Findings Of Fact At all times material hereto Respondent Howard B. Berman has been a licensed real estate broker having been issued license number 0178090. At all times material hereto Respondent Michael J. Weil has been a licensed real estate broker having been issued license number 0179132. At all times material hereto Respondent Paramount Realty, Inc., has been a corporation licensed as a broker having been issued license number 0196048. Although Respondent Berman was a director of Respondent Paramount Realty, Inc. since at least March 7, 1979, he did not become an officer or stockholder in that corporate broker until December of 1982 or January of 1983. Although Respondent Weil was a director of Respondent Paramount Realty, Inc. since at least March 7, 1979, he did not become an officer or stockholder in that corporate broker until January of 1984. Prior to the time that Respondent Berman and Respondent Weil became officers and stockholders of Paramount Realty, Inc., they were not employed by Paramount but rather had an independent contractor relationship with that corporate broker. On or about June 13, 1979, Respondent Weil, acting as trustee for himself and for Respondent Berman, entered into a contract to purchase a certain parcel of land located in Broward County, Florida, with the intent of developing that land by building a condominium thereon. On or about October 18, 1979, Respondent Weil as trustee sold the above-referenced parcel of land to an investors group known as North Beach Development Group, Ltd., a Florida limited partnership, which the Respondents organized. The general partner in that limited partnership was North Beach Development Company, a Florida corporation, in which none of the Respondents had an interest. On or about October 18, 1979, Respondents Berman and Weil, as employees of North Beach, Inc., a Florida corporation, negotiated and obtained a consultation agreement between North Beach Development Group, Ltd. and North Beach, Inc. under which Respondents Berman and Weil would provide consultation services in connection with the development of a 34 unit condominium complex on the above-referenced parcel of land. On or about October 19, 1979, the general partner North Beach Development Company, and each of its stockholders, and each of the limited partners of North Beach Development Group Ltd. executed an Approval, Consent and Ratification agreement approving the above mentioned consultation agreement, establishing Respondent Paramount as the exclusive real estate agent for the condominium units, and approving the purchase by Respondents Berman and Weil of condominium units Nos. 604 and 607 for a combined total purchase price of $185,000. Prior to the creation of North Beach Development Group, Ltd., Respondents Berman and Weil placed $25,000 of their moneys on deposit under the contract to purchase the above-referenced land. During the existence of the limited partnership Respondents Berman and Weil loaned approximately $40,000 to the partnership. Respondents Berman and Weil also personally guaranteed the three million dollar construction loan involved in the project. Accordingly, both Respondents Berman and Weil had their personal funds at risk in the development of the condominium project. At no time did either Respondent Berman or Respondent Weil represent to Pat Dalton or any other investor or potential investor that either or both of them had invested or would invest any of their personal moneys in either the general partner North Beach Development Company or the partnership North Beach Development Group, Ltd. Five changes were made to Respondent Berman's unit 604, the total cost of all five changes being approximately $2,300. On May 19 and May 20, 1981, two checks were written off the account of North Beach Development Group, Ltd. to pay for the five changes to unit 604. On May 26, 1981, Respondent Berman (and his wife) closed on their purchase of unit 604. At the closing, Respondent Berman totally reimbursed North Beach Development Group, Ltd. the moneys it spent six days earlier for the five changes to unit 604.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final order be entered finding Respondents Howard B. Berman, Michael J. Well and Paramount Realty, Inc., not guilty of the allegations in the Amended Administrative Complaint filed against them and dismissing that Amended Administrative Complaint with prejudice. DONE and RECOMMENDED this 25th day of January, 1985, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985. COPIES FURNISHED: Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Post office Box 1900 Orlando, Florida 32802 Richard S. Rachlin, Esquire 1810 New World Tower 100 N. Biscayne Boulevard Miami, Florida 33132
Findings Of Fact Sarasota County and MPS both filed extensive exceptions to the Recommended Order. I have grouped these exceptions according to the following issues: Manatee Protection, Turtle Nesting impacts, Fisheries impacts, Seagrass impacts, Wetlands Impacted, Water Quality Improvement, Public interest Balancing Test, Miscellaneous Exceptions, Requests For Additional Findings of Fact, and Conclusions of Law. I shall discuss and rule on each exception by the above groupings. 1. Manatee Protection Sarasota County Exception Number 1 and MPS Exception Numbers 6 and 8 are directed to the issue of adverse affects on the West Indian Manatee. Sarasota County and MPS take exception to Finding of Fact ("FOF") No. 24, claiming that there is no competent substantial evidence in the record to support the finding that it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. MPS additionally takes exception to the finding in FOF No. 29 that maintenance dredging will entail a danger to manatees similar to that during the construction phase. At the outset, I note that where a Hearing Officer's finding of fact is supported in the record by any competent, substantial evidence I am not permitted to reweigh the evidence and reject the finding of fact. See, e.g., Florida Debt. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Section 120.57(1)(b)1O., Florida Statutes. In this case the record does contain competent substantial evidence supporting FOF Nos. 24 and 29. The Hearing Officer's finding that increased motorboat traffic is an expected result of opening of the pass is not disputed. FOF No. 34. The area is designated as a critical habitat for the West Indian Manatee. FOF No. 22. The prefiled testimony of Ms. Kimberly A. Dryden states that "[a]n increase in boat/manate collisions associated with increased boat presence in the pass may occur." Dryden, PF-11. Ms. Dryden was admitted as an expert in wildlife biology including expertise in manatees, and her prefiled testimony was accepted into evidence. TR-756-760. Finally, the fact that Sarasota County itself proposed a manatee protection plan involving, among other things, that all project vessels operate at "no wake" speeds, supports the finding that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. Sarasota County and MPS point to the public notice of the U.S Army Corps of Engineers (Hearing Exhibit 26) and a U.S. Fish and Wildlife Service letter (Hearing Exhibit 27) as overwhelming evidence that no adverse effect on the manatee is expected. In essence, Sarasota County and MPS are asking me to reweigh the competent, substantial evidence. As noted above, I may not lawfully do that. The parties do not dispute the Hearing Officer's finding that maintenance dredging is expected to be needed as long as the inlet remains open. FOF No. 21. For the reasons set forth above, the Hearing Officer's finding that maintenance dredging will present a danger to manatees similar to the construction is supported in the record by competent substantial evidence. Sarasota County and MPS also assert that FOF No. 24 must be rejected because it is contrary to a stipulation of fact by the parties. Indeed, the record shows that a prehearing stipulation was filed and accepted into the record without objection at the hearing. TR-8. Stipulation of Fact No. 24 states: With the implementation of recommendations of the U.S. Fish and Wildlife Service, it is not expected that the project will have a significant adverse impact on the manatee or its habitat. Steven Sauers, Director of the Coastal Zone Division for Sarasota County, testified that he believed the County "could adhere to these [U.S. Fish & Wildlife Service] recommendations under a condition of authorization." TR-94-98. I note that when the prefiled testimony of Ms. Dryden was accepted into evidence at the hearing, neither Sarasota County nor MPS objected to those portions dealing with manatee impacts as being contrary to Stipulation of Fact No. 24. I must therefore consider whether the failure to object constitutes a waiver of the stipulation, and whether the Hearing Officer, as the ultimate finder of the facts, is bound by a stipulation of fact when the record contains competent, substantial evidence which conflicts with the stipulation. It has long been the eablished rule of law that stipulations of fact properly entered into are binding on both the parties and the court. See, e.g., Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (where case is tried on stipulation, no further or different facts will be presumed to exist). Where a party seeks to be relieved from a stipulation, he or she generally must file a timely motion, with notice to opposing parties, showing good cause and no prejudice to opposing parties. U.S. Fire insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989); Lopez v. Dublin Co., 489 So.2d 805, 807 n.3 (Fla. 3d DCA 1986); Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), cert. den., 344 So.2d 325 (Fla. 1977); Villa v. Mumac Construction Corp., 334 So.2d 274 (Fla. 3d DCA 1976); Curr v. Helene TransportatIon, 287 So.2d 695 (Fla. 3d DCA 1974). Good cause requires showing of fraud, overreaching, misrepresentation, withholding of facts by the adversary party, or such other element as would render the agreement void. Spitzer v. Bartlett Brothers Roof in, 437 So.2d 758 (Fla. 1st DCA 1983); Citv of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). In this case, neither the Department nor the Respondent Intervenors sought to be relieved from the stipulation, and there is no contention that any basis for good cause exits to be relieved from the stipulation. However, it is also a long established rule of law that failure to contemporaneously object to the admission of contested evidence is a waiver of the right to object. See, e.g., Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980), rev. den., 389 So.2d 1108 (Fla. 1980); Ehrhardt, Florida Evidence, Section 104.1 (2d Ed 1984); Section 90.104, Florida Statutes. in this case the testimony which conflicts with the stipulation was pre-filed before the hearing and the opposing parties had ample opportunity to review it before the hearing. Yet, although Sarasota County did raise objections to certain portions of Ms. Dryden's pre- filed testimony, no objection was raised to the portion relevant to impacts on manatees. TR-754-760. There is also authority for the proposition that when evidence contrary to a stipulation is introduced at trial without objection, the finder of fact is not bound by the stipulation. Special Disability Trust Fund v. Myers, 492 So.2d 788 (Fla. 1st DCA 1986), cause dism'd, 491 So.2d 280 (Fla. 1986); Espada Enterprises Inc. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986); Woods v. Greater Naples Care Center, 406 So.2d 1172, 1173 (Fla. 1st DCA 1981), rev. den., 413 So.2d 876 (Fla. 1982). In consideration of the above authorities and circumstances, I conclude that the Hearing Officer was not bound by the stipulation and could properly consider the relevant portion of Ms. Dryden's pre-filed testimony. Therefore the record contains competent, substantial evidence in support of the above findings of fact. Accordingly, the above noted exceptions of Sarasota County and MPS are denied. Turtle Nesting Impacts Sarasota County Exception No. 2 and MPS Exception No. 7 dispute FOF No. 26, which states that: "Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting." Sarasota County and MPS argue that although a portion of the beach will be removed to create the inlet, the loss of beach will not significantly impact on turtle nesting. Sarasota County and MPS contend that the "overwhelming weight" of the evidence is contrary to FOF No. 26. They are in essence asking me to reweigh the evidence. For the reasons stated above, I cannot do so. If the finding of fact is supported in the record by any competent, substantial evidence, then I am not at liberty to reject it. Florida Department of Corrections, supra; Section 120.57(1) (b)10., Florida Statutes. Ms. Belinda Perry, Projects Coordinator in the Coastal Zone Division of Natural Resources of the Sarasota County Natural Resources Department, testified that she had maintained records of sea turtle nests in the vicinity of Midnight Pass. She testified that on the average over the last eight years there have been four nests per year in the area that the new inlet at Midnight Pass will be located. Perry, TR-537-538; Perry PF-2, 5, 8. This is competent, substantial evidence of an adverse impact on the nesting habitat of sea turtles. Sarasota County and MPS argue that this impact is not "Significant." If I were to consider the "significance" of the loss of 4 nests per year for the purpose of accepting or rejecting FOF No. - 26, I would in effect be weighing that evidence. This I may not do. If the finding of fact is supported in the record by any competent, substantial evidence I may not reject it. Although not articulated, Sarasota County and MPS may be arguing that when evidence which supports a finding of an adverse impact on an endangered or threatened species is "not significant," then such evidence or finding of fact cannot be considered when weighing the seven factors set forth in the public interest balancing test of Section 403.918(2) (a), Florida Statutes. I reject any such argument as contrary to the law. Neither the statute nor any authority requires a minimum threshold weight for any of the factors. The statute merely requires the Department to "consider and balance" the seven criteria. For the foregoing reasons, Sarasota County's Exception No. 2 and MPS's Exception No. 7 are rejected. Fisheries Impacts Sarasota County Exception No. 4 and MPS Exception No. 10 challenge that part of FOF No.-3- that states "the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB." (emphasis added) Sarasota County and MPS contend that this finding is unsupported by any competent substantial evidence in the record. I disagree. Robert L. Stetler, Environmental Administrator, Wetlands Resource Management for the Department's Southwest District testified as follows: Q. What impact on fisheries does the present, i.e., closed condition of the Midnight Pass area have? A. Current conditions in the backwater area of Midnicht Pass as mentioned Before, as quiescent in nature. This influences the fisheries utilization to the competitive advantage of the smaller species and of the early life stages of many of the larger pelagic fish species. The additional cover afforded by seagrass communities and the very shallow water nature of large portions of the site tend to limit successful predation on the smaller specimens. The periphyton communities associated with shallow water areas and seagrass beds also provide large quantities of food to the smaller or younger fish. The conditions now found at Midnight Pass enable it to be classified as a nursery area because they perform the functions of feeding and protecting the early life stages of numerous fish species. Nursery areas like the pass region have been identified as essential to the maintenance of healthy, well balanced fish populations. Q. Does a quiescent estuarine zone provide any particilar benefit to commercially important fish species? A. Under the estuarine conditions, water quality also contributes to the success and/or failure of certain fish species. Many of the estuarine dependent fish species have life histories that include spawning in or near the marine environment and the mitigation [sic] of the larval forms into areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. These harsh conditions are tolerable to a early life stages of several commercially important fish species and further protects them from predation by adult piscivorous (fish eating) fish that cannot tolerate these conditions. Some of the important commercial species exhibiting this life cycle are the Tarpon, Spotted Seatrout, Redfish, Mangrove snapper, Sheepshead and Mullet. Q. What, in your opinion, would be the overall impact to fisheries resources from the opening of Midnight Pass? A. The overall impact of the project to fisheries would be significant. Reactivating an inlet would produce conditions conducive and reintroducing larger, motile, pelagic fishes into the area. increased flushing would likely occur resulting in increased salinities, higher energy conditions from waye and tidal action. The recreational fishery would probably produce more larger fish utilizing the pass as a migratory, spawning and feeding site. However, the direct impact of the project would also result in the loss of significant portions of the nursery habitat previously described. Q. in your opinion, would opening Midnight Pass be in the public interest from a fisheries standpoint? A. No. Q. Why not? A. The expected physical damages associated with reopening the pass -- increased water depths, destabilization of the substrate by tide and wave energy and destruction of existing shallow water habitat will eliminate or significantly change the habitat characteristics and water guality conditions essential to the early life stages of many fish species. Loss of nursery habitat has been a long-term trend to Tampa and Sarasota Bay due to past dredge and fill activities and increased development. This long-term loss results in a need to classify remaining nursery areas, like Midnight Pass, as critical habitat warranting special protection. (emphasis added) Stetler PF-11-13. This prefiled testimony was accepted into evidence. TR-836, 839. When read in its entirely it clearly provides competent, substantial evidence to support the above finding of fact. Mr. Stetler testified that the existing nature of LSB provides a nursery for certain fishes that in the early stages of their life take advantage of areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. Such harsh conditions protect them from predation by adult fish that cannot tolerate such conditions. He further testified that reopening Midnight Pass would result in increased flushing, increased salinity, and the loss of significant portions of the above characteristics with a consequent loss of significant portions of the nursery habitat. This testimony is competent, substantial evidence supporting FOF No. 32. Therefore, i may not disturb this finding of fact. Accordingly, the above noted exceptions are rejected. Seagrass Impacts Loss of Seagrass Sarasota County Exception No. 5 and MPS Exceptions Nos. 10 and 11 take exception to the Hearing Officer's finding that the submerged areas of LSB in the vicinity of the inlet are vegetated with seagrasses (including shoalgrass, turtle grass, manatee grass, and halophila), and that a significant portion of these grasses will be dredged if the proposed project is implemented. FOF No. 33. The Hearing Officer also found that the dredged seagrass areas will no longer serve as a nursery to young fishes. FOF No. 34. Sarasota County and MPS contend that only 10 acres of seagrasses will be dredged, and that the evidence shows that reopening Midnight Pass will cause more dense growth of seagrasses in those areas not dredged. Sarasota County and MPS also contend that the Hearing Officer erred in concluding that all four of the above noted types of seagrasses would be lost. The gist of Sarasota County's and MPS's argument is that the loss of ten acres of seagrss is less than 10% of the total seagrass acreage in the project area, and therefore is not significant. Sarasota County and MPS further argue that even if the loss of 10 acres of seagrass was significant, it would only be a temporary loss because the opening of Midnight Pass would result in greater seagrass growth, density, and diversity in those areas not dredged. Neither Sarasota County nor MPS take exception to the finding that l0 acres of seagrasses will be dredged, and that, due to the depth of the channel to be dredged, seagrasses would not be expected to reseed or colonize in the deep channel cuts. FOF No. 34; Prehearing Stipulation of Fact No. 22. The record contains competent, substantial evidence that in the vicinity of the project there are 108 acres of seagrasses. Lewis, PF-6 (accepted into evidence TR-425-436). A loss of ten acres of seagrasses would be a loss of more than 9% of the total acreage in the vicinity of the project. A loss of seagrass can have an adverse impact on a fish nursery. Leiby TR-507, 509-510. I reject any suggestion that such a loss is not significant. MPS and Sarasota County contend that there will be no net loss of seagrass because the loss of the ten acres will be offset by increased growth, density, and diversity of seagrasses in the areas not dredged. in asking me to reject the above noted findings, Sarata County and MPS are in effect asking me to weigh the evidence of the impact of the loss of ten acres against the evidence that increased growth, density, and diversity of the seagrasses elsewhere will soon offset any reduction in nursery value to young fishes. When I rule on exceptions to findings of fact I cannot reweigh the evidence. If the record contains any competent, substantial evidence to support the finding, I must accept it. Finally, as to issue of the types of seagrasses present, the record contains competent, substantial evidence that all four of the species mentioned in the finding of fact are found in the project area to be dredged. Stetler PF- 6, TR-843-845; Wilber PF-33, TR-908-915; Dryden PF-5-7; Prehearing Stipulation of Fact No. 21. For all of the reasons set forth above, i reject the exceptions of Sarasota County and MPS. Propeller Dredging of Seagrass Sarasota County Exception No. 6 and MPS Exception No. 12 take exception to the Hearing Officer's finding that "increase motorboat traffic which is an expected result of the pass reopening, would also limit grasses from re- establishing in shallower areas due to damage caused by propellers." FOF No. 34. Sarasota County and MPS do not dispute that opening - Midnight Pass will increase motoboat traffic in LSB. Dr. Wilber testified that the "foreseeable increased boat utilization, especially by large boats will increase seagrass bed damage through prop dredging . . . ." Wilber PF-31. There being competent, substantial evidence in the record supporting the above finding, the exceptions of Sarasota County and MPS are denied. Wading Bird Habitat Impacts Sarasota County Exception No. 5 takes exception to the Hearing Officer's finding that "the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass." FOF No. 33. Ms. Dryden testified that wading birds now use the shallow tidal flats and mud flats which are proposed to be removed. Dryden PF-4-8, 10-11. Mr. G. Jeffery Churchill testified that, as a result of the project, approximately 9 acres of wading bird feeding habitat would be lost. Churchill PF-16-17, TR- 485-487. The record contains competent, substantial evidence supporting the above finding. Therefore, Sarasota County's exception is denied. Wetlands Impacted Sarasota County Exception No. 6 and MPS Exceptions Nos. 5 and 12 take exception to the finding that the dredging proposed by the County would eliminate at least 50 acres of wetlands. FOF Nos. 17 and 34. Sarasota County and MPS contend that only 1.1 - 1.3 acres of vegetated wetlands will be lost. This contention appears to be based on the assertion that submerged lands are not "wetlands" within the meaning of Sections 403.91 - .929, Florida Statutes. I reject Sarasota County's and MPS's narrow construction of the meaning of jurisdictional wetlands. Section 403.912(1) sets forth the powers and duties of the Department in permitting activities in wetlands, including activities "in waters to their landward extent . . ." (emphasis added). The term "waters" includes "rivers, lakes, streams, springs, impoundments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." Section 403.031(12), Florida Statutes. the term "wetlands" therefore is inclusive of surface bodies of waters up to and including the limit of the Department's jurisdiction as established by Section 403.817, Florida Statutes and Rule 17-301, F.A.C. Dr. Wilber testified that the project would dredge 43.8 acres for the two access channels, 3.6 acres for the sediment basin, and 7.5 acres of jurisdictional wetlands for the inlet channel. Wilber PF-5-6. Dr. Wilber further testified that habitat within the proposed channels consisted of valuable biological communities of a natural character that would be severely disrupted or eliminated if the project were permitted. Wilber PF-9. The record contains competent, substantial evidence to support the above finding. The exceptions of Sarasota County and MPS are rejected. Water Quality Improvement Sarasota County Exception No. 7 and MPS Exception No. 14 take exception to the Hearing Officer's finding that "the water quality within LSB will not be significantly improved as a result of the reopening of the inlet. "FOF No. 38. it is contended that this finding is immaterial and irrelevant. These exceptions also challenge as irrelevant the Hearing Officer's finding that "it is impossible to conclude that marine environments serve a more useful purpose than estuarine systems." FOF No. 38. I agree that it is not required that the proposed project improve the water quality in LSB in order to be permittable. Permitting of a dredge and fill project in an Outstanding Florida Water requires that the applicant show that the project is clearly in the public interest, and that reasonable assurance has been provided that the project will not cause or contribute to violations of water quality standards, including a showing that the existing ambient water quality within the OFW will not be lowered as a result of the proposed activity. Section 403.918(1),(2), Florida Statutes; Rules 17-4.242(2) (a), 17-302.300, F.A.C. The applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards, and that the project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989). if the applicant is unable to satisfy the applicable public interest test, the applicant may propose or accept measures to mitigate the adverse effects caused by the project. Section 403.918(2)(b), Florida Statutes. 4/ On the other hand, throughout these proceedings Sarasota County has attemptd to justify the project and show that it is clearly in the public interest by asserting the project will improve water quality in LSB. For example, at page 7 of Sarasota County's Proposed Recommended Order it states: Sarasota County has convincingly demonstrated that it meets the statutory criteria for approval of this project in this Outstanding Florida Water. The project will not degrade ambient water quality, and it will cause an improvement in water guality, not only in the immediate vicinity of the Pass but throughout Little Sarasota Bay. This improved water guality will in turn reap substantial benefits to the degraded marine habitat, the flora and fauna, commercial and recreational fishing and the public's general enjoyment and ability to use Little Sarasota Bay. (emphasis added) Similarly, Sarasota County stated in its opening argument at the hearing that: TR-14. We think that there has been a decline in water quality and it will continue to decline and it will continue to get worse. By reopening the pass, we think we can stop that decline. We think that there will be such considerable improvements to the bay to be clearly in the public interest. The Hearing Officer's finding is clearly relevant to Sarasota County's assertion that the claimed improvement in water quality will make or help make the project to be clearly in the public interest. Similarly, since the reopening of the pass will cause the reversion of LSB from an estuarine to a marine ecosystem, the Hearing Officer's finding on the failure to show that a marine ecosystem has a more useful environmental purpose is also, at least arguably, relevant to the public interest test. 5/ The record contains competent, substantial evidence which supports this finding. Nearhoof PF-8-12, TR-891-895; Wilber PF-17-18, TR-920-921. There being competent, substantial evidence to support the finding, I shall not reject it. The exceptions are there denied. Public Interest Balancing Test Sarasota County Exceptions Nos. 8 and 12, and MPS Exceptions Nos. 15 and 17, take exception to the Hearing Officer's finding that "the beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging." FOF No. 39. Exception is also taken to FOF No. 43, which states that it was not established that the project is clearly in the public interest. The gist of these exceptions is that the balancing test is a conclusion of law rather than a finding of fact. Even if that were so, the error in mislabeling would be harmless. Even though I agree that the ultimate determination of the public interest balancing test is a conclusion of law, I do not agree that predicate findings of ultimate facts are not appropriate. Florida Audubon Society v. Cullen, ER FALR 91:018 (DER, Sept. 27, 1990). The Hearing Officer's FOF Nos. 34 and 43 are predicate findings of ultimate facts sufficiently supported in other findings of fact for each of the seven criteria in the public interest balancing test of Section 403.918(2)(a), Florida Statutes. See for example: Department's Response To Request For Admission No. 17, and R.O. at 21 and 23, accepting MPS's proposed finding of fact- No. 74, and Sarasota County's proposed finding of fact No. 50 (project will not adversely affect public health, safety or welfare); (b) FOF Nos. 17, 22, 24-26, 29, and 32-35 (regarding conservation of fish and wildlife, etc.); FOF No. 36 and R.O. at 23, accepting MPS's proposed finding of fact Nos. 134 and 135 (regarding navigation, flow of water, erosion or shoaling); FOF Nos. 32 and 33 (regarding fishing recreational values or marine productivity); FOF No. 21, 29 and 37 (regarding temporary or permanent nature of project); FOF No. 28 (regarding historical and archaeological rsources); and FOF Nos. 30 and 38 (regarding current condition and relative value of functions being performed by areas affected by project). The exceptions are therefore rejected. Miscellaneous Exceptions Sarasota County Exception No. 9 Sarasota County Exception No. 9 contends that there is no competent, substantial evidence for the finding that the Department has not permitted the destruction of a habitat of this size without requiring extensive mitigation. FOF No. 40. Mr. Randall L. Armstrong, then Director of the Division of Water Management of the Florida Department of Environmental Regulation, testified that he had worked at the Department since 1972, and that "[i]n my experience with the Department in issuing permits under those statutes (Sections 403.918-.919] the Department has never permitted the destruction of such a large area of viable habitat without requiring extensive mitigation." Armstrong PF-9, TR-1017. Sarasota County's reliance on the testimony of Mr. Lewis about lack of mitigation in a Key Biscayne project is misplaced since that project occurred before the enactment of the Henderson Wetlands Act in 1984. Lewis TR at 482. in any event, FOF No. 40 is supported in the record by competent, substantial evidence. The exception is denied. Sarasota County Exception No. 11 and MPS Exception No. 16 Sarasota County Exception No. 11 and MPS Exception No. 16 complain about FOF No. 42, yet do not dispute its correctness. The finding is a irrefutable finding that no mitigation is proposed for 10 acres of seagrasses which will be dredged. The exceptions are merely an assertion that mitigation is not necessary for the loss of seagrasses because additional seagrass will grow elsewhere. This contention was addressed above under the heading of Seagrass impacts. Furthermore, the Department has the ultimate authority to determine whether mitigation is required and, if so, whether the proposed mitigation is adequate. 1800 Atlantic Developers v. Department of Environmental Regulation, 522 So.2d. 946 (Fla. 1st DCA 1989). The exceptions are rejected. Sarasota County Exception No. 3 Sarasota County's Exception No. 3 claims to take exception to FOF No. 29 but does not dispute any of the facts stated therein. The exception is rejected. MPS Exception No. 1 This exception quibbles over an immaterial issue of semantics in FOF No. 2, i.e., whether the project is to "dredge an inlet" or to "restore" the past inlet. The exception is rejected. MPS Exception No.2 MPS takes exception to FOF No. 4 which states that LSB was designated an Outstanding Florida Water. The gist of MPS's exception is that the Environmental Regulation Commission excluded Midnight Pass when LSB was designated as an OFW. Since "Midnight Pass" no longer existed as a body of water when LSB was designated an OFW on April 29, 1986, the exception is rejected as immaterial and irrelevant. MPS Exceptions No. 3 and 13 MPS takes exception to the Hearing Officer's finding in FOF No. 7 that prior to the closing of Midnight Pass the "beach along the northern stretch of Casey Key eroded badly." MPS also excepts to the finding that without beach renourishment the restoration will cause "harmful erosion" along Casey Key. FOF No. 37. MPS does not dispute the erosion; rather, MPS complains about the choice of words describing the degree of erosion. The choice of words is not material to the underlying validity of the finding. The exceptions are without merit and are rejected as immaterial. MPS Exception No. 9 MPS takes exception to FOF No. 30, contending that there is no support in the record for a finding that, as a result of the evolution of LSB from a marine to an estuarine system, LSB has a longer freshwater residence time. MPS is misreading FOF No. 30. It is clear that FOF No. 30, when properly read, states that as a result of the closure of the pass LSB has evolved from a marine to an estuarine system, and that this evolution is a consequence of the longer freshwater residence time which was caused by the closing of the inlet. This is supported in the record by competent, substantial evidence. Echernacht TR-707. MPS also takes exception to the finding that levels of dissolved oxygen and salinity within LSB are fairly typical for a healthy estuarine system. FOF No. 30. The record contains competent, substantial evidence to support this finding. Wilber PF-32. The exceptions are rejected. Requests For Additional Findings of Fact Sarasota -County Exceptions Nos. 3, 10, and 13 through 16, and MPS Exceptions Nos. 4 and 18 are in essence asking me to make additional findings of fact, or to accept proposed findings of fact which were rejected by the Hearing Officer. I may not lawfully make an independent determination of a disputed fact. Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3rd DCA 1985). Accord, Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987). See also Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Inverness Convalescent Center v. Department of Health and Rehabilitative Services, 512 So.2d 1011 (Fla. 1st DCA 1987); Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). As to Sarasota County Exception No. 14, which requests a finding of fact that the project will not adversely affect the pubic health, safety and welfare, I note that the Hearing Officer accepted this finding of fact which was proposed in both paragraph 74 of MPS's proposed recommended order and in paragraph 50 of Sarasota .County's proposed recommended order. See R.O. at 21 and 23. Therefore, I consider the requested finding of fact to have already been made by the Hearing Officer. No additional finding is required of me. Sarasota County Exception No. 15 asks me to make specific additional findings of fact in relation to effects of the project on marine productivity. Sarasota County orrectly points out that a finding regarding whether the project will adversely affect marine productivity is needed to conduct the public interest balancing test of Section 403.918(2), Florida Statutes. However, I note that the Hearing Officer's FOF Nos. 32 and 33 are sufficient predicate findings for her to consider and weigh this criteria in the balancing test. Furthermore, the Hearing Officer has considered and ruled on Sarasota County's proposed findings related to marine productivity as set forth in Sarasota County's proposed recommended order paras. 105-108 and 110 (accepted) and para. 111 (rejected as vague). See R.O. at 22. Sarasota County Exception No. 15 is essentially a reiteration of proposed findings of fact which had been asserted before the Hearing Officer. Where the Hearing Officer clearly and specifically addressed and ruled on the proposed finding in the recommended order, I am not required to provide further reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds sub nom., Dept. of Professional Regulation v. Bernal, 531 So.2d 967 (Fla. 1988). I concur with and adopt the Hearing Officer's rulings as being based on competent, substantial evidence, and therefore reject the exception. Sarasota County Exception No. 16 asks me to make specific findings with regard to cumulative impacts. The matter ofwhether the proposed project will have any significant adverse secondary or cumulative impacts was a disputed issue at the hearing. See Prehearing Stipulation at 24, Stipulated Disputed issue VI(A)9. Section 403. 919, Florida Statutes, requires consideration of the cumulative impacts of the project in conjunction with other existing or future projects where there is a "reasonable likelihood" of similar project applications in the same geographic location in the future. Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Reasonable expectation of future projects is the polestar of cumulative impact analysis. Chipola Basin Protective Group v. Department of Environmental Regulation, 11 F.A.L.R. 467, 477 (D.E.R. December 29, 1988). Testimony at the hearing showed that the Department conducted an evaluation of the project for cumulative impacts and was unable to identify any such impacts. Wilber PF-30, TR-949-950; Armstrong TR-1021-1022. A finding that the Department conducted a cumulative impact analysis and concluded that it was unable to identify any cumulative impact was proposed by Sarasota County in its Proposed Recommended Order, paras. 118 and 119. - These findings were accepted by the Hearing Officer (R.O. at 22). Therefore, the requested findings of fact have already been made by the Hearing Officer, and no additional finding is required of me. The exception is therefore rejected. MPS Exception No. 18 asks me to adopt numerous proposed findings of fact which the Hearing Officer expressly rejected. The Hearing Officer expressly ruled on each of these proposed findings of fact. (Recommended Order at 23-24) Where exceptions merely reiterate proposed findings of fact which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, supra. I concur with and adopt the Hearing Officer's rulings on these proposed findings of fact. I therefore reject the above exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Public Interest Test Sarasota County's Exception To Conclusion of Law No. 2, and MPS Exception No. 20 take exception to the Hearing Officer's conclusion of law that "the County has failed to establish that the proposed project is clearly in the public interest." Conclusion of Law No. 6, R.O. at 15-16. As I noted in my earlier discussion on findings of fact, in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. Failure of the applicant to make that showing makes the project not permittable. In order to determine whether the project is clearly in the public interest, the Department must consider and balance the following seven factors set forth in Section 403.918(2)(a): Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to consider and balance these factors it is necessary, of course, to make sufficient findings of fact as to each factor. As I discussed above, the Hearing Officer had accepted or expressly made findings of fact relevant to each of the above factors. in Conclusion of Law No. 6, she considered and balanced those factors in reaching her determination that it was not shown that the project is clearly in the public interest. I am, of course, not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 16 FLW D458 (Fla. 2d DCA, Feb. 20, 1991); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Section 120.57(1) (b)lO., Florida Statutes. I have considered and balanced each of the seven criteria set forth in Section 403.918(2) (a) in the light of the findings of fact discussed above. I concur in the Hearing Officer's conclusion that it has not been demonstrated that the project is clearly in the public interest. In reaching my conclusion I am aware of the holding in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) that no net public benefit need be shown. I conclude that Findings of Fact Nos. 17, 22, 24-26, 29 and 32-35 on balance establish that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Findings of Fact 32 and 33 on balance show that the project will adversely affect the fishing or recreational values or marine productivity in LSB. Findings 30 and 38 on balance sfrthat the current conditiofr of LSB makes it a valuable estuarine ecosystem which will be lost if the project is permitted. Finding of Fact 36 and MPS proposed findings of fact Nos. 134 and 135, which were accepted by the Hearing Officer, on balance show a net benefit to navigation. And, the Hearing Officer's acceptance of Sarasota County's proposed finding of fact No. 50, and MPS's proposed finding of fact No. 74, allow me to conclude that the project will not adversely affect the public health, welfare or safety. I note that there is abundant proof that the project is permanent in nature and that there will be no adverse affect on historical or archaeological resources. When I consider and balance all of these factors and their relevant facts, I conclude that the adverse impacts outweigh any benefits, and therefore donclude that there has been no showing that the project is clearly in the public interest. Since I have determined that it has not been shown that the project is clearly in the public interest, I must also consider any mitigation which Sarasota County has proposed. Sarasota County and MPS contend that no mitigation is needed for the loss of ten acres of seagrasses because reopening the pass will result in recolonization of new areas of seagrass, greater density of growth in existing areas, and greater diversity of seagrass species. Even when I assume that Sarasota County's and MPS cotentions are true, I still conclude that the adverse effects of the loss of ten acres of seagrass will not be mitigated by the proposed project. 6/ Accordingly, I reject the exceptions. Water Quality Improvement Sarasota County Exception To Conclusion of Law No. 1, and MPS Exception No. 19, challenge the Hearing Officer's Conclusion of Law No. 4. Specifically, the exceptions challenge the statement that "[t]he County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging." Conclusion of Law No. 1, R.O. at 14. To the extent that the Hearing Officer may have thought that a showing of improvement in water quality was a requirement for obtaining a permit, she erred. However, for the reasons set forth in my previous discussion of water quality in relation to findings of fact, Sarasota County and MPS had made improvement in water quality an issue in determining whether the project was clearly in the public interest. Rather than erroneously imposing a requirement of improvement of water quality, it appears that the Hearing Officer was merely making a predicite observation prior to conducting the public interest balancing test. Regardless of how one interprets the above matter, it is clear that the issue does not affect the outcome of this case because both the Hearing Officer and I have concluded that there has been no showing that the project is clearly in the public interest. I therefore reject the exception on the basis that the conclusion of law is not erroneous, or if error, then it is harmless error. Having ruled on all of the exceptions it is ORDERED: Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference. Sarasota County's Permit Application No. 581473069 is DENIED. NOTICE OF RIGHTS Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department. DONE AND ORDERED this 4 day of April, 1991, in Tallahassee, Florida. State of Florida Department of Environmental Regulation CAROL BROWNER Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL. 32399-2400
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the permit requested by Sarasota County. DONE and ENTERED this 19 day of February, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of February, 1991. APPENDIX TO CASE NO. 90-3533 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 19 are accepted. Paragraphs 20 through 24 are rejected as irrelevant, speculative or immaterial to the issues of this case. Paragraphs 25 and 26 are accepted. Paragraphs 27 through 29 are rejected as irrelevant. Paragraph 30 is accepted. Paragraph 31 is accepted with the deletion of the quotation marks around the word monitor and with the deletion of the last phrase following the words "survival rate" which is rejected as argumentative or irrelevant or not supported by the record. Paragraphs 32 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 40 are accepted. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraphs 42 through 44 are accepted. Paragraph 45 is rejected as irrelevant or unnecessary to the resolution of the issues of this case. Paragraphs 46 through 48 are accepted. Paragraphs 49 through 53 are rejected as irrelevant, unnecessary to the resolution of the issues, comment, repetitive, or argumentative. Paragraphs 54 through 62 are accepted. Paragraph 63 is rejected as repetitive. Paragraph 64 is rejected as irrelevant. Paragraphs 65 and 66 are accepted. Paragraph 67 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 68 through 73 are accepted.
