact turtle nesting, and will involve no vehicles except as necessary to deliver building supplies. Other secondary impacts identified in A.H. section 10.2.7(a) are not applicable. The preponderance of the competent, substantial, and persuasive evidence in this proceeding established that the area in which the proposed dune walkover is to be constructed will not adversely impact the ecological value of uplands for any listed bird species of concern for nesting or foraging as set forth in A.H. section 10.2.7(b). The Project area is thickly vegetated which, as discussed previously, is not conducive for use by shorebirds that frequent the LEICWA. The nearest documented shorebird presence is well removed from the dune walkover terminus. The evidence established that the pedestrian traffic resulting from the use of the dune walkover will not disturb Wilson’s Plovers, which is the only observed species that uses the “salt and pepper” vegetation between the dune walkover and the Gulf of Mexico. Any nests would, as are existing nests in the area, be marked. Wilson’s Plovers are tolerant of pedestrian traffic as long as it does not directly encroach into their nesting area. The suggestion that the Applicants’ use of the proposed dune walkover will disrupt the habits of shorebirds observed near its terminus disregards the fact that the area is already used by the Applicants to access the beach. Furthermore, the beach itself, which is much nearer to observed bird sightings, is popular and frequently used, without restriction, by beachgoers other than the Applicants. There was no evidence that such pedestrian access along the beach adversely affects shorebirds. Pedestrian access is allowed directly through areas of the LEICWA that are more thickly populated with nests of shorebird species less tolerant of pedestrian traffic than the Wilson’s Plovers. There was no evidence that such pedestrian access through the LEICWA adversely affects shorebirds. As indicated previously, the open, sandy area to the east of the Project area is extensively used for nesting by large colonies of various protected shorebird species. That area is directly bounded by single and multi-family residences, and is a popular area for beach access. There was no evidence that human presence near, and pedestrian access through, the areas used by colonies of shorebirds adversely affected those shorebirds. The Applicants presently drag their Hobie sailboat and kayaks across the lagoon and through the dunes. The dune walkover will allow them to simply wheel or carry those vessels across the lagoon and dunes without further impact. The evidence in this case does not support a finding that the existing pedestrian access will be increased by the dune walkover but, to the contrary, suggests that the walkover will allow access in a much less disruptive and destructive manner. A.H. sections 10.2.7(c) and (d), governing, respectively, associated activities that have the potential to cause impacts to significant historical and archaeological resources and future project phases or activities, are not applicable to the proposed dune walkover. The preponderance of the competent, substantial, and persuasive evidence demonstrates that there will be no adverse secondary impacts associated with the construction or use of the proposed dune walkover. The evidence introduced by Petitioners was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse secondary impacts. Adverse impacts to the maintenance of Minimum Flows and Levels: Rule 62-330.301(1)(g) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to the maintenance of surface or groundwater levels or surface water flows. Adverse impacts to a Work of the District: Rule 62-330.301(1)(h) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to a Work of the District. Capable of performing and functioning as proposed: Rule 62-330.301(1)(i) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will not be capable of performing and functioning as proposed. Conducted by a person with the financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit: Rule 62-330.301(1)(j) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will not be conducted by persons with the financial, legal, and administrative capability of ensuring that the proposed dune walkover will be constructed in accordance with the terms and conditions of the ERP. The legal ability to undertake the activities that are encompassed by the SSL Authorization, CCCL Permit, and CCCL Waivers are being decided herein, and their lack of finality does not constitute a failure to meet this ERP permitting criteria. Comply with any applicable special basin or geographic area criteria: Rule 62-330.301(1)(k) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will not comply with any applicable special basin or geographic area criteria. Public Interest Test - Section 373.414(1), Florida Statutes, Rule 62-330.302(1)(a), and A.H. Section 10.2.3 Section 373.414(1) provides that an applicant for an ERP must provide reasonable assurance that the permitted activity will not cause violations of state water quality standards and that such activity is not contrary to the public interest. As set forth in the discussion of rule 62- 330.301(1)(e) and A.H. section 10.2.4 above, the Applicants demonstrated that the proposed dune walkover will not cause violations of state water quality standards. Furthermore, the evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause violations of state water quality standards. The seven factors that constitute the public interest test are established in section 373.414(1)(a), reiterated in rule 62-330.302(1)(a), and explained in greater detail in A.H. section 10.2.3. As set forth previously, some of the criteria would appear to have no relevance to this case. However, since Petitioners failed to provide any substantive narrowing of the issues in the JPS, it