The Issue The issues are whether a beach restoration and dune nourishment project proposed by Respondent Town of Palm Beach, Florida is entitled to a joint coastal permit (coastal construction and environmental resource permits), pursuant to Section 161.055, Florida Statutes, and Florida Administrative Code Rule 62B-49.003; proprietary authorization for activities on sovereign submerged lands, pursuant to Section 253.77(1), Florida Statutes; and variance from water quality standards, as set forth in the rule limiting permissible mixing zone limits, pursuant to Section 403.201(1), Florida Statutes.
Findings Of Fact Introduction Overview Palm Beach, a municipality, has applied for the permits necessary to construct a beach restoration and dune nourishment1 project along a portion of the shoreline of Palm Beach Island known as Reach 8. Specifically, Palm Beach seeks a joint coastal permit (JCP), which consists of an environmental resource permit (ERP) and coastal construction permit (CCP); letter of consent constituting authorization to use state-owned lands; and variance to water-quality standards. Palm Beach seeks approval for the following major activities: excavating Borrow Areas (BA) V and VI, which are about 1500 feet offshore of Reach 8; slurrying the fill from these borrow areas by pipe and placing the slurried fill on the existing beach of Reach 8; except for the southernmost 2764 feet of Reach 8, contouring the fill from the dunes to the intertidal zone to conform with the permitting template; for the southernmost 2764 feet of Reach 8, contouring the fill along the dunes only; covering during (i.e., directly) and after (i.e., indirectly) construction about seven acres of nearshore existing hardbottom immediately adjacent to and downdrift from (south) of the location in which the fill is placed; and creating about eight acres of nearshore mitigation hardbottom north of Reach 8. The ERP is for dredging and filling activities mostly in, but also adjacent to, surface waters and includes upland dune nourishment because the expected, post-construction erosion of the dune will result in fill entering surface waters. The CCP is for activities seaward of the erosion control line. The proprietary authorization is for a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) for the use of state-owned land, which is that seaward of the mean high water line: this authorization would pertain to the borrow areas and the fill area seaward of mean high water. The water-quality variance is for an expanded area, or mixing zone, of elevated turbidity levels--during construction only--in the area at which the hydraulic residue from the slurry runs off the beach and re-enters the ocean. Lake Worth, also a municipality, intervened in this case to oppose Palm Beach's application. Most of Reach 8 is within the jurisdiction of Palm Beach, but, as noted below, a short segment of Reach 8 is within the jurisdiction of Lake Worth. This segment consists of the Lake Worth Municipal Beach, which includes the Lake Worth Pier. Because this segment is within Reach 8, but not within the project area, it is sometimes referred to as the Lake Worth Gap. DEP is the state agency with all relevant permitting or authorization responsibilities--where necessary, by agreement with the South Florida Water Management District (SFWMD) and pursuant to the policy of the Board of Trustees. Reach 8 spans 10,818 feet, or about two miles, of shoreline on Palm Beach Island, according to the latest survey.2 The net project area, though, is 9472 feet, or about 1.8 miles, because of the exclusion of the Lake Worth Gap, which covers 1346 feet of shoreline.3 Locations along the shoreline will be identified by DEP reference monuments, such as "R-137."4 Reach 8 extends from R-125 to R-134 plus 350 feet.5 The following planview of Reach 8 depicts the project area, as described in more detail below. This is Figure 1, Town of Palm Beach Reach 8 Beach Restoration Project Environmental Assessment, prepared by Palm Beach's consultant, Coastal Planning & Engineering, Inc. (CPE) (October 2007). For the purposes of this case, Reach 8 comprises four segments. From north to south, these segments are the North Segment (R-125 to R-127 plus 597 feet), Lake Worth Gap (R-127 plus 597 feet to R-128 plus 954 feet), Center Segment (R-128 plus 954 feet to R-133 plus 500 feet), and South Segment (R-133 plus 500 feet to R-134 plus 350 feet). The Lake Worth Pier is at R-128 plus 50 feet. The land boundaries dividing Lake Worth's upland ownership from adjacent upland, in the immediate vicinity of the Lake Worth Gap, are perpendicular to the shoreline and regular or linear. These four segments largely correspond to DEP designations of Critically Eroded Beaches (CEBs), which are discussed in more detail below. The North Segment, which is 2725 feet, and South Segment, which is 1047 feet, are CEBs. The Center Segment, which is 5700 feet, is not a CEB. The northernmost one-third of the Lake Worth Gap is CEB;6 the remainder of the Lake Worth Gap is not CEB. Thus, only 38 percent of Reach 8 is CEB. Excluding the CEB within the Lake Worth Gap, only 35 percent of the beach within Reach 8 that is proposed for beach restoration or dune nourishment is CEB. The dune-only portion of the project covers the entire South Segment plus the southernmost 1717 feet of the Center Segment. Thus, the only portion of Reach 8 that is both CEB and proposed for beach restoration is the 2725 feet of the North Segment. The Inlets, Jetties, and Reaches of Palm Beach Island As shown in the preceding illustration, Palm Beach Island is in central Palm Beach County along the shore of the Atlantic Ocean, which is Class III waters in this vicinity. Palm Beach Island is a barrier formation with various reported lengths, all between 15 and 16 miles. In 1992, Palm Beach Island varied in width from 250 feet to 3600 feet and in height up to 25 feet. Reach 8 occupies the southern third of Palm Beach Island. Ten miles north of the north end of Reach 8 is the Lake Worth Inlet (also known as the Palm Beach Inlet). Three miles south of the south end of Reach 8 is the South Lake Worth Inlet (also known as the Boynton Inlet). These are two of the eight artificial inlets on the east coast of Florida, which now has 19 inlets.7 The Lake Worth Inlet was cut in 1917, and the South Lake Worth Inlet was cut in 1927. Because sand naturally transports along the shoreline, jetties were constructed at each inlet to slow the rate at which sand filled the dredged channel of each inlet. In general, sand naturally transports north to south, due to the predominant wave direction, although lesser transport to the north takes place during the summer. Thus, for nearly a century, these jettied inlets have interrupted the natural transport of sand along this part of the east coast of Florida. To offset the sand losses caused by both inlets, sand transfer plants were constructed on each inlet's north jetty to pipe some of the detained sand across the inlet. The sand transfer plant for the Lake Worth Inlet was built in 1957, meaning that this jettied inlet interrupted the transport of sand to Palm Beach Island, without inlet-sited compensation, for nearly 40 years.8 At least twice in recent years, the Lake Worth Inlet sand transfer plant was not operational. The longer of these two interruptions was from May 1990 to May 1996, at which time the plant was repaired and upgraded in connection with the 1995 Midtown Project, described below. The sand transfer plant sustained damages during the 2004 hurricane season and was not in operation from November 2004 to March 2005. In 1996, Palm Beach's Shore Protection Board, which is discussed below, divided Palm Beach Island into 11 reaches. The division of shoreline into reaches was based on the extent to which each shoreline segment shared four characteristics: predominant coastal features, including sand movement and erosion rates; reefs and hardbottom; number and condition of shore-protection structures; and existing adjacent land uses. Reach 1 runs from the Lake Worth Inlet to the south, ending at Onondaga Avenue. Extending from R-76 to R-78, Reach 1 is the shortest reach, covering only 2410 feet. The longest reach, at 13,660 feet, Reach 2 runs from Onondaga Avenue to 1080 feet north of Wells Road, or R-78 to R-90 plus 400 feet. Reach 3 runs from 1080 feet north of Wells Road to Via Bethesda, which is at the south end of The Breakers golf course. Reach 3 is 5800 feet long, spanning R-90 plus 400 feet to R-95. Reach 4 runs from Via Bethesda to 270 feet south of Banyon Road; this reach is also known as Midtown, as it includes Royal Palm Way, which connects Palm Beach with the central business district of West Palm Beach. Reach 4 is 8065 feet long and extends from R-95 to R-102 plus 300 feet. The Midtown beach offers public access, but little public parking. Reach 5 extends from 300 feet south of Banyon Road to 170 feet north of Widener's Curve. Reach 5 is 9065 feet long and runs from R-102 plus 300 feet to R-110 plus 100 feet. Reach 6 runs from 170 feet north of Widener's Curve to Sloan's Curve. Reach 6 is 6685 feet long and extends from R-110 plus 100 feet to R-116 plus 500 feet. Reach 7 extends from Sloan's Curve to the Ambassador Hotel. Reach 7 runs 8725 feet, from R-116 plus 500 feet to R-125. Palm Beach's Phipps Ocean Park is located at the north end of this reach and provides the public with beach access and parking. The second longest of the 11 reaches, Reach 8 runs from the Ambassador Hotel to La Bonne Vie. Ten years ago, when the data for the other reaches were collected, Reach 8 extended 10,690 feet.9 Palm Beach County's Kreusler Park is located in the Lake Worth Gap and adjoins the Lake Worth Municipal Beach and Lake Worth Pier. Considerable public parking supports these facilities. Except for some metered parking, there is little public parking and little public access north of the parks located in Reaches 7 and 8. Reach 9 runs from La Bonne Vie to the Lantana Avenue access. Reach 9 runs 3655 feet from R-134 to R-137 plus 400 feet. Reach 10 runs from the Lantana Avenue access to Chillingsworth Curve. Reach 10 runs 8560 feet from R-137 plus 400 feet to R-145 plus 740 feet. Reach 11 runs from Chillingsworth Curve to the South Lake Worth Inlet. Reach 11 runs 5530 feet from R-145 plus 740 feet to R-151 plus 300 feet. Physical Environment and Natural Processes Selected Terms and Concepts The beach extends from mean low water landward to the vegetation line.10 The beach and dune system is that portion of the coastal system where there has been or there is expected to be, over time and as a matter of natural occurrence, cyclical and dynamic emergence, destruction, and reemergence of beaches and dunes.11 Landward to seaward, the sand-sharing system or beach profile comprises the dune, dry berm, beach face, and nearshore bar. The dry berm is the flat part of the beach that is subaerial. The beach face, or wet beach, is the seaward-sloping part of the beach that receives the uprush from wave action. The swash zone is the area that is alternatingly wet and dry from wave action. The surf zone is the area from the seaward extent of the swash zone to the breakers. Sometimes, the nearshore is used synonymously with the surf zone; nearshore designates nothing more than the area immediately seaward of the mean low tide. In either case, the offshore runs seaward from the seaward extent of the nearshore. Longshore is the direction parallel to the shoreline. Cross shore is the direction perpendicular to the shoreline. A plan view (or planview) of the beach is the view from above. A profile view of a beach is from the side. For example, a line running from the left hand side of this page in a downward direction to the right hand side of this page may depict part of the beach profile by tracing, from left to right, the descending elevation, from landward to seaward, of the dune, dry berm, and beach face. The proposed beach restoration template comprises advance fill and design fill. Sacrificial in nature, advance fill is expected to erode during the life span of the nourishment project, leaving the design fill, which is what is intended for the more persistent protection of upland structures. After the contractor contours the fill to conform to the beach-restoration template, which extends seaward of mean low water, the natural processes of waves, currents, and wind move the fill cross-shore and longshore until it reaches a point of equilibrium. Movement by wind is largely irrelevant to this case. In response to the forces of waves and currents, particles of sediment will move by bedload or entrainment into the water column, depending on conditions discussed in more detail below.12 Movement by bedload is movement along the bottom by rolling or sliding, but the particle remains in contact with the bottom and never entrains into suspension in the water column. Stationary grains or grains moving by bedload do not create turbidity or sedimentation. Movement by entrainment into the water column is movement that lifts the particle into the water column where it remains in suspension unless and until energy conditions are reduced sufficiently to allow the particle to settle out of the water column. Suspended particles contribute to turbidity, which is a measure of the loss of the water column to transmit light. Settled particles contribute to sedimentation of objects, such as hardbottom, that has previously been uncovered, although these objects may also be covered by particles moving by bedload. For the most part, the equilibration process involves the movement of the fill based on such factors as the slopes of submerged bottoms, grain sizes of bottom sediments, and expected movement of sediments in response to waves and currents. A calculation of the point of equilibrium is a useful approximation, but the point of equilibrium is only a point of substantial equilibrium, and the equilibration process only substantially concludes. Over time, when subjected to sufficient forces, fill (and pre-project sediments in the area) will continue to move. At the point of equilibrium, the depth of the water at the point farthest offshore is the closure depth. There is no similar term for the location of the fill in the longshore direction at the point of equilibrium.13 The movement of fill during the equilibration process is by bedload, as discussed below, rather than by entrainment into the water column, also as discussed below, except for the transport of fill insignificant distances by entrainment into the water column. The forces of wind, current, and wave, which move sediments on the beach, along the submerged bottom, and into the water column, are strongest when associated with storms, whose intensity is generally described by return intervals. In any given one-year period, a 100-year (or greater) storm has a one percent chance of occurring, a 25-year (or greater) storm has a four percent chance of occurring, and a 10-year (or greater) storm has a ten percent chance of occurring. The record does not suggest a precise relationship between the intensity of these storms and the forces that they produce. For present purposes, it is sufficient to acknowledge that the forces increase in direct relationship to the intensity of a discrete storm. The sediments in this case are predominantly siliciclastic or carbonate in origin. Siliciclastic materials, such as quartz, derive from terrestrial deposits, such as the Appalachian Mountains, from which they are transported by rivers to the Atlantic coast. These siliciclastic materials are then transported southerly along the coast by the prevailing wave direction. These materials resist breakage. Carbonates are biogenic materials consisting mostly of offshore shell and coral fragments. Grains of carbonate materials are much more susceptible to breakage than siliciclastic grains when subjected to increased forces, such as when dredged from relatively tranquil depths and placed in the surf zone. Upon exposure to the higher energy forces of the surf zone, relatively coarse materials are abraded to clay- or silt-sized materials in as little as one week. The resulting turbidity associated with these abraded materials often bears the signature of a milky appearance in the water column. Rigid coastal structures include jetties, groins, breakwaters, seawalls, revetments,14 and geotextile bags.15 A groin is a structure installed, usually in a cross-shore direction, to trap or alter longshore transport of sediment or to retard erosion of coastal system.16 Groins may be constructed of rock, concrete, or geotextile bags. A breakwater is a structure that protects shoreline areas, harbors, inlets, or basins from the forces of currents or waves.17 A revetment is a sloped, seaward-facing structure made of an armoring material, such as large rocks or pieces of concrete, that is designed to protect an embankment or upland structure from erosion from waves or currents.18 Armoring means to install an artificial structure to prevent erosion of upland property or protect structures from waves and currents and includes geotextile tubes or bags, seawalls, revetments, and retaining walls, but not groins, jetties, or other structures whose purpose is to add sand to the coastal system, alter the natural coastal currents, or stabilize the mouths of inlets.19 A geotextile container is a bag or tube, made of "blanket-like" synthetic fibers manufactured in a loose or woven manner, that contains a large mass of sand, so as to form a rigid tubular structure.20 Based on an article that he co-authored five years ago, Dr. Finkl has classified Florida beaches as dissipative, intermediate, or reflective. Beaches in Dade and Broward counties are reflective. Most beaches in Palm Beach County, including Reach 8, are intermediate although closer to reflective. Beaches in northern Palm Beach, Martin, St. Lucie, Brevard, and Volusia counties are dissipative. Reflective beaches have medium- to coarse-grained sand, surging breakers, low wave heights, constant wave reflection, no bars, steep beach profiles, and low sediment transport, mostly as bedload. This means that relatively large forces, in the form of waves and currents, are required to move the larger-grained sediments forming reflective beaches, and, when they move, they roll or tumble along the bottom, rather than enter into suspension and become transported within the water column. Reflective beaches provide more protection to upland structures than dissipative beaches do, although there is an inverse relationship between protection to upland structures and morphodynamic stability in beaches, meaning that dissipative beaches will change in dimensions frequently. Dissipative beaches are flatter and formed by fine- grained particles. These beaches are characterized by large waves, multiple low-relief bars, multiple spilling breakers, and relatively flat berms and beach faces. Dissipative beaches are morphodynamically stable, partly due to the storage role of the bars, but offer little protection of upland structures because their low profiles and low berms facilitate overwash by surge. The flat profiles of dissipative beaches allow high waves to quickly submerge the beach, and the dissipative beaches' fine grains are more readily eroded and entrained into the water column. Intermediate beaches have fine- to medium-grained sand, medium wave heights and periods, one or two bars, and a high degree of shoreline mobility. However, intermediate beaches provide the most protection, evidently due to their protection of upland structures and morphodynamic stability. Geology, Sedimentology, and Coastal Processes Physiographically, subaerial southeast Florida occupies the coastal plain adjacent to the continental shelf. Most of this part of the continental shelf was subaerial as recently as 18,000 years ago, during the last period of expanded glaciation. The present interface has been near its present elevation for the past 5000-6000 years, and the present shoreline has been maintained for about 3000 years, although many believe that sea levels are again on the rise. Although the regulatory timeframe is well short of geologic time, the functions of the ecological resources and systems, such as the nearshore and beach, that are the focus of this case must be understood in terms of the geological and coastal systems, of which these resources and systems are a part. The extent to which proposed activities coordinate or fail to coordinate with these resources and systems assists in determining the extent of any impact of the proposed activities on these resources and systems. In particular, the geology of Reach 8 provides a backdrop against which the offshore reef and nearshore hardrock can be evaluated. The geology of these resources reveals their rarity and the vast periods of time required for their formation and emergence. The geology of Reach 8 also complicates the process of describing and predicting sediment transport. The Anastasia Formation informs the behavior of the entire island in response to storm events and beach erosion and the resulting nearshore sediment transport, especially as it is affected by the occurrence of nearshore hardrock. Much of the present offshore reef structure, which defines the boundary between the continental shelf and the deeper continental slope, was exposed during the last glacial maximum. The exposure of carbonate structure to air resulted in an irregular topography, upon which the modern offshore reef became established. Episodic submergings have contributed to the complexity of this structure, which is now known as the Florida Reef Tract or, simply, offshore reef. The third largest barrier reef chain in the world, the Florida Reef Tract extends from the Florida Keys north to the Bahamas Fracture Zone, which, as depicted in the following figure, crosses Florida's east coast between the Lake Worth Inlet and Reach 8. The Florida Reef Tract is generally continuous, although it contains gaps, including three offshore of Reach 8. The Florida Reef Tract is relatively close to the shoreline along central and south Palm Beach County. The offshore shelf zone tends to be quite narrow from the Bahamas Fracture Zone to the Hillsboro Inlet, which is an inlet in north Broward County that is 26 miles south of the Bahamas Fracture Zone. The offshore shelf zone in this area ranges in width from six miles in north Palm Beach County to 1.25 miles at the Palm Beach/Broward county line. This narrowed offshore shelf zone marks the southernmost extent of a discontinuous field of diabathic channels, which are described below. An abrupt and steep slope seaward of the Florida Reef Tract forms the western edge of the Straits of Florida. For obvious reasons of practicality, the landward edge of the Florida Reef Tract marks the limit of the area from which bottom sediments may be mined for fill to be placed on the beach along Reach 8. Interpreting mapping derived from laser airborne sounding done from 2001 to 2007, Dr. Finkl has mapped the seabed components landward of the offshore reef. Landward of the Florida Reef Tract, these components are, in order, the backreef apron, offshore sand flat, diabathic channel field, nearshore sand flat, and, where present, nearshore rock. The figure below is a map of the seabed prepared by Dr. Finkl; the area is just north of Reach 7, but includes the site (R-106 to R-108) proposed for the mitigation nearshore rock in this case and, according to Dr. Finkl, sufficiently represents the seabed directly offshore of Reach 8. This is Figure 2.b in "Shelf Geomorphology along the Southeast Florida Atlantic Continental Platform: Barrier Coral Reefs, Nearshore Bedrock, and Morphosedimentary Features," Journal of Coastal Research, Vol. 24, No. 4 (2008), by Charles W. Finkl and Jeffrey L. Andrews. The backreef apron contains materials driven by storms off the Florida Reef Tract. Such materials are mostly broken pieces of coral, shell hash, and other carbonates. The grain size of the sediment of the backreef apron thus tends to be large, but subject to breakage when introduced into higher- energy settings. The sand flats were paleolagoons during periods of lower sea level. BA III and IV, which were the borrow areas for the Reach 7 project described below, are located in the sand flats, relatively close to the backreef apron of the offshore reef. This probably explains the deposits of relatively coarser-grained sediments that were excavated, at least from BA III, for the Reach 7 project, also as discussed below. Also known as a hurricane storm bar, a long, discontinuous field of diabathic channels extends from Martin County south to the Hillsboro Inlet. Each diabathic channel, which is oriented perpendicular to the channel field, runs in a cross shore direction and is about 300 meters wide from channel edge to channel edge. Diabathic channels are of particular importance in this case because BA V and BA VI have been sited within such channels, and it does not appear that these channels have previously been excavated, at least intentionally. Previously, as in the cases of BA III and BA IV, sediments have been excavated farther seaward in the sand flats. As Dr. Finkl testified, the mean grain size of offshore sediments is a function of place, but also time in relationship to major storm activity, as sand is constantly in movement in both cross shore and longshore directions. The role of diabathic channels, which are carved into what is essentially a long storm bar, is to store sand removed from the beach after hurricanes until natural forces return the sand back to the beach, although the period required for the sand to be returned to the beach may be quite long. Excavating the diabathic channels, rather than the offshore sand flats, provides greater protection to the offshore reef due to the greater distance between the excavation site and the offshore reef. However, excavating the diabathic channels presents its own risks because deep borrow areas closer to shore raise the risk of altering wave action so as to accelerate beach erosion, especially if the closure depth of the equilibrated beach extends into a borrow area. Also, excavating the diabathic channels, rather than the offshore sand flats, presents a great risk of impact to the nearshore hardbottom, again due to the proximity of the excavation to the resource. In contrast to areas south of Palm Beach Island, where a middle coral reef and inner coral reef may be found landward of the Florida Reef Tract, the area offshore of Palm Beach Island contains sedimentary deposits framed only by nearshore hardbottom and the offshore reef. These sedimentary deposits comprise the above-described sand flats, diabathic channels, and some reef overwash on the landward (or leeward) side of the offshore reef. Based on his interpretation of the laser airborne sounding, Dr. Finkl has estimated that the offshore bottom, from Martin County to Hillsboro Inlet, is about 47 percent hardbottom, which encompasses both reef and rock. However, very little of this hardbottom is found landward of the Florida Reef Tract, which, itself, constitutes only about 1.5 percent of this area. In terms of nearshore bottom coverage, nearshore reef accounts for about 0.4 percent, nearshore patch reef is about 0.1 percent, and nearshore rock is 0.1 percent of the bottom. The nearshore rock expresses the geological control of Reach 8, Palm Beach Island, and much of the east coast of Florida. Palm Beach Island is perched on this bedrock, which, when exposed from beneath the sediments, is the nearshore hardbottom. Shoreline recession facilitates the emergence of this hardbottom, which typically is buried at a relatively shallow depths--two to three meters--for native beach berms in Florida. Although Dr. Finkl's mapping, as shown in the figure immediately above, describes the nearshore structure as "nearshore reef," he testified that "nearshore rock" would better describe this structure. When uncovered, this hardbottom outcropping appears as it does in the following photograph of a portion of Reach 8. This is Photograph 13, Town of Palm Beach Reach 8 Beach Restoration Project Environmental Assessment, prepared by CPE (October 2007). However, when viewed by the Administrative Law Judge during the late afternoon and early evening in early October 2008 (about two hours after low tide), the beach revealed hardly any exposed hardbottom, visible from the beach. As Dr. Finkl has written, geologically controlled barrier islands do not migrate like sandy barrier islands in response to energy inputs and rising sea level. Described aptly by Dr. Young as a rock ridge, Palm Beach Island is thus not prevented from migrating by shoreline armoring and upland development. This geological control along Reach 8, interrupting a relatively uniform sandy bottom, also undermines the ability of models to predict longshore sediment transport, as discussed below. The nearshore reef identified by Dr. Finkl in the illustration is more prevalent north of Reach 8. However, smaller nearshore reefs may occur throughout the nearshore, and any nearshore rock may also host coral-algal formations. The habitat value of relatively these isolated patches of nearshore hardbottom may enhanced by their scarcity. The remainder of the seafloor--slightly greater than half--is sandy bottom or covered by other sedimentary material. This sandy bottom is of obvious interest as a sand source, but, as noted below, the sandy bottom hosts various ecological functions. Nearshore sand flats constitute about 25 percent of the entire area. These flats are composed of mainly sand-sized siliciclastics and carbonates. Offshore sand flats make up about 9 percent of the entire area. Diabathic channels form about 6.6 percent of the entire area and represent about 15 percent of the sand resources of Palm Beach County. Occurring in water depths of 7.5-10 meters, diabathic channels average about 300 meters in length and width. They lie about 400 meters off the shoreline--500-750 meters off Reach 8--and display about one meter in relief. Diabathic channels, which mark a slope change on the shoreface, are probably unrelated to offshore reef gaps, which nonetheless may be important passageways as sand from offshore sand flats, seaward of the Florida Reef Tract, may be transported landward under the right conditions. Characteristics of Sediments by Grain Size and Role of Grain Size on the Performance of a Beach Grain size determines whether a particle is classified as clay, silt, sand, or gravel, in ascending order of size. A grain size less than .0039 mm is clay; a grain size greater than clay, but less than .0625 mm, is silt; and a grain size greater than silt, but less than 2.0 mm, is sand. Coarser grained particles, which are not relevant to this case, are granule, pebble, cobble, and boulder, in ascending order of size, according to the Wentworth classification system. Nothing in this record suggests that these classifications in grain size were developed to correspond in any way to beach function. A curious relationship exists in certain natural settings between siliciclastic grain size and nondimensional sheer stress, at least involving laminar surfaces, such as the unidirectional water current running along the bottom of a river or drainage canal. The lowest value of sheer stress, which may be thought of as velocity, to cause a grain to entrain into suspension occurs when the grain is about 0.2 mm in size--not larger and not smaller. As noted above, this size is within the finer range of sand. It is intuitive that higher velocities are required to suspend larger grains, which first enter into bedload movement before entering suspension. But grains smaller than 0.2 mm also require higher velocities to enter suspension: they do not first enter into bedload movement and resist entering into suspension due to electrical charge and cohesiveness. Using the grain-size classification system set forth above, siliciclastic fine sands at 0.2 mm in size will offer less resistance to entrainment into suspension than will siliciclastic silts, clays and sands finer than 0.2 mm, as well as, of course, siliciclastic sands coarser than 0.2 mm. A graphic display of this phenomenon is called Hjulstrom's Curve. There are three views as to the applicability of Hjulstrom's Curve to this case. In Dr. Wanless's view, it governs in the swash zone, surf zone, and nearshore. However, the bidirectional flow in the swash and surf zones, turbulence introduced by wave action, and absorption of a portion of the wave energy into the porous beach face itself preclude a finding that Hjulstrom's Curve applies to the swash and surf zones. In Mr. Brantley's view, Hjulstrom's Curve is irrelevant. Taking an intermediate view, Mr. Finkl and Dr. Dean agree with Mr. Brantley that the law does not apply in the swash and surf zones. Mr. Finkl believes that Hjulstrom's Curve could be used seaward of the surf zone. Dr. Dean testified that Hjulstrom's Curve may have limited applicability in this case, but not within the swash and surf zones. The intermediate view of Mr. Finkl and Dr. Dean is credited. The consequence of this finding is that, as velocities along the bottom increase seaward of the surf zone, the first sediments to entrain into suspension are not silts or clays, but finer-grained sands, about 0.2 mm in size. The consequence of the distinction between transport by bedload and transport by entrainment into the water column is that, although both will cover hardbottom, only transport by entrainment into the water column causes turbidity also. The transport of sediment by bedload does not contribute to turbidity because the sediment remains in contact with the submerged bottom. However, another size of importance is 0.02 mm, which is within the silt range. After entrainment, particles larger than 0.02 mm tend to settle to the bottom quickly, but particles smaller than 0.02 mm tend to remain suspended in the water much longer. Grain size alone does not determine the susceptibility of a particle to entrain. Carbonate particles of the same size as siliciclastic particles may enter suspension with less energy due to their shape or porosity. Also, larger carbonate particles dredge from deeper waters, when deposited in the swash or surf zone, will abrade into smaller particles. The percentage of carbonates in Florida beaches is as high as 60 percent, at Cocoa Beach, and many beaches containing more than 40 percent carbonates and less than 60 percent siliciclastics. Beaches closer to warm marine waters, which are highly productive, tend to display higher carbonate percentages. Because finer grains will support shallower slopes, the addition of, say, finer-grained sediments to an intermediate beach will push it toward a dissipative beach, with its characteristic low protection of upland structures. Dr. Finkl testified on rebuttal that the mean grain size of 0.23 mm and 0.24 mm in BA VI and BA V, respectively, as compared to a presumed existing mean grain size of 0.30 mm, was not a sufficient reduction in grain size to cause the Reach 8 beach to transform from an intermediate beach to a dissipative beach. But he admitted that 0.20 mm "might" be very close to the boundary between the intermediate and dissipative beach states. However, many factors drive beach state and, as between grain size and energy, energy is ultimately going to determine the beach state more than the size of grains placed by man onto the beach profile. In other words, the forces to which a beach has always been subject will rework the fill placed on the beach and restore the beach to its preexisting state--in the above scenario, back to intermediate from dissipative. The process by which excessively small particles are distributed seaward, until they finder lower-energy locations in deeper water, is called cross-shore sorting. It is not unlikely that the finer the fill, relative to the existing beach sediments, the quicker the forces will work to reestablish the pre-existing beach state, given equal energy inputs. Even an unrestored beach within any of the three classifications is going to experience cross-shore sorting in response to wave and current forces. Where the highest energy is experienced, which is in the intertidal zone, the largest grain sizes will be found. Grain sizes decrease in size as the water deepens because the forces on the bottom sediments decrease in direct relation to increasing depth. As Dr. Dean memorably testified, the finer-grained sediments behave in this respect no differently than dust on one's floor, which works its way to the lowest-energy nooks and crannies of the house. Erosive Factors at Reach 8 By far, the most substantial factor removing sediments from Reach 8, over the long run, is not storms, seawalls, or groins; it is the Lake Worth Inlet and its jetties. Dr. Dean has estimated that 80-85 percent of the erosion on Florida's east coast beaches is caused by jettied inlets, and Dr. Finkl agrees that this remains true today. Dr. Dean has estimated that, from 1918 to 1942, the inlet deprived the beaches to the south of 6.2 million cubic yards of sand. From 1929 to 1986, Dr. Dean estimates that 5.2 million cubic yards were dredged from the inlet and placed at sea, and 1.2 million cubic yards were dredged from the inlet and placed inland. It is difficult to allocate the remaining sand losses between other anthropogenic factors and storms, but clearly the construction of seawalls and groins north of Reach 7 and seawalls along Reach 8 have contributed substantially to any sand deficits that Reach 8 has suffered. Seawalls accelerate beach erosion by reflecting waves, causing increased turbulence and entraining additional particles, and accelerating longshore currents. In 1998, about 1630 feet of Reach 8 was seawalled. Presently, 5260 feet of the 10,985 feet of Reach 8 is seawalled, including all 1300 feet of the Lake Worth Gap. Also, as noted below, the groins north of Reach 7 will require decades before they fill in and effectively stop intercepting sand on its natural journey south along Palm Beach Island, although, given the apparent effect of the cessation of operation of the sand transfer plant on Reach 8, the unfilled groins north of Reach 7 may pass some sand, in certain energy conditions, at least when the sand transfer plant is operating. The long-term impact of storms on Reach 8 is difficult to quantify. Palm Beach County beaches enjoy some protection from the Bahamas Banks, at least from long swells from the east, although prevailing winds from the north or south may generate long swells that can cause considerable beach erosion. Dr. Dean testified that beaches fluctuate in the short-term due to seasonal and storm effects, perhaps implying that long-term fluctuations are not as dependent on seasonal effects and storms. The record would bear out such an implication. From November 1974 to August 1990--a 16-year period-- the shoreline advanced for all of Reach 8, except for the portion south of R-132. The North Segment experienced a 10-30 foot advance. The shoreline of the Center Segment advanced from 60 feet at R-129 to 0 feet at R-132. South of R-132, the shoreline of the Center Segment retreated from 0 feet to 30 feet. The shoreline of the South Segment retreated about 38 feet. During this entire 16-year period, the sand transfer plant piped sand across the Lake Worth Inlet for longshore transport south of the inlet. From August 1990 to September 2000, the shoreline for nearly all of Reach 8 retreated, except for a short length at the extreme north end. From R-125 to R-126, the advance was 20 feet to 0 feet. The rest of the North Segment experienced a retreat from 0 feet to 57 feet. For the Center Segment, the shoreline from R-129 to R-132 retreated from 57 feet to 0 feet. From R-132 to R-134 plus 350, which is the remainder of the Center Segment and all of the South Segment, the shoreline advanced from 0 feet to 30 feet. During the first six years of this 10-year period, the sand transfer plant was not operational. Based on historical data, Dr. Dean has estimated that, over the past 2000 years, 591 hurricanes have passed within 300 nautical miles of Palm Beach County. More recently, though, Palm Beach Island has experienced a marked increase in strong storm activity. The 2004 hurricane season was the most active in Florida since weather records began in 1851, and the 2005 hurricane season broke all records with 27 named storms, of which five hurricanes and two tropical storms impacted Florida. However, Florida experienced a mild tropical season in 2006 and a relatively mild tropical season in 2007, although persistent northeasterly storms in the winter of 2007 eroded a few Atlantic erosion hotspots.21 Major summer storms impacting Palm Beach Island in the past five years are Hurricanes Frances and Jeanne in September 2004, Hurricane Wilma in October 2005, Subtropical Storm Andrea in May 2007, and Tropical Storm Noel in November 2007. The combined effect of Hurricanes Frances and Jeanne, which were only two weeks apart, was the equivalent of a 213-year return storm. In other words, the likelihood of such a storm event, represented by both storms, in any single year is less than one- half of one percent. For Palm Beach Island, Hurricane Wilma was a 27-year storm, and Subtropical Storm Andrea was a 19-year storm. From August 2004 to April 2008, various transects revealed that the shoreline of the North Segment advanced from 81 feet to 35 feet, the shoreline of the Center Segment retreated from 105 feet to two feet, and the shoreline of the South Segment advanced nine feet. More particularly, from August 2004 to August 2006, while the sand transfer plant was again not operational, the beach retreated, but, from May 2007 to April 2008, coinciding with the return to service of the sand transfer plant, the beach regained some of its earlier losses. Even two hurricanes as close together as Frances and Jeanne, which removed sand from the observable beach, may not permanently deprive the beach of this eroded sand. As noted in a study cited in "Rapid Changes in the Nearshore Habitat: Is Resource Burial an Appropriate Measure of Project Impact" by Matthew Lybolt and Sandra Tate, both employed by CPE, the twin hurricanes of 2004 removed from a study area 259,700 cubic meters of sand from the dunes to a depth of -3.7 m, but deposited 251,500 cubic meters from a depth of -3.7 m to -9.1 m. For 2004-05, three transects in the North Segment reflected, from north to south, advances of 97 and 29 feet and a retreat of 16 feet. Five transects in the Center Segment reflected, from north to south, retreats of 42 feet, 33 feet, 35 feet, 45 feet, and nine feet and an advance of 24 feet. One transect in the South Segment reflected an advance of 19 feet. Suggestive of a natural restorative process, for the quieter one-year period from May 2007 to April 2008, the North Segment transects reflected advances of 25 feet, 79 feet, and 88 feet; the Center Segment transects reflected a retreat of 28 feet and advances of 6 feet, 23 feet, 13 feet, and four feet; and the South Segment transect reflected an advance of five feet. The natural process of erosion and accretion varies by season. Winter is normally a time of beach erosion as episodic strong winds produce strong waves with a strong seaward motion after the wave breaks, pulling large amounts of beach sand out to sand bars. Summer is normally a time of beach accretion as the typical waves exhibit greater landward motion than seaward motion, transferring large amounts of sand from the sand bars back to the beach. Beach-Restoration and -Nourishment Projects on Palm Beach Island Reaches 1-6 The record details no beach-engineering projects until the mid-1940s, but the reaches22 probably received fill from the dredging of the Lake Worth Inlet at an early date, even though the record does not identify the source of fill for the early beach projects described immediately below. As part of the federal Palm Beach Harbor Navigation Project, the Lake Worth Inlet is dredged frequently to maintain a depth of 35 feet. In 1984 and 1985, 2.1 million cubic yards of sediment was dredged from the inlet, but it was all dumped offshore. However, from 1975 to 1990, 558,000 cubic yards of sand and other sediments were dredged from the inlet and placed on the beaches of Palm Beach Island. From 1990 to 2001, 1.048 million cubic yards of sand and other sediments were dredged from the inlet and placed on the beaches of Palm Beach Island. In broad terms, one source23 reports over 1 million cubic yards of fill to Reach 2 in 1948, over 1 million cubic yards of fill to Reaches 4 and 5 in 1948, nearly 900,000 cubic yards of fill to Reach 4 in 1977 and 1995, and nearly one-third million cubic yards to Reach 6 from 1949 to 1987. In 1944, 282,000 cubic yards of fill was placed on the beach adjacent to Mediterranean Avenue (Reach 1). In 1948, 225,000 cubic yards of fill was placed "south of Lake Worth Inlet," and 2.3 million cubic yards of fill was placed on the beach adjacent to Eden Road (Reach 2), Tangier Road (south end of Reach 2), and Banyan Road (south end of Reach 3). In 1949, 380,000 cubic yards of fill was placed on the beach adjacent to Mediterranean Avenue, and 100,000 cubic yards of fill was placed south of Sloan's Curve (Reach 7). In 1953, 463,000 cubic yards of fill was placed "south of Lake Worth Inlet." From 1970-1978, 450,000 cubic yards of fill was placed "south of Lake Worth Inlet." In 1976, the beach adjacent to Chilean Avenue (Reach 3) received 86,000 cubic yards of fill, and beach from Sloan's to Widener's Curves (Reach 6) received 100,000 cubic yards of fill. Reach 1 has benefited from the operation of the Lake Worth Inlet sand transfer plant. From 1975 to 1990, the Lake Worth Inlet sand transfer plant pumped 1.6 million cubic yards of sand across the inlet. After upgrades in 1995, in connection with the 1995 Midtown Project, described below, the sand transfer plant transferred 885,300 cubic yards from 1996 to 2001. From 1994-2000, Reach 1, which has wide beaches, received annually an average of 289,000 cubic yards from the sand transfer plant and the placement of spoil from inlet maintenance dredging. From 2000 to 2004, the average annual volume of sediments dredged from the Lake Worth Inlet was slightly in excess of 100,000 cubic yards. Reach 1 has also received nearly all of the dredge spoil from maintenance dredging of the Lake Worth Inlet, at least when such spoil is placed on the beach of Palm Beach Island. This spoil is deposited within 3000 feet of the south jetty, which would span Reach 1 and only the northernmost 600 feet of Reach 2. It is not entirely clear from the source,24 but it appears that all of this spoil was placed on Reach 1 and the northernmost 600 feet of Reach 2. Reach 1 and Reach 2 probably continue to receive annually about 100,000 cubic yards of dredge spoil and, as discussed above with respect to the Lake Worth sand transfer plant, about 200,000 cubic yards of bypassed sand. It is unclear whether Reach 2 has received much sand from the Lake Worth Inlet sand transfer plant, but this reach experienced accretion from 1974-90, while the plant was in operation, and erosion from 1990-97, while the plant was shut down. In any event, Palm Beach plans to upgrade the Lake Worth Inlet sand transfer plant by extending its discharge pipe 2000 feet south to transfer relatively small amounts of sand directly to Reach 2. This activity will also benefit the north end of Reach 3, as pumped sand is expected to be spread across the remainder of Reach 3 and northern part of Reach 4. From 2000 to 2004, the sand transfer plant bypassed annually an average of 202,000 cubic yards of sand--which is its goal since expansion. For the preceding four years, though, the plant averaged only 115,000 cubic yards of bypassed sand. Reach 3 received sand in connection with the 2003 Midtown Project, described below. With Reach 4, Reach 3 has received a Prefabricated Erosion Prevention (PEP) Reef on two occasions in 1987 and 1991. The first installation was found to have little beneficial effect before it was removed, and the second was found to have accelerated erosion, rather than accretion, so it too was removed. By 1988, nearly the entire length of Reach 3 was seawalled and its southern end features several groins, which are at the north end of the Breakers property. Due to a combination of the prevalence of groins along its shoreline and to the south and the distance from the sand transfer plant outfall, Reach 4 probably represents the southernmost beneficiary of sand from the sand transfer plant. Nearly 80 percent seawalled by 1987 and displaying groins nearly its entire length, Reach 4 has been the subject of at least three recent, fairly large beach-engineering projects, so Reach 4 cannot be entirely discounted as a source of sand for Reach 8, although, again, intervening groins would greatly limit the amount of sand that can escape these reaches with numerous unfilled groins. In late 1995, Reach 4 received 880,000 cubic yards of sand through the Midtown Beach Restoration Project, as mitigation for impacts from the Lake Worth Inlet Management Plan. The sand source was an offshore borrow area 2000 feet south of the Lake Worth Inlet, just south of the Lake Worth Inlet ebb shoal. This project added advance fill for a projected duration of eight years; the design fill was for a 25-foot wide beach at 9 feet NGVD.25 The 1995 Midtown Project also involved the replacement of old groins with 11 new, adjustable groins, which were completed in April 1996. Because there were no impacts projected to nearshore hardbottom, no mitigation was required. The 1995 Midtown Beach Restoration Project maintained the beach berm for its eight-year life expectancy, but suffered significant erosion at the north and south ends of the beach fill. At the end of four years, the project retained about 70 percent of its fill, and, at the end of seven years, it retained about 50 percent of its fill. The persistence of this project was likely influenced by the numerous groins along Reach 4. In early 2003, Reaches 3 and 4 received a nourishment/restoration of 1.27 (or 1.29) million cubic yards of sand as part of the 2003 Midtown Project. The source of the fill was an offshore borrow area adjacent to the one used for the 1995 Midtown Project. The fill was placed in two segments to leave a 400-foot gap to avoid impacting The Breakers' "Rock Pile," which is the site of concrete rubble from an old pier. The Rock Pile has since been colonized by wormrock and other benthic species. The permit required quarterly environmental, post-construction monitoring, which reportedly revealed no unanticipated hardbottom impacts a couple of years later. The 2003 Midtown Project was considerably less durable than the 1993 Midtown Project. The 2004 hurricane season removed all of the advance fill and at least part of the design fill of the 2003 Midtown Project, so FEMA funded a nourishment known as the 2006 Midtown Project to nourish Reaches 3 and 4 to restore the design template from the 2003 Midtown Project. This involved the placement of 893,000 cubic yards of fill. The 2006 Midtown Project was constructed from January 24 to February 24, 2006. Featuring numerous groins along their lengths, Reaches 5 and 6 are fairly healthy, and Palm Beach has no plans for these beaches other than to monitor them.26 By 1987, over 80 percent of the Reach 5 shoreline was fronted by seawall or revetment, and groins lined its entire length. By 1987, over 90 percent of the Reach 6 shoreline was fronted by seawall or revetment. However, Sloan's Curve, which is at R-116, received 34,000 cubic yards of sand in 1987 to restore the dunes. Also, in the same year, the Florida Department of Transportation placed a rock revetment north of Sloan's Curve to provide storm protection, and the revetment remains in place. The ability of these extensively groined shorelines along Reaches 5 and 6 to deprive reaches to the south of naturally transported sand is significant, as perhaps suggested by their relative health today. The cumulative impact of the groins and revetments may be partly revealed by the accelerated rate of sand loss in Reach 7 in recent years: the average annual rate of sand loss in Reach 7 from 1990-97 was 3.5 times greater than the rate of sand loss in Reach 7 from 1974-90. The three miles of shoreline north of Sloan's Curve is especially marked by extensive armoring structures, such as revetments, seawalls, and groins--including a "monster" groin at Widener's Curve (near R-110) that has yet to fill in with sand. Final Supplemental Environmental Information Statement for Reach 7 project, p. 64. The statement reports that this groin and others may require "decades" before filling with transported sand and allowing excess sand to continue transporting longshore to the south.27 Reaches 9-11 Due to their proximity to the north jetty of the South Lake Worth Inlet, whose sand transfer plant obviously does not transfer all of the trapped sediment across the inlet, Reaches 9-11 have benefited materially from this interruption in longshore transport of sand, although Palm Beach has received, in the past, a consultant's recommendation to restore or nourish Reaches 9 and 10. Even if any restoration work has taken place on these reaches, it would have almost no impact on Reach 8 given the normal direction of longshore transport of sediments to the south. Reach 8 Until the hurricanes of 2004 and 2005, Palm Beach merely monitored Reach 8, like it monitors Reaches 5 and 6. The proposed project is the first beach-engineering project for Reach 8, except for some relatively minor work that Palm Beach undertook after the recent hurricanes. In 2005, Palm Beach trucked 50,000 cubic yards of sand from upland sources and placed it landward of the mean high water line to form an emergency berm. In 2006, Palm Beach transferred something less than 58,500 cubic yards of sand that had been excavated for Reach 7 and nourished the dunes from R-116 to R-134 plus 100 feet. (Palm Beach had received permission to transfer 58,500 cubic yards, but the start of turtle nesting season brought a halt to the project just before it was completed, so the amount of fill placed in these dunes is less than 58,500 cubic yards.) Reach 7 Reach 7 has undergone a single restoration project. Known as the Phipps Ocean Park Beach Restoration Project or Reach 7 Project, this project used 1.1 million cubic yards of sand from BA III and BA IV to restore 1.4 miles of beach to 9 feet NGVD, although a related project, at about the same time, focused on Reach 7 and 8's dunes. At the time of these projects, DEP had designated all of the beach as CEB. The Reach 7 Project involved the construction of 3.1 acres of mitigation hardbottom to mitigate for adverse impacts to 3.1 acres of ephemerally exposed hardbottom. The contractor constructed the mitigation hardbottom in mid-2004, and constructed the project itself from February 19 to April 17, 2006, so that it began as the 2006 Midtown Project was ending. All of the advance fill from the Reach 7 Project eroded offsite within the first two years, post-construction; based on the anecdotals set forth below, a substantial portion of the erosion process probably took place in the first year. Unfortunately, the record does not reveal the storm events associated with this accelerated erosive process. Compared to 2004 and 2005, 2006 and 2007 were not significant for summer storms, but, as noted above, greater erosion occurs during the winter, when the storms bear no names; in any event, the record does not supply storm information for winters. The hardbottom that was exposed prior to the project, but that was covered directly or indirectly by the project, is again exposed today, two and one-half years post-construction. These aspects of the project performance are important to the present case for three reasons. First, undetermined amounts of fill from Reach 7 transported to Reach 8, probably very shortly after the completion of the Reach 7 project. These sediments may have transported to Reach 8 prior to the collection of sediment-size data by CPE in 2006 and thus biased the data toward smaller values. Second, the turbidity associated with the Reach 7 project was significant. As noted below, evidence of turbidity is anecdotal and derived from persons who, with one exception, are not professional collectors of such data. However, these persons have intimate familiarity with the beach, both before and after construction. Absent professional collection of post- construction turbidity data in connection with normal and storm conditions, the alternative to amateur data collection is no data collection. Palm Beach expert, Craig Kruempel, conducted a post- construction assessment of submerged bottom 36 months after the construction of the Reach 7 mitigation reef. Because this reef was built two years prior to the Reach 7 beach and dune projects, Mr. Kruempel's work took place in 2007--only one year after the completion of the Reach 7 beach and dune projects and emergency Reach 8 dune project. His findings were complicated by the effect of storms, but, in any event, involved sedimentation only. To the extent that he found uncovered hardbottom, it is an indication of the movement of excessive fines by entrainment into suspension with the suspended particles carried relatively far in the water column, as opposed to movement by bedload. His report refers to another sampling event in 2008, prior to the hearing, but this report is not in the record. Third, the Reach 7 project provides useful information in determining mean grain size of the existing beach at Reach 8, suggesting a range of overfill ratios for Reach 8, and describing possible issues with post-construction turbidity or reduction in water clarity. The Reach 7 Final Supplemental Environmental Impact Statement discusses native beach sediments at some length, finding that the mean grain size of 0.34 mm, as reported in 1977, had been supplanted with sediments with larger mean grain sizes, as years of erosion removed the finer-grained particles. After wave action and erosion, mean grain sizes in 1993 ranged from 0.44 mm to 0.57 mm for four locations within Reach 7. Physical sampling six years later suggested 0.43 mm as the most representative value. On the other hand, the mean grain sizes within the Reach 7 borrow areas--BA III and IV--were, respectively, 0.32 mm and 0.22 mm. The mean grain size of BA III is probably misleadingly large because it proved to contain coarser-grained carbonates that quickly abraded when placed in higher-energy zones than those from which they had been dredged. Also, the existing beach lacked any silt, but BA III was 2.9 percent silt, and BA IV was 1.5 percent silt. Although other factors are involved in calculating overfill factors, the mean grain sizes of the sand source and existing beach are important factors. For BA IV, for which the mean grain size was 0.22 mm, and the "existing native beach," for which the mean grain size was 0.43 mm, the overfill factor was 3.0, according to the Reach 7 Supplemental Environmental Impact Statement. This means that three times as much fill was required as would have been required if the mean grain size of the borrow area had been the same as the mean grain size of the beach. Although the Reach 7 Supplemental Environmental Impact Statement does not address the discrepancies in mean grain sizes on the existing beach and in BA III and IV, it warns that turbidity is one of the major limiting factors for coastal water quality in Palm Beach County. The statement notes that background turbidity is highest in the winter, in connection with winter storms, and lowest in the summer. However, the discussion of the proposed project and turbidity is limited to turbidity during construction and the need for a mixing zone and never addresses post-construction turbidity. As is found elsewhere in the literature sponsored into evidence by Palm Beach's witnesses, the Reach 7 Supplemental Environmental Impact Statement dismisses concerns about the impact of turbidity on the nearshore biological communities with the observation that the nearshore organisms occupy an already-turbid environment. As is true of the other literature, the Reach 7 Supplemental Environmental Impact Statement dismisses the impact of turbidity on these communities without attempting to quantify the intensity, persistence, or frequency of turbidity, pre- and post-construction (i.e., before and after placing, in the case of BA IV, sediments whose particle size was half the size of the existing sediments' particle size). Not all of the available anecdotals are relevant. One complaint of piles of coarser-grained fill placed on Reach 7 has no bearing to this case, except to the limited extent that the coarser-grained materials abraded into finer-grained materials. Located farther landward from the backreef apron source of larger carbonate materials, BA V and VI do not likely contain such coarser-grained materials. Second, one or more complaints of extensive post- construction sedimentation off Reach 7 resulted in an investigation by a DEP scientist. He found, as had DEP scientists elsewhere along the east coast, that a muddy grey layer of sediment, associated with a mid-column plume of turbidity, had covered much of the bottom structure. He justifiably attributed the source of these sediments to deeper marine deposits that had been disturbed by recent storms. The presence of the same conditions elsewhere militates strongly against any association with the Reach 7 project. The remaining anecdotals are relevant to this case because they describe the post-construction consequences, in terms of increased turbidity or decreased water clarity, of introducing finer-grained particles, though not necessarily silt-sized, into a beach consisting of considerably coarser- grained particles. Contrary to the approach of DEP to the issue of post- construction turbidity, the point is not that, per se, turbidity increased at all, or that it increased in excess of 29 NTUs above background turbidity. The point is that the turbidity increased sufficiently, regardless by how many NTUs over background, to eliminate all or nearly all of the functional value of a significant area of marine habitat along Reach 7 for a significant period of time, pursuant to a permit that required absolutely no mitigation for these losses except to the extent that they involved some nearshore hardbottom. Kerri Smith, former president or chair of Surfrider's Palm Beach Chapter, described persistent murkiness in the water along Reach 7, post-construction. The excavated sediments deposited on the beach were much siltier than the existing sediments on the beach. Hardbottom was likewise covered by these dredged sediments, although presumably this was hardbottom for which DEP had required mitigation. A surfer, Ms. Smith testified that the murkiness of the water precluded surfing due to the enhanced possibility of a shark, unable to ascertain the shape in front of it, attacking a surfer. The last observations by Ms. Smith, who is herself a beachfront owner south of Reach 8 on Palm Beach Island, were in the fall of 2007. Ms. Connie Gasque, a resident of Palm Beach County for over 30 years, assists the Reef Research Team in collecting in-water data, usually by diving. She also is a member of the board of directors of Surfrider's Palm Beach Chapter. Ms. Gasque testified that Reaches 7 and 8 are the only places to which she can drive, park her car (at Phipps Ocean Park in Reach 7 and the Lake Worth Municipal Beach/Kreusler Park in Reach 8), and snorkel in the nearshore waters adjacent to the beach. Public access, especially in the form of parking, precludes these activities along much of Palm Beach Island, north of Reach 9. Due to the prevalence of nearshore hardbottom, Ms. Gasque regularly observed, during these excursions prior to the Reach 7 Project, tarpons, snook, hammerhead sharks, spinner sharks, nursery sharks, green turtles, parrotfish, juvenile grunts, crabs, and other marine life. Although Ms. Gasque's reports of covered hardbottom along Reach 7 must be considered in light of the mitigation required for such impacts, her description of post-construction turbidity identifies a condition for which no mitigation was required. One time, she saw a turbidity plume extending from the northern end of Reach 7 as far as she could see. She got into her car and followed the plume for 12 miles before it finally disappeared at the Lake Worth Inlet. Although Ms. Gasque's reports of coarse-grained materials are irrelevant to the present case for the reasons stated above, she found, post-construction, considerable deposits of finer-grained materials, mud-like in consistency. This material ran from the Lake Worth Pier north a considerable distance. Captain Danny Barrow is a charter guide captain and writer for Outdoor Florida magazine. He has walked the beaches and fished the nearshore waters of Palm Beach Island his entire life. As a charter guide captain, he targets inshore fish, mostly snook and tarpon. Although Captain Barrow catches snook as far out as the offshore reef, he mostly catches them in water from the shoreline to 10 feet of depth. He also catches live bait along the shoreline. These baitfish consist largely of menhaden, cigar minnows, Spanish sardines, and finger mullet, which are plentiful around the Lake Worth Pier. Captain Barrow described the pre- and post- construction scenes along Reach 7 in terms of marine life displaced for extensive periods following construction. Prior to construction, he snorkeled the hardbottom along Reach 7 and found juvenile lobsters, crabs, croaker (favored by snook), juvenile snook, and a small school of three or four tarpon ranging in size from 20 to 40 pounds. After construction was completed in May 2006, the water was so milky that Captain Barrow would not enter it. He tried fishing the area and caught nothing; there was no sign of life. Two or more weeks later, he returned again and found conditions unchanged. Even the sand fleas that normally occupy the wet beach, and are an important food source for pompano and permit, were absent. Over the next several months, the water off Reach 7 began to clear up. By the fall of 2006, the water clarity was much better. But Captain Barrow reports that water clarity remained unduly sensitive to wave energy: as the waves picked up, so did the turbidity, much more than the turbidity had been, during similar wave conditions, prior to construction. In November 2006, Captain Barrow returned to Reach 7 during a storm, and the turbidity was as bad as it had been during active construction. At Phipps Ocean Park, he reported a "nasty milky color" to the water, and Captain Barrow found similar water conditions at the Lake Worth Pier. Captain Barrow reports no fish kills from the post- construction turbidity. Instead, the bait fish and their predators left the nearshore waters of Reach 7 until the waters cleared. Once the natural process of removing the fill from the observable beach was completed, the waters off Reach 7 returned to pre-construction condition, the hardbottom was re-exposed, and bait and predator fish returned to the nearshore waters. As of the time of the hearing, Captain Barrow described the nearshore waters off Reach 8 as "beautiful." However, he testified that the Reach 7 nearshore waters remain uncharacteristically susceptible to clouding in response to storms, at which point the fishing again suffers. Selected Local and State Actions to Preserve Beaches Palm Beach In addition to its participation in various beach- engineering projects, in 1996, Palm Beach formed a Shore Protection Board to advise the Town Council on beach management issues. As noted above, this board divided Palm Beach Island into 11 reaches in 1996. In a preliminary report, the Shore Protection Board stated 12 conclusions, including that the Lake Worth Inlet is the primary cause of Palm Beach's erosion, Palm Beach projects should be combined in a plan with other municipalities to achieve an "inlet to inlet" concept in place of "crisis management" or "spot projects," and all beach projects must include ongoing monitoring because "[l]ack of solid historical data is one of the Town's biggest problems and has crippled its ability to determine which programs have been successful " In discussing proposed projects, the Shore Protection Board specified an intent to obtain beach protection against a 15-year storm. The fill would thus be sufficient to absorb the erosion between nourishment events, which the board assumed would be eight years, and the occurrence of one 15-year storm. Based on his modeling, in 1992, Dr. Dean calculated that the beach profile containing Reach 8 would experience an 8.6-foot total storm tide from a 30-year storm, an 8.3-foot total storm tide from a 25-year storm, a 7.7-foot total storm tide from a 20-year storm, a 6.5-foot total storm tide from a 15-year storm, and a 5.6-foot total storm tide from a 10-year storm. As noted below, the design elevation of the beach berm in this case is 9.0 feet, so that it appears designed to protect from the 30-year storm. The Shore Protection Board noted that the few failures of nourishment projects in Florida have been due to inadequate quantities of sand, fine grain size, short project length, or extraordinary circumstance. Dr. Dean explained the importance of project length: essentially, the longer the beach nourishment project, the longer the nourished beach will last. The general rule, according to Dr. Dean, is that doubling the length of a project quadruples its longevity. Dr. Dean testified that a beach nourishment project of less than one mile is "not effective." As Dr. Dean explained, a project loses sand in the longshore and cross shore directions, but the supply of fill at the ends is less than the supply of sand along the template's much longer seaward face. DEP DEP is the state agency with primary responsibility over Florida's 825 miles of unsheltered beaches, including 389 miles on the Atlantic Coast. Palm Beach County contains 45 miles of unsheltered beaches, which equals the total of such beaches in Broward and Dade counties. In May 2008, DEP updated its Strategic Beach Management Plan for the state of Florida. The Strategic Beach Management Plan begins with the following statement: Beaches are dynamic land forms at the edge of the ocean or Gulf of Mexico subject to both natural and man-induced erosion. Sand moves along the shore due to wind driven currents and tides, and storms can cause dramatic changes to the beach. The majority of man-induced erosion is due to the creation and maintenance of inlets, where the sand has historically been removed from the coastal system, and the natural drift of sand along the shore is blocked by jetties, trapped in channels, or moved into ebb and flood shoals. Development and the placement of infrastructure too near the shore has also contributed to coastal erosion by limiting the amount of sand stored in dunes and hardening the shore in order to protect upland property.28 The Strategic Beach Management Plan identifies repair and maintenance strategies to carry out the state responsibilities of a comprehensive, long-range, statewide program of beach erosion control, beach preservation, restoration and nourishment, and storm and hurricane protection by adhering to the following principles: Maximize the infusion of beach-quality sand into the coastal system; Implement those projects that contribute most significantly to addressing the state’s beach erosion problems; Promote inlet sand bypassing to replicate the natural flow of sand interrupted by improved, modified or altered inlets and ports; Extend the life of beach restoration projects and reduce the frequency of nourishment; Encourage regional approaches to ensure the geographic coordination and sequencing of projects; and Reduce equipment mobilization and demobilization costs.[29] The Strategic Beach Management Plan warns that projects included in the plan must still obtain all necessary state and federal permits. Among the various permitting considerations are "an assessment of the compatibility of sand proposed to be utilized with the existing beach; project dimensions that may adversely affect nearshore hardbottom . . .; [and] turbidity levels at the borrow site and placement site[.]"30 DEP's Strategic Beach Management Plan for the Southeast Atlantic Coast Region, issued in May 2008, identifies 20.7 miles of beaches as the Palm Beaches subregion, which includes Palm Beach Island. This subregion contains 14.9 miles of CEBs, of which 6.1 miles have been restored or maintained. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region divides the Palm Beaches subregion into three smaller areas: Northern Palm Beaches, Palm Beaches, and Southern Palm Beaches. Palm Beaches includes all of Palm Beach Island plus short segments of beach north and south of the two inlets defining the island. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region states that Northern Palm Beaches includes 13.3 miles of beach, of which 8.4 miles are CEB, including 3.6 miles of beach that has already been restored and maintained; Palm Beaches includes 20.7 miles of beach, 14.9 miles are CEB, including 6.1 miles of beach that has already been restored and maintained; and Southern Palm Beaches includes 11.8 miles of beach, of which 7.9 miles are CEB, including 6.7 miles of beach that has already been restored and maintained. Palm Beaches contains only two segments of nonCEB. The northerly of these is Reach 8's Center Segment. This means that DEP has designed as CEB a continuous stretch of beach from the Lake Worth Inlet almost to the Lake Worth Pier. This span of CEB encompasses Reaches 1-7 in their entirety and, as noted above, the northernmost 3117 feet of Reach 8: the North Segment and the northernmost 392 feet of the Lake Worth Gap. The CEB designation that attaches to the South Segment continues past the end of Reach 8 at R-134 plus 350 feet to R-137.4.31 The remainder of Palm Beach Island from R-136.7 to the South Lake Worth Inlet is nonCEB. This means that Reaches 10 and 11, and the southernmost 300-400 feet of Reach 9 are all nonCEB, which confirms the range of influence of the north jetty of the South Lake Worth Inlet. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region discusses potential beach-management strategies and the availability of offshore sand sources for each of the three subsubregions. For Palm Beaches, the plan notes that Palm Beach has agreed with the U.S. Army Corps of Engineers (COE) for the latter to deposit on Midtown spoil from the maintenance dredging of the Lake Worth Inlet, and it acknowledges the subject Reach 8 Project, including as to the nonCEB. Also, the plan recommends that Palm Beach implement a "regional beach, inlet, and offshore data collection and processing program [for] their monitoring programs."32 As for potential sand sources, the Strategic Beach Management Plan for the Southeast Atlantic Coast Region warns that DEP and COE had found sufficient offshore sand for restoration, but not "long- term nourishment." Nor is much offshore sand available to the north and south. For Northern Palm Beaches, the Strategic Beach Management Plan for the Southeast Atlantic Coast Region reports that DEP and COE have conducted an extensive offshore sand search and found sufficient sand for restoration, but not maintenance, of these CEBs. The situation is only a little better for Southern Palm Beaches. The plan states that transferring sand from the ebb tidal shoal at the Boca Raton Inlet may be sufficient for a project known as the South Boca Raton Project, but it is not yet clear whether sufficient offshore sand has been found for the "long-term project needs" of the Delray Beach, Boca Raton (North), and Boca Raton (Central) projects. Due the widespread acknowledgement of the limited availability of offshore beach compatible sand, DEP has not previously approved a beach restoration or nourishment project, using offshore sand, for a nonCEB until this case. As noted above, DEP is proposing the use of this limited resource for a beach that, by far, is mostly nonCEB. DEP attempts to work in cooperation with federal and local authorities in managing Florida's beaches. From 1964 through 2006, Florida has expended over $582 million in beach nourishment and hurricane recovery, under the Strategic Beach Management Plan, pursuant to Chapter 161, Florida Statutes. These cooperative efforts and expenditures are crucial in Florida. Of the state's 825 miles of beaches, 485 miles are experiencing erosion; 387 miles have experienced "critical erosion," which, as noted below in the discussion of CEBs, indicates a level of erosion that threatens substantial development, recreational, cultural, or environmental interests; and 192 miles have been restored. From 1989 to 2003, the miles of CEBs increased from 218 to 333, and, in 2003, 62 percent of the shoreline in southeast Florida was designed CEB. In the 1998-99 fiscal year, Florida transitioned from its previous beach management policy of focusing on local, short-term needs and began assisting local governments in the preparation of Long Range Beach Management Plans, which emphasize a regional approach to beach management. Biological Functions and Potential Post-Construction Impacts Communities of the Nearshore and Beach A robust food chain exists in the beach and nearshore. Waves bring onshore phytoplankton to create a nutrient-rich zone in the nearshore waters. The base of the food chain, phytoplankton requires light to grow. Nothing in the record provides guidance as to the effect, if any, of ongoing, elevated turbidity and the resulting attenuation of light in the water column on the abundance of phytoplankton in the nearshore water column. The smaller organisms feed on the phytoplankton. In turn, macroinvertebrates, such as coquina clams (Donax) and mole crabs or sand fleas (Emerita talpoida), nourish bottom-feeding surf fish, such as pompano and flounder, and shore birds. Small fish in the nearshore environment are food for these fish and birds, as well as mackerel, jack, and blues. Wind and waves limit the number of species that occupy the high-energy beach habitats. Intertidal beaches host relatively few species, although in relatively great abundance. The upper portion of the beach is dominated by various talitrid amphipods and the ghost crab (Ocypode quadrata). In the midlittoral zone, polychaetes (a class of worms), isopods (e.g., sea mites or pill bugs), and haustoriid amphipods (shrimp-like crustaceans) dominate. In the swash and surf zones, coquina clams and mole crabs are found. Shallow subtidal habitats, which are in up to three feet of water, are occupied by polychaetes, gastropods (snails), portunid crabs, and burrowing shrimp. In water 3-10 feet deep, polychaetes, haustoid and other amphipod groups, and bivalves such as coquina clams prevail. Fish favoring the softbottom surf zone are relatively few. In order of prevalence in Palm Beach County (most common to least common), they are Atlantic threadfin herring, blue runner, spotfin mojarra, southern stingray, greater barracuda, yellow jack, and ocean triggerfish, none of which has any commercial value. The individuals in this nearshore area tend to be small or juvenile, although larger individuals will visit the nearshore to find prey. The offshore soft bottom provides habitat to a greater variety of species than the nearshore soft bottom because the offshore areas are less subject to wave distress. Offshore soft bottom is dominated by polychaetes with seasonal, extensive growth of macroalgaes. Larger invertebrate macrofauna in the offshore soft bottom between the second and third reef lines include the queen helmet, king helmet, Florida fighting conch, milk conch, Florida spiny jewel box, and calico clam. The only commercially valuable species is the Florida lobster, which crosses this area as it migrates from offshore to nearshore areas. The habitat of greatest value in the nearshore is hardbottom. As noted above, it is relatively scarce. But the value of hardbottom is in its physical characteristics, as compared to the more prevalent soft bottom. Hardbottom, or "beach rock," presents habitat in the nearshore areas in the form of coquina shells, sand, and calcareous limestone--i.e., the Anastasia outcropping described in detail above. The intermittent outcrops of hardbottom represent the highest elevations of a contiguous formation, which, where exposed, exhibits the spur and groove characteristics of reefs exposed to wave action. Hardbottom outcrops are often found in 0-10 feet of water and are stressed physically by waves, sediment transport, turbulence, and lack of water clarity. The width and vertical profile of the hardbottom outcrop determines its significance as a biological resource and natural wave break. Larger outcrops display greater habitat heterogeneity, which generate increased biomass, biodiversity, and abundance. The suitability of a specific hardbottom outcrop as habitat is a function of its permanence and rugosity. The larger outcrops tend to be persistent; the smaller outcrops tend to be ephemeral because they are more likely to be buried by sand and more likely to be buried longer by sand. Hardbottom outcrops serve as habitat for epibenthic species that are able to attach to the hard substrate. The considerable fluctuations in the physical environment permit colonization of hardbottom mostly by encrusting and boring organisms. Different algal species will occupy the outcrop, depending on whether it is low profile, smooth, subtidal, or intertidal (algal mat communities); exposed and intertidal (green algae Ulva lactuca and barnacle Tetraclita squamosa); subtidal; or high profile. Various macroinvertebrates--encrusting and nonencrusting--are found along the nearshore hardbottom in Palm Beach County. Among the most prevalent species are star coral (Siderastria radians), various species of wine glass hydroids, several species of tube-type sponges, the boring sponge (Clinoa celata), the wormrock-building polychaete (Phragmatopoma lapidosa), and the fire coral hydroid (Millipora alcicornis). The wormrock-building polychaetes live in tubes that they build around themselves by cementing sand grains together and, in suitable areas, build large, biologically significant wormrock reefs. Wormrock structure added to hardbottom provides habitat of significant complexity and, thus, value. The list is long of species that favor wormrock reefs and hardbottom in general. Toward the top of the food chain, bull and tiger sharks, as well as coastal pelagic species, such as Spanish mackerel, jacks, mullet, and bluefish, visit the nearshore hardbottom primary to find smaller fish for food. Of these, Spanish mackerel and mullet have commercial value. Surf zone fish typically seen around the hardbottom include the Atlantic croaker, pompano, snook, jacks, anchovies, and herrings, of which only the snook and pompano have commercial value. Reef fish also use the hardbottom outcrop when traveling from the offshore reef. These species include snapper, grouper, grunt, and wrasses, as well as some damselfish, blennies, gobies, angelfish, and parrot fish, of which the snapper and grouper have commercial value. Smaller mobile species such as the Florida lobster, sea urchins, and brachyuran and xanthid crabs also use the nearshore hardbottom, mostly the holes and crevices. In general, due to the complexity of the habitat providing both sanctuary and food, nearshore hardbottom provides nursery habitat for 34 species of fish. Early-life individuals constitute over 80 percent of the individuals at nearshore hardbottom sites. Nearshore hardbottom is critical habitat for juveniles of another species, green turtles, and, to a lesser extent, hawksbill and loggerhead turtles. After spending 3-5 years in the open ocean, juvenile green turtles move into coastal waters during the "many years" required for them to reach sexual maturity. "Home Range and Habitat Use of Juvenile Atlantic Green Turtles on Shallow Reef Habitats in Palm Beach County, Florida," November 2005, by Christopher Makowski, et al. (including Michael Salmon), p. 1167. While in the coastal waters, nearshore hardbottom provides juvenile green turtles with critical foraging and resting habitat. The diet of juvenile green turtles is primarily algae and sponges that colonize the nearshore hardbottom, although they will feed on sandy bottom with seagrass or patches of algae. Id. at p. 1174; "A Survey of Juvenile Green Turtles and Their Resting and Foraging Habitats Off Broward County, Florida 03/01/86 - 12/31/87," January 1988, by Robert Wershoven and Jeanne Wershoven, p. 8. Among the favorite food sources of the green turtle, which is the only herbivorous sea turtle,33 according to Rare and Endangered Biota of Florida, Volume III, edited by Paul E. Moler, is a red algae (hypnea musciformis) that grows on hardbottom along Palm Beach Island. The loggerhead also favors algae and sponges. The juvenile green turtle's algal food sources are vulnerable to the increases in turbidity associated with beach- restoration or -nourishment projects. Wershovens, pp. 13-14. As the water loses its ability to transmit light, the algae decline, just as they do when they are covered by sediment. It is not merely that the algae cannot grow; in response to the heavy forage of juvenile green turtles, the algae must re-grow repeatedly in order to supply the turtles with nourishment. Makowski, p. 1174. The juvenile green turtle displays considerable site fidelity, both for foraging and resting. Resting and foraging in the same hardbottom provides security, especially from sharks. Makowski, p. 1177. At night, each of four turtles tracked by Makowski returned to each of four identical resting sites. Two turtles maintained two separate resting sites at opposite ends of their relatively limited home ranges. Makowski concluded that site fidelity for foraging and feeding is probably linked to the need for hiding spots and escape routes in the face of the constant threat of predation. Id. at p. 1173. Engaging in a longterm capture-and-release study of juvenile green turtles, whose range of carapace length was from about 11 inches to 26 inches, Wershovens at p. 9, Robert and Jeanne Wershoven reported that nocturnal recapture locations of 19 juvenile green sea turtles and two hawksbill varied by an average of 0.5 km. Wershovens at p. 8. Two green turtles were recaptured under the identical ledge where they were originally captured--one after 18 months had elapsed since the preceding capture. The same hawksbill was recaptured seven times. The Wershovens described the hardbottom ledge habitat--the most valuable hardbottom habitat for juvenile green turtles--as a "time share" arrangement because the turtles shared, at different times, the limited, higher-relief hardbottom in the study area. Id. at p. 8. Of course, the other habitat of importance in this case is the dry beach. Palm Beach Island provides especially favored habitat for the reproduction of sea turtles because they lay their eggs in the sandy sediments of the island's beaches, including Reach 8. Florida is the second largest nesting site for loggerheads in the world, and Palm Beach County is second only to Brevard County among Florida counties for loggerhead nesting activity. Palm Beach County is also second only to Brevard County for numbers of green turtle nests in Florida. Actual and Potential Impacts to Biological Processes from Reach 8 Project Actual and Potential Impacts to Dry Beach as Nesting Habitat The