is necessary to go through each and every factor to ensure that some element of the ERP analysis required “pursuant to all applicable rules and statutes” does not go unaddressed.5/ Whether the activity will adversely affect the public health, safety, or welfare or the property of others: Section 373.414(1)(a)1.; Rule 62-330.302(1)(a)1.; A.H. Section 10.2.3.1 The evaluation of the factors for consideration under this element of the public interest test include environmental issues such as “mosquito control; proper disposal of solid, hazardous, domestic or industrial waste; aids to navigation; hurricane preparedness or cleanup; environmental remediation, enhancement or restoration; and similar environmentally related issues.” The evaluation also includes impacts to shellfish harvesting areas; flooding or the alleviation of flooding on the property of others; and affects on the water table that could result in the drainage of off-site wetlands or other surface waters. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will adversely affect the public health, safety, or welfare or the property of others. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats: Section 373.414(1)(a)2.; Rule 62-330.302(1)(a)2.; A.H. Section 10.2.3.2 A.H. section 10.2.3.2 provides that the “fish and wildlife” element of the public interest test is to be evaluated as follows: The Agency’s public interest review of that portion of a proposed activity in, on, or over wetlands and other surface waters for impacts to “the conservation of fish and wildlife, including endangered or threatened species, or their habitats” is encompassed within the required review of the entire activity under section 10.2.2, above. As set forth herein, the preponderance of the competent, substantial, and persuasive evidence demonstrates that the proposed dune walkover will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)2., rule 62-330.302(1)(a)2., and A.H. section 10.2.3.3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling: Section 373.414(1)(a)3.; Rule 62- 330.302(1)(a)3.; A.H. Section 10.2.3.3 With regard to this element of the public interest test, A.H. section 10.2.3.3 provides, in pertinent part, that: In reviewing and balancing the criterion on navigation, erosion and shoaling in section 10.2.3(c), above, the Agency will evaluate whether the regulated activity located in, on or over wetlands or other surface waters will: Significantly impede navigability or enhance navigability. The Agency will consider the current navigational uses of the surface waters and will not speculate on uses that may occur in the future. Applicants proposing to construct bridges or other traversing works must address adequate horizontal and vertical clearance for the type of watercraft currently navigating the surface waters . . . . Cause or alleviate harmful erosion or shoaling . . . . Significantly impact or enhance water flow . . . . The only evidence of any form of vessels using the lagoon was the Applicants’ act of paddling or dragging the Hobie sailboat and kayaks across the lagoon to access the navigable waters of the Gulf of Mexico. Such does not constitute “current navigational uses of the surface waters.” The preponderance of the evidence in this case establishes that there is no “current” navigational use of the lagoon. No testimony or evidence was elicited that the lagoon supported any form of boating or other navigational use. No person owning property abutting the lagoon that might be affected by some restriction on their navigational rights objected to the proposed dune walkover. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will significantly impede navigability. Ms. Mills testified that “piling supported structures are used in dynamic systems all the time. Specifically you know, because they don’t really have an effect on the movement of sand.” Her testimony is credited. Her testimony, combined with that of the Applicants’ expert witnesses regarding the nature of the area, was sufficient to establish that the proposed dune walkover will not cause harmful erosion or shoaling. Furthermore, the evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause erosion or shoaling. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will significantly impact or enhance water flow. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)3.; rule 62-330.302(1)(a)3.; and A.H. section 10.2.3.3. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity: Section 373.414(1)(a)4.; Rule 62-330.302(1)(a)4.; A.H. Section 10.2.3.4 The evaluation of the factors for consideration under this element of the public interest test include adverse effects to sport or commercial fisheries or marine productivity, including the elimination or degradation of fish nursery habitat, change in ambient water temperature, change in normal salinity regime, reduction in detrital export, change in nutrient levels, or other adverse effects on populations of native aquatic organisms. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will adversely affect sport or commercial fisheries or marine productivity. The public interest evaluation under these regulatory provisions also includes effects on “existing recreational uses of a wetland or other surface water, which could include impacts to “the current use of the waterway for boating.” Other than evidence that the Applicants had to paddle or push their shallow draft sailboat and kayaks across the lagoon to reach the Gulf, there was no evidence to establish that the lagoon has any recreational use. The DEP determined that it does not, based on the fact that the lagoon is not of a permanent depth to support navigation and was intermittently (at best) connected to the Gulf of Mexico. Ms. Mills’ testimony to that effect was persuasive, consistent with that of Mr. Kroemer, and is credited. The standards applicable to impacts to recreational uses are directed to “existing” and “current” uses. There was no evidence of anyone currently using the lagoon for recreational boating. Mr. Rood indicated that he had never seen anyone boating in the lagoon. There was no evidence that anyone else along the lagoon even had a boat. Mr. Kroemer, when asked if his neighbors could use the dune walkover to portage their boats across the lagoon testified that “I’m not aware that they have boats.” No property owners with homes along the lagoon objected to the proposed dune walkover. The evidence in this case establishes that the proposed dune walkover will not adversely affect fishing or recreational values, or marine productivity in the vicinity of the proposed Project. Whether the activity will be of a temporary or permanent nature: Section 373.414(1)(a)5.; Rule 62-330.302(1)(a)5.; A.H. Section 10.2.3.5 The proposed dune walkover is intended to provide permanent access to the Gulf of Mexico, as opposed to being a temporary structure. This finding should not be conflated with whether the proposed dune walkover is an “expendable structure” for purposes of the CCCL Permit, as will be discussed herein. Whether the activity will adversely affect or will enhance significant historical and archaeological resources: Section 373.414(1)(a)6.; Rule 62- 330.302(1)(a)6.; A.H. Section 10.2.3.6 There was no evidence introduced by Petitioners in this case to support a finding that the proposed dune walkover will affect significant historical and archaeological resources in any manner. The current condition and relative value of functions being performed by areas affected by the proposed activity: Section 373.414(1)(a)7.; Rule 62- 330.302(1)(a)7.; A.H. Section 10.2.3.7 The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will adversely affect the current condition and relative value of functions being performed by the waters of and wetlands surrounding the lagoon. The evidence in this case was almost entirely directed to nesting and feeding habitat of shorebirds frequenting the LEICWA. The preponderance of the evidence established that the areas affected by the proposed dune walkover are not conducive for nesting, feeding, or loafing by Snowy Plovers, American Oystercatchers, Black Skimmers, or Least Terns. The Applicants’ Exhibit 6, which was relied upon by each of the parties, showed no observed sightings of those species near the lagoon or the smaller water feature. There was one observed sighting of a non-threatened Wilson’s Plover near the edge of the smaller water feature, though not directly affected by the proposed dune walkover, and no observed sightings of any of the identified species of concern near the lagoon or in the waters of either water body. There was no evidence that the proposed dune walkover would affect the wading birds or shorebirds photographed by Ms. Burns. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)7.; rule 62-330.302(1)(a)7.; and A.H. section 10.2.3.7. Cumulative Impacts: Section 373.414(8); Rule 62- 330.302(1)(b); A.H. Sections 10.1.1(g) and 10.2.8 A.H. section 10.2.8 provides, in pertinent part, that: The impact on wetlands and other surface waters shall be reviewed by evaluating the impacts to water quality as set forth in section 10.1.1(c), above, and by evaluating the impacts to functions identified in section 10.2.2, above. If an applicant proposes to mitigate these adverse impacts within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, then the Agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters, and consequently, the condition for issuance in section 10.1.1(g) will be satisfied. Section 373.4136 establishes that the use of mitigation credits is sufficient to offset adverse impacts for an activity in the mitigation bank service area, and provides, in pertinent part, that: The department or water management district shall establish a mitigation service area for each mitigation bank permit . . . . Except as provided herein, mitigation credits may be withdrawn and used only to offset adverse impacts in the mitigation service area. The boundaries of the mitigation service area shall depend upon the geographic area where the mitigation bank could reasonably be expected to offset adverse impacts . . . . In determining the boundaries of the mitigation service area, the department or the water management district shall consider . . . at a minimum, the extent to which the mitigation bank: * * * 3. Will provide for the long-term viability of endangered or threatened species or species of special concern; [and] * * * 5. Can reasonably be expected to offset specific types of wetland impacts within a specific geographic area. . . . * * * (c) Once a mitigation bank service area has been established by the department or a water management district for a mitigation bank, such service area shall be accepted by all water management districts, local governments, and the department. The Applicants have proposed mitigation in the form of the purchase of 0.01 saltwater forested mitigation bank credits and 0.01 saltwater herbaceous mitigation bank credits from the Pine Island Mitigation Bank. The proposed dune walkover is within the service area established for the Pine Island Mitigation Bank. The mitigation credits, which were initially calculated based on a six-foot-wide dune walkover, are more than sufficient to offset any adverse impacts of the proposed five-foot-wide dune walkover on the wetlands and surface waters in the Project area. Ms. Mills testified that the proposed dune walkover would have “[n]o adverse cumulative impacts because the project would be doing mitigation, with mitigation bank credits within the surface area established for the mitigation bank.” Her testimony established that the statutory offset criteria is applied when a project (and a mitigation bank such as the Pine Island Mitigation Bank) is on a barrier island