impact of beach-nourishment projects on nesting sea turtles has received considerable attention from the scientific and regulatory communities, likely due to the relative accessibility of the dry beach habitat and the widespread popularity of beach-climbing and burrowing sea turtles, as distinguished from, say, the furtive wanderings of bug-like isopods or the distribution in the nearshore water column of multitudinous, typically imperceptible phytoplankton. Nearly all of the relevant risks have long been addressed by the sponsors of beach-nourishment projects, their consultants, and DEP. If the fill is too coarse, the turtle will be unable to excavate a burrow because the sides will fall in. If it is too fine, oxygen will not pass through the sand to the eggs. A variance in color between the fill and existing beach may alter the ability of the sand to transmit heat to the eggs, which can alter the gender of the hatchlings. Pre- and post-construction variations in beach compaction, beach slopes, escarpment formation, and possibly salinity levels may impede nesting, including by producing more false crawls in which the sea turtle crawls out of the surf and onto the beach seeking to dig a burrow and deposit her eggs, but returns to the sea without completing these tasks. Experts do not seem to dispute with much conviction that the nourished or restored beach is of reduced value for nesting for the first year, post-construction, or that sea turtles successfully nest on the beach the following year. The potential impact in subsequent years is at issue in this case. The problems in the first year include a variety of disturbances. Recent research suggests, for instance, that excessive total dissolved solids in the fill may deter females from using the post-construction beach for the first year. During the first year, rain and stormwater rinse these total dissolved solids out of the fill, which can then return to a salinity level approximating what existed prior to the construction. Regardless of design and implementation of a particular beach project, rain will eliminate this problem by the end of the first year, so the quality of the beach project does not especially affect the duration of the loss of nesting habitat for sea turtles. Conceivably, the contractor could rinse the fill artificially at the time of construction and restore post-construction salinity levels immediately, but no one has attempted this, and its practicability is not yet established, especially because other factors may still discourage first-year utilization. In contrast to the possible problem with total dissolved solids, scientists have long recognized that first- year problems with beach slopes, escarpments, and compaction discourage nesting on the newly restored or nourished beach. It is unclear as to whether, or to what extent, a beach filled with excessive fines is likely to succumb repeatedly to these conditions, at least until the coastal system removes the excessive fines from the dry beach. But as discussed in some detail immediately below, the removal process in this case is unlikely to take more than one year. Potentially more serious is the presence of excessive coarse materials because, to the extent they are siliciclastic and will not abrade in their new, high-energy setting, these particles will resist erosion by wind and surf. However, this issue is irrelevant to the proposed project, as there is no evidence whatsoever that BA V and VI may contain excessive coarse materials. Also potentially more serious is the presence of different colored sediments in the fill, as compared to the existing beach. The proposed fill is greyish, as compared to the tanner existing beach, but the difference appears to be small and some lightening can be expected once the sediment is exposed to the elements. Surfrider's expert, Dr. Michael Salmon, testified that, although the nourished beach is unsuitable nesting habitat the first year after construction, it is typically suitable nesting habitat the second year. In this regard, Dr. Salmon and Palm Beach's main witness on this issue, Dr. Kirt Rusenko, are in agreement. They part company, however, when Dr. Salmon opines that ongoing erosion deterred sea turtles from nesting on the nourished beaches in the third and following years. Clearly, Dr. Salmon's testimony identifies a potential long-term risk to nesting habitat, but it does not apply in this case. Dr. Salmon's testimony partly relies on other testimony suggesting that the beach, once nourished, will always require nourishment, implicitly due to accelerated erosion. Nothing in the record explains this process. In particular, the Administrative Law Judge has examined the record to find some suggestion that nourishment or restoration increases pre-construction erosion processes or reduces pre- construction accretion processes, but he has found nothing to this effect. Theoretically, a beach project could alter nearshore bottom so as to alter wave and tidal forces--a possibility that Surfrider's witness tried, without success, to establish in this case with respect to the quality of waves for surfing. More likely, an alteration might change erosion patterns at a nearby beach, but this record is undeveloped as to when and under what conditions such a process takes place. Based on the present record, any suggestion that the excavation of BA V and VI and placement of sandy sediments in the nearshore bottom can alter the long-term erosion or accretion experienced by a beach, after cross-shore sorting of the fines in the fill has been completed, remains a hypothesis to be tested. Rejecting this part of Dr. Salmon's testimony raises one of the central factual issues of the case: how long, post- construction, will the cross-shore sorting process generate incidents of substantially reduced water clarity as the excessive fines are transported to deeper waters? As noted below, CPE has materially understated the mean grain size and overstated the silt content of the existing beach. CPE's understatement of mean grain size of the existing beach relieved it of the necessity of dealing with a much larger overfill factor than the 1.68 factor stated by CPE, which uncovers one of the conundrums of this case: would the contractor place fill in conformity with the template of advance and design fill, as expressed in the post-construction beach profiles, or in conformity with the Permit provision of 724,200 cubic yards of fill? The contractor cannot comply with both specifications due to the understatement in the overfill ratio. It seems less likely that the contractor will attempt to calculate volumes while the dredge is slurrying sediments onto the beach than that the contractor will try to place fill within the design templates provided it by CPR. This means that substantially more than 724,200 cubic yards of fill would be placed on Reach 8. The potential impact to sea turtle nesting after year 2 is thus inapplicable to this case due to the evident reliance by Dr. Salmon on elevated or even ongoing erosion of the restored or nourished beach during those years. Based largely on the Reach 7 experience and the role of grain size in coastal processes, the excessive fines proposed for Reach 8 would undergo cross-shore sorting much more quickly than projected by Dr. Dean, who testified that the advance fill on Reach 8 would last six years. Findings of a shortened fill-erosion process should be consistent with Dr. Dean's pioneering work on overfill ratios, as well as his testimony that doubling project length quadruples project life and that Reach 8 has become a fairly short project. But, regardless whether consistent with Dr. Dean's views on these matters, the finding is that CPE's attempt to push Reach 8, an intermediate beach tending toward reflective, to a dissipative state promises a quick push back by the natural forces that produced, in the first place, an intermediate beach tending toward reflective. A process that might take six years, if the consultant were to maintain beach states with identical sand in terms of mean grain size, silt content, and sustainable slopes, will take substantially less time given present circumstances. Because of the likelihood of a relatively quick fill- erosion process, Dr. Salmon's testimony concerning loss of nesting habitat after year 2 for Reach 8 is rejected. Although Dr. Salmon described in detail one beach in which sea turtle nesting suffered in years three and following, he did not provide the relevant details of the restoration or nourishment project, so he failed to demonstrate that the performance of that beach is relevant to the performance of Reach 8, post- construction. Perhaps the fill-erosion process took longer in that case, and erosion after the second year was especially disturbing to nesting sea turtles. On the other hand, Dr. Salmon's testimony concerning the relative abundance of suitable nesting habitat along Florida's coast for sea turtles is credited. In particular, given the accretion patterns for Reach 8 discussed above, Dr. Salmon's testimony is credited over the contrary testimony of Palm Beach's experts, who suggested that the no-action alternative would leave harm sea turtles because of the loss of Reach 8 beach for nesting. Relying in part on Dr. Salmon's testimony concerning ample nesting habitat for sea turtles, it is also found, as Palm Beach's experts testified, that, for the year that the female sea turtles find the post-construction beach unsuitable for depositing eggs, they can move up or down the beach a relatively short distance and finding suitable nesting habitat. For these reasons, the potential for nesting disturbances after year one is irrelevant in this case. Even compaction is not an issue, although excessive fines lend themselves to compaction. Permit conditions require anti- compaction procedures, which will become unnecessary after one year due to the removal of most of the fill by then. 2. Potential Impacts to Hardbottom Habitat and Water Column For the same reason that impacts to nesting after year two are not likely in this case--i.e., accelerated erosion of excessive fines placed on an intermediate beach tending toward reflective--the proposed project is likely to cause impacts to hardbottom habitat in the form of burial of more than 6.9 acres and to the water column in the form of reduced clarity for at least one year. This is developed in more detail below. The burial of hardbottom destroys the algae, sponges, and coral that support the bottom of the food chain. The burial of the hardbottom deprives multiple species of this valuable habitat for foraging and resting. Prominent among such species is the juvenile green turtle. The National Marine Fisheries Service (NMFS) determined that the burial of 6.9 acres of hardbottom, as allowed by the Permit, would result in the death of some juvenile green turtle, according to NMFS. This finding by NMFS is credited. In a letter dated March 13, 2008, the National Marine Fisheries Service stated that, at the rate of five juvenile green turtles per acre of hardbottom, 35 juvenile sea turtles would be displaced by the burial of 6.95 acres of hardbottom. NMFS declined to find that all 35 individuals would be injured or killed from this impact. Instead, the NMFS reasoned that, based on typical rates of infection with fibropapillomatosis, which is a benign tumor disease to which green sea turtles are particularly susceptible, 19 of these 35 individuals are infected. NMFS then assumed that the stress from the loss of habitat would be enough to kill already- infected individuals, so the take, in the form of death, is 19 juvenile green turtles. The NMFS opinion concludes that this loss would not jeopardize the endangered species, which evidently is the criterion for a letter permitting this incidental take. In his written report, Dr. Rusenko correctly challenges the NMFS calculation as unduly pessimistic in one respect: juvenile green turtles in nonlagoon settings experience a much lower infection rate, about 14.8 percent. The resulting take would be 5, not 19, turtles. Although Dr. Rusenko does not accept that even five turtles would die from the loss of 6.9 acres of habitat, this finding of NMFS is credited. The potential exists for even more mortality among uninfected juvenile green turtles. Given the unusual degree of site fidelity exhibited by juvenile green turtles, it is possible that some of the 30 fibropapillomatosis-free individuals will suffer fatal predation due to their increased vulnerability caused by the confusion, disorientation, and even malnutrition following their loss of their familiar habitat. However, the record permits no finding as to the likelihood of this taking place or how many uninfected juvenile green turtles would also likely suffer mortality from the loss of habitat, so the take, in the form of death, will be found to be five per 6.9 (actually 7, as approximated by NMFS) acres of impacted hardbottom. While allowing the incidental take of 19 juvenile green turtles, NMFS added a conservation recommendation to its incidental take statement. The recommendation implies concern that CPE's projections of indirect hardbottom coverage are unduly optimistic. NMFS recommended that Palm Beach limit the fill to no more than 260,000 cubic yards, based on 40 cubic yards per linear foot, which NMFS believed is sufficient to protect against the 25-year storm. NMFS also recommended that COE prepare an environmental impact statement for the cumulative effects of beach nourishment projects on nearshore hardbottom to determine the impacts on listed species using such habitat. Palm Beach presented considerable evidence that elevations in turbidity and sedimentation would not affect or would not materially affect at least certain organisms in the beach or nearshore waters. In general, this evidence is credited for the proposed project, but only after about one year. As seen below, even the scholarly articles on which Palm Beach relies anticipate displacement of certain biological communities for different periods of up to one year. One of the recurring problems with Palm Beach's no- impact evidence is its failure to account for a nourishment project specifying fill with excessive fines and the resulting reduction in water clarity and increase in sedimentation that will ensue as that fill is redistributed in the nearshore environment. For instance, in "Guidelines for Beach Restoration Projects, Part I: Biological," July 1985, at pages 35-36, Walter G. Nelson attempts to support the assertion that large- scale storms produce impacts to the beach and nearshore similar to those impacts from beach nourishment projects--thus, nearshore fauna could survive post-construction turbidity. Nelson cites several studies that generally found little or no disturbance to various macroinvertebrates following strong storms. However, Nelson makes no effort to determine the intensity, frequency, or duration of turbidity following comparable storm events--one impacting an unnourished beach, for which little, if any, cross-shore sorting is taking place, and one impacting a beach nourished by excessive fines, where cross- shore sorting is ongoing. Nelson completely ignores the relationship between energy input and sediment particle size, instead implying that the impact to water clarity is the same following equal forces of waves and currents striking beaches with already-sorted native sediments versus beaches with excessive fines, which are awaiting these forces to redistribute these fines to lower-energy sites in deeper water. For the most part, the witnesses called by CPE, Palm Beach, and DEP implicitly accepted the idea that organisms would not use the filled beaches and nearshore for a short time after construction. The real dispute between the parties was how long would these habitats be deprived of their habitat functions. One of Surfrider's expert witnesses, Dr. Pete Peterson, testified for a longer-term loss of habitat value, post- construction, but admitted that the conditions of his primary experience were materially different from the conditions that would be produced by the proposed project. His experience was with excessive coarse-grained materials, which present entirely different problems from projects with excessive fine-grained materials. The findings below rely heavily on evidence presented by Palm Beach concerning the duration of species abandonment due to habitat impacts, but blends this evidence with the anecdotal evidence presented by the witnesses called by Surfrider. The critical period for the elimination of functional habitat, even including the burial of nearshore hardbottom, seems to be about one year. Precluding the use of habitat for one year corresponds with how long it took the coastal system at Reach 7 to move a substantial fraction of the excessive fines from the beach and nearshore to deeper waters. The proposed fill for Reach 8 is also excessively fine, although by a slightly smaller amount, so one year is probably a reasonable estimate of how long it would take the coastal system to move a substantial fraction of the fines from the beach and nearshore to deeper waters. Nelson himself seems to adhere to this general time frame when he suggested post-construction biological sampling at weekly intervals for one month after nourishment and monthly for nine to twelve months, although characteristically he made no effort to link the sampling with storm events. Nelson, p. 49. Extending somewhat the duration of species abandonment from the values suggested by Palm Beach's evidence is supported on several grounds. First, the authors of the articles offered by Palm Beach and admitted into evidence failed to address the re-entrainment of excessive fines into the water column more often, in greater intensity, and for longer periods of time than occurred at the same beach, pre-construction, due to the greater resistance of coarser-grained materials to enter into suspension or, given Hjulstrom's Curve seaward of the surf zone, the lesser resistance of particles almost exactly the size of those proposed for fill in this case to entrain into the water column. Second, nothing in the record addresses the impact of subsequent turbidity events on the phytoplankton, algae, and sponges, on which the nearshore hardbottom habitat relies for its foraging value. In addition to the processes that are based on grain sizes, as described above, the most persuasive facts are the dead zone that Surfrider's witnesses reported in the nearshore waters along Reach 7 for up to one year after the project was completed, and the ongoing, uncharacteristic susceptibility of this coastal system to display abnormally high turbidity following storms that previously had not produced turbidity of this intensity or duration. Palm Beach and DEP have not accounted for the impacts of post-construction elevations of turbidity, focusing instead on post-construction sedimentation of hardbottom. But in the face of what these concerned citizens saw and what is known about the performance of beaches based on comparative mean grain sizes, likely impacts from the Reach 8 project would include biologically significant impacts not only to hardbottom, but also to water clarity for a period of approximately one year after construction. Upon placement of the fill, the beach and nearshore will experience the loss of nearly all life through death by burial or movement away from the disturbance. After construction, the filled area will be devoid of common macroinvertebrates, such as mole crabs and coquina clams, but also the algae and sponges that are covered by fill. The record does not permit a finding as to the post-construction presence of phytoplankton in the nearshore waters. However, there will clearly be a major disturbance of the bottom of the nearshore food chain. With a better match of existing grain size with fill grain size, the beach and nearshore habitats, except for hardbottom projected for burial, would recover most functions within six months and nearly all of the remaining functions within one year after construction. The role of sediment size in resource recovery is not a new concept. As noted by works cited in "Deposition and Long-Shore Transport of Dredge Spoils to Nourish Beaches: Impacts on Benthic Infauna of an Ebb-Tide Delta," by Melanie J. Bishop, et al. (including Dr. Pete Peterson), p. 531: "The degree of concordance between native and introduced sediments is considered the most important factor determining the rate of recovery of populations of beach invertebrates following nourishment." When the fill contains excessive fines, it is not, as suggested by one of Palm Beach's witnesses, merely a matter of the availability of new individuals, who may be readily recruited34 to the impacted beach and nearshore by waves and currents. When the fill contains excessive fines, it is also a matter of whether these newly recruited individuals find, upon their arrival at the filled site, sufficient functional habitat in terms of such important items as food supply and, in some cases, water clarity. Nelson noted that mole crabs, which occupy the swash zone, will typically recolonize a nourished beach within six months after the construction. Mole crabs are more susceptible to mortality from burial in coarser sediments than finer sediments, but demonstrate survival in finer sediments only in burial depths of about four inches--considerably less than what is proposed in this case. Nelson at p. 37. Given the last sentence in this paragraph, it is not unlikely that Nelson was studying projects with excessive fines in the fill, so his finding of six months' disturbance is entitled to some weight. However, even after six months, Nelson concedes that only the numbers of individuals are the same; because of disproportionately high numbers of juveniles, the biomass available as food was still "greatly reduced" at six months, post-construction. Id. at p. 15. Interestingly, Nelson cites a study that suggests that the adults were lost during the preceding winter due to increased, post-construction turbidity. Id. Occupying the intertidal zone, coquina clams also begin to repopulate a nourished beach about six months after the construction. Due to limited mobility, coquina clams suffer mortality from burial by sediment and are especially sensitive to burial in finer sediments. Id. at pp. 18 and 37. Intertidal-dwelling haustoriid amphipods are slow to return to nourished beaches, probably because they are not strong swimmers and, residing where the effects of filling are the greatest, suffer high mortality rates during construction. Id. at p. 24. Residing higher up on the beach, ghost crabs may be reduced by 50 percent during the summer after nourishment, which is often about six months, post-construction. Although the fill is largely placed seaward of the portion of the beach that they occupy and they are able to burrow through the overburden, the reduced population is probably due to the loss of food source for the ghost crab. Id. at p. 30. Nelson noted that nearshore fish may suffer from relatively high (but unidentified) turbidity values because the gill cavities of the fish will fill with fine sediments and the fish will suffocate. Pelagic, filtering fish are more susceptible to this than benthic feeding fishes. Also, juvenile fish, which, with small adults, tend to predominate in the nearshore, also tend to be more affected by particles in the water. And sublethal concentrations may still produce serious stress levels in the fish. Nelson, p. 28. Nelson cited a study that reported that fish returned to nourished beaches within four months after construction, but notes that the author cited no data to support his assertion. Nelson reported that this author suspected that the destruction of nearshore habitat may be a bigger factor on fish presence than turbidity because nearshore fish tolerate high turbidities, but, as is typical, neither author attempted to measure the turbidities following a beach-nourishment project with the turbidities associated with the same beach, pre-construction. Nelson, pp. 28-29. Where the other author stated that the populations of jawfish, a cardinalfish, and a blenny had been negatively affected seven years after construction, though, Nelson faulted the author for failing to consider alternative explanations. Nelson, p. 29. Without comment, Nelson cited another study that finds an increase of fish immediately post- construction. However, the absence of specifics in that study precludes reliance upon it. Turbidity or reduction in water clarity works in at least four ways to reduce the function of the nearshore habitat. First, by reducing the ability of the water to transmit light, elevations of turbidity limit the abundance of algae and sponges, which are important food sources for, among other things, juvenile green turtles. Second, by reducing the transparency of the water, elevations of turbidity disturb the balance between predator and prey in which pre-construction kill rates reduce substantially because sight-feeding predators, such as permit and pompano, can no longer find their prey. Third, elevations of turbidity may result in sedimentation as the particles settle out; like fill, sedimentation will kill algae, sponges, and coral. Fourth, as noted above, elevations of turbidity may damage the gills of certain fish. Recreational Opportunities on Reach 8 Based on the testimony of Brett Fitzgerald, who lives near Reach 8 and regularly takes his wife and two young children to the Lake Worth Municipal Beach, the nearshore hardbottom at the beach is in the swash zone, so he and his children, since they were three years old, are easily able to snorkel the area and see tropical fish that they could not see elsewhere. The water is so shallow that one can easily stand up and walk out of the water. The mitigation reef proposed for Reach 8 would be near Sloan's Curve, which is about one mile north of Phipps Ocean Park. The ease with which Mr. Fitzgerald and his wife can pack the children and beach accessories into the car, drive to the Lake Worth Municipal Beach, lay out their things, and enter the water would be lost at the mitigation reef. The one-mile haul with the children and beach accessories would prevent them from swimming with the children on the mitigation reef. With their children, they could effectively access the reef only with a boat, but do not have one. The loss of water clarity, post-construction, also raises fears of shark attacks. Frequenting the pier are various sharks, including bull, tiger, hammerhead, blacktip, and spinner. The risk of attack increases with turbidity. Reduced clarity, presumably well short of increases of 29 NTUs over background, raises the risk that the shark will confuse humans in the water for preferred prey and mistakenly bite the humans. In addition to a favorite swimming beach, largely due to plentiful public parking relative to elsewhere along Palm Beach Island other than Phipps Ocean Park, the Lake Worth Municipal Beach and Lake Worth Pier are the focus of considerable surfing. Wave conditions and accessibility attract surfers from all of southeast Florida and even the entire east coast of the United States. Surfers are attracted by the break in the water that produces good waves for surfing. The waves at the pier feature an open shoulder that permits surfers to practice maneuvers and improve their skills, so they can go on to national and international competition. Eight-time world champion and Florida native Kelly Slater has surfed the Lake Worth Pier. Three others who started surfing at the Lake Worth Pier have become professional surfers. Surfrider uses the Lake Worth Pier to sponsor annual events to introduce children to the sport of surfing. The Lake Worth Pier is also Captain Barrow's favorite place to find bait, such as menhaden, cigar minnows, and Spanish sardines. Every October, the mullet run along the shoreline, and they draw their predators, such as snook, in large numbers. In the spring, as the water warms, redfish and tarpon begin to visit the beach in larger numbers. The Lake Worth Pier is a popular spot for shore fishing all year, as fishers without boats, or fishers looking to get out of their boats and save fuel, take advantage of the good fishing on either side of the Lake Worth Pier. At sunrise in October, as many as 30 persons may be surf fishing along the beach around the pier. Many of the fishers are retirees, so the pier area may be used for fishing throughout the day. Sunset and evening are also popular times for fishing. However, Captain Barrow reports that the fines that have spread from Reach 7 have caused the nearshore waters along the Lake Worth Municipal Beach to cloud up considerably whenever wave action increases--far more often and cloudier than the same wave action produced before the Reach 7 project. No one disputes that the placement of fill on the North Segment would quickly spread onto the submerged bottom of the Lake Worth Gap. Due to the excessive fines in the fill, the Lake Worth Municipal Beach would experience substantial turbidity increases and sedimentation for a period of at least one year. During this year, fishing at the Lake Worth Municipal Beach would cease because of the disruption of the food chain and absence of fish. Swimming would probably cease, as the turbid waters would discourage nearly all persons from entering them on grounds of aesthetics and safety, not just from shark attacks, but also from collision with any unseen underwater hardbottom incompletely covered by the spreading fill from the North Segment. It is impossible to determine the impact on waves of this spreading fill, but the increasingly turbid waters, without regard to any loss of wave break, would discourage surfing, as well. Even the visual attraction of the beach would be diminished by the unappealing presence of cloudy waters washing up onto the beach face. Except for persons seeking to lie on the warm sand and tan, typical beach users would likely cease using the beach, even though they would not have any nearby alternatives offering the same combination of recreational opportunities and accessibility. The loss of a year or possibly two of use would be especially hard on retirees and young children, for whom the window of recreational opportunity or, in the case of the children, recreation-induced personal development is more limited. Application and Responses to Requests for Additional Information Activity Prior to Filing Application In meetings with DEP prior to filing the application described immediately below, Palm Beach proposed placing one million cubic yards of fill on Reach 8 from R-125 to R-134. DEP warned that the hardbottom impacts at the south end of the project would be too great and suggested shortening the southern end of the project. Application: June 2005 In June 2005, Palm Beach filed with DEP the Town of Palm Beach Reach 8 Beach Restoration Project Joint Coastal Permit Application (Application). The Application, which was submitted CPE, combines requests for a JCP and proprietary authorization from DEP and a dredge and fill permit from the COE. The COE has simultaneously processed the Application and is awaiting state water-quality certification, which takes the form of final agency action from DEP issuing the JCP. The summary of the contents of the Application and each response to a request for additional information omits material information, if a subsequent submittal were to change the information, unless the earlier statement of this information is useful to an understanding of the facts of this case. The Application states that the intent of Palm Beach was to obtain COE and DEP approval for Reach 8 construction in the fall of 2005 or winter of 2006, so the Reach 8 project could be conducted at the same time as the 2006 Midtown Project and Reach 7 Project. The Application states that the north end of Reach 8 is a continuation of the Reach 7 Project. However, the Reach 7 Project was too far along for the Reach 8 Project to catch up. In the Application, Palm Beach shortened the project by about 3600 feet to 6990 feet (1.3 miles) by proposing fill from R-125 to R-131, instead of R-134, as originally proposed, and reducing the volume of fill to 506,000 cubic yards of "compatible beach quality sand." The proposed fill is in the shape of a trapezoid. The two shortest sides, which are approximately equal in length, are on the northern and southern ends of the project. The longest side is the landward, shoreline-parallel side. Thus, the proposed fill tapers off as it extends into the water. The two ends taper between R-126 and R-125 and R-130 and R-131. The planform diagrams disclose three bands of fill from landward to seaward. The characteristics of these bands is revealed by the profile diagrams. From the planview, the project is depicted in the following illustration, in which the yellow depicts the construction berm crest and the more seaward line, with lines extended from the yellow in a cross-shore direction, depicts the construction toe of fill where the slope is 1:15: The profiles, which are not uniform from north to south, depict the current and equilibrium beach profiles, as well as a design profile for the beach project. Each profile reveals, from landward to seaward, a design berm elevation of 9 feet, a slope of 1:50 to an elevation of 7 feet (i.e., for 100 feet), followed by a slope of 1:10 to the seaward toe of the fill. Characteristic of beach nourishment or restoration projects, the proposed project involves the placement of considerable fill in the water so as to effectively extend the shoreline seaward. Characteristic of beach nourishment or restoration projects, the proposed project anticipates the loss of a considerable amount of this fill, as well as fill added at higher elevations, as the nourished beach seeks equilibrium after the completion of the project. At R-130, for instance, the fill would extend the mean high water line about 150 feet seaward of its present location, although, at equilibrium, the mean high water line would only be about 50 feet seaward of its present location. Fill would be added about 200 feet seaward of the present mean high water line. Also, the nearshore bottom at equilibrium would be a little higher (i.e., the water would be shallower) 300-500 feet seaward from the present mean high water line, and the bottom would equilibrate about 1400 feet seaward of the present mean high water line, which is about -22 feet: this is the closure depth. Addressing BA III and BA IV, which were originally proposed as sand sources for Reach 8, the Application notes that, respectively, the composite mean grain sizes are 0.32 mm and 0.22 mm, and the average silt content is 2.3 percent and 1.7 percent. The Application states that each of the berm widths described above averages about 143 feet, and the fill template will provide about 72 cubic yards of fill per linear foot of beach. The slope and fill per linear foot of beach are partly driven by the mean grain size: the smaller the grain, the shallower the slope. The Application addresses CEBs. Noting that DEP had already designed the North and South segments as CEBs, the Application, citing the 2004 hurricanes, requests reconsideration of the Lake Worth Gap and the Center Segment, so all of Reach 8 would be CEB. This request is in the form of a letter dated February 7, 2005. In support of the request, Attachment 7, Table 1, shows, for R-128 to R-133, an average shoreline loss of 5.9 feet from 1990 to August 2004 and an average shoreline loss of 30.9 feet from August 2004 to November 2004. A series of beach profiles revealed that the second hurricane in quick succession had a relatively greater effect on the beach above NGVD 0 (or mean sea level), that the effect of Hurricane Frances had been to transfer sand to a higher-than-prestorm elevation seaward to a depth of about -8 feet NGVD (roughly 150-250 feet seaward of the point at which NGVD 0 intersected the beach, post-Hurricane Jeanne), and that CPE did not survey to this depth or distance, post-Hurricane Jeanne. DEP has declined at all times to designated these segments as CEB. Attachment 23 identifies existing shoreline structures. Some of the armoring of Reach 8, at the south end, is close to the surf zone and may interrupt longshore sand transport. The most seaward-located seawall is about 700 feet north of R-134. More landward-located seawalls are near R-127, R-129, and R-130. A wall extends 1300 feet along the Lake Worth Gap, which represents all, or nearly all, of the Lake Worth Gap. The Lake Worth Pier extends seaward 950 feet from the vegetation line, but the pilings of the pier do not affect coastal processes nearly as much as would an impermeable groin. Also, at the time of the submittal of the Application, the effect of the pier was further reduced by its partial destruction during the recent hurricanes. Attachment 27 calls for construction to start as early as November 1, 2005. The first 10-14 days of construction would be for the mobilization of the dredge, dredging and filling would continue for 30 days, and demobilization would take another 10 days. Any necessary beach tilling would be completed before May 1, 2006. Attachment 29 describes the three major resource areas affected by the project: 1) beach, dune system, and uplands; 2) nearshore ocean habitats; and 3) offshore ocean habitats. The most prominent resource is the beach nesting habitat provided for three of the five sea turtles found in the area: green turtle, leatherback turtle, and loggerhead turtle. U.S. Fish and Wildlife Service (FWS) has listed the first two as endangered and the third as threatened. Noting that the beach width is generally less than 100 feet in Reach 8, Attachment 29 states that the beach may provide resting and foraging habitat for shore and wading birds, such as pelicans, herons, egrets, terns, plovers and sandpipers. Also inhabiting the beach zone are infaunal invertebrates, such as amphipods, isopods, coquina clams, polychaetes worms, and various crabs, such as mole crabs and ghost crabs. The dune system found at Reach 8 is dominated by sea grape. Also present are sea oats, inkberry, bitter panicum grass, bay cedar, and seashore elder. The nearshore provides habitat in two zones: intertidal and subtidal. The intertidal zone is inhabited by the following invertebrates: polychaetes worms, isopods, sand dollars, amphipods, mole crabs, and coquina clams. Invertebrates occupying the subtidal zone include annelid worms, crustaceans, gastropod mollusks, sponges, and various species of crabs and shrimps. Fish using these nearshore waters include snook, jack, seatrout, grouper, snapper, redfish, and grunt. Algae found in the nearshore environment include Caulerpa taxifolia, and stony coral are also found in this setting. In February 2005, CPE investigated the nearshore hardbottom from R-125 to R-134 plus 100 feet. Along this 2.05 miles of coastline, which is only 250 feet short of the ultimate project area (less the Lake Worth Gap), CPE observed nine areas of hardbottom and documented the associated biota. Hardbottom occurred frequently in the intertidal zone south of the Lake Worth Pier. In March 2005, CPE investigated the hardbottom south of R-132. The landward edge of this hardbottom occurs about 300-325 feet offshore of the dry beach. CPE set three cross- shore transects covering the area of this hardbottom. The results were findings of mostly low relief hardbottom (under one foot) in water depths of 6-13 feet. Average percentages in excess of 0.7 percent of coverage were as follows: sediment--41.8 percent, turf algae--21 percent, bare hard substrate--14.9 percent, and macroalgae--12.7 percent. Attachment 29 notes that the project area includes Essential Fish Habitat, as designated generically by the South Atlantic Fisheries Management Council. However, for each fish or shellfish likely to use such area, it is capable of escape upon encountering the adverse conditions of construction. Nothing in Attachment 29 addresses the impact of post- construction water clarity on this Essential Fish Habitat. Attachment 30 addresses endangered and threatened species. The threatened loggerhead sea turtle nests on coastal islands of the United States from North Carolina to Florida. It is the most common sea turtle in Palm Beach County. Its nesting and hatching season in Palm Beach County takes place from March 15 to November 30. The loggerhead female nests from one to seven times per season with a mean of four nests. The mean clutch size is 100-126 eggs in the southeastern United States. Eighty percent of the nests in the southeastern United States are found in Brevard, Indian River, St. Lucie, Martin, Palm Beach, and Broward counties. Over 10,000 females nested in south Florida in 2004, and Palm Beach County was the location of 13,413 nests in 2003. The green sea turtle breeding populations in Florida and the Pacific coast of Mexico are endangered; otherwise, the species is threatened. Large numbers of nests are in the same six counties listed above for the loggerhead sea turtles. Some nests have been found along Florida's Gulf coast. Green sea turtle nesting and hatching season takes place from May 1 to November 30 in Palm Beach County. The green sea turtle nests one to nine times per season with an average of 3.3 nests. The average clutch size is 136 eggs. Sometimes, females will produce clutches in successive years. FWS estimates that 150 to 2750 females nest each year along the coasts of the continental United States. Palm Beach County was the location of 763 green sea turtle nests in 2003 and 968 green sea turtle nests in 2004. According to Attachment 30, the wide-ranging, but endangered, leatherback sea turtle can be found from Canada to Argentina. They nest in small numbers along the southeast coast of Florida from mid-February through mid-November. Palm Beach County was the location of 306 leatherback turtle nests in 2003 and 166 leatherback turtle nests in 2004. The endangered Hawksbill sea turtle is found in the tropical and subtropical waters of the Atlantic, Pacific, and Indian oceans. Its nesting and hatching season in Palm Beach County would extend from February 15 to November 15, but only a few nests occur from the Florida Keys to Cape Canaveral. No Hawksbill nest has ever been found in Palm Beach County, although the Hawksbill can be found in the offshore waters adjacent to the county. According to Attachment 30, the endangered Kemp's Ridley sea turtle has never been known to nest in Palm Beach County and is seen only rarely in the offshore waters adjacent to the county. Only one nest of the Kemp's Ridley turtle has been found in Florida since 1988 and that was in 1989 in Madeira Beach. Attachment 30 reports that West Indian manatees and numerous types of whale, including the Finback, Humpback, Sperm, and highly endangered Right whale, but no impacts to whales was anticipated. Manatees are addressed in the Permit. Attachment 33 itemizes the project's effects on the coastal system. In general, Attachment 33 states that the net effects are positive. For the dune system, Attachment 33 states that the project area includes a "large natural dune system that supports a variety of plants and animals." Attachment 33 identifies these dunes within Reach 8 as a "relatively unique resource" due to the loss of most dunes in south Florida to development or erosion. Attachment 33 concedes that about 50 feet of these dunes will need to be removed to allow the contractor's equipment access to the beach, but the "project specifications" will require the restoration of this vegetation, post- construction. Also, the restoration of the foredune will protect the dune from wave attack. Attachment 33 states that sea turtle nesting will be enhanced by the project due to the replacement of