which, because there is no “drainage” except to the Gulf of Mexico, is not within a “drainage basin.” Her testimony was persuasive, meets the statutory criteria in section 373.4136, and is accepted. There are no existing permits or pending applications for similar dune walkovers in the area. Given the presence of the LEICWA to the west, applications for similar walkovers within its boundary are unlikely and, if made, would have to comply with critical wildlife area restrictions. The evidence in this case establishes that the proposed dune walkover will not result in unacceptable cumulative impacts upon wetlands and other surface waters. Furthermore, Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)7.; rule 62-330.302(1)(a)7.; and A.H. section 10.2.3.7. Elimination or Reduction of Impacts: A.H. Section 10.2.1 A.H. section 10.2.1 provides, in pertinent part, that: The following factors are considered in determining whether an application will be approved by the Agency: the degree of impact to wetland and other surface water functions caused by a proposed activity; whether the impact to these functions can be mitigated; and the practicability of design modifications for the site that could eliminate or reduce impacts to these functions, including alignment alternatives for a proposed linear system. A.H. section 10.2.1.1 provides, in pertinent part, that: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function . . . . A.H. section 10.2.1.2 provides, in pertinent part, that: The Agency will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when: * * * b. The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. As set forth previously, the Applicants have proposed mitigation in the form of the purchase of 0.01 saltwater forested mitigation bank credits and 0.01 saltwater herbaceous mitigation bank credits from the Pine Island Mitigation Bank. The Project area is within the service area established for the Pine Island Mitigation Bank. Ms. Mills testified that “any habitat can be used for nesting and denning, I think any impacts have been offset by the mitigation.” Her testimony is credited. The evidence was also sufficient to establish that the mitigation was in an amount that offsets the impacts of the proposed dune walkover on the lagoon, provides regional ecological value, and provides greater long-term ecological value than the area of the lagoon affected. Based on the Findings of Fact set forth herein, and as supported by a preponderance of the persuasive evidence adduced at the hearing, the Applicants were under no requirement to implement practicable design modifications to reduce or eliminate impacts from the proposed dune walkover. Despite having no obligation to do so, the Applicants did implement practicable design modifications, resulting in a realignment of the dune walkover to eliminate any encroachment on the LEICWA, the reduction of the width of the Project from six feet to five feet, and the elimination of features that resulted in a much lower and unobtrusive structure. The Applicants also agreed to permit conditions to implement construction methodologies to reduce impacts, and eliminate lighting that could affect adjacent habitats. In addition to the foregoing, Ms. Mills testified convincingly that the boardwalk in this area would serve to minimize unrestricted and unchanneled foot traffic, and direct traffic so that people are not “using other manners that aren't specifically defined causing more adverse impacts” through natural and sandy areas. Her testimony is credited. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in A.H. sections 10.2.1 and 10.2.1.2. Environmental Resource Permit - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the Applicants demonstrated their entitlement to the issuance of the ERP, meeting the standards established in section 373.414, rules 62- 330.301 and 62-330.302, and the applicable sections of the A.H. Petitioners did not meet their burden of demonstrating that the ERP should not be issued. SSL Authorization The sovereignty lands at issue in this case are those that were under state ownership prior to the landward migration and attachment of the sandbar. See Fla. Admin. Code R. 18- 21.003(61). The Applicants did not dispute that a SSL Authorization was appropriate. The standards for issuance of an SSL Authorization, including a Letter of Consent Easement, are generally established in Florida Administrative Code Rule 18-21.004. Based on the entirety of the record of this proceeding, the Applicants provided reasonable assurances that the proposed dune walkover meets the requirements for the SSL Authorization. 18-21.004(1)(a) - Contrary to the public interest Rule 18-21.004(1)(a) provides that “activities on sovereignty lands must be not contrary to the public interest.” As established by the DEP: Rule 18-21.004(1)(a) requires an applicant to demonstrate that an activity proposed to be conducted on sovereignty submerged lands will not be contrary to the public interest. . . . [T]o meet this standard, it is not necessary that the applicant show that the activity is affirmatively in the "public interest, " as that term is defined in rule 18-21.003(51), Florida Administrative Code. Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Defenders of Crooked Lake, Inc. v. Krista Howard and Dep’t of Envt’l Prot., DOAH Case No. 17-5328, FO at 26 (Fla. DOAH July 5, 2018; Fla. DEP Aug. 16, 2018). As set forth in detail previously herein, the Applicants have demonstrated, by a preponderance of the competent, substantial, and persuasive evidence in the record, that the proposed dune walkover will pose no demonstrable environmental or social costs. The suggestion that the construction of the proposed dune walkover will adversely affect the economic viability of the LEICWA or the Town is, under the facts of this case, simply implausible. The facts stipulated by the parties provide that “the beach and the ecotourism generated by the potential for birdwatching is important for the Town’s economy.” However, the preponderance of the evidence demonstrates that the proposed dune walkover will have no effect on the use of the beach, shorebirds, or the LEICWA. The fact that the proposed dune walkover is a private structure does not militate against its meeting the public interest test. As stated by Ms. Mills, “it's not contrary to the Board's public interest test because the Board has outlined through its rule a procedure for a private homeowner to get consent through an easement to use Sovereign Submerged Lands.” Her testimony is credited. For the reasons set forth herein, the Applicants met the provisions of the “public interest test” established in rule 18-21.004(1)(a). 18-21.004(2) - Resource management Rule 18-21.004(2)(a) provides, in pertinent part, that: All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed. Activities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable alternative and adequate mitigation is proposed. * * * (i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat. By providing a means of channeling and making the Applicants’ existing access across sovereignty lands less disruptive and damaging to the lagoon, dunes, and bird species, the proposed dune walkover meets the principles that the sovereignty lands be maintained in their essentially natural conditions, and that they be conducive to the propagation of fish and wildlife. The proposed dune walkover involves use of sovereignty lands to facilitate access to the waters of the Gulf of Mexico for traditional uses such as fishing, boating, and swimming. The testimony of the Applicants was sufficient to demonstrate that there was no reasonable alternative to the proposed dune walkover, other than the more disruptive and destructive means of providing access to the Gulf of Mexico currently in use. Though a strong argument can be made that the proposed dune walkover has fewer impacts, and is more protective of sovereignty lands than the Applicants’ existing (and lawful) means of access, sufficient mitigation was provided as described herein. The Project, by virtue of steps taken to minimize its footprint to the minimum necessary to allow access by wheelchair or mobility device, to remove handrails, and by construction methods, including construction from the decking, has been designed to minimize destruction of wetland vegetation on sovereignty lands. The modifications to the Project, including the lowering of the dune walkover; elimination of handrails; the agreement to forego lighting; the steps taken to eliminate effects on water quality; and the termination of the dune walkover in a densely vegetated area not favored by shorebirds, have minimized adverse impacts on fish and wildlife habitat, including habitat for endangered and threatened species of shorebirds and marine turtles. For the reasons set forth herein, the Applicants met the provisions of the “resource management” provisions established in rule 18-21.004(2). 18-21.004(3) - Riparian rights Rule 18-21.004(3) provides that activities undertaken on sovereignty lands be conducted so as to not unreasonably infringe upon traditional, common law riparian rights of upland property owners adjacent to sovereignty submerged lands. Section 253.141 provides that “[t]he land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach.” Neither the Applicants nor their neighbors hold title to the mean high water (“MHW”) mark of the Gulf of Mexico.6/ The MHW line, as of December 1, 2014, was at what is generally depicted as the shoreline of the Gulf of Mexico. The two more upland water features, i.e., the lagoon and the smaller body, both labeled as “Pond” on the 2014 mean high water survey, were well landward of the MHW. The lagoon, which is normally isolated from the Gulf of Mexico, is not of a depth to be routinely navigable in fact, and frequently has so little water as to require that even kayaks be dragged across, is simply not a navigable water body. Pursuant to section 253.141, neither the Applicants nor their neighbors currently have riparian rights to the lagoon or the smaller feature. Even if it were to be determined that the Applicants’ neighbors had riparian rights to the lagoon, any restriction or infringement on traditional rights of ingress, egress, boating, bathing, and fishing would not be “unreasonable.” The evidence established that adjacent upland property owners did not have vessels that would be expected to use the lagoon. There was no suggestion that the ability to traverse the lagoon to access the navigable waters of the Gulf of Mexico, much as the Applicants do now, would be affected. The proposed dune walkover would not restrict bathing or fishing, and the photographic and testimonial evidence established not only that such activities are not engaged in as a matter of fact, but that the shallow, isolated body of water is not conducive to such activities. Finally, in determining whether any restriction on riparian rights -- even if they existed -- was “unreasonable,” it is not inconsequential that no property owners fronting the lagoon objected to or challenged the proposed Project. The evidence in this case established that the lagoon is not a navigable body of water. The MHW line is waterward of the lagoon, and the property lines of the Applicants and their neighbors do not extend to the MHW line. Thus, proximity to that water feature does not serve to confer “riparian” rights on them. Even if the adjacent upland property owners had riparian rights to the lagoon, under the facts of this case, any restriction on such rights created by the proposed dune walkover would not be “unreasonable.” Finally, the mechanism for enforcing such rights would be with the adjacent upland owners, not Petitioners. For the reasons set forth herein, the Applicants met the provisions of the “riparian rights” provisions established in rule 18-21.004(3). 