material lost to erosion. Attachment 33 advises that a monitoring and nest- relocation program will be implemented if fill placement occurs during nesting season. Attachment 33 addresses hardbottom communities in terms of susceptibility to coverage by fill spreading cross- shore and longshore. As to cross-shore spreading, Attachment 33 notes that the closure depths of the Manalapan and Ocean Ridge projects were -22 feet, which is the closure depth projected for the Reach 8 project. Assuming even a larger amount of cross- shore spreading, Attachment 33 nonetheless states that no offshore hardbottom coverage will ensue from the project and the movement of the fill during the equilibration process. As to longshore spreading, Attachment 33 notes the nearshore hardbottom extending from R-132 to R-134 plus 500 feet, which, at the time of the original Application, was outside the project area. Attachment 33 states that impacts to this hardbottom were reduced or eliminated by shortening the project area and reducing the fill volume, as noted above. Relying on GENESIS, a longshore sand-transport model that is discussed in detail below, Attachment 33 assures that no more hardbottom would be covered by the reduced project than would have been covered if the project did not take place. As to turbidity, Attachment 33 states that increases will occur in the nearshore mixing zone as a direct result of fill placement. The contractor will monitor water clarity to ensure that turbidity does not increase by more than 29 NTUs outside of the permitted mixing zone. Excavation of fill from the borrow areas may result in the temporary loss of benthic infauna and the temporary generation of localized, increased turbidity, and beach infauna may be lost by the placement of fill. Also, the borrow areas may not return to their pre- dredging composition, depending on changes in sediment grain size composition. Nothing in Attachment 33, the Application, or subsequent responses to requests for additional information discusses post-construction turbidity. Attachment 33a is the description of the use of the GENESIS shoreline model. GENESIS, which stands for Generalized Model for Simulating Shoreline Change, is a numerical model for predicting wave-driven longshore transport of sediment. The model is used in planning a beach nourishment or restoration project and predicting the transport of the fill, post- construction. For this project, CPE linked GENESIS with STWAVE, which is a model for wave height and angle. Outputs from STWAVE were wave heights at the projected closure depth of -22 feet. Using these outputs as inputs, GENESIS could then predict longshore sediment transport, once it has been suitable calibrated and verified. CPE calibrated GENESIS using shoreline data from 1990-2000 for shoreline from R-105 to R-150. Attachment 33a, Table 33-2, reveals considerable shoreline retreat in Reach 8 during this ten-year period. The initial calibration run of GENESIS did a fairly good job of predicting the direction and amplitude of change for Reach 8; the final calibration run did a better job. After calibrating GENESIS to the conditions at Reach 8, CPE verified the model by running it for the same shoreline during an earlier period, 1974-1990. The purpose of this process is to run a calibrated model in a setting for which real-world data are available--and to see how well the calibrated model does in "predicting" these natural processes. This verification effort was an irredeemable failure. But CPE proceeded with the calibrated model as though the verification process had been successfully completed. The most likely explanation was that Palm Beach wanted to commence construction within five months of filing the Application, and there was not time to fix the model verification or find a new model and run it. Attachment 33a, Table 33-3, reveals that the calibrated model was useless for "predicting" shoreline retreat or advance during this period. In reality, Reach 8 experienced shoreline advances of 20 feet at the north and south ends of Reach 8 and 80 feet in the center. As calibrated, GENESIS predicted almost the exact opposite: no change at the north end and a retreat of 20 feet at the south end and a retreat of 70 feet in the center. The verification run produced the same result for Reach 7 and for much of the remainder of the shoreline modeled. For the majority of the shoreline modeled, GENESIS, as calibrated by CPE, produced a rough mirror image of what actually took place in terms of shoreline advance or retreat. In Attachment 33a, CPE gamely described the verification run as follows: "Over the majority of the study area, the model overestimated the amount of erosion." For areas of accretion, this statement is misleading. CPE tried to explain the anomalies by stating: "These discrepancies occurred due to the fact that erosion prior to 1990 occurred in different locations than it did after 1990." This statement implies that GENESIS is of no value if the erosion or accretion moves from one area to another within Reach 8 during the period modeled and that GENESIS cannot identify such shifts. CPE attempted to justify continued reliance on its calibration of GENESIS by noting: "Overall, the verification indicates that near the Reach 8 project area, the calibrated model is a conservative shoreline model." It is difficult to understand the use of "conservative" in this statement, as CPE concludes that, within Reaches 7 and 8, the calibrated model can "overestimate" the amount of erosion. Again, this statement is misleading. Again, "overestimating" erosion meant "predicting" erosion of a certain magnitude when accretion of the identical magnitude actually took place. These problems with CPE's use of GENESIS for the Reach 8 project did not go unnoticed, as CPE had evidently hoped. In its response to the Application, which is described below, DEP essentially rejected the GENESIS data and the analysis based on such data. DEP's expert witness, Bob Brantly, testified that he did not rely on the GENESIS model output in considering whether to issue the Permit. Petitioner's expert witness, Dr. Robert Young testified that the GENESIS output, in this case, was unreliable. Dr. Young reasoned that the geological control characteristic of this area undermines conventional expectations concerning the movement of sand in response to wave action. Lacking a thick envelope of sand, the beach profile of a geologically controlled area responds differently, such as in finding equilibrium after nourishment, than does the beach profile of a beach with a thick envelope of sand. Also, Dr. Young explained how a beach subject to geological control, which can be extremely variable over a short distance, does not behave as predictably as other beach systems. This testimony of Dr. Young is credited. Relying on GENESIS, CPE projected the longshore transport that would take place, post-construction. At this point, CPE's reliance on GENESIS was an embarrassment, and its predicted limits of longshore transport were worthless. Frankly, the main effect of GENESIS in this case is to cast doubt on CPE's other assurances concerning the performance of this project and, specifically, belated new findings of a finer mean grain size on the existing beach, as discussed below. The first discussion of the mean grain size of the existing beach is in Attachment 33c, which considers the compatibility of the fill material with the "native" sediment. The native sediments are derived from samples collected by Palm Beach in 1993 at R-127 and R-130; the only fill added since 1993 was a relatively small amount of trucked fill after Hurricane Jeanne. Attachment 33c, Table 33c-1, states that the mean grain size of the native sediment at R-127 and R-130 is 0.35 mm with no silt, 44 percent carbonate, and a dry Munsell color of 10YR-6/2. Table 33c-1 explains that the dry Munsell color information covers hue, value, and chroma. Hue indicates the combination of red, yellow, green, blue, and purple colors. Sands with higher color scores are at the blue/purple end of the spectrum. Value, the most important of these three characteristics, refers to the lightness of the sand color with a higher number indicative of a lighter sand sample. Grey sand equals 5 or 6, light grey sand is a 7, and very light grey to light brown sand is at 10. The native sand at R-127 and R-130 is brownish grey. Chroma refers to the intensity of color with the higher number being more intense. Attachment 33c, Table 33c-1, reports for BA III and IV, respectively, mean grain sizes of 0.32 mm and 0.22 mm, silt of 2.66 percent and 1.71 percent, and dry Munsell color of 5Y- 6/1 (for both sources). Attachment 37 claims that no mitigation is required due to the information obtained from the GENESIS modeling, which showed no difference between the project and the no-action alternative in terms of hardbottom impacts. This later changed. Attachment 38 considers project alternatives. Alternative A is the no-action alternative, for which CPE predicts continued erosion and shoreline recession--claims unsupported by the record, as noted above. Alternative B is the continuous beach fill alternative through the entire Reach 8. This option would result in hardbottom impacts offshore of R-132 to R-134. Alternative C is the reduced-impact fill alternative, in which the project area is reduced, evidently as presented in the Application. Although the benefits in terms of beach recreation and sea turtle nesting habitat are reduced, the Application states that, with this alternative, Palm Beach would be most likely able to place fill in the fall of 2005. Alternative D is the discontinuous beach fill alternative, in which restoration activities would be limited to CEBs. According to CPE, the potential hardbottom impacts are the same as in Alternative B, but the disadvantage of this alternative is that Palm Beach would not be able to restore the beach at the Lake Worth Gap, which was still in the project area at the time of the Application. Alternative E is dune enhancement only, which would provide "modestly increased storm protection to a portion of Reach 8," which Attachment 33d does not identify, but would provide little protection to the rest of Reach 8. Response to First Request for Additional Information: June 2006 By letter dated July 13, 2005, DEP provided CPE with the First Request for Additional Information (RAI 1). One of DEP's concerns was the discrepancy between, on the one hand, the estimated loss of 105,000 cubic yards of sand between R-128 and R-133 and the relatively low background erosion rate and, on the other hand, the proposal to fill this segment of Reach 8 with 506,000 cubic yards of material. DEP questioned the need for this fill, reasoning that it had declined to designate this segment of Reach 8 as a CEB because "the existing dune and beach provide a measure of protection against damage from high- frequency (minor) storm events." DEP also asked for the post- Jeanne profile to be extended as far seaward as the pre-Frances and post-Frances profiles extended, as noted above. DEP questioned CPE's closure depth of -22 feet and, in particular, its reliance on the Ocean Ridge beach project, where few of the profiles extended beyond the -20 foot contour. On a related point, DEP noted that the GENESIS verification run provided no reasonable assurance for the predicted results. DEP requested the use of an analytical solution of longshore spreading of fill. DEP questioned the absence of mitigation for impacts to the nearshore hardbottom. Citing a 2002 report by Applied Technology and Management, Inc., which had done most of the Reach 7 design work, DEP noted that this low-relief, algae- covered rock had persisted in the intertidal zone since at least 2001 and thus had not emerged due to the recent hurricanes. DEP requested mitigation for the hardbottom directly covered by the fill and for the hardbottom indirectly covered by the fill as it drifted offsite to the south, past R-136. On June 28, 2006, CPE filed its response to RAI 1 (RRAI 1). In the cover letter, CPE advised that it had lengthened the project by extending it to R-134 plus 250 feet and increasing the volume to 900,700 cubic yards, although the revised project now excluded the Lake Worth Gap. RRAI 1 identifies BA III and BA IV as the sand sources. In addressing the need for the Reach 8 project, RRAI 1 asks DEP to reconsider its decision not to designate the Center Segment as CEB. RRAI 1 adds that the project will cover nearshore hardbottom, and Palm Beach will construct an artificial reef as mitigation for the loss of this hardbottom. In addressing the request to survey post-Jeanne profiles as far seaward as the post- and pre-Frances profiles extended, RRAI 1 states that surveys had been conducted that extend these beach profiles past the predicted closure depth. In the narrative, RRAI 1 notes that 486,300 cubic yards of sand eroded from Hurricanes Frances and Jeanne, including 98,200 cubic yards from the dry beach. Following Hurricane Frances, the submerged profile partially recovered, but, even after a trucked-fill operation in January 2005, the post-Jeanne dry beach had 53,900 cubic yards less than it had pre-Frances. RRAI 1, Table 7-2, depicts volume changes since Hurricane Frances to May 2005 to the North Segment and the north half of the Center Segment, but not to the rest of the project area. At closure depth, for the North Segment, the profile along the transect from R-125 lost 59.5 cubic yards per linear foot, the profile along the transect from R-126 gained 4.4 cubic yards per linear foot, and the profile along the transect from R-127 lost 20.6 cubic yards per linear foot. At closure depth, for the north half of the Center Segment, the R-129 profile lost 0.4 cubic yards per linear foot, the R-130 profile gained 51.3 cubic yards per linear foot, and the R-131 profile lost 18.2 cubic yards per linear foot. At 0 feet NGVD, for the North Segment, the R-125 profile lost 20.1 cubic yards per linear foot, the R-126 profile lost 6.7 cubic yards per linear foot, and the R-127 profile lost 13.4 cubic yards per linear foot. At 0 feet NGVD, for the north half of the Center Segment, the R-129 profile lost 3.6 cubic yards per linear foot, the R-130 profile lost 0.6 cubic yards per linear foot, and the R-131 profile lost 10.2 cubic yards per linear foot. RRAI 1 states that, following Hurricane Wilma in 2005, Palm Beach constructed a dune nourishment project from April 5 to May 4, 2006, using stockpiled fill from the Reach 7 project. RRAI 1, Table 7-3, depicts shoreline changes from Hurricane Frances to May 2005 for all of Reach 8. The shoreline reportedly advanced 26 feet at R-133 and 15 feet at R-134, retreated about eight feet at R-126 and five feet at R-132, and retreated from 20-46 feet at all other monuments within Reach 8. The average retreat for all of Reach 8 was 23.4 feet. RRAI 1 states that more losses resulted from Hurricane Wilma in 2005 and explains that, between April 5, 2006, and May 4, 2006, Palm Beach stockpiled some fill during the Reach 7 project and, upon completion of that project, trucked the fill to Reach 8 and placed it along the dune line as a temporary protective measure. In response to a DEP comment noting that the equilibrium toe-of-fill was based on anticipated cross-shore spreading only and asking for an equilibrium toe-of-fill based on anticipated cross-shore and longshore spreading, the RRAI 1 states: "An equilibrium toe-of-fill evaluation that includes longshore spreading cannot be predicted accurately from models." The RRAI 1 adds that RRAI 1, Attachment 25, provides an equilibrium toe-of-fill based on cross-shore spreading. In response to a DEP comment about the details of construction, the RRAI 1 states that a hydraulic cutter head dredge "may" be used to excavate BA III and BA IV: at the hearing, Palm Beach committed to the use of a hydraulic cutter head dredge. RRAI 1 states that the contractor will place the submerged pipeline to avoid contact with the hardbottom. Bulldozers will construct dikes on the beach to contain the material deposited there and reduce turbidity. Construction will require 60-75 days to complete. RRAI 1, Figure 1, discloses that BA III and BA IV are in an area of inter-reefal sand, just seaward of the diabathic channels. RRAI 1 states that inter-reefal sands have been the source of fill for beach nourishment since the early 1960s. The deposits in these sediments, which accumulate between the reefs, are relatively uniform in composition--i.e., siliciclastics with small carbonate fractions--and grain size--i.e., sand sized. But there are finer and coarser facies. According to RRAI 1, the shallower inter-reefal sand deposits often have sediments resembling the active beach landward. Deeper inter-reefal sand deposits have beach sands mixed with reworked marine sediments and reef fragments. Thus, inter-reefal sediments are finer in the center, but coarser seaward and landward. RRAI 1 offers detailed analysis of the sediments in BA IV in response to a DEP comment that the sediments in this area were only "marginally acceptable." Covering about 95 acres in 30-45 feet of water, BA IV extends from R-132 to R-134 and is about 0.6 to 0.7 miles offshore. The mean grain size for BA IV is 0.21 mm with silt content averaging 1.79 percent. RRAI 1 concludes that BA IV sand, which was used for Reach 7, was within the sediment quality limits for Reach 7 and should be suitable for Reach 8. Given Reach 7's performance, this assertion inspires little confidence in CPE's ability or willingness to identify comparable sediments, in terms of mean grain size, between sand sources and the existing beach. RRAI 1, Table 33a-1, responds to DEP comments concerning closure depths. The closure depths for Reach 8 from August 1990 to May 2005 averaged -22 feet, with only one value as shallow as -19 feet and no value deeper than -23 feet. Responding to DEP comments about the calibration and verification of the GENESIS model, RRAI 1 again explains how erosional areas moved with time, so that calibrations based on one period of time may not yield satisfactory results in another period of time. RRAI 1 states: "Such undulational erosion patterns make the accurate calibration and verification of plan- view shoreline change models such as GENESIS, DNRBS (Dan and Grant, 1988), or the Walton and Chiu (1979) analytical models difficult." RRAI 1, p. 27. This is an interesting comment, given CPE's choice later to use the Walton and Chiu to confirm its work with the GENESIS numerical model in projecting longshore spreading. Responding to DEP concerns that the native beach sand composite mean grain size, based on 1993 data, may have been affected by a fill project done after Hurricane Jeanne, RRAI 1 acknowledges that about 50,000 cubic yards of beach and dune fill were placed above mean high water in January 2005 from R-117 (Sloan's Curve) to R-134 plus 136 feet. Not surprisingly, given the history of data collection in connection with beach projects, no one took samples of the fill material, so CPE was unable to determine how the beach composition may have been altered due to fill placement. RRAI 1 states that the impacts to infaunal organisms at the borrow areas are significant, and the recovery time for abundance and diversity recovery may be 1-2 years. However, impacts to benthic organisms on the dry beach and in the intertidal zone are reported to be generally less significant, partly due to the likelihood that organisms adapted to the high- energy intertidal zone can adapt better to the impact of filling, so that recovery of these organisms takes 2-7 months. This claim has been discredited above. The impact on shorebirds and fish feeding on such infauna is reportedly minor, given the ability of the shorebirds and fish to move to nearby foraging habitat. RRAI 1 notes that Florida previously required infaunal community sampling at borrow and fill sites among the monitoring requirements imposed on sponsors of beach nourishment projects, but discontinued this requirement in the mid-1990s due to reportedly rapid recolonization of these sites by natural recruitment of infauna. As noted above, the Reach 7 experience rebuts this assertion. RRAI 1 identifies only three project alternatives. Under the no-action alternative, the beaches "may" continue to degrade. Again, CPE's claims of erosion for Reach 8 are seriously overstated. Under the alternative of continuous beach fill, fill would be placed for the entire length of Reach 8 and would provide the greatest storm protection. Under the alternative of discontinuous beach fill, fill would be placed for all of Reach 8, except the Lake Worth Gap. CPE identifies this alternative as feasible. RRAI 1, Attachment 7, contains beach profiles as of August 2004 (pre-Frances), November 2004 (post-Jeanne), and May 2005. A typical transect in the North Segment, R-127, shows retreat of the shoreline above mean high water from August 2004 to present (with no accretion from November 2004 to May 2005), and the loss of elevation in the surf zone (with no accretion from November 2004 to May 2005, but considerable recovery since November 2004 at a depth of about 10 feet, which is roughly 200 feet offshore. Two transects in the Center Segment, R-130 and R-132, show that the shoreline above mean high water has regained much of its loss from August to November 2004. For R-130, the profile shows sediment at a higher elevation in May 2005 than in August 2004 out about 150 feet, in four feet of water. This improvement continues out to about 500 feet, in about six feet of water, where, for a short distance, the May 2005 bottom elevation is several feet lower than the August 2004 bottom elevation, but eventually the May 2005 bottom elevation is at least a couple of feet higher than the August 2004 bottom elevation for 700 feet. The situation is roughly the same for the R-132 transect, except the differences are smaller. The only transect in the South Segment, R-134, shows that the shoreline above mean high water has advanced from where it was in November 2004 (and even August 2004) and generally has improved upon the conditions in August 2004, except for about 300 feet starting about 500 feet out, in about eight feet of water. RRAI 1, Attachment 24c, is water quality monitoring results for the dredging and filling areas in the Reach 7 project over three days in February 2006. Turbidity sampling took place at the borrow areas, fill site, and hardbottom site. On only one occasion did an increase of over 29 NTUs take place and that was at the fill site when the dredge hit bottom; a few minutes later, another set of samples revealed no turbidity violation. This is a measure of the unlikelihood that post- construction turbidity would exceed 29 NTUs over background. RRAI 1, Attachment 28c, is the Sand Quality Control/Quality Assurance Plan (SQCQA Plan) for Reach 8. Stating that it is required by Florida Administrative Code Rule 62B-41.008(1)(k)4.b, the SQCQA Plan is to ensure that the sediment from the borrow areas will meet the Permit standards. The SQCQA Plan allocates responsibilities among the engineer, Palm Beach, the contractor, and the state of Florida. As for the engineer, the SQCQA Plan states that it has relied on "limited" remote sensing techniques and a "limited" number of vibracores to design the borrow areas. The engineer has the personnel and testing facilities to sample and test sediment that has been placed on the beach. Palm Beach has the authority to modify the project within the constraints of the Permit, if non-beach compatible sediments are placed on the beach. The contractor will rely on the engineer's findings and may assume that all sediment from the authorized dredge cuts is beach compatible, but will have onsite personnel to identify "obvious changes" in sediment quality at the pipeline discharge. The contractor has or can acquire the equipment and personnel necessary to remediate the beach, if directed to do so by Palm Beach. The state of Florida acknowledges that "unsuitable" sediments may exist in the permitted borrow areas. The SQCQA Plan requires the contractor to operate the dredge at all times with electronic positioning equipment to monitor the precise position of the dredge and its depth. The horizontal accuracy must be within three feet, and the vertical accuracy must be within 0.1 feet. The contractor must record this information. If the contractor encounters "unacceptable" material during dredging, it shall cease dredging, relocate the dredge cutter head into acceptable material, and notify the engineer. The contractor must visually monitor the fill placed on the beach and must notify the engineer or Palm Beach if it observes any non-beach compatible sediment. The SQCQA Plan requires Palm Beach and the engineer "to seek to enforce" the Permit and construction contract related to sediment quantity. During active construction, construction observation and contract administration shall be performed seven days per week, 12 hours per day, with the possibility of random nighttime observations. The engineer shall provide onsite observation by an individual with relevant training or experience, and the project manager shall supervise the observer. The engineer will review the contractor's daily reports of the nature of the sediments and the dredge positions. The engineer will collect a representative subsurface sediment sample from each 100-foot long section of constructed beach to visually assess fine gravel content, coarse gravel content, wet Munsell color, shell hash content, and silt content. If the engineer determines that the content of any of these items fails to comply with the quality requirements of the SQCQA Plan for a continuous area greater than 10,000 square feet, the engineer will notify the contractor and Palm Beach, and the material will be removed and replaced or otherwise remediated. In the event of such a noncompliance, DEP must be notified. Remediation includes excavating the noncompliant material and mixing with specification material to achieve a sand mixture that complies with sediment criteria; excavating the noncompliant material, transferring it to an upland location, and replacing it with compliant material; or excavating the noncompliant material, transferring it to a submerged portion of the profile, and replacing the it with compliant material. The state of Florida is encouraged to visit the beach during construction to observe sand quality. Table 1 of the SQCQA Plan specifies the limits of the parameters mentioned above. For wet Munsell value, it is 5 or lighter. For shell hash content, it is 0-20 percent, based on a visual estimate. For maximum fine gravel, it is 12 percent. For maximum coarse gravel, it is 1 percent. For maximum silt, which is any material passing a #230 sieve, it is 5 percent. A #230 sieve will allow to pass any particle smaller than 0.06 mm. It is impracticable to expect a contractor to differentiate between grain sizes of 0.2 mm and 0.3 mm in real time as slurry is deposited on the beach or the fill is moved into the water. Response to Second Request for Additional Information: March 2007 On July 28, 2006, DEP issued RAI 2, in which it again declined to designate the Center Segment and the undesignated portion of the Lake Worth Gap as CEBs. RAI 2 asks for an analysis of the remaining sediment in BA III and IV in terms of quantity and mean grain size, as well as other characteristics. For longshore spreading projections, RAI 2 asks for analytical support of the numerical output of GENESIS, whose "verification . . . does not match the observed data and does not give reasonable assurance for the model predicted results." RAI 2 questions the equilibrium profile shape of the fill, in its cross-shore dimension, based on the particle size expected to be excavated. RAI 2 states that DEP engineering staff rejected CPE's method of calculating this shape because "the grain size distribution of the proposed beach fill material (0.22 mm) is significantly finer than the existing beach sediments (0.35 mm). RAI 2, p. 7. RAI 2 also questions the proposed slope of 1:10, which the contractor had been unable to maintain in other projects. RAI 2 warns that the relationship between hardbottom impacts and the steepness of the slope (i.e., the steeper the slope, the more fill placed on the beach) may result in a Permit condition prohibiting overfilling, which would mean that the contractor could not achieve the anticipated beach width if the contractor were unable to maintain a 1:10 slope. RAI 2 asks for the analysis of the storm protection afforded by the proposed beach restoration project. DEP advises that storm protection will be "critical" in justifying the impacts. On March 26, 2007, Palm Beach filed its RRAI 2. RRAI 2 notes that, assuming that construction of Reach 8 would take place in 2007 or 2008, Palm Beach decided to extend the project and increase the fill to 900,700 cubic yards. However, after the issuance of RAI 2, Palm Beach had decided, in an effort to expedite permitting, to terminate the project at R-132 and limit the fill to 505,700 cubic yards, plus periodic dune maintenance fill. RRAI 2 again asks DEP to reconsider its refusal to designate the remainder of Reach 8 as CEB. RRAI 2 again promises an erosion control line survey. As it had previously, DEP reminded CPE that it had to obtain an erosion control line survey, prior to obtaining a letter of consent, so that the landward limit of sovereign land could be determined prior to construction; otherwise, this line of demarcation would shift seaward with the mean high water line as a result of the addition of the fill. RRAI 2 mentions that CPE is considering alternatives to BA III and IV in the form of additional borrow areas. RRAI 2 notes that BA III has some rock and BA IV has "includes somewhat finer sand" and has the potential for rock. Thus, CPE would probably be proposing two additional borrow areas. RRAI 2 notes that the Reach 7 fill samples, which were not so numerous as to permit statistical analyses, revealed that the mean grain size of sediments placed from R-119 to R-124 was 0.25 mm with average silt of 1.01 percent, and the mean grain size of sediments placed at R-125 was 0.45 mm with average silt of 1.92 percent. RRAI 2 adds revised longshore spreading projections based on the analytical method of Walton and Chiu. RRAI 2 changes the construction slope from 1:10 to 1:15 to avoid scarping. RRAI 2, Attachment 33, reports that the mean grain size of BA III is 0.32 mm and the silt value is 2.66 percent, and the mean grain size of the native beach is 0.35 mm and the silt value is 0. In response to DEP's concern about CPE's methodology to predict cross-shore adjustment of the fill, given the fact that the mean grain size of the fill, at 0.22 mm, is "significantly finer" than the mean grain size of the existing beach sediment, at 0.35 mm, RRAI 2 states that CPE is finding new borrow areas and reanalyzing the existing sediment on the beach. As seen below, unable to find sand sources with significantly larger mean grain sizes, CPE eventually tried to reduce the mean grain size of the existing beach. Prior to 2006, when excavation took place for Reach 7, the mean grain size of BA III was 0.32 mm, and the mean grain size of BA IV was 0.22 mm. Noting that most of the dredging took place in BA IV, CPE implied that BA III would be more likely the source of fill for Reach 8, provided the rock issue could be solved. The methodology used by CPE was reportedly valid if the difference in mean grain size was 0.32 mm in the fill and 0.35 mm in the existing beach. Attachment 33 to RRAI 2 states that the design berm width is 25 feet. At construction, including the advanced fill, the berm width will range from 110-223 feet. At equilibrium, excluding the effects of erosion and spreading, the berm width will be 68-92 feet. And at six years, the end of the useful life of the project, the berm width will be 25-34 feet. Again, the berm elevation is specified at nine feet NGVD. At construction, fill will be placed at depths ranging from -3.2 feet to -5.9 feet NGVD, and, at equilibrium, the fill will reach a closure depth of -22 feet NGVD. The mean grain size of the fill and the mean grain size of the native beach are assumed to be 0.32 mm and 0.33 mm, respectively. Attachment 33 states that the area of hardbottom to be covered is 4.48 acres. The 9507-foot long dune project will receive 25,000 to 50,000 cubic yards of fill to an elevation of 14-16 feet NGVD. The life expectancy of the dune project will be six years, assuming two feet of erosion per year. Attachment 33 indicates that, from 1974-1990, when the sand transfer plant at the Lake Worth Inlet was in continuous operation, Reach 7 gained 1.4 feet per year, and Reach 8 gained 2.6 feet per year. From 1990-2004, which was marked by a six-year cessation of operation of the sand transfer plant, Reach 7 lost 1.9 feet per year, and Reach 8 was unchanged. The 2004 data are prior to Hurricane Frances. Attachment 33 states that Hurricanes Frances and Jeanne struck Martin County and caused shoreline retreat of 40 feet along Reach 8. A year later, Hurricane Wilma caused shoreline retreat of 23 feet in the same area. Although the beach fill area had regained some of its losses, post-Wilma, the dry beach and dunes had not, and the gains along Reach 8 were likely due to the longshore transport of the fill placed in Reach 7 in early 2006. With these data, Attachment 33 explains the need of the project, noting that a storm of at least tropical storm strength passes within 50 miles of Reach 8 every 2.5 years, on average. One of the unadopted alternatives discussed in Attachment 33 is groins. Using a T-headed rock groin field with individual groins spaced 240 feet apart, similar to the Ocean Ridge project already in place, would require 31 such groins, all filled with beach compatible sand. The total cost of this project would be $31 million, plus the cost of the sand to fill the groins. Geotextile groins in this array would cost only $6.2 to $9.3 million, but would last only 5-10 years, as compared to 20-50 years for rock groins. Another alternative discussed in Attachment 33 is periodic dune maintenance. Noting that Palm Beach had nourished the dunes in January 2005, as described above, and added 25,000 cubic yards to Reach 8's dunes in early 2006, Attachment 33 describes dune nourishment as only a temporary solution. One problem is the most eroded beaches offer the narrowest area within which to nourish dunes. Attachment 33 described CPE's use of the Walton and Chiu analytical model to project longshore spreading of the fill. The model operator must input a closure depth. Cross- shore spreading is then estimated using a translated beach profile from 9 feet to -22 feet. The translated beach profile is a key component in this exercise. Attachment 33 explains that CPE chose the translated beach profile over the Dean equilibrium profile "because the grain sizes of the native material and fill material are assumed to be similar at this time." RRAI 2, Attachment 33, p. 22. Attachment 33 adds that the mean grain size of the of the native beach is 0.35 mm, and the mean grain size of BA III is 0.32 mm. Noting the mean grain size of 0.22 mm in BA IV, Attachment 33 cautions as to the unsuitability of such a fine grain size: "given the fine grain size [of BA IV] and that potentially new borrow areas are being developed [BA V and VI--which CPE did not yet know would produce sediments with about the same mean grain size as those produced in BA IV], only a small portion, or none of [BA] IV will be used to construct the Reach 8 project." RRAI 2, Attachment 33, p. 23. In discussing fill-volume alternatives, CPE selected a background erosion rate of 2 feet per year, explaining that that was the rate for Reach 7 from 1990-2004. Attachment 33, p. 24. This is of course true, but the background erosion rate for Reach 8, which is receiving the fill, was zero during the same period, so the first assumption of CPE produced overfill. Attachment 33 then analyzes alternatives with 313,400 cubic yards of fill, 389,300 cubic yards of fill, 488,900 cubic yards of fill, and 505,700 cubic yards of fill. The selected alternative is the last, which will terminate beach fill at R-131. This alternative includes a 25-foot design berm fronted by six years of advance fill. Choosing the project with the most fill because it will produce the most beach and upland protection, CPE asserts that the fill will not spread past R-133 plus 540 feet or cover, directly and indirectly, more than 4.48 acres of hardbottom, on average over time. Attachment 33 acknowledges the need for a shallower construction template of 1:15, rather than 1:10, to avoid escarpment. The equilibrium cross-sections assume a translated beach profile due to the similarity of the existing and borrow sediments in terms of mean grain size. Attachment 33 notes that, if the borrow sediments prove larger than the existing beach sediments, the fill volume for the selected alternative will provide a longer life expectancy for the project. But if the borrow sediments prove smaller than the existing beach sediments, Palm Beach will either have to settle with the approved fill volume, which would mean a shorter life expectancy for the project, or add more fill to the project to compensate for the smaller-sized borrow sediments. It is consistently assumed in the RRAI materials that the solution will be more fill, not a shorter life expectancy for the project. The design beach profile template governs over estimates of approximate volumes of fill for the overall project. Attachment 33 notes that sand collected in 2006 was "currently being analyzed to support borrow area investigations." CPE never explains why the existing-beach data collected in 2006 would not yield a mean grain size and silt value for over one year after the collection of the data--that is, until CPE had ascertained the mean grain sizes and silt values for the new borrow areas. Thus, Attachment 33 continues to report that the mean grain size of the existing beach is 0.35 mm and the existing beach contains no silt, as compared to BA III, whose mean grain size is 0.32 mm and silt value is 2.66 percent. CPE reasoned that, because the BA III sediments were below 5 percent silt, the "DEP limit," the silt content of BA III is "acceptable as beach quality material." RRAI 2, Attachment 33, p. 31. However, CPE promised to reevaluate the silt content of the existing beach and new borrow areas as part of its ongoing geotechnical work. Noting that grain size compatibility is quantified by the overfill factor, RRAI 2, Attachment 33, explains that a factor of 1.0 means that no extra fill is required because of no difference in mean grain sizes between the sand source and the existing beach. An overfill factor of 1.28 means that 28 percent more fill is required to achieve the same performance as that which would have ensued if the sand source mean grain size had equaled the mean grain size of the existing beach. Raising the overfill factor does not extend the life of the project. The overfill factor ensures that the beach profile template will be filled and, in the case of smaller grains from the sand source, compensates for the particle size difference by increasing the volume, so the same effect is achieved as would have been achieved if the fill grain size had perfectly matched the existing beach grain size. If the project life remains the same, more fill must be eroded, over the same period of time, to result in the beach profile template that applies at the end of the project's life expectancy. This means that, the higher the overfill factor, the faster the rate of erosion. Attachment 33 identifies two methods of calculating overfill factors: COE's Shore Protection Manual and Dean's Overfill Ratio, which tends to result in smaller overfill factors than those produced by the Shore Protection Manual. For BA III and the native beach, the Shore Protection Manual overfill factor is 1.25, and Dean's Overfill Ratio is 1.05. Attachment 33 states that the relatively low ratios indicate compatibility between the sand in BA III and on the existing beach and "justify" the "use of the translated beach profile to estimate volume requirements and cross-shore spreading." RRAI 2, Attachment 33, p. 32. Attachment 33 explains that, based on recent experience, specifying the location of the dune fill is impractical, as the needs and desires of upland property owners and project sponsors required numerous adjustments to dune alignment in the field. Based on these previous projects, though, it was likely that the dune nourishment would be to 14-16 feet NGVD with side slopes of 1:3 with 25,000 to 50,000 cubic yards of fill required. Third Response to Request for Additional Information: July 2007 On April 26, 2007, DEP issued RAI 3. This response indicates that DEP is considering Palm Beach's request to designate the Center Segment as CEB. This response also challenges Palm Beach's elevated shoreline change value of two feet per year of erosion for Reach 8 from 1990 to 2004. This response questions the trade-off of environmental impacts for a beach project that would offer protection against a one-year storm, as described by Palm Beach. With respect to the failure to specify an alignment for the dune nourishment, DEP noted that escarpments had formed along the dunes added to the north end of Reach 8 at the time of Reach 7 construction, and the dune fill had encroached into the active beach profile. RAI 3 addresses sand sources and questions CPE's post-project spreading analysis. First, DEP notes that it cannot accept BA III as a sand source for the Reach 8 project. Second, DEP states that Palm Beach needs to identify grain-size distribution in BA IV, so that cross-shore spreading and closure depths could be projected. Third, for longshore spreading, Palm Beach needs to explain its withdrawal of the GENESIS model and substitution of the Dean method with a simplified assumption of incident wave direction. Also, DEP questioned the assumption of two feet per year of shoreline erosion on Reach 8, given its long term stability. On July 7, 2007, CPE issued the RRAI 3, which describes another change in the project size. Beach restoration and dune nourishment will take place from R-125 to R-132, and dune nourishment only will take place from R-132 to R-134 plus 350 feet, for a total of 724,200 cubic yards of fill. RRAI 3 identifies BA V and BA VI as new potential sources of fill, although Palm Beach was still seeking permission to use all four borrow areas to ensure that it could excavate sufficient fill for the project. RRAI 3 states that CPE reran GENESIS for the new proposal of 724,200 cubic yards of fill to confirm spreading projections from the Walton and Chiu model. Addressing the ongoing effort to obtain DEP designation of CEB for the portion of Reach 8 not already so designated, RRAI 3 states that, in response to Tropical Storm Andrea in May 2007, the Reach 8 shoreline retreated an average of 35 feet and that much of the dune fill placed in 2006 was lost. In response to the objection concerning the use of a shoreline erosion rate of two feet per year from 1990 to 2004, RRAI 3 states that CPE will break down the shoreline change rate into three rates during this period of time and add a fourth period, August 2004 to February 2006. In response to a related comment concerning CPE's assumption of erosion throughout Reaches 7 and 8 and admission of difficulty in extrapolating from a wave-like pattern of erosion, RRAI 3 notes that CPE's erosion analysis treats Reaches 7 and 8 as a single beach-fill project, as the erosion wave extends from Sloan's Curve at R-116.5 (the northern end of Reach 7) to Lantana Public Beach at R-138. In RRAI 3, CPE finally discloses the information obtained from samples taken of the