18-21.004(7) - General conditions As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover has been designed, and is subject to conditions as to its construction, that will avoid and minimize adverse impacts to sovereignty submerged lands and resources. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(d). As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover has been designed, is subject to conditions as to its construction, and is intended for use in a manner that will not adversely affect shorebirds or sea turtles. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(e). As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the lagoon is not a navigable body of water. Furthermore, even if it were navigable, any restriction created by the proposed dune walkover will not be “unreasonable.” Finally, if the adjacent upland owners holding such riparian rights believe such rights to have been infringed, despite their not having heretofore objected to the proposed Project, and a court of competent jurisdiction determines that riparian rights have been unlawfully affected, the DEP has the authority to require that it be modified in accordance with the court’s decision. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(f). As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover will not create a navigational hazard. Unlike the “public interest” navigational standards for obtaining an ERP, the “navigational hazard” standard for obtaining a SSL Authorization pursuant to rule 18-21.004(7), though not defined, includes such things as unsafe conditions adjacent to docks and boat slips. Pirtle v. Voss and Dep’t of Envtl. Prot., Case No. 13-0515 (Fla. DOAH Sep. 23, 2013; Fla. DEP Dec. 26, 2013). A mere inconvenience does not constitute the type of navigational hazard contemplated by the rule. Woolshlager v. Rockman and Dep’t of Envtl. Prot., Case No. 06-3296 (Fla. DOAH May 5, 2007; Fla. DEP June 22, 2007). Since there is no proven “navigation” in the lagoon -- other than dragging or, when water levels allow, paddling small boats and kayaks across on the way to accessing the navigable waters of the Gulf of Mexico -- there is no navigational hazard created by the proposed dune walkover. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(g). Finally, as established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover has been designed, is subject to conditions as to its construction, and is intended for the water dependent purpose of traversing the lagoon to allow access to the Gulf of Mexico. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(i). SSL Authorization - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the Applicants demonstrated their entitlement to the issuance of the Letter of Consent Easement, meeting the standards established in chapter 253 and rule 18-21. CCCL Permit DEP has established a CCCL on Little Estero Island. A CCCL permit is required before a person may conduct construction activities beyond that line. Permitting Procedures In the Joint Prehearing Stipulation, Petitioners asserted that “the applicable and relevant procedures for granting a coastal construction control line permit application were not appropriately followed.” However, Petitioners failed to present competent, substantial, and persuasive evidence of any failure by DEP to follow its CCCL permitting procedures. Conversely, DEP established that the project met all of the applicable siting and design criteria, and that DEP complied with statutory and rule criteria and procedures for reviewing and issuing the CCCL Permit. Petitioners have argued that the CCCL Permit should have been procedurally denied because the CCCL Waiver was timely challenged. DEP included special conditions requiring the Applicants to relinquish the CCCL Permit if the CCCL Waivers were denied. In addition, the CCCL Permit does not become final until a Notice to Proceed is issued, which is also conditioned on the CCCL Waivers becoming final. Based on the fact that construction of the dune walkover cannot commence until all permits and authorizations are issued, there was no material error in procedure arising from DEP sequentially issuing the CCCL Waivers and the CCCL Permit, thus, allowing for their consolidation and litigation without unnecessary delay and duplication. Permitting Standards The Applicants have provided reasonable assurances that the proposed dune walkover meets the requirements for a permit for construction seaward of the coastal construction control line established in section 161.053, Florida Statutes, and Florida Administrative Code Chapter 62B-33. The proposed dune walkover meets the requirements established by rule as a minor structure, and was designed in accordance with DEP’s Beach and Dune Walkover Guidelines. It is designed to be expendable. The size, height, and elimination of concrete anchors were proposed to minimize resistance to forces associated with high frequency storms, and to allow the dune walkover to break away when subjected to such forces. It meets every condition proposed by the DEP and the FFWCC. Its minimal size and design is expected to have a minor impact on the beach and dune system. A preponderance of the evidence established that the proposed dune walkover will not cause a measurable interference with the natural functioning of the coastal system. A preponderance of the evidence established that the Project, as a result of its size, profile, and location, will have no measurable affect on the existing shoreline change rate. A preponderance of the evidence further established that the proposed dune walkover is not reasonably expected to significantly interfere with the ability of the coastal system to recover from a coastal storm. A preponderance of the evidence established that the Project would have no measurable effect of the topography or the vegetation of the area. As such, there is no evidence to suggest that the proposed dune walkover would render the dune system unstable or subject to catastrophic failure, or that the protective value of the dune system will be significantly lowered. To the contrary, by lessening pedestrian traffic through the dunes, and channeling traffic at its waterward point of termination, the proposed dune walkover will be protective of the dune system and the coastal system. In that regard, DEP generally encourages dune walkovers to protect the beach and dune system. As a result of the elimination of lighting, of the restriction on construction during turtle nesting season, and of the Applicants’ agreement to all conditions suggested by the FFWCC, the evidence firmly established that the proposed dune walkover will not, by any reasonable measure, result in death or injury to marine turtles, and will result in no significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering. The Project will not result in the removal or destruction of native vegetation. The evidence was sufficient to demonstrate that the Project will not destabilize the beach and dune system. As set forth herein, the greater weight of the evidence establishes that the dune walkover will provide greater protection of the beach and dune system than the Applicants’ existing means of access across the lagoon and dunes. The construction of the dune walkover will cause no significant adverse impact, as defined in rule 62B-33.002(26), to the beach and dune system due to increased erosion by wind or water. The proposed dune walkover does not require any excavation. There will be no net excavation or removal of in situ sandy soils of the beach and dune system, and no net excavation of the in situ sandy soils seaward of the control line or 50-foot setback. The proposed dune walkover does not include any water directing devices. The preponderance of the competent substantial evidence established that the project will not direct discharges of water seaward in a manner that would result in significant adverse impacts. The evidence established that the proposed Project will result in no erosion-induced surface water runoff within the beach and dune system. The evidence establishes that, as a general matter, piling-supported structures do not have an effect on the flow of water. However, in extreme events, water encountering an obstacle can cause the movement of sand around the obstacle. The expendability of a structure and its ability to break away prevents scour from occurring and is designed to minimize impacts. The preponderance of the competent, substantial, and persuasive evidence establishes that the Project will not increase scour so as to cause a significant adverse impact, and that any effect of the Project on the coastal processes of the area would be, at most, de minimis. The design of the proposed dune walkover minimizes the amount of materials that might create debris in the event of a storm. The Applicants removed the handrails, decreased the width of the dune walkover from six feet to five feet, and eliminated pickets and non-structural members. The lowering of the dune walkover, and replacement of the stairs with a ramp that minimizes lift forces, have sufficiently reduced the potential for wind and waterborne missiles. The suggestion that the dune walkover will, in the event of a high frequency storm, form destructive airborne missiles is simply not credible. Granted, the proposed dune walkover is designed to break apart in the face of destructive storm forces. If every piece of storm-generated debris was a sufficient basis upon which to deny a CCCL permit, then minor structures would be prohibited, since all minor structures are designed to be expendable and to break away in a high-frequency storm. Some degree of reason must be applied. The Applicants in this case demonstrated that the proposed dune walkover would not itself be such to create significant adverse impacts if subjected to the destructive forces of such a storm. The proposed dune walkover terminates more than 260 feet from the Gulf of Mexico, and will not interfere with the public’s right to laterally traverse the sandy beach of the Gulf of Mexico. The Project area is in a cycle of accretion, has historically accreted, is currently accreting at roughly 28 feet per year, and is expected to continue accreting. The suggestion that, within 15 years, the shoreline of the Gulf of Mexico waterward of the Applicants’ properties will retreat, and that the proposed dune walkover would thence reach into the Gulf, blocking pedestrian access to the shoreline, was not supported by quantitative analyses, and was not sufficient to outweigh evidence to the contrary presented by the Applicants. The Applicants offered an assessment and report based on past and current conditions at the monument level, which included modeling and sediment budgets showing projected changes of the Project area, none of which support a finding that the shoreline will erode or retreat, or that the proposed dune walkover would be expected to interfere with public access to the shoreline. As set forth previously herein, the Project’s proposed design, location, and construction methods provide reasonable assurance that there will be no adverse impact to marine turtles, or the coastal system. The Applicants provided sufficient evidence of ownership, in that they are the upland owners and the recipients of the SSL Authorization, being addressed concurrently herewith. CCCL Permit - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the Applicants demonstrated their entitlement to the issuance of the CCCL Permit, meeting the standards established in chapter 161 and chapter 62B-33. CCCL Waivers The CCCL Waivers at issue affect the timing requirements of the submission of