existing beach the prior year. The mean grain size of the existing beach is now 0.30 mm, and the silt value is 1.21 percent. RRAI 3 also reports the values for BA V and VI, which are, respectively: 0.24 mm and 1.49 percent and 0.23 mm and 1.50 percent. RRAI 3 restates these values for BA III and IV, which are, respectively: 0.33 mm and 1.46 percent and 0.26 mm and 0.78 percent. Using these values, the Shore Protection Manual overfill factors are 1.47 and 1.68 for BAs V and VI, respectively, and the Dean Overfill Ratios are 1.18 and 1.25. The following fill volumes and cross-shore estimates assume the highest overfill ratio, 1.68. These new values for the existing beach are derived from 2006 sampling, but RRAI 3 does not provide support for these new values. The December 2005 Environmental Assessment for Reach 8 reports the mean grain size for the existing beach as 0.35 mm and no silt, and the October 2007 Environmental Assessment for Reach 8 reports these values as 0.30 mm and 1.21 percent--with no discussion of the reason for the changes. Neither RRAI 3 nor the October 2007 Environmental Assessment discloses the proximity in time of the Reach 7 project in early 2006 and the sampling, also in 2006, as the relatively quick erosion of finer materials from Reach 7 could have influenced the sediments sizes found along Reach 8. Of particular assistance would have been a discussion of the differences between the 2006 sampling and the 1993 data, on which CPE had been relying up to this point. Likewise, there is no analysis of the new data on mean grain size and silt for BA IV. However, as the new sand sources did not yield larger sediment sizes, CPE reduced the sediment size of the existing beach. RRAI 3 discusses the use of the Walton and Chiu model in a passage almost identical to that contained in RRAI 2. However, this time, after explaining that cross-shore spreading is estimated using a translated beach profile, there is no justification of this method based on the assumed similarity of mean grain sizes of the sand sources and existing beach. Before, CPE justified the translated beach profile on the basis of the similarity of the particle sizes; now that the particle sizes are not similar, CPE merely uses the translated beach profile. RRAI 3 selects the same alternative as that selected in RRAI 2: the 25-foot design berm with six years of advance fill. Comparing RRAI 3, Attachment 33, Table 19, with RRAI 2, Attachment 33, Table 11, the effect of the dissimilarity in mean grain sizes is apparent. Both RRAIs describe the same length of beach restoration. RRAI 2 calls for 505,700 cubic yards of fill, and RRAI 3 calls for 639,500 cubic yards of fill--both for beach restoration only without any dune nourishment. Even crediting, for the sake of discussion, CPE's newer value of 0.30 mm mean grain size for the existing beach, the incompatibility in sediments necessitates that CPE add another 135,000 cubic yards of fill to the beach--which additional 135,000 cubic yards of fill will wash out with the remainder of the advance fill, if not also portions of the design fill, within six years following construction, according to CPE, but much sooner, based on the experience at Reach 7. Interestingly, RRAI 3, Attachment 33, reports that, at year 3, longshore spreading will not extend past R-133 plus 560 feet, which is only 20 feet farther south than the extent of longshore spreading at year 3 projected in RRAI 3. Even if this projection were reliable, and it is not due to discrepancies in mean grain sizes, it understates the longshore spreading because CPE has understated the mean grain size of the existing beach and has thus distorted the application and output of the Walton and Chiu model. RRAI 3 projects that total hardbottom impacts will now be 6.4 acres. Regarding the use of GENESIS, RRAI 3 reports that CPE reran the model for the new project length, now to confirm the projections of the Walton and Chiu model. Attachment 33, which is the Revised Engineering Report dated July 2007, discusses the results obtained from both models. The Walton and Chiu model projects little or no erosion of the design fill during the six- year life of the project and no spreading south of R-133 plus 560 feet, for total hardbottom coverage would be 6.4 acres. The new run of the GENESIS model predicts some erosion into the design fill by year three, but no spreading south of R-132 plus 1154 feet, for total hardbottom coverage of 5.8 acres. Appendix F of Attachment 33 of RRAI 3 reveals a new effort at validating the GENESIS model. After calibration, CPE ran the model to "predict" shoreline change from May 1986 to August 1990. Prudently shortening the validation period from 16 years in the earlier, failed attempt to four years in this attempt, CPE was able to avoid the mirror-image effect of the earlier validation run, in which GENESIS correctly projected the magnitude of change, but unfortunately predicted erosion when accretion actually occurred. Even shortening the projection period by 75 percent, CPE was evidently compelled to satisfy itself as to the validation process by accepting that GENESIS would continue to "predict" erosion when accretion actually took place. Reducing the prediction period to only four years, though, permitted CPE to obtain a model output that reduced by half the amount of erosion when compared to the amount of erosion predicted by the first run of GENESIS. However, GENESIS still does not produce reliable output in this case. This time, though, CPE seems to concede as much. CPE's explanation of the obvious deficiencies of GENESIS in this application reveals the inaptness of the model for this project. Appendix F to Attachment 33 to RRAI 3 concedes that GENESIS is "not well suited to projecting the future erosion rates." Appendix F, p. F-4. CPE observed that the problem with the GENESIS model was that Reaches 7 and 8 exhibit no erosion hot spots, but instead, as noted above, experience erosion as a wave, evidently from south of Sloan's Curve. The discussion offers GENESIS as a tool in comparing longshore spreading, if the project is built with longshore spreading under the no-build alternative, but the relationship between erosion, such as in projected closure depths, and longshore spreading suggests very limited use for the model, even in this modest undertaking. RRAI 3, Attachment 33, discusses depth of closure for Reach 8. Data for the 2006 Midtown Project suggest a depth of closure of -18 feet, but data for Reach 8, Manalapan, and Ocean Ridge suggest a range of -22 to -25 feet. Attachment 33 explains that CPE focused on data from three different periods for Reach 8, which suggested a range of -18 feet to -27 feet, for a median of -23 feet. This estimate approximates the -22 feet closure depth for Manalapan, so CPE chose to use this figure. This analysis is generally reasonable except for the fact that it does not analyze differences between mean grain sizes and silt values for the sand source(s) and existing beach at Manalapan. RRAI 3 acknowledges the impact of mean grain size on closure depth and longshore spreading. Using 0.30 mm for the existing beach and 0.23 mm for the sand source with the smallest mean grain size (BA VI), RRAI 3 estimates an overfill factor of 1.68 at the fill site to compensate for this difference. RRAI 3, pp. 14-15. Given the actual mean grain size for the existing beach, the overfill factor is probably closer to 2.00. Essentially, the smaller grain size in the fill, as compared to the beach, requires more overfilling to fill the beach profile template, and this makes more sediment available for post-construction transport. Of course, at least landward of the breakers, the sediment is more available for transport before of its smaller grain size. RRAI 3, Attachment 33, implicitly acknowledges the critical role of similarity in sand size between the source and the fill sites. At page 36, RRAI 3, Attachment 33, completes the same discussion of the Walton and Chiu model as took place in RRAI 2, Attachment 33. However, RRAI 2, Attachment 33, justifies the use of a translated beach profile from 9 feet to -22 feet "because the grain sizes of the native material and fill material are assumed to be similar at this time [i.e., 0.35 mm for the native beach and 0.32 mm for BA III]." RRAI 2, Attachment 33, p. 22. This quote is omitted from the otherwise nearly identical discussion in RRAI 3, Attachment 33, of the use of the Walton and Chiu model. RRAI 3, Attachment 33, p. 36. And CPE offers no explanation. The evolving statements of discrepancy between the mean grain sizes of the sand sources and the existing beach spell trouble for the use of the Walton and Chiu analytical model in this case. As noted below, the 1993 data, which are credited, supply an even higher value for the existing beach than 0.35 mm. When compared to sand sources with mean grain sizes barely over 0.20 mm, this large of a discrepancy no longer justified CPE's use of the Walton and Chiu analytical model for predicting longshore spreading. This left CPE with no model support for its projection of the limits of longshore spreading. RRAI 3, Attachment 33, considers various alternatives. The selected alternative provides six years of advance fill by the construction of a 25-foot-wide beach berm seaward of the design fill line. With the dune fill, this alternative offers protection from the 19-year storm and, without the fill, this alternative offers protection from the 12-year storm. For six years of protection from the 19-year storm (actually, during the first three years, the project would protect against at least the 24-year storm), the selected alternative requires 639,500 cubic yards of fill on the beach and 84,700 cubic yards of fill on the dunes, for a total of 724,200 cubic yards of fill. With the correct overfill factor, the total fill would be considerably more than 724,200 cubic yards. Further analysis of the selected alternative includes graphs showing that, at the third year, post-construction, the longshore spreading of fill would extend roughly midway between R-133 plus 560 feet; this would cover, directly and indirectly, 6.4 acres of hardbottom (including 2.8 acres covered directly by construction). At year six, which represents the maximum limit of spreading projected by CPE, the longshore spreading would extend to R-134 plus roughly 300 feet, but the analysis does not project the area of hardbottom to be covered directly and indirectly. RRAI 3, Attachment 33, notes that the spreading analysis for each of the alternatives used the Walton and Chiu analytical model and GENESIS model. As previously noted, use of these models are problematic for the present project. Exacerbating the problem, the Design Summary in RRAI 3, Attachment 33, at page 64, implies that CPE used mean grain sizes for the sand sources of 0.23 mm to 0.33 mm--even though BA III, which was 0.33 mm, would soon be withdrawn, and the remaining three borrow areas were around 0.24 mm. Fourth Response to Request for Additional Information: October 9, 2007 On August 7, 2007, DEP issued RAI 4, which is the final request for additional information. As with the three preceding requests, this one also addressed considerable biological information. One comment notes that DEP staff believe that hardbottom impacts will occur south of R-133.5 to about R-137. This is a reasonable response to the problems set forth in the preceding section. As for sands, RAI 4 requests more analysis of comparative grains on the beach and in the borrow areas. RAI 4 notes that the beach sand is tanner, and the sand from the borrow areas is greyer. RAI 4 states that DEP expects to be able to approve BA V and VI, but not BA III due to an excessive incidence of rock in the fill excavated from this area during the Reach 7 project. RAI 4 requests an alternative analysis of longshore spreading based on a closure depth of -15.9 feet. RAI 4 asks why, if additional longshore spreading takes place between years 3 and 6 of the project, CPE did not project additional coverage of hardbottom. On October 9, 2007, CPE filed RRAI 4. Concerning the possibility of additional coverage of hardbottom, the RRAI 4 states that CPE has already conducted extensive numerical and analytical modeling of longshore and cross-shore spreading, and the "modeling results provide a consensus that the hardbottom seaward of the sandbar south of R-134 will not be impacted by the project." RRAI 4, p. 9. According to RRAI 4, DEP offered no basis for its opinion, as contrasted to the "extensive analytical and numerical modeling of potential longshore and cross-shore spreading." RRAI 4, p. 10. The consensus of the two models, according to RRAI 4, is that the longshore coverage will not extend past about R-133.5. In an abundance of caution, CPE has extended projected impacts to R-134, and Palm Beach will agree to monitor, post-construction, hardbottom farther south, but this is the final word from CPE and Palm Beach on the critical issue of how far longshore spreading will extend, post- construction. Given the bad inputs concerning mean grain size of the existing beach and probably the sand sources (by including BA III's large value), the ensuing problems with the Walton and Chiu model, and the ongoing problems with GENESIS, CPE picked a bad moment to dig in and, relying on its modeling, disagree with DEP's analysis that hardbottom impacts would extend to R-137. In response to a request for a map showing where CPE collected the samples for analysis of mean grain size for the existing beach, RRAI 4 references a map at Attachment 33b-1. The map shows where CPE collected samples in March 2007 and August 2007, not 2006 as previously indicated. Attachment 33b-1 shows collection sites at R-125, R-128, and R-131 extending from the dune to points evidently seaward of the surf zone; these are for March 2007. Attachment 33b-1 also shows collections in August 2007 at R-127, R-133, and R-138 at or possibly landward of the dune line, but not seaward of the dune line. However, nothing else in RRAI 4 addresses the collection of these samples, the methodology used, or the analysis of the information obtained. Clearly, by 2007, finer fill from Reach 7 was in Reach 8. However, RRAI 4, Attachment 33b-3, is a compatibility analysis of the fill sediments with the existing beach sediments. The existing beach data is from samples collected in 2006, but, again, nothing is revealed about the circumstances of this collection event. The values for BA IV, V, and VI, as well as for the existing beach, are as reported in RRAI 3. The analysis states that the fill materials are grey, and the existing beach is greyish brown. After another summary of the COE and Dean overfill ratios, Attachment 33b-3 concludes with the assurance that any extra fill required due to differences in mean grain sizes "will be accounted for in the cross-shore spreading analysis and the total fill volume estimates," Attachment 33b-3, unnumbered p. 4. Not only was CPE unjustifiably sticking to its earlier projections of spreading--cross shore and longshore--in terms of hardbottom impacts, this statement indicates that the design beach template will govern over projections of fill volume when it came to the contractor's filling of the beach. It is unclear if 724,200 really assumes a 1.68 overfill volume, but, even if it did, the actual volume of fill, if the overfill volume is 2.00, may be in the area of 850,000 cubic yards. Addressing DEP's request to run a longshore spreading analysis with a shallower closure depth, RRAI 4 states that CPE did so, using one closure depth of -15.9 feet and another of -30 feet, which is the maximum observed closure depth observed in the area. At year 3, the farthest reaches of longshore spreading at -15.9 feet, -22 feet, and -30 feet closure depths are R-133 plus 1022 feet, R-133 plus 560 feet, and R-133 plus 136 feet, respectively. RRAI 4 concludes that the Walton and Chiu model used to project longshore spreading is not highly sensitive to the input of a closure depth. Concerning the failure to indicate covered hardbottom at year 6, RRAI 4 explains that CPE used the Walton and Chiu year-3 projection due to its agreement with the GENESIS model results through year 6. Proposed JCP, Proprietary Authorization, and Water-Quality Variance Intent to Issue On February 29, 2008, DEP issued a Consolidated Intent to Issue Joint Coastal Permit, Variance, and Authorization to Use Sovereign Submerged Lands dated February 29, 2008 (Intent to Issue). The JCP constitutes a certification of compliance with Florida water quality standards, so the COE may proceed with its permitting. The JCP also constitutes a finding of consistency with Florida's Coastal Zone Management Program. The Intent to Issue states that Palm Beach will excavate "beach-quality sand" from BA V and BA VI and restore the beach and nourish the dune from DEP reference monument R-125 to R-134 plus 350 feet. The Intent to Issue excludes activities at the Lake Worth Gap and allows dune restoration only from R-132 to R-134 plus 350 feet. Subject to this exclusion and limitation, Reach 8 extends from R-125 to R-134 plus 350 feet. The Intent to Issue identifies the North Segment, Lake Worth Gap, Center Segment, and South Segment. The Intent to Issue states that the berm elevation will be about 9.0 feet NGVD with a seaward slope of 1:15 (vertical to horizontal). The Intent to Issue states that the dune elevation will be about 16.0 feet NGVD with a slope of 1:3. The Intent to Issue states that DEP designated the North Segment as CEB due to continuity of management with Reach 7. The Intent to Issue states that the Strategic Beach Management Plan for the North Segment is beach restoration and periodic beach nourishment. The Intent to Issue states that DEP did not designate the Center Segment as CEB because it has been historically stable. The Intent to Issue states that DEP designated the South Segment as CEB due to historic beach recession that threatens upland development. The Intent to Issue states that the Strategic Beach Management Plan for the South Segment is dune restoration. The Intent to Issue identifies four other major components of this project: two borrow areas (BA V and BA VI), an artificial reef to be created as mitigation, a mixing zone, and a monitoring area. According to the Intent to Issue, BA V and BA VI, which will provide 724,200 cubic yards of sand to nourish the beach and restore the dunes, are about 1500 feet seaward of the fill area. BA V extends from R-129 to R-136 in depths of 22-30 feet. To the north of BA V, BA VI extends from R-122 to R-127 in depths of 23-33 feet. BA III and BA IV, which served the Reach 7 project, are 3500 feet offshore. BA V abuts the landward side of BA IV, and BA III is generally in the gap between BA V and BA VI, although, as noted, it is about 2000 feet farther offshore. According to the Intent to Issue, Palm Beach will be required to construct an eight-acre artificial reef to offset the anticipated destruction of seven acres of nearshore hardbottom. The artificial reef will be located about 300 feet offshore, in about 10 feet of water, between R-106 and R-108, which is north of the Reach 8 project alongside Reach 5. The Intent to Issue states that, if additional hardbottom is impacted south of R-132, Palm Beach will have to increase the mitigation. According to the Intent to Issue, the Variance will allow an expanded mixing zone of 300 meters offshore and 1000 meters downcurrent from the point at which water returns into the ocean following the hydraulic discharge of sand onto the beach undergoing nourishment. According to the Intent to Issue, Palm Beach shall be required to monitor the hardbottom from R-132 to R-137 to check for unanticipated hardbottom impacts. The area to be monitored will include the hardbottom seaward of the sandbar between R-134 and R-134 plus 250 feet. After the 2004 and 2005 hurricane seasons, according to the Intent to Issue, dune fill was placed along parts of the project area to stabilize the beach. In January 2005, Palm Beach placed about 50,000 cubic yards of sand landward of mean high water within Reach 8 under an emergency permit to replenish the dune system using an upland source. In 2006, dune construction was undertaken within part of the Reach 7 project-- specifically between R-116 plus 450 feet to R-134 plus 100 feet--but this work has not dispensed with the perceived need for this project. The 2006 dune project within Reach 8, according to the Notice of Intent, was a major modification of the Reach 7 Project. The Reach 7 Project authorized 1.1 million cubic yards of sand to be dredged from BA III and BA IV. Only 24,000 cubic yards of the 58,500 cubic yards were placed in the dune area south of R-126 because of time constraints due to the start of the 2006 sea turtle nesting season. According to the Intent to Issue, the scope of the Reach 8 project has changed based on negotiations between Palm Beach and DEP. Initially, Palm Beach proposed beach restoration from R-125 to R-134, using one million cubic yards of dredged sand. Concerned with hardbottom impacts south of R-132, DEP induced Palm Beach to shorten the southern limit of the project by 3600 feet, to R-131, and reduce the required fill volume to 506,000 cubic yards. After submitting its application with this southern limit, Palm Beach revised its proposal to extend the southern limit to R-134 plus 250 feet, thus increasing the required fill to 900,700 cubic yards. Concerned about the increased fill and potential impacts to downdrift hardbottom, DEP induced Palm Beach to accept a southern terminus of R-132 with a fill volume of 505,700 cubic yards. However, Palm Beach again revised the project to its current southern termini: beach nourishment to R-132 and dune restoration only to R-134 plus 350 feet. The first "resource of concern" analyzed in the Intent to Issue is the hardbottom communities. The Intent to Issue states that these communities comprise three types: intertidal, nearshore hardbottom; shallow, subtidal, nearshore hardbottom in depths of less than three meters; and deeper, subtidal hardbottom located about 105-120 meters offshore, seaward of the shore-parallel sand bar, in depths of 2.5-3.5 meters. According to the Intent to Issue, the hardbottom is different north and south of the Lake Worth Gap. North of the Lake Worth Gap, the intertidal and shallow subtidal hardbottom is more susceptible to sand cover due to lower vertical relief and shallower water. According to the Intent to Issue, south of the Lake Worth Gap, most of the hardbottom is only partly covered by sand, and the subtidal hardbottom is continuous past the southern terminus of the project. The higher relief of the hardbottom south of the Lake Worth Pier--up to one meter vertical relief--protects the benthos from migrating sediments and enhances survival of certain organisms. The growth of colonies of S. siderea, a coral, as large as 10 centimeters in diameter suggests that this hardbottom community is exposed persistently for long periods of time--i.e., 5-10 years--and that periods of sand burial are relatively brief. The Intent to Issue states that these nearshore hardbottom areas are important foraging, shelter, and nursery habitat for several species of migrating fauna, including juvenile sea turtles and larval/post- larval fish. The Intent to Issue states that intertidal hardbottom habitat typically displays low cover and diversity of macroalgae. The community is dominated by microalgae and blue- green algae. Common benthic fauna include barnacles, limpets, and periwinkles. Some crab and fish species may occupy small pools in the intertidal hardbottom. The Intent to Issue states that subtidal nearshore hardbottom communities are characterized by an increased number of macroalgal species and fauna. These communities are adapted to a dynamic environment, even to the point of sand cover or scour, and the habitat would not considered to be degraded unless the natural cycle were altered. The Intent to Issue states that, although the deeper subtidal hardbottom, which is south of the shore-parallel sand bar and in water depths of 2.5-3.5 meters, is fragmented parallel to the South Segment, it resumes its continuity south of the southern terminus of the project. Coverage and diversity of macroalgal and sessile fauna, such as corals, increases in the deeper nearshore community. Also, sediment coverage, in terms of thickness and areal extent, is less, so this habitat is used by a higher diversity of open-water fish species. The Intent to Issue determines that each of the three hardbottom communities supports different communities and provides different habitat functions, and each is "vital to this ecosystem." Thus, to mitigate for the loss of these habitats, the mitigation proposal must include all functions provided by these three hardbottom types. The second "resource of concern" covered in the Intent to Issue is sea turtles. The loggerhead turtle, green turtle, leatherback turtle, hawksbill turtle, and Kemp's Ridley turtle--all endangered or threatened--are present offshore of Palm Beach County, according to the Intent to Issue. The sea turtle nesting season in this area generally extends from March 1 through November 30, with the main portion running from May 1 to October 31. During the 2006 season, 12,755 sea turtle nests were recorded in Palm Beach County. The Intent to Issue states that the Florida Fish and Wildlife Conservation Commission's (FWC's) Imperiled Species Management Section reviewed the project and recommended permit conditions to help construction avoid and minimize impacts to sea turtles. The Intent to Issue notes that the impacts to sea turtles will likely result in a take, so the FWS and NMFS must grant "Incidental Take" permits or statements in their "Biological Opinions." The Intent to Issue states that FWS has issued a Biological Opinion for the loss of nesting habitat, and this document includes various conditions, which DEP has incorporated into the Draft Permit. The Intent to Issue states that NMFS is preparing a Biological Opinion with conditions that will, if deemed necessary, be included in a modification of the Permit, but, if NMFS fails to allow an Incidental Take, Palm Beach may not commence construction. The third "resource of concern" is manatees. The Intent to Issue notes that the FWC's Imperiled Species Management Section has recommended specific Permit conditions. The Intent to Issue notes that, pursuant to Section 161.088, Florida Statutes, beach restoration projects for CEBs are in the public interest and eligible for state funding. Because the Center Segment is not designated as a CEB, the Intent to Issue states that Palm Beach must provide reasonable assurance that the proposed activity is not contrary to the public interest, pursuant to Section 373.414, Florida Statutes. The Intent to Issue acknowledges that Palm Beach is required to submit alternatives to the proposed project that would minimize adverse impacts to the coastal system, such as burial of the exposed hardbottom and temporary reduction in marine turtle nesting. Because the hardbottom within the boundaries of the fill area is in the surf zone immediately offshore of the beach, even a significantly reduced volume of fill will bury this existing exposed hardbottom, according to the Intent to Issue. DEP thus recommended dune restoration only in the area proposed for beach restoration, but Palm Beach contended that a project limited to dune restoration would not protect upland buildings from storm erosion cause by the direct impact of a major hurricane. Thus, Palm Beach offered mitigation for the loss of hardbottom that will be covered by fill. The Intent to Issue notes that, pursuant to Section 161.144, Florida Statutes, beach-quality sand for nourishment is an exhaustible resource that must be carefully managed. Noting that such sand would be used in this project on beaches that are and are not designated as CEBs, the Intent to Issue warns that, while DEP did not determine that this use made the project contrary to the public interest, "the supply of beach quality sand in the region may become a consideration for future nourishment events, depending on the status of the sand source and the competing needs of critically eroded beaches." The Intent to Issue defines beach restoration as the placement of beach compatible sand onto an eroded beach for the primary purpose of providing storm erosion protection for upland structures. The beach fill template comprises the design berm, which protects from storms and is designed to remain intact between periodic beach nourishment events, and "advance beach nourishment," which is seaward of the design berm and is designed to erode from normal wave and tidal conditions, but undergoes replenishment with periodic beach nourishment. The Intent to Issue identifies the principle design objective as protection from storm erosion. The design storm is the 25-year storm event. The Reach 8 project will create a 25-foot wide design berm. Palm Beach's engineer has estimated that the design berm will provide storm protection to upland development from the impacts of a 19-year storm event. However, DEP considers this a conservative projection; DEP projects that the design berm will protect upland structures from the 25-year storm event. According to the Intent to Issue, the addition of the Reach 8 beach fill will "likely" increase the storm erosion protection for upland structures to greater than a 50-year storm event. The Intent to Issue notes that the other primary design component is the volume of fill needed for the beach nourishment project. The specified volume of fill is derived from the historical erosion rate plus additional material to account for spreading losses due to the effect of waves and tides acting on the bulge left in the shoreline by the placement of beach fill and the dissimilarity of sediment grain size between the existing beach sand and the fill material from the borrow areas. The design objective is to maximize the longevity of the beach nourishment with the minimal amount of fill necessary to preserve the design berm between renourishments. The Intent to Issue notes that, due to construction constraints associated with the placement of fill below the water line, the seaward slope of the beach fill template during construction is steeper than the equilibrium slope after exposure to wave forces. The profile adjustment can adjust rapidly during the first year and give the appearance of significant erosion losses. Thus, a wider beach berm width is designed in the knowledge that it will recede as the slope adjusts through the cross-shore spreading of fill material to the submerged part of the beach profile. The Intent to Issue states that Palm Beach's engineer demonstrated adequate design analyses to provide reasonable assurance that the cross-shore profile adjustment and alongshore spreading of fill under normal wave and tide conditions will not impact adjacent environmental resources, but the demonstration "does not eliminate the potential for unexpected spreading losses." Thus, DEP required Palm Beach to implement a monitoring program. The engineer has used a background erosion rate of two feet per year in the design of the beach nourishment. Although historical shoreline data do not support this rate, the Intent to Issue states that the additional fill volume is not significant compared to the volume needed to offset spreading losses. The Intent to Issue states that Palm Beach's engineer submitted numerical modeling and analysis of ocean wave and coastal littoral processes that provide reasonable assurance of the expected effects of the excavation of the borrow areas on the coastal littoral system. The analysis shows that the excavation of the borrow areas will "change nearshore conditions under a limited range of weather conditions, but will not have the potential to interfere with the natural functioning of the coastal system or cause changes in the patterns of erosion and accretion of the beach" distinguishable from natural fluctuations in the shoreline position. The Intent to Issue states that, pursuant to Florida Administrative Code Rule 62B-41.007(2)(j) (Sand Rule), only beach compatible fill may be placed on a beach or dune system. Palm Beach provided DEP with the results of geotechnical and geophysical investigations of the offshore borrow areas. The resulting vibracores yielded samples of BA V and BA VI that had a carbonate content of 48 percent, as compared to the composite carbonate content of 47 percent at the beach. According to the Intent to Issue, BA V has about 899,500 cubic yards of fill material, and BA VI has about 974,800 cubic yards of fill material, which, together, are more than double the volume required for the project. According to the Intent to Issue, the fill material in both borrow areas is similar to the native beach sediment in grain size, color, sorting, silt content, shell content, and carbonate content. The Intent to Issue states that the artificial reefs would be constructed in water depths similar to the natural hardbottom and would have similar vertical relief. Thus, DEP expects the artificial reefs to provide very similar habitat functions as those provided by the natural hardbottom habitat. Applying the Uniform Mitigation Assessment Method (UMAM), DEP assumed a time lag of two years for the artificial reefs to provide similar habitat functions as provided by the natural nearshore hardbottom, and DEP also anticipated the frequency and duration of exposure and characterized the hardbottom communities in the two borrow areas. Based on its UMAM analysis, DEP required eight acres of mitigation. According to the Intent to Issue, the artificial reef will be in a location where about two feet of sand covers the underlying limestone formation. If the artificial reef is constructed at the same time as the beach fill is placed, a two- year time lag is expected for the mitigation functions to become similar to natural hardbottom functions. If construction of the artificial reef is completed after placement of the beach fill, the mitigation area will be increased by 0.3 acres per year. The artificial reef will be located in an area with sediment thickness of less than one meter. Hardbottom communities have been identified in the vicinity of the mitigation area, so a 50-foot buffer must be maintained around the natural hardbottom. The Intent to Issue states that the artificial reef will be constructed of clean, dense limestone boulders with an average diameter of 1.1 meters and average weight of 1.9 tons. Vertically, the boulders placed on the bottom may not exceed 1.2 meters. The Intent to Issue states that the dune fill material will extend seaward to the mean high water line, so it will be affected by wave run-up almost immediately after placement. About 1.5 to 1.7 acres of nearshore intertidal and subtidal hardbottom habitat exist immediately seaward of the dune-only segment (between R-132 and R-134 plus 350 feet). The Intent to Issue reports that DEP expressed concern that impacts to more than the anticipated seven acres of hardbottom might occur due to the combined downdrift and cross-shore spreading of the dune and downdrift spreading of beach fill. Likewise, the expanded mixing zone could deposit sediments on hardbottom outside of the seven acres anticipated to be buried. Thus, in accordance with Florida Administrative Code Rule 62B-49.005(13), DEP determined that "additional reasonable assurance" is needed to ensure compliance with applicable rules and statutes, so DEP required submittal of such by a special condition. The Permit contains conditions for physical and biological monitoring of the performance of the beach fill, the associated effects on downdrift nearshore hardbottom, and a Contingency Mitigation Plan. The Intent to Issue states that the Contingency Mitigation Plan will be triggered by identified indicators of an unacceptable adverse impact to downdrift hardbottom communities. The Contingency Mitigation Plan shall demonstrate that adverse impacts will be adequately offset. The plan shall address the "mitigation type, design, location, funding, and ratio (pursuant to Rule 62-345, F.A.C.)." DEP must approve the draft Contingency Mitigation Plan prior to the issuance of a Notice to Proceed. The Intent to Issue states that the "complexity of coastal dynamics and bottom communities in this area make it difficult to predict the direct and secondary impacts of the beach restoration project," including the extent of offshore and longshore spreading of fill and the increased sedimentation from the adjusting fill. These direct and secondary impacts to nearshore hardbottom communities from the beach and dune fill are "primary concerns." Thus, DEP will require a Biological Monitoring Plan. As used in the Intent to Issue, "secondary" impacts means incidental impacts, especially as erosion and wave forces spread the fill beyond where it was originally intended. The Intent to Issue provides that monitoring of nearshore hardbottom will include assessments of hardbottom flora, sessile fauna, and fish populations. Monitoring will determine the condition and dynamics of nearshore hardbottom communities, movement of sand, effects of sedimentation and turbidity, the extent of burial from the seaward and downdrift adjustments of fill placed for beach and dune construction, the actual extent of equilibrating sand as compared to the predicted Equilibrium Toe of Fill (ETOF), secondary (i.e., indirect) impacts seaward and downdrift of the ETOF, impacts from the pipeline placement, and effects on marine turtle foraging habitat use. Biological monitoring and habitat assessments of the artificial reef shall assess the efficacy of the artificial structure to mitigate for the effects of burial of the shallow nearshore hardbottom habitat in the area of the project. The Intent to Issue does not require detailed biological monitoring of the borrow areas because of the distance between each borrow area and the adjacent nearshore hardbottom and adjacent offshore hardbottom. According to the Intent to Issue, these buffers provide reasonable assurance that the potential for impacts to hardbottom communities adjacent to the borrow areas is minimal. The Intent to Issue requires physical monitoring of the project through aerial photography and topographic/bathymetric surveys of the beach, offshore, and borrow areas. The objective is to measure the performance of the project, any adverse effects, and the need for any adjustments, modifications, or mitigation. These data will also facilitate the design of followup projects and reducing the impact on the environment. The Intent to Issue states that direct impacts to water quality from dredging material from the borrow areas is expected to be minimal. The hydrodynamic processes at the beach discharge point may cause turbidity to exceed 29 NTUs above background levels downdrift of the beach placement location within the maximum allowable mixing zone of 150 meters. Palm Beach has asked for a variance to extend the mixing zone 300 meters offshore and 1000 meters downdrift from the point of sand discharge at the beach disposal site. Palm Beach's analysis shows that turbidity should not exceed 29 NTUs above background levels outside of a 1000 meter shore-parallel mixing zone downdrift from the point of discharge and 300 meters offshore. Palm Beach shall maintain a shore-parallel sand dike to prevent water from the dredged discharge from running directly back into the ocean. By forcing most of the return water to flow over sand for a sufficient distance down the beach, most of the suspended sediment will settle out, according to the Intent to Issue. The Intent to Issue states that there are no practicable means to further minimize the potential for elevated turbidity using the selected borrow material and the hydrodynamic processes involved in the construction process. Pumping will cease if the turbidity plume exceeds 29 NTUs above background outside the approved mixing zone or causes excessive sedimentation on hardbottom. The Permit will not be valid until and unless DEP issues the Variance. Draft Permit The Permit, in is present form, did not exist at the start of the hearing. During the second week of the hearing, the Administrative Law Judge accepted a stipulation from DEP and Palm Beach that the method of dredging would by the cutterhead, which operates by suction on the sediments and water. At the conclusion of the second week of the hearing, on September 6, DEP provided the parties and Administrative Law Judge with copies of the "Final Mitigative Artificial Reef and Biological Monitoring Plan" dated September 5, 2008. The parties had been awaiting final DEP approval of the form of this plan. DEP also provided the parties with a marked Permit, showing changes from the version challenged by Petitioners. Lastly, on September 18, 2008, DEP issued a final draft permit. This document contained substantive amendments to the draft permit that DEP had previously proposed to issue. These amendments are noted separately in the discussion below. The Permit is a five-year permit issued under the authority of Chapters 161 and 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 62 and operating agreements between DEP and the water management districts. The Permit authorizes Palm Beach "to construct a beach restoration and dune nourishment project using beach- quality sand" from BA V and BA VI, which are about 1500 feet seaward of the fill area. The Permit states that sand for beach restoration will be placed from T-125 to R-132, except for the Lake Worth Gap at R-127 plus 597 feet to R-128 plus 954 feet, and the dunes-only component will extend from approximately to R-134 plus 350 feet. The berm elevation will be about 9 feet NGVD with a seaward slope of 1:15, and the dune height will be at about plus 16 feet NGVD with a slope of 1:3. The Permit requires eight acres of mitigation in the form of an artificial reef about 300 feet seaward of the shoreline, to offset the expected burial of about seven acres of nearshore hardbottom. The Permit warns that delays in the construction of the mitigation will require additional mitigation because of the increased time lag and that "additional, unanticipated adverse impacts will also require additional mitigation." The Permit requires that the mitigation reef be located offshore of the shoreline segment that lies between R-106 and R-108, in about 10 feet of water. In anticipate of future nourishment events, perhaps for the same shoreline, the Permit states: Assuming that the mitigation is successful and remains intact and ephemerally exposed when these impacts are repeated for subsequent nourishment events, this shall be the only mitigation required for the anticipated events. The Permit expressly constitutes a finding of consistency with Florida's Coastal Management Program, as required by Section 307 of the Coastal Zone Management Act. The Permit also constitutes certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act. Also, the Permit states that DEP has determined that the facility is located so it will not adversely impact Outstanding Florida Waters or Class II waters. The Permit does not disclose whether the adjacent Class III waters have been approved for shellfish harvesting. The Permit states that the activity qualifies for proprietary authorization to use sovereign submerged lands, and the Permit grants a Letter of Consent for the activity. The Permit contains 11 General Conditions, including one that requires the immediate cessation of all activities in the immediate area of any historic or archaeological artifacts uncovered anywhere on the project site. Another General Condition requires, within 30 days after the completion of construction or a subsequent maintenance event, Palm