ownership and land use approvals. The CCCL Waivers do not waive the submission of the documents, or the requirement that the documents be provided prior to any construction of the proposed dune walkover. A preponderance of the competent substantial evidence establishes that the underlying purpose of chapter 161 and rule 62B-33.008, will be met because construction cannot begin until the Applicants satisfy all substantive requirements for the CCCL Permit. At the time the CCCL Waivers were requested, the Consolidated Permit was being litigated (DOAH Case Nos. 16-7148 and 16-7149), as was the Town’s denial of the land use letter requested by the Applicants to comply with the CCCL Permit application requirement. Strict adherence to the requirement that the documents at issue be submitted at the time of the application would have required the Applicants to sequentially litigate issues related to the proposed dune walkover, increasing the time and expense of litigation on all involved. Petitioners presented no evidence demonstrating how allowing the Applicants to submit the documents prior to being given a Notice to Proceed would adversely affect the Department’s ability to carry out the objective of the underlying statutes, or their substantial interests in ensuring the legality of the proposed dune walkover. The timing requirement for evidence of ownership and local government approval was appropriately waived to allow for the efficient and cost-effective litigation of all issues related to the proposed dune walkover. To piecemeal the litigation would unnecessarily increase the time, cost, and administrative burden of litigation for no meaningful or substantive reason, and would provide the challengers with an unwarranted litigation advantage. The CCCL Waivers affect no substantive or substantial interests of any party to this case. They neither lessen the necessary indicia of ownership and control required of the Applicants, nor affect the Town’s ability to lawfully enforce its local zoning codes. The waiver to the timing requirements allows for the substantive permitting requirements to be met, without frustrating the Applicants’ right to a timely final decision on the Consolidated Permit and CCCL Permit. The CCCL Waiver does not allow for any construction to begin without Applicants first meeting both the ownership requirement and the local government zoning confirmation requirement. Therefore, the CCCL Waivers are consistent with the purpose and intent of the governing statutes and rules, and result in no injury to Petitioners’ legitimate interests. CCCL Waivers - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the CCCL Waivers serve to avoid substantial hardship to the Applicants, and advance principles of fairness by maintaining a fair, equal, and cost- effective forum for litigation between the parties regarding the proposed dune walkover. As such, the Applicants demonstrated their entitlement to the issuance of the CCCL Waivers, meeting the standards established in section 120.542.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection; enter a final order approving the Consolidated Environmental Resource Permit No. 36-0320034-001 and Letter of Consent Easement to Use Sovereign Submerged Lands No. 360239365, subject to the general and specific conditions set forth therein; enter a final order approving the Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes, No. LE-1567, subject to the general and specific conditions set forth therein; enter a final order approving the Final Order Granting Petitions for Waivers, File No. LE-1567V; issue a Notice to Proceed authorizing the Applicants to commence construction of the proposed dune walkover; and dismiss the petitions for hearing filed by the Town of Fort Myers Beach in each of these consolidated cases. DONE AND ENTERED this 20th day of March, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2019.
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1) Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1) By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2) On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules, local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions. It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules. By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that "The Board of County Commissioners of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5) This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes. Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10) The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately 230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields. The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them. The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site. The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system. Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units. When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge. Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area. The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact. On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years. No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones. Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property. Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money. Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
Recommendation Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED. Respectfully submitted and entered this 25th day of May, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982. COPIES FURNISHED: Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A. 406 Magnolia Avenue Panama City, Florida 32401 W. Paul Thompson, Esquire Thompson and Adkinson P. O. Drawer 608 DeFuniak Springs, Florida 32433 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303 Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