Beach shall provide DEP a written statement of completion and certification by a professional engineer, which shall verify all locations and elevations specified by the Permit and confirm that all authorized activities have been performed in compliance with the plans and specifications approved by the Permit, or describe any deviations. Specific Conditions 1-8 address general matters, Specific Conditions 9-16 address mitigation, Specific Conditions 17-19 address dredging, Specific Conditions 20-21 address biological monitoring, Specific Conditions 22-27 address manatees, Specific Conditions 28-45 address sea turtles, Specific Conditions 46-51 address shorebirds, Specific Condition 52 addresses water quality monitoring, Specific Conditions 53-54 address pipeline monitoring, and Specific Conditions 55-59 address physical monitoring. Specific Condition 2 provides that, prior to construction, the Board of Trustees must establish the line of mean high water for any affected area that does not already have an erosion control line, so as to distinguish between sovereign lands and upland properties. Specific Condition 3 prohibits any work until and unless DEP issues the Variance, which will relieve Palm Beach from the obligation to comply with Florida Administrative Code Rule 62-4.244(5)(c) and will authorize it to establish an expanded mixing zone for the project. As stated in the last revision of the Permit, Specific Condition 5 states that DEP may require additional monitoring of the mitigation reef and the nearshore hardbottom area between R-134 and R-138, consistent with Special Conditions 14, 15, 20, and 21 and the Final Mitigative Reef and Biological Monitoring Plan, "beyond the expiration date of this permit but before the time in which the beach and dune restoration project performance is complete, if a determination is made that the mitigation is not successful pursuant to [Specific Condition] 14 or that additional impacts to hardbottom have occurred pursuant to [Specific Conditions] 15 and 21." Specific Condition 6 prohibits any work until Palm Beach has received a Notice to Proceed from DEP. DEP will not issue the Notice to Proceed until it has received the Physical Monitoring Plan described in Specific Condition 56, documentation of an executed and recorded Erosion Control Line, final construction plans and specifications, and the turbidity monitoring qualifications described in Specific Condition 7. The last revision of the Permit removed some conditions that were vague. Specific Condition 7 requires that an independent, qualified consultant monitor the construction "to ensure that turbidity levels do not exceed the compliance standards" set in the Permit. Additionally, an individual familiar with beach construction techniques and turbidity monitoring must be present at all times when fill is discharged onto the beach, and this individual must have authority to alter construction techniques or shut down dredging or beach construction if turbidity levels exceed the compliance standards. Specific Condition 9 states that the "unavoidable" burial of about seven acres of nearshore hardbottom from the placement and spreading of beach fill shall be mitigated by the creation of "a minimum of 8.0 acres of hardbottom substrate." If the construction of the artificial hardbottom will be completed prior to or concurrent with the construction of beach fill, the mitigation area will be eight acres; otherwise, the mitigation area shall be increased by an area of 0.3 acres per year that the mitigation follows the construction. The last revision of the Permit requires the completion of the mitigation reef no later than two years after completion of beach construction. Specific Condition 10 provides that the mitigation reef shall be located in about 2.4 to 3.6 meters (8 to 12 feet) of water and placed on sandy bottom that has a sediment thickness over rock substrate of less than one meter (three feet), but generally at least 15 cm, and that does not contain any signs of hardbottom benthic community growing through the sand cover. After subsidence of the boulders onto the stable platform, the vertical relief of the artificial reef shall be generally between one and three feet above the sand substrate, although portions of the constructed mitigation reef, like the natural hardbottom impacted in the project area, may at times be completely covered by sand. Specific Condition 11 states that Palm Beach shall maintain a 50-foot buffer around any natural hardbottom to provide adequate protection during boulder placement. The greatest dimension of each boulder shall be placed parallel to the bottom, and a controlled method of placement shall be used with each boulder to place it on the sandy ocean bottom. Specific Condition 12 requires that boulders be placed side-by-side without stacking. Optimal spacing is for adjacent boulders to touch each other, but maximum spacing shall not exceed two feet (0.6 meter) between boulders. Specific Condition 13 requires the inspection and washing of boulders prior to placement to ensure that they are within the specific limits of size and free of cracks, soft seams, and other structural defects. Cleaning shall remove all debris and sources of pollution, prior to placement. The reef construction materials may not include reinforcing steel bar, steel, or other protruding materials. Specific Condition 14 specifies mitigation success criteria. Specific Condition 14.a states that, after the artificial reef boulders have subsided to their terminal elevation, each portion of the eight-acre artificial reef (or more, if required by Specific Condition 9 or 15) must be periodically exposed during natural seasonal fluctuations. The average area of mitigation reef exposed during the three post- construction monitoring events shall be at least 50 percent. If the three monitoring events reveal a trend toward permanent coverage, DEP may require additional monitoring to ensure that permanent coverage has not occurred prior to determining that this condition has been met. Specific Condition 14.b requires that 75 percent of all species or genera of macroalgae and attached invertebrates that were recorded on the natural hardbottom must be present in the artificial reef. Specific Condition 14.c requires evidence that the artificial reef is providing the same functions that were lost when the natural nearshore hardbottom was buried. Evidence shall include: documentation that juvenile green sea turtles are observed utilizing, or that the success of the colonization on the mitigation reef boulders enables the species to utilize the artificial reef as feeding habitat and shelter, and post-larval fish are using the artificial reef as shelter as specified in this permit and the Final Mitigative Artificial Reef and Biological Monitoring Plan. Specific Condition 15 states that Palm Beach shall be required to construct additional mitigation if, "after 3 years of post-construction biological monitoring," pursuant to Specific Condition 21, additional hardbottom impacts have occurred; if, within three years of construction of the mitigation reef, the original mitigation has not achieved success, pursuant to Specific Condition 14; or if construction of the original eight acres of mitigation is not complete prior to the completion of the beach construction, pursuant to Specific Condition 9. The additional mitigation shall conform to the requirements of the Contingency Mitigation Plan within the Mitigative Artificial Reef and Biological Monitoring Plan and Specific Conditions 10-14. Palm Beach shall "implement" the additional mitigation within 12 months of a new letter of consent for the additional mitigation. Specific Condition 15 concludes: Prior to any subsequent nourishment events, the physical success of the mitigation shall be evaluated using the same survey methodology as specified in the Mitigative Artificial Reef and Biological Monitoring Plan . . .. If the mitigation is not determined to be fully intact and ephemerally exposed as defined by success criterion 14.a, additional mitigation shall be required. Specific Condition 16 requires Palm Beach, after construction of the artificial reef, to complete a Materials Placement Report and submit it to FWC and DEP. Specific Condition 17 requires the contractor to push its equipment into the project area, rather than tow it, when within 1.5 miles of the shoreline to avoid cable drags and inadvertent impacts to offshore hardbottom resources. During all dredging operations, the contractor shall have electronic positioning equipment continuously measuring the vertical and horizontal location of the cutterhead at all times. The horizontal positioning equipment shall be interfaced with a depth-monitoring device. The position of the equipment shall be recorded, and the record shall be submitted as part of the final project report. Specific Condition 18 requires Palm Beach to notify DEP within 24 hours of anytime that the dredge operates beyond the borrow area boundaries or exceeds the authorized dredge depth. Specific Condition 19 states that, if the dredge operates outside the approved borrow areas, DEP shall be notified within 24 hours or the next business day, if the unauthorized dredge operation occurs during a weekend or holiday. If any damage is found, DEP may conduct a site inspection or require a field survey by qualified biologists to assess the potential for damage to adjacent hardbottom. Within seven days of the discovery of any damage, Palm Beach shall submit to DEP a detailed description of the damage, including an estimate of the area damaged, photographs, and a plan to prevent further damage. If significant irreparable damage remains, Palm Beach shall submit a Contingency Mitigation Plan, pursuant to Specific Condition 15. DEP reserves the right to take enforcement action as a result of the damage. Specific Condition 20 requires biological monitoring of the mitigation artificial reef immediately after its construction and during the next three summers for at least three years, using the same methodology as that specified for the natural hardbottom communities in Specific Condition 21. The biological monitoring shall coincide with the monitoring of the natural nearshore hardbottom. Monitoring shall include the degree of boulder subsidence until equilibrium is achieved; areal extent, location, and depth of burial or sedimentation on the artificial reef, which shall be compared to the results of the other monitoring events to determine the duration of burial; annual quantitative assessments of percent cover by algal species or genera, algal height, and biomass of different algal species or general (using the lowest taxonomic level possible); and a qualitative assessment of post-larval and juvenile fish utilization. The results of this monitoring shall be included in the monitoring reports required by Specific Condition 21. Specific Condition 21 requires monitoring of the nearshore hardbottom between R-134 and R-138 to detect adverse impacts from the project from burial or sedimentation. The monitoring shall quantify the degree and extent of any adverse impacts and compare changes over time. Specific requirements of the monitoring are set forth in several subparagraphs. The last revision to the Permit reduced the number of permanent compliance transects for the monitoring of hardbottom communities from "at least ten" to four. Specific Condition 21.a requires biological monitoring of intertidal-subtidal nearshore hardbottom communities by using permanent, cross-shore transects covering the entire width of exposed hardbottom. Specific Condition 21.a requires the establishment of at least 10 permanent compliance transects in the area directly south of the project in the intertidal-upper subtidal hardbottom between R-134 and R-138. At least five permanent control stations shall be established between R-139 and R-142. At least five permanent compliance transects shall be established in deeper subtidal hardbottom areas east of the nearshore sandbar between R-133 plus 300 feet and R-135 plus 200 feet. At least three permanent control transects shall be set between R-139 and R-142 along the same depth contours as the compliance transects. Each transect shall be run from the shoreward edge to the seaward edge of the hardbottom. Palm Beach shall conduct these monitoring events pre-construction, immediately post-construction in the summer following project construction, and again for three subsequent years (June through September) for a total of five monitoring events. Palm Beach shall establish appropriate control transects outside of the area of potential project influence and shall concurrently monitor them. DEP may require additional surveys beyond the three-year post-construction monitoring event, if impacts attributable to the project are evident at the conclusion at the end of the three-year monitoring. Specific Condition 21.b states that hardbottom monitoring shall include macroalgal surveys, which shall include annual quantitative assessments of percent cover by species or genera, algal height per quadrat and per species or general, and amount of sediment with the quadrat. The assessments shall also include the biomass of different algal taxa that are present. Long-term monitoring shall be done in replicate quadrats, as specified in the Mitigative Artificial Reef and Biological Monitoring Plan. Algal biomass shall be measured and the taxa identified in additional plots measuring about 10 centimeters by 10 centimeters. To determine whether the lost functions have been offset, Specific Condition 21.c requires the qualitative assessment and comparison of summer use of nearshore hardbottom impact sites and post-construction mitigation sites by post- larval and juvenile fish, and Specific Condition 21.d requires the quantification and comparison of summer use of nearshore hardbottom impact sites and post-construction mitigation sites by juvenile marine turtles. Specific Condition 21.e requires aerial photography to obtain additional and comparative information on hardbottom distribution and beach/dune fill development. Palm Beach shall survey beach and nearshore areas between R-125 to R-137 immediately prior to construction, immediately following construction, and annually during the summer (June through September) for the three-year period following construction (five mapping events). Specific Condition 21.f requires Palm Beach to provide annual reports within 120 days of the completion of the hardbottom-related survey, but no later than December 1st of each year. The final report of the biological monitoring program shall be submitted to DEP within 120 days after completing the last survey. Specific Condition 21.g requires Palm Beach or its consultant to submit monthly progress reports from the time of commencement of each annual survey to the time of the submission of the associated report. The reports shall consist of a brief narrative describing the work progress during the month and the predicted schedule for the next month. Specific Condition 22 requires instruction of all personnel associated with the project regarding manatees, smalltooth sawfish, and sea turtles (in the water); speed zones; and the need to avoid collisions with and injury to manatees. Specific Condition 23 imposes an idle speed/no wake limit on all vessels associated with the construction project, when such vessels are in the immediate area and in water with less than a four-foot clearance from the bottom due to the draft of the vessel. Specific Condition 24 requires that any siltation or turbidity barriers be constructed of material that cannot entangle manatees, smalltooth sawfish, and sea turtles and shall be properly secured and regularly monitored to prevent entanglement of these listed species. Any such barriers may not impede movement of these species. Specific Condition 25 requires all onsite project personnel to observe water-related activities for the presence of manatees, smalltooth sawfish, or sea turtles. If one of these species approaches within 50 feet of the operation, all in-water operations, including vessels, must be shut down until the animal moves beyond a 50-foot radius of the project operation or until 30 minutes have elapsed since the animal last appeared. Animals may not be harassed into leaving the area. Specific Condition 28 requires that beach restoration start after October 31 and be completed before May 1. From May 1 to October 31, no construction equipment or pipe may be placed or stored on the beach. Specific Condition 29 provides that, if sand is placed from March 1 through May 1, early morning surveys for sea turtle nests must be conducted daily from March 1 through the end of nesting season. If the beach restoration project takes place from November 1 through November 30, early morning sea turtle nesting surveys must be conducted 65 days prior to project initiation and continue through September 30. Specific Condition 29.a requires that only experienced and trained personnel, with a valid FWC permit, may conduct the surveys and relocate eggs. Nesting surveys must take place daily from sunrise to 9:00 a.m. Construction may not take place until the surveyor notifies the contractor that the survey has been completed. Specific Condition 29.b states that, although nourishment may take place 24 hours per day, no new construction activities "should" proceed after 9 p.m. and before the morning sea turtle survey, unless a nighttime nesting survey has been conducted to ensure that no nesting turtles or unmarked nests are present. Specific Condition 29.c provides that only those nests that may be affected by construction will be relocated, and they must be moved no later than 9:00 a.m. on the morning after deposition. The eggs must be removed to a nearby self- release beach site in a secure setting where artificial lighting will not interfere with hatchling orientation. Relocated nests must be randomly staggered along the length and width of the beach in settings not expected to experience daily inundation by high tides or routine severe erosion or egg loss. Relocation may take place only to the extent that construction threatens nests. Specific Condition 29.d requires that nests deposited in areas where construction activities have ceased or will not occur for 65 days must be marked and left in place, unless other factors threaten the success of the nest. A marker must be placed in the beach wherever a nest has been relocated. A 10-foot radius must be staked around the nest, and nest sites must be inspected daily. Specific Condition 30 requires that Palm Beach submit reports of all nesting activity and marine turtle protection measures taken during construction for the initial nesting season after the completion of construction and for at least two additional nesting seasons. Specific Condition 31 provides that, if beach restoration will occur from March 1 through April 30, Palm Beach must conduct daytime surveys for leatherback sea turtle nests beginning March 1, and nighttime surveys for leatherback turtles shall begin when the first leatherback crawl is documented in the project area and through April 30 or, if earlier, completion of the project. Nesting surveys must be conducted nightly from 9:00 p.m. until 6:00 a.m. Specific Condition 32 limits direct lighting of the beach and nearshore waters from March 1 through April 30 and November 1 through November 30 to the immediate construction area. Lighting on offshore or onshore equipment must be minimized through reduction, shielding, lowering, and appropriate placement to avoid excessive illumination of the water surface and nesting beach. Shields must be attached to the light house to block light from all lamps from being transmitted outside the construction area. Specific Condition 33 requires that, during April, staging areas for construction equipment shall be located off the beach. Nighttime storage of construction equipment not in use shall be off the beach to minimize disturbance to sea turtle nesting and hatching activities. Specific Condition 34 requires that, from March 1 through April 30 and November 1 through November 30, staging areas for construction equipment must be located off the beach to the maximum extent practicable. Specific Condition 35 states that, immediately after completion of the placement of beach fill and prior to March 1, for three subsequent years, if placed sand remains on the beach, Palm Beach shall till the beach or obtain a waiver of this requirement. Tilling shall be to a depth of 36 inches and must be completed by March 1. If compaction surveys are conducted pursuant to Specific Condition 36, Palm Beach shall annually submit them to FWC. If the project is completed just before nesting season, tilling shall not occur in areas where nests have been left in place or relocated unless authorized by FWS in Incidental Take Statement. DEP may modify this condition if sand compaction problems are identified. Specific Condition 36 describes the process by which Palm Beach may obtain a waiver of the tilling requirement. The condition specifies a methodology for sampling at 500-foot intervals to check for sand compaction. Specific Condition 36.d requires tilling prior to April 15 if the average value for any depth sampled exceeds 500 pounds per square inch for two or more adjacent sampling sites. Specific Condition 37 requires visual surveys for escarpments along the fill area immediately following completion of the project and prior to March 1 for the following three years, if placed sand remains on the beach. All scarps shall be leveled or the beach profile shall be reconfigured to minimize scarp formation. Also, weekly surveys must be conducted during the two nesting seasons after completion of fill placement. Specific Condition 37.b requires, prior to March 1, leveling of escarpments that interfere with sea turtle nesting or greater than 18 inches for a distance of 100 feet, provided Palm Beach has obtained authorization from FWS for Incidental Take during scarp removal. If weekly surveys during marine turtle nesting season document subsequent formation of escarpment greater than 18 inches for at least 100 feet, Palm Beach shall contact FWC to determine appropriate action. Specific Condition 38 requires Palm Beach or a local sponsor to manage artificial beachfront lighting in the beach restoration area. Specific Condition 40 requires Palm Beach to submit reports on all nesting activity for the initial nesting season and for at least three additional nesting seasons. Palm Beach must monitor nesting activity in the seasons after construction by daily surveys and additional methods authorized by FWC. Palm Beach shall report the following data for the restored areas and adjacent areas, of equal length, of beach outside the project area: all nesting activity, nesting success rates, hatching success of all relocated nests, hatching success of a representative sampling of nests left in place (if any), and dates of construction. Specific Condition 41 states, upon the excavation of a sea turtle nest, all work shall cease, and an egg-relocation person must be notified so that the eggs can be moved to a suitable relocation site. Specific Condition 42 states that Palm Beach must notify FWC upon finding a dead, injured, or sick sea turtle that is listed as endangered or threatened. Specific Condition 44 requires Palm Beach to provide reports on the distribution and abundance of marine turtles near the nearshore hardbottom in the project area, including hydraulic fill locations and dune restoration locations and adjacent, undisturbed control sites. These reports shall be provided prior to any beach fill activity and for at least two additional years. Palm Beach shall monitor in-water sea turtle distributions by annual surveys in accordance with the Mitigative Artificial Reef and Biological Monitoring Plan. Surveys for marine turtles shall be conducted within the locations of hydraulic fill placement, dune restoration, the hardbottom comparison areas (from R-125 to R-136), the mitigative reef, and adjacent undisturbed control sites. Survey transects shall run immediately adjacent to the shoreline, at or slightly deeper than 30 meters from the shoreline, 300 meters from the shoreline, and 600 meters from the shoreline--all for the impact site and mitigation reef site. Specific Condition 45 details the requirements of marine turtle monitoring activities. Data must be collected for the restored beach and an equal length of unrestored beach and must include the number of nests lost to erosion or wash out. Data must be reported by number and type of false crawls, in which the turtle crawls onto the beach but fails to produce a nest, lighting impacts, nests lost to inundation, erosion, vandalism, or lost markers, and emergence and hatching success. Specific Condition 46 requires Palm Beach to conduct shorebird surveys by qualified persons. Surveys of nesting season, which runs generally from April 1 to September 1 (although some nesting may occur through September), shall begin on April 1 or ten days prior to project commencement, if later, and shall be conducted through August or construction, which is earlier. Weekly surveys shall continue through August or fledgling or loss of identified nests or hatchlings, whichever is later. Surveys for detecting new nesting activity shall be done daily prior to moving equipment, operating vehicles, or performing other activities that could potentially disrupt nesting behavior or harass the birds, their eggs, or their young. The bird monitor must notify FWC within 24 hours once breeding is confirmed. Specific Condition 47 requires a 300-foot buffer around any location were shorebirds have been engaged in nesting behavior, including territory defense. All construction activities, including the operation of vehicles, shall be prohibited in the buffer zone. The width of the zone shall be increased if the birds appear agitated or disturbed by construction or other activities in adjacent areas. However, reasonable and traditional pedestrian traffic must be maintained where nesting birds will tolerate such traffic, generally including lateral movement of beach goers parallel to the shoreline at or below the highest tide line. Palm Beach must post designated buffer zones around the pedestrian access, and no construction activity, including the movement of vehicles or stockpiling of equipment, make take place within this buffer. Specific Condition 48 requires Palm Beach to obtain FWC approval for travel corridors outside the buffer areas. If adjacent to nesting sites, equipment, vehicles, and pedestrians may move past the nests, but may not stop or turn. These travel corridors must avoid critical areas for shorebirds, such as known nesting sites, wintering grounds, FWC-designated Critical Wildlife Areas, and FWS-designated critical piping plover habitat, as much as possible. To the extent possible, Palm Beach shall maintain some activity in these corridors daily. Specific Condition 49 requires the posting of shorebird nesting sites in the construction area. Specific Condition 50 suggests that Palm Beach "should" till and remove escarpment outside the shorebird nesting season, and contractors should avoid tilling and removing scarp in areas where nesting birds are present. Specific Condition 50.b requires that the contractor approximate the natural slope between the mean high water line and mean low water line. Specific Condition 51 prohibits the placement of pipes or sand seaward of a known shorebird nesting site during the shorebird nesting season. Specific Condition 52 directs Palm Beach to sample and analyze for turbidity at least three times daily, about four hours apart, during all dredging and filling operations. Background samples shall be collected at surface, mid-depth, and, if depths are greater than six meters, two meters from the bottom, all outside the influence of any artificially generated turbidity plume. Background samples shall also be taken about 150 meters from the dredge site in the opposite direction of the prevailing current flow and about 500 meters upcurrent of the point where the dredge discharge reenters the ocean, at the same distance offshore as the associated compliance sample, and outside of any turbid plume associated with the project. Compliance samples shall be collected at the surface, mid-depth, and, if depths are greater than six meters, two meters from the bottom, in the densest part of any visible turbidity plume generated by the project. Compliance samples shall be taken 150 meters downcurrent from the dredge head in the densest part of any visible turbidity plume and no more than 300 meters offshore and 1000 meters downcurrent from the point where the dredge discharge reenters the ocean within the densest part of any visible turbidity plume. Specific Condition 52 provides that the compliance locations are the limits of the temporary mixing zone for turbidity allowed during construction. If analysis reveals turbidity at any compliance site is more than 29 NTUs above the associated background levels, construction activities shall cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. Construction shall also cease immediately if sedimentation is observed on hardbottoms located in the mixing zone, but outside the area of predicted burial, and this sedimentation is greater than that concurrently observed in the control areas. The latest revision to the Permit adds turbidity monitoring obligations following construction. This post- construction monitoring shall take place twice monthly for one year after the end of construction or, if turbidity levels exceed 29 NTUs above background, then for an additional year, for a total of two years. The samples shall be taken "immediately offshore" of R-127 plus 597 feet, R-132, and R-134 plus 350 feet. These locations mark, respectively, the north end of the Lake Worth Gap, the north end of the dune-only project, and the south end of Reach 8. The samples are to be taken from the densest portion of any turbidity plume seaward of the surf zone. Samples are to be taken at either one meter or mid-depth, "whichever depth provides more indicative results." For background turbidity values, samples shall be taken at one meter depth offshore of R-116 and R-142. These samples must be taken immediately after the obtaining of the compliance samples and at the same distance offshore. The lower turbidity value shall be used for comparison with the compliance samples. Specific Condition 52 requires Palm Beach to submit to DEP all monitoring data, during construction, within two weeks of analysis and, after construction, within one week of analysis or two weeks of collection. Monitoring reports shall also include water temperature, time of day taken, depth of water body, depth of sample, antecedent weather, tide and direction of flow, and wind direction and velocity. Specific Condition 53 requires that a diver observe the entire length of the submerged pipeline from the western edge of the borrow area to the surf zone within one week of pipeline installation. If no hardbottom resources are observed or if to-be-impacted hardbottom is present, weekly vessel-based surface observations will be sufficient to monitor the submerged pipeline for leaks. These surface-based observations shall be conducted during periods of dredge operation. If a leak is detected, within 24 hours (weather permitting), a diver shall check for the presence or absence of a leak, and the contractor shall take any corrective measures necessary. Specific Condition 54 states that, if previously unidentified hardbottom resources are found within the pipeline corridor, weekly diver observations of the area within 400 feet of these resources shall take place. These observations are to detect leaks. All dredge and fill operations shall cease if substantial leaks are found; these are leaks resulting in turbidity in excess of state water quality standards. Operations may resume after appropriate repairs. Specific Condition 55 requires, pursuant to Florida Administrative Code Rule 62B-41.005(16), physical monitoring of the project to acquire project-specific data, including at least topographic and bathymetric surveys of the beach, offshore, and borrow site areas, aerial photography, and engineering analysis. The monitoring data will allow Palm Beach and DEP to observe and assess, with quantitative measurements, the performance of any project, any adverse effects that have taken place, and the need for any adjustments, modifications, or mitigative responses. This scientific monitoring also supplies Palm Beach and DEP the information necessary to plan, design, and optimize followup projects. Specific Condition 56 requires that, prior to the issuance of the Notice to Proceed, Palm Beach provide DEP with a detailed Physical Monitoring Plan, which shall indicate the project's predicted design life. The Physical Monitoring Plan shall consolidate data collection, analysis, and reporting of the information collected from the monitoring of Reach 7 and Reach 8. The engineering report shall include findings on the effects of the projects on each other. Approval of this Physical Monitoring Plan shall supersede the physical monitoring set forth in the Reach 7 permit. At the request of Palm Beach, DEP may revise the approved Physical Monitoring Plan. Specific Condition 57.a requires the Physical Monitoring Plan to include topographic and bathymetric profile surveys of the beach and offshore conducted within 90 days prior to commencement of construction, and within 60 days after the completion of the construction of the project. Monitoring surveys shall then be conducted annually for three years and then biennially until the expiration of the project design life. Monitoring surveys shall be performed during a spring or summer month and repeated as close as practicable during that same month of subsequent years. Palm Beach may request a postponement of the first annual survey to the following spring/summer, if it would otherwise take place less than six months after the immediate post-construction survey. Palm Beach may submit a prior design survey of the beach and offshore for the pre-construction survey, if consistent with other requirements of this Specific Condition. Specific Condition 57.a adds that the monitoring area shall include profile surveys at each of the DEP reference monuments along at least 5000 feet of the adjacent shoreline on both sides of the beach fill area (5000 feet south of R-134 and 5000 feet north of R-125). All work activities and deliverables shall be conducted in accordance with DEP's Monitoring Standards for Beach Erosion Control Projects, Sections 01000 and 01100. Because of the potential for impacts to nearshore hardbottom south of the beach fill area, additional physical monitoring data shall be required in the form of surveys conducted along the intermediate profiles spaced 250 feet apart in the southern part of the project, from R-132 to R-137. Beach and offshore profile surveys shall be conducted along each reference monument profile and intermediate profile about mid-point between reference monuments. The offshore survey shall extend seaward to a minimum of 3000 feet or -30 feet NAVD88, whichever is reached first. Additional intermediate beach profiles, between each of the above-described profiles, shall be conducted only to wading depth. All beach profile surveys shall be conducted to a minimum wading depth of -4 feet NAVD. Specific Condition 57.b requires bathymetric surveys of the borrow areas within 90 days prior to commencement of construction and within 60 days after completion of construction, concurrent with the beach and offshore surveys required above. A prior design survey may be submitted for the pre-construction survey if consistent with the other requirements of this Specific Condition. Survey grid lines shall be spaced not more than 500 feet and shall extend a minimum of 500 feet beyond the boundaries of the borrow area. Work activities and deliverables shall be consistent with DEP's Monitoring Standards for Beach Erosion Control Projects, Section 01200. Specific Condition 57.c requires aerial photography of the beach taken concurrently with the post-construction survey and each annual and biennial monitoring survey required above, as close to the date of the beach profile surveys as possible. The limits of the photography shall include the surveyed monitoring area described above. All work activities and deliverables shall be consistent with DEP's Monitoring Standards for Beach Erosion Control Projects, Section 02000, with a different protocol if nearshore hardbottom is present within the project area. Specific Condition 57.d requires Palm Beach to submit an engineering report and monitoring data to DEP within 90 days after completion of the post-construction survey and each annual or biennial monitoring survey. Specific Condition 57.e requires Palm Beach to submit monitoring reports and data to DEP and warns that a failure to timely submit these reports is a ground for revocation of the Permit. Section 1.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan states that the purpose of the plan is to address concerns of DEP and the COE about "intertidal and nearshore hardbottom impacts" from the placement of "beach compatible sand" on Reach 8. The Final Mitigative Artificial Reef and Biological Monitoring Plan notes that the dune fill will make up 84,700 cubic yards of the 724,200 cubic yards intended for the entire project. Fill for the dune project thus accounts for only 11.7 percent of the entire fill to be placed on Reach 8. Section 1.2 of the Final Mitigative Artificial Reef and Biological Monitoring Plan acknowledges that intertidal and nearshore hardbottom is present along portions of Reach 8. The plan states: "live/hardbottom habitat consists of a solid substrate to which an epibiotic community attaches, and around which mobile fauna is attracted." The epibenthic communities include macroalgae, sponges, octocorals, stony corals, bryozoans, and tunicates. The Final Mitigative Artificial Reef and Biological Monitoring Plan notes that Anastasia Formation outcrops exposed in the surf zone are smoothed by wave and current action. In Palm Beach County, these outcrops are found along Palm Beach Island. In Reach 8, exposed intertidal hardbottom outcrops are found from R-129 to R-132, which is the approximate range of the entire beach project south of the Lake Worth Gap. Intertidal hardbottom is also prevalent from R-132 to R-137, which may not be the southern terminus of this area of prevalent intertidal hardbottom because the data collection and analysis ended at this point. The Final Mitigative Artificial Reef and Biological Monitoring Plan reports that the intertidal hardbottom outcrops are typically ephemeral, as they are buried and exposed by seasonal fluctuations and high-energy events, such as tropical storms and hurricanes. The Final Mitigative Artificial Reef and Biological Monitoring Plan states that, for about three years after construction, as the fill is transported longshore until it reaches equilibration, the exposed hardbottom from R-132 to plus 560 feet (the approximate southern limit of the Center Segment) will suffer indirect impacts (i.e., be buried). In an abundance of caution, according to the plan, Palm Beach calculated mitigation based on direct and indirect impacts to hardbottom to R-134. The Final Mitigative Artificial Reef and Biological Monitoring Plan assures that Palm Beach will construct the mitigation prior to the completion of the beach restoration project. If construction of the beach restoration project precedes the construction of the mitigation, an additional 0.3 acres of mitigation shall be added for each year's delay. For hardbottom located between R-134 to R-137, the plan reports that Palm Beach will monitor for impacts from burial or sedimentation attributable to the beach restoration project. Any observed impacts are addressed in Section 7 of the Final Mitigative Artificial Reef and Biological Monitoring Plan, as discussed below. Section 1.3 of the Final Mitigative Artificial Reef and Biological Monitoring Plan states that the mitigation reef will be constructed offshore of R-106 to R-108 in 8-12 feet of water where less than three feet of sand overlies the bedrock formation. A specification of seven acres for the mitigation reef was deleted from Section 1.3, but this specification remains in Specific Condition 9 of the Permit. Section 3.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan identifies the goal of the monitoring is to assess, quantitatively and qualitatively, habitat and fish populations at the impacted and mitigated sites. In particular, the plan will allow Palm Beach to implement a mitigation relief that will meet specified acreage and physical relief, the biological criteria (over time) of the impacted natural hardbottom resources within and adjacent to the project area, and the overall ecosystem function (i.e., reproduction, recruitment, and support of the food chain) similar to the impacted natural hardbottom. To achieve these objectives, Palm Beach will conduct biological monitoring of the mitigation reef to confirm that it provides ecological functions similar to those provided by the impacted natural hardbottoms, provide statistically rigorous testing for reporting purposes, conduct physical and biological monitoring to determine if impacts due to burial or sedimentation have resulted from the project in excess of the seven acres projected to be directly and indirectly impacted, and conduct reasonable biological monitoring and analysis. Section 3.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan describes an elaborate benthic sampling methodology, developed by CPE, of sediment, macroalgae, turf algae, sponge, hydroid, octocoral, stony coral, tunicate, bare hard substrate, seagrass, anemone, zonanthid, Millepora, sessile worm, bivalve, bryozoan, and sessile anthropod. For sediment, the data are broken down into sand, shell-hash, and mud, and, for turf algae, the data are broken down into green, red, and brown. All assessment is noninvasive. Section 3.4 of the Final Mitigative Artificial Reef and Biological Monitoring Plan identifies four natural hardbottom sites--two north of Reach 7 and two south of Reach 8--for the production of data to compare with the data collected at the mitigation reef. Five monitoring events shall take place: one preconstruction, one in the summer following construction, and one in the summer of the first through third years following construction. Section 3.5 states that DEP may use these data to determine if hardbottom south of R-134 suffered sedimentation or if there are changes in the hardbottom community, by the end of three years after construction, so as to require additional mitigation. Section 3.8 states that sedimentation will be measured against the baseline condition and control sites and will be considered an unauthorized impact only if it exceeds such other sedimentation "by a statistically significant amount," although this section seems to provide that any burial of hardbottom constitutes an unauthorized impact. Sections 3.9 and 3.10 of the Final Mitigative Artificial Reef and Biological Monitoring Plan describe the methods of sampling fish and benthic invertebrates. Section 3.11 identifies the method of sampling macroalgae biomass. Section 3.13 identifies statistical inferences that Palm Beach will draw, in connection with these sampling efforts, so as to compensate for the possibility that intermittent community usage of a habitat may take place, but not during the monitoring event. Section 3.14 provides for aerial photography to monitor for hardbottom impacts. Section 4.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan acknowledges that the monitoring of intertidal and nearshore hardbottom may assist in determining if the project impacts exceed the expected limits within three years after project completion. The transects to be established for this monitoring include five permanent transects seaward of the nearshore sandbar between R-133 plus 300 feet to R-135 plus 200 feet. Control transects will be set at R-139 and R-142. Section 4.1.3 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires preconstruction macroalgae biomass sampling at the two control sites north of Reach 8 and two control sites south of Reach 8. During the preconstruction monitoring event, two sampling sites will be placed along exposed hardbottom in the southern portion of Reach 8. Macroalgae biomass sampling will then take place at these locations, as well as the mitigation reef, immediately after the mitigation reef's construction and annually for the three following summers. The assessment method and statistic inferences will be as described above. Likewise, sediment monitoring and aerial photography will take place as described above. The final revision of the Final Mitigative Artificial Reef and Biological Monitoring Plan deletes various provisions for the monitoring of the offshore reef. These provisions were originally applicable only if Palm Beach excavated fill from BA IV, but, after Palm Beach dropped BA IV from its plans, the provisions bore no purpose. Section 4.3.5 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires Palm Beach to conduct turbidity monitoring at the fill and borrow sites by means of an independent contractor not associated with the dredging contractor. Section 5.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan contains the schedule of monitoring activities. The occasions of monitoring are immediately prior to construction, during construction, immediately after construction, one year after construction, two years after construction, and three years after construction. The only activity specified to be performed on all six of these occasions is sea turtle nesting; on each of these occasions, Palm Beach must submit monitoring reports also. Four activities must be performed on all of these occasions except during construction: nearshore/intertidal hardbottom biological monitoring, sea turtle inventory in the water, aerial photography and hardbottom mapping, and mitigative reef biological monitoring. Monitoring of the restored beach for escarpment formations and compaction takes place on the four occasions commencing with immediately after construction. Although the matrix states that water quality monitoring is required on only one occasion, during construction, Section 5.2.2 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires Palm Beach to conduct water quality monitoring at the fill and control sites after construction every two weeks for one year and, if exceedances are detected, for an additional year. However, the lone regulatory consequence for an exceedance (other than extended the monitoring for one year) is that DEP will "consider. . ." them in evaluating future project proposals. The final revision to the Final Mitigative Artificial Reef and Biological Monitoring Plan contains a new section devoted to contingency mitigation. (This is the Contingency Mitigation Plan referenced in the Permit.) Section 7.0 restates the requirement that if completion of the mitigation reef occurs after completion of the project, Palm Beach must add 0.3 acre to the mitigation reef for every year of delay. Section 7.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan largely tracks Permit Specific Conditions 14 and 15, although the requirements to be imposed upon Palm Beach if the project buried additional hardbottom, as promised in Specific Condition 15, are expressed in Section 7.0 as merely that DEP and Palm Beach "will conduct a cooperative effort to estimate compensatory mitigation" using the monitoring data and UMAM. Ultimate Findings Preliminary Matters The existing mean grain size on Reach 8 is at least 0.38 mm, not 0.30 mm. And the existing sediments contain less than 0.55 percent silt, not 1.21 percent silt. Until CPE identified BA V and VI as its sand sources, it did not revise its earlier values for the existing sediments: 0.35 mm and no silt. By the time that CPE collected new samples, the excessive fines from the quickly eroding Reach 7 project had reached Reach 8. The erosion process at Reach 7 had produced increasingly larger sediment sizes: from 0.34 mm in 1977 to 0.43 mm in 1993. There is no reason to believe that, after the short-term erosion process following the hurricanes of 2004 and 2005, the sediment size at Reach 8 had decreased from 0.38 mm in 1993 to 0.30 mm in 2006 and silt had increased-- unless, of course, Reach 7's excessive fines had already contaminated Reach 8. Other evidence supports a value of at least 0.38 mm for the existing beach. As summarized by Dr. Finkl in his report, "Reach 8 Beach-Sediments: Historical and Contemporary Comparisons of Grain Size," dated September 29, 2008, other presumably relevant values are: Manalapan--0.34 mm in 1961; southern Palm Beach County--0.34 mm and 3 percent silt in 1987; Sloan's Curve (R-115) to 2100 feet south of Manalapan (R-141)-- 0.38 mm and 0.44 percent silt; and Midtown--0.42 mm in 1999. A value of 0.38 mm fits with these data better than a value of 0.30 mm, at least when no explanation accompanies the claim of a 0.30 mm value. DEP's expert, Bob Brantly, seemed to display some reluctance over CPE's new figures for the existing sediments. Testifying at the hearing, Mr. Brantly spoke of a mean grain size of 0.30 to 0.35 mm and silt of zero to 1.2 percent. The 1993 data on which CPE originally relied in claiming 0.35 mm does not specify 0.35 mm as the mean grain size for the transects for which data was collected. In the Environmental Assessment of Coastal Resources in Palm Beach, Lake Worth, South Palm Beach, Lantana, and Manalapan, Palm Beach County, Florida, by the Palm Beach County Department of Environmental Resources Management and dated May 18, 1993 (DERM EA), the mean grain size for R-124 (Reach 8 starts at R-125) is 0.44 mm, R-127 is 0.39 mm, R-130 is 0.41 mm, and R-133 is 0.43 mm for an average of about 0.42 mm (with R-124) or 0.41 mm (without R-124). Id. at pp. 37-39. As it happens, Reach 8's mean grain size is typical of the mean grain size for the entire area, which ran from R-115 to R-142: 0.42 mm. Id. at p. 41. Although, perhaps due to a final weighting process, the text of the DERM EA states that the mean grain size for the entire area is 0.38 mm. Id. at p. 43. On the other hand, the values for BA V and VI, in terms of mean grain sizes and silt percentages, are reasonable. Dr. Finkl's sand search took place in conformity with appropriate methodological standards and produced reliable data. These values fit with the values of other offshore sand sources. The significance of a difference of mean grain sizes of, say, 0.22 mm and 0.38 mm is addressed in the DERM EA, which warns that the mean grain size of 0.38 mm is "substantially coarser" than the offshore sand samples, for which the mean grain size was 0.22 mm. Id. The DERM EA elaborates: Material of this quality [0.22 mm] may create a number of adverse effects if used in a beach/dune nourishment project. These include: greater coverage of nearshore hardbottom due to a high overfill ratio and mild slope of the equilibrium toe of fill and an increased probability of compaction and effects on sea turtle reproductive success. Id. at p. 43. Elsewhere, the DERM EA notes the distinction between the existing beach's mean grain size of 0.38 mm and less than 0.55 percent silt and the sand source's values of 0.22 mm and 0.42 percent silt. The DERM EA adds: If better material cannot be located, there will be a number of effects associated with this type of material. These include: a great overfill ratio . . .; short (and possibly long) term impacts on ambient water clarity, nearshore hardbottom and offshore reefs[; and increased sand compaction affecting sea turtles' reproductive success]. Id. at p. 70. The DERM EA warnings are credited: fill sediment with a mean grain size of 0.22 mm is incompatible with an existing beach with a mean grain size of 0.38 mm. It is impossible to reconcile these warnings with the assertions of witnesses called by Palm Beach and DEP who assure that the proposed sand is "high quality sand" or "beach compatible sand." These assurances are unfounded. Until the fill is transported out into deeper water where it will lie undisturbed, the excessive fines in the fill promise considerably more incidents of turbidity of greater intensity and persistence in response to energy inputs when compared to the turbidity that resulted, pre- construction, to the same energy inputs. In its proposed recommended order, DEP asserts that turbidity is a "natural and important part of the nearshore ecosystem." Id. at p. 25. No one can dispute this assertion. But if the unstated implication is that elevated turbidity values are irrelevant until 29 NTUs over background is reached, DEP ignores the fact that the functions of a balanced marine ecosystem may be impacted by elevations of turbidity of less than 29 NTUs, especially when the causes of elevated turbidity are anthropogenic in origin. It is unknown, but unnecessary to determine, whether the placement of nearly one million cubic yards of dredged sediment whose mean grain size is a little more than half of the mean grain size of the existing sediment will raise turbidity by 29 NTUs or more; based on the intra- construction readings near the excavation site on Reach 7, it may be assumed that post-construction erosion of these fines will not approach 29 NTUs over background. However, it is likely that the post-construction erosion of these fines will harm the beach, nearshore, and hardbottom habitats and the organisms using these habitats for a period of probably one year, and these turbidity-based impacts are entirely unmitigated. DEP has failed to distinguish water quality violations due to excessive turbidity with impacts to the water resources of the district from an activity that has caused increased turbidity more frequently for longer periods of time. An increase of one NTU over background is probably harmless to the water resources of the district, and water-quality antidegradation standards are inapplicable to this case because the subject waters are merely Class III waters with no special designation. But an increase of turbidity of less than less than 29 NTUs over background can harm the beach, nearshore, and hardbottom habitat and the species that rely on these habitats. DEP's suggestion that the Sediment Quality Control/Quality Assurance Plan can "account for any unforeseen anomalies in the fill material" (Id.) ignores the facts that: 1) the discrepancies between mean grain size of the fill and existing beach are already known to characterize the two sand bodies in their entirety and cannot be regarded as mere anomalies; 2) even a trained professional cannot, in real time, collect and analyze the fill as it is deposited on the beach and in the surf zone; 3) accounting for hundreds of thousands of cubic yards of excessive fines dumped on a beach is easier said than done, as it is unclear what the contractor would do with these fines once they are slurried out of the borrow area; and 4) as explained in the Conclusions of Law, the assessment of impacts and identification of mitigation must take place prior to, not after, permitting. From a functional perspective, the impact of discrepancy in mean grain sizes and silt values in this case is significant. No one calculated an overfill factor based on these numbers, but the excessive fines will probably require the contractor to place 170 to 200 percent of the fill that it would have been required to place to fill the beach profile templates, if the sand source had contained identical mean grain sizes. For the reasons stated above, the contractor will likely pump as much fill as is needed to fill these templates, without regard to estimates of volume of fill. The additional silt is also significant. The existing beach is probably midway between zero silt and 0.5 percent silt. BA V and VI contain about 1.5 percent silt. Assuming an increase of one percent of the presence silt in the sediments, this means that, if the project resulted in only 724,200 cubic yards of fill, over 7000 cubic yards of additional silt, beyond the pre-existing silt mix on Reach 8, would be added to the beach. The characteristics of sediments by grain size and the effect of discrepancies between sand sources and existing beaches of the magnitude proposed in this case provide a context for understanding the meaning of the post-construction observations of Reach 7 reported by the citizens in the anecdotals collected above. Obviously, the credibility of these reporters is of paramount importance. These witnesses reported honestly what they saw. When the waters were fouled, they said so. When the waters cleared, they also said so. They did not bend their testimony to achieve a desired result. Doubtlessly, it would have been preferable to have comprehensive, detailed, post-construction data collection, linked to storm events, which themselves would be classified by wind, current, and wave forces; duration; and frequency. Palm Beach has long been on notice of the need to collect such data in order to be able to provide the reasonable assurances required by law. The Permit contains important provisions designed to require Palm Beach to do so on this project, but such an undertaking would aid future projects, not this one. The need to obtain comprehensive beach-performance data has long been highlighted in the professional literature, as well as by local officials, such as the Palm Beach DERM and the Palm Beach Shore Protection Board. Palm Beach cannot complain when the only source of such data is concerned citizens. The situation concerning post-construction hardbottom coverage is different from the situation concerning post- construction water clarity or turbidity levels: federal and state agencies focused closely on post-construction hardbottom coverage. And both NMFS and DEP expressed justifiable reservations about CPE's assurances about hardbottom coverage. By its conservation recommendation, NMFS implied either that a take of 19 juvenile green turtles was excessive, even though it expressly allowed the take of this number, or, more likely, that the actual coverage of hardbottom would exceed the 6.9 acres, so that the fill should be reduced to avoid additional impacts to hardbottom. DEP's concerns are more explicit. Consistent with its concerns during the permitting process, DEP required contingent mitigation to offset what it viewed as the possibility of more than 6.9 acres of hardbottom being covered. As already noted, the models on which CPE relied in projecting longshore spreading do not support CPE's conclusion as to the extent of coverage. The problems with the use of GENESIS in this case have been amply described. The problem with the use of the Walton and Chiu model is due to CPE's failure to acknowledge the actual discrepancy in mean grain size between the sand sources and the existing beach. The actual discrepancy and resulting overfill factor, both being much larger than CPE has acknowledged or considered in its modeling, promise that an undetermined amount of additional hardbottom will be covered, for an undetermined period of time, as the excessive fines in the fill transport beyond the limits projected by CPE before eventually undergoing cross-shore sorting into deeper, lower-energy waters. The area potentially affected by additional longshore spreading, though, is rich in hardbottom habitat. For instance, the DERM EA, which studied R-115 to R-141, notes that R-117 to R-124 contains an inner nearshore band of hardbottom of less than 100 feet wide with scattered nearshore bands of hardbottom of less than 40 feet wide near the Lake Worth Pier. The hardbottom became more extensive south of the Lake Worth Municipal Beach and consisted of two bands: an inner nearshore band 60-150 feet wide from just south of the Lake Worth Municipal Beach to south of R-141 and an outer nearshore band 100-250 feet wide from R-132 to south of R-141. Additional spreading to the south would cover more hardbottom. It is possible, on this record, to determine that additional hardbottom that would be covered by the spreading fill, but not the area of this additional hardbottom. Consequently, Palm Beach has failed to provide reasonable assurance that only 6.9 acres of hardbottom would be buried, directly or indirectly. As noted above, the hardbottom provides irreplaceable foraging and resting habitat for juveniles of various species, including the green turtle. The temporary loss--permanent, if ongoing nourishment events are assumed--of 6.9 acres of hardbottom habitat--although not the attendant loss of species, especially the five green turtles--is appropriately mitigated here. Palm Beach has underestimated the area of hardbottom impact and thus, among other things, underestimated the deaths of juvenile green turtles, which will die at the rate of five multiplied by the additional area in acres multiplied by 14.8 percent (the Rusenko fibropapillomatosis-infection rate). In the final revision of the Permit, Palm Beach and DEP removed the monitoring requirements for the offshore reef. The uniqueness of this resource has been detailed above. Because of the rare confluence of conditions required for its creation, the Florida Reef Tract cannot be replaced in any timeframe short of geologic time, so its protection, even from remote risks, must be a matter of exceptional regulatory concern. The turbidity resulting from the excavation seems short-lived. The relatively deep waters of BA V and VI are not subject to energy events sufficient to resuspend these particles, so once the dredge moves on, they quickly resettle to the bottom. Also, BA V and VI are relatively great distances from the Florida Reef Tract. It is not the excavation sites that pose even a potential threat to the offshore reef. Again, though, the performance of the beach, filled with excessive fines, poses a potential threat to the offshore reef. Storm-driven plumes of unnatural turbidity can carry these particles from Reach 8 to the offshore reef, where they may settle on the coral, obviously harming or killing this critical resource. It is impossible to find, on this record, that the likelihood of this event is such that it represents a probable impact to this resource, but, given the paramount importance of the Florida Reef Tract, the requirement of monitoring was not only a prudent, but necessary, provision as part of the reasonable assurance to be provided by Palm Beach concerning the water resources of the district. CRP Criteria Palm Beach has failed to provide adequate engineering data concerning shoreline stability and performance, post- construction, and the potential impacts of the project upon the beach-dune system of Reach 8. Palm Beach has failed to provide sufficient mitigation to assure the performance of the Permit with respect to the covering of hardbottom. Palm Beach has failed to provide reasonable assurance that the direct and indirect coverage of hardbottom will be limited to 6.9 acres, so it has failed to provide adequate mitigation. Palm Beach has failed to provide any mitigation whatsoever for the expected deaths of five juvenile green turtles from the loss of 6.9 acres of hardbottom and additional juvenile sea turtles from the loss of additional hardbottom. Palm Beach has failed to provide any mitigation for the turbidity that would result from the project and deprive a wide range of species from the use of these beach and nearshore habitats, other than the mitigated hardbottom, for a period of about one year. Palm Beach has failed to justify the scope of this project, given the large overfill factor that results from the relatively large discrepancy between the mean grain size of the sand source and the existing beach. Palm Beach has failed to establish that Reach 8 is eroding, especially the majority of it that is not designated CEB. Palm Beach has failed to justify the use of a limited resource--offshore sand--to restore considerable lengths of nonCEB, especially where they may be other, dissipative beaches that are CEBs and that feature mean grain sizes closer to the mean grain size of BA V and VI, so that the ratio of upland protection and environmental impact would be improved compared to the poor ratio offered by the present project. Palm Beach has failed to show that the proposed project would produce a net positive benefit to the coastal system. To the contrary, the project would produce a net negative impact to the coastal system, again due to the use of excessive fines in the fill. The impacts from turbidity are unmitigated; the impacts from hardbottom coverage are only partly mitigated. Palm Beach has failed to undertake a monitoring program to assure that the project does not have an adverse impact on the Florida Reef Tract. Palm Beach has failed to protect all of the environmental functions of Florida's beaches by proposing to fill Reach 8 with fill whose mean grain size is little more than half the mean grain size of the existing beach and will not maintain the general character and functionality of the beach, dune, and coastal system of Reach 8. ERP Criteria Palm Beach has failed to provide reasonable assurance that the project protects the water resources of the district from harm. Palm Beach has failed to provide reasonable assurance that the project is not contrary to the public interest. If, as DEP Director of Division of Water Resource Management Janet Llewellyn testified, the legislative declaration of public interest as to the relatively short North and South Segments is a consideration, but not determinative, in applying the public interest test, Palm Beach's showing in this regard would still be insufficient. Palm Beach failed to show that the project would satisfy any one of the public-interest criteria except the criterion concerning archaeological and historical resources; even for the criterion of temporary versus permanent, the recurring nature of beach nourishments, on a cycle of probably two or three years, lends to the project a certain permanency. The project would affect the property of others in essentially closing the Lake Worth Municipal Beach and Lake Worth Pier for about one year. The project would interfere with public safety by elevating the turbidity of the local waters, so as to raise the risk of shark attacks and collisions between swimmers and partly concealed hardbottom. The project will adversely affect the conservation of fish and wildlife, including endangered species, and their habitats. The project will likely result in the death of five juvenile green turtles plus an unknown number of additional juvenile green turtles based on the destruction of hardbottom in addition to 6.9 (or 7) acres. For about one year, the project will remove a wide swathes of habitats favored by species, many of whom are juvenile and many of whom display marked levels of habitat fidelity, and will remove from this area the species that use these habitats. For about one year, the beach and nearshore waters in the vicinity of Reach 8 will be largely devoid of marine life, and the beach will be unsuitable for sea turtle nesting. The project will remove longer-term (and permanently, if routine nourishments followed the restoration) 6.9 acres of mitigated hardbottom and an unknown additional area of unmitigated hardbottom. The project will cause harmful erosion of the filled beach. The project will adversely affect the fishing, recreational values, and marine productivity of the waters adjacent to Reach 8 for about one year. The project is of a temporary nature, although Palm Beach intends to renourish the beach, as needed, so the temporary impacts would recur, unless Palm Beach found a more suitable source of fill. Dr. Dean predicts a six-year life expectancy for the project, but the renourishments would be needed at more frequent intervals if Palm Beach continued to use excessive fines in the fill. The project will not affect historical or archaeological resources. The current condition and relative value of the functions performed by the hardbottom and beach are high at present. From an environmental perspective, the beach is not as impaired as Palm Beach claims. In due time, from the perspective of, say, sea turtles and their nesting needs, the beach is recovering from sand losses from unusual storm years. It is less clear whether, in due time, from the perspective of upland landowners, the beach is recovering from sand losses from these unusual storm years, although one witness called by Surfrider was an oceanfront owner who opposed the project, except possibly for dunes-only nourishment. The mitigation offered by Palm Beach is inadequate. It fails to mitigate for the impacts, for about one year, to the beach and nearshore, including hardbottom, except for 6.9 acres of hardbottom. It fails to mitigate for the loss of five endangered green turtles plus an additional number of green turtles based on impacted hardbottom in addition to 6.9 (or 7) acres. The project would also cause cumulative impacts. Palm Beach offers mitigation in the same drainage basin, which DEP reasonably construes to be the area between the two inlets. But the mitigation does not offset all of the adverse impacts, so cumulative impacts must be considered. The cumulative impacts of poor beach management practices in the past include failing to maintain the sand transfer plant at the Lake Worth Inlet, managing Palm Beach Island by segments instead of as a single resource, allowing the installation of extensive armoring along Reach 8 (in one case at the south end of Reach 8, well seaward of what the coastal system can tolerate) and extensive groins north of Reach 8, and placing excessive fines on the beaches in the form of dredge spoil and unsuitable borrow area fill without monitoring project-related turbidity and its impacts on the water resources of the district. In terms of the project as the construction of a surface water management system, it would not cause adverse water quantity impacts, adverse flooding, adverse impacts to existing surface water storage and conveyance capabilities or adversely affect the quality of receiving waters such that it would cause a violation of any water quality standards (including turbidity). The project generally meets the other requirements, except that the project would adversely impact the value of functions provided to fish and wildlife by surface waters. Most of the BOR provisions are addressed above. In terms of project design alterations to eliminate and reduce impacts, Palm Beach has reduced (and enlarged) the project, as described above. Some of the alterations reflect the ability to pick up dropped segments in later projects for adjacent reaches. However, the broad exception for public safety enables Palm Beach to show compliance with this requirement. Public safety would be enhanced, however marginally, by placing, on the beach and dunes of Reach 8, as much excessive fines as they could hold; the public safety exception to the requirement to eliminate and reduce impacts does not require consideration of the impact on the water resources of the district. The project obviously involves significant secondary impacts on surface water functions as the fill erodes into the nearshore and generates turbidity in the water column and burial of resources on the submerged bottom. Proprietary Authorization Criteria As detailed above, Palm Beach has failed to show that the project is not contrary to the public interest. Given the projected performance of the project in terms of damaging turbidity for one year, the relatively quick loss of the excessive fines from where they would be placed on the beach, the impact on the Lake Worth Municipal Beach and Lake Worth Pier, and the need for nourishment programs in quick succession to replace the lost sediments, the social, economic, and environmental costs in this case outweigh the social, economic, and environmental benefits. There are reasonable alternatives, even to allowing the natural coastal system to continue to build beach along most of Reach 8, such as maintaining the sand transfer plant with greater vigilance and possibly installing groins to capture sand of more appropriate mean grain size. And, as noted above, Palm Beach has failed to mitigate important impacts to the natural resources. Additionally, Palm Beach has failed to prove that its use of excessive fines in the fill and the consequent turbidity with its impact on the water resources would not unreasonably deprive Lake Worth of its riparian rights, as described below. Variance Criteria If the project were otherwise permittable, it would meet the criteria for a variance. Dune-Only Project Several of the witnesses who otherwise opposed the project testified that they would not oppose a dune-only project. Based on the evidence, especially the vastly lower volumes of fill required, Palm Beach has provided the required assurances so that it would be entitled to a JCP, letter of consent, and variance for such a limited project, even without any mitigation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the request for a JCP, letter of consent, and variance (as it is now moot); provided, however, due to the vastly lower volumes of fill involved, the final order may authorize the nourishment of the Reach 8 dunes, apart from those in the Lake Worth Gap (unless Lake Worth joins in the request), in accordance with the dune template approved in the Permit, without any mitigation. DONE AND ENTERED this 2nd day of March, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2009.
The Issue The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action. The Nature of the Dispute On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis. The Plan Amendment Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately 5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle." Is the Plan Amendment in Compliance? The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to: (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows: 2-1: Locate major commercial and industrial land uses along primary arterials. 2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development. 2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years. 7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S. 1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the City's policy of discouraging "typical strip development" is an important ingredient in its overall plan. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance. DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM Petitioner: Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law. 7. Partially accepted in finding of fact 9. 8. Partially accepted in finding of fact 8. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 16. 11-12. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially accepted in finding of fact 14. Partially accepted in finding of fact Rejected as being irrelevant since not Rejected as being a conclusion of law. Partially accepted in finding of fact 16. raised as an 13. issue. 19. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Rejected as being irrelevant. Partially accepted in finding of fact 17. Rejected as being irrelevant. Respondent (DCA): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in findings of fact 4, 6 and 7. 5-6. Partially accepted in finding of fact 10. 7-10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. 12-13. Partially accepted in finding of fact 13. 14. Partially accepted in finding of fact 14. 15. Partially accepted in finding of fact 15. 16. Partially accepted in finding of fact 17. Respondent (City): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8. Covered in preliminary statement. 9. Partially accepted in finding of fact 12. 10-11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 15. 13-14. Rejected as being irrelevant. 15. Partially accepted in finding of fact 16. 16. Covered in preliminary statement. 17-18. Partially accepted in finding of fact 17. 19. Covered in preliminary statement. 20. Partially accepted in finding of fact 16. 21. Partially accepted in finding of fact 12. 22. Partially accepted in finding of fact 14. 23. Partially accepted in finding of fact 15. 24-26. Partially accepted in finding of fact 16. 27-28. Partially accepted in finding of fact 9. 29. Partially accepted in finding of fact 17. 30. Covered in preliminary statement. 31. Partially accepted in finding of fact 19. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 19. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Maureen A. Arago, Esquire 1411 Edgewater Drive Suite 203 Orlando, FL 32804 Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Scott E. Simpson, Esquire 595 West Granada Boulevard Suite A Ormond Beach, FL 32174
Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings the 20th day of June, 1986.
The Issue Whether Permit Number 9330008850 (a building permit for the construction of a single-family residence and swimming pool) issued by Monroe County, Florida, to Fred Snowman is inconsistent with Monroe County's setback requirement pertaining to beach berms that are known turtle nesting areas.
Findings Of Fact 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. Sections 380.031(18), 380.032, and 380.07, Florida Statutes. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County, Florida. Monroe County issued the development order that is the subject of this appeal. Respondent Fred Snowman is a general contractor and is the owner of real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida. The subject property is a residential lot that measures 100 feet by approximately 225 feet and was acquired by Mr. Snowman in September 1992. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean. Respondent's lot is within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued building permit, Permit Number 9330008850, to Fred Snowman as Owner and General Contractor. This building permit is a development order in an area of critical state concern and is the subject of this proceeding. As reflected by the approved site plans, the permit authorizes the construction of a 2,472 square foot single-family residence with 1,568 square feet of porches, a 1,435 square foot storage enclosure below base flood elevation, and a swimming pool on the property. As permitted, all construction will be setback at least 75 feet from the mean high water line. There is no dispute between the parties as to where the mean high water line is located. Sections 9.5-335 through 9.5-345, Monroe County Code, are land development regulations that contain certain environmental performance standards relating to development. The purpose of these standards is "to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed." See, Section 9.5-335, Monroe County Code. Included in the environmental standards of the land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * 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; There is little dispute that Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach that fronts Mr. Snowman's property on Lower Matecumbe Key is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. At the time Mr. Snowman obtained approval of his permit application from Monroe County, the County's endangered species maps omitted an approximately 1.5 mile stretch of Lower Matecumbe Beach, including Mr. Snowman's property, from its map designation of a known nesting habitat. However, since that approval, the map, which is subject to periodic updates, has been updated by the County to reflect that all of Lower Matecumbe Key, including Mr. Snowman's property, is considered by the County to be known turtle nesting habitat. Mr. Snowman did not rely on the designation on the endangered species map in making his decision to purchase the subject property or in designing the improvements he seeks to construct on the property. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, is it generally not possible to determine whether turtles have nested on a particular lot. There was no evidence that turtles actually nest on Mr. Snowman's property. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Snowman's property is properly designated as "Disturbed Lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5- 345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no construction of any structure may be located within fifty (50) feet of any portion the beach- berm complex which is known to serve as an active nesting area of marine turtles. There was a conflict in the evidence as to how much of Mr. Snowman's property should be considered to be a beach-berm habitat. The County has identified the landward extent of the beach-berm to be twenty-five feet from the mean high water line, so that the setback would be to a point at least 75 feet from the mean high water line. The Department has identified the landward extent of the beach berm to be 80 feet from the mean high water line so that the setback would be to a point at least 130 feet from the mean high water line. Section 9.5-4(B-3) contains the following definition that is pertinent to this proceeding: (B-3) "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. There are two distinct ridges located on the Snowman property. Beginning at the mean high water line, there is an area of sandy beach followed by a ridge (the first ridge) that levels off approximately 25 feet from the mean high water line. Behind this first ridge is another ridge that levels off approximately 80 feet landward of the mean high water line. This second ridge contains the highest elevation point on Mr. Snowman's property, with the crest of the second ridge corresponding with the 5.9 foot elevation reflected on Respondent's site plan. There is no vegetation on the beach, which is an area of sandy substrate, until the landward downslope of the first ridge, where vegetation in the form of grasses and sea oats appear. Grasses and sea oats extend approximately 30-40 feet landward into the beginning of the second ridge. Behind the grasses and sea oats is woody vegetation, Bay Cedar, and shrubbery typical of beach front property. Also found on the property and landward of the first ridge are sea grape, wild sage, gray nicker pod, and prickly pear cactus. Monroe County considers this first ridge to be the extent of the beach berm complex on the Snowman property. The County identifies the back of the berm on the subject property as measuring 25 feet landward of mean high water and applied the 50 foot setback requirement from that point. The determination of the extent of the beach berm by the County is consistent with the definition of the term "beach berm" contained in Section 9.5-345(3)f, Monroe County Code, and is supported by the greater weight of the evidence presented at the formal hearing. Consequently, it is found that the beach berm complex on the Snowman property extends 25 feet landward of the mean high water mark so that the setback requirement was properly applied when the development order was issued. The Department asserts that the second ridge should be considered to be part of the beach berm. The Department's determination of the extent of the beach berm is bottomed on a more expansive definition of the term "beach berm" derived from its interpretation of various portions of the Monroe County Comprehensive Code. Inexplicably, the Department's interpretation of what should be considered to be included as part of the "beach berm" ignores the definition contained in Section 9.5-345(3)f, Monroe County Code. The Department interprets the term "beach berm" to include not only the initial increase and decrease in elevation near the shoreline, but also those areas of calcareous substrate that form the second ridge and include the highest elevation on the subject property. The Department considers the beach berm to terminate 80 feet from the mean high water line where the elevation of the second ridge decreases and levels off to a more consistent grade. The Department characterizes the first ridge as a primary dune the second ridge as a secondary dune. In support of its position, the Department cites the discussion of beach berms in the Florida Keys contained in Volume I of the Monroe County Comprehensive Plan. That discussion describes a berm in the Keys as the "higher, mostly vegetated dense-like sand ridges." According to the Comprehensive Plan, the biota characteristics of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane, . . . Beach Grass, . . . Sea Oats, . . . [and] Bay Cedar. On most Keys beaches this association occurs only atthe base of the berm since the beach zone is very narrow. These plants also occupy themost seaward portion of the berm and continuesome distance landward. * * * The next zone, "strand-dune" association,begins with a steep and distinct increase inslope upward from the beach. . . . The bermmay be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of the beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generallyconsidered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. * * * The height and width of berms in the Keys is highly variable. They may range in height from slightly above mean high water to more than seven (7) feet above mean sea level. The width of berms in the Keys varies from tens of feet to more than 200 feet. Despite the support the Department found in the Comprehensive Plan for a more stringent setback requirement, the Department is not at liberty to ignore the definition of the term beach berm contained in the land development regulations. While both ridges that exist on the Snowman property may be considered berms or dunes, only the first should be considered a beach berm. The first ridge is ". . . a bare, sandy shoreline with a mound or ridge of unconsolidated sand" within the meaning of Section 9.5-4(B-3), Monroe County Code. The second ridge is above the vegetation line and is not ". . . a bare, sandy shoreline" within the meaning of the definition of beach berm contained in the Monroe County land development regulations.
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 the conclusions of law contained herein and denies the appeal filed by the Department of Community Affairs as to building permit number 9330008850 issued by Monroe County, Florida. DONE AND ENTERED this 25th day of October, 1994, 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 25th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7165DRI The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 21, 25, 26, 27, 29, 32, and 33 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9 and 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10, 11, 12, 24, 28, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 19 are rejected as being unsubstantiated by the evidence and as a misconstruction of the cited testimony. The proposed findings of fact in paragraphs 20, 22, and 34 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since the setback is from any portion of the "beach berm complex" and not from any area that may be considered to be turtle nesting habitat. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are summaries of testimony that are subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence and contrary to the findings made. The proposed findings of fact in paragraph 7 and 8 are adopted in material part by the Recommended Order. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nicholas W. Mulick, Esquire 88539 Overseas Highway Tavernier, Florida 33070 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Mr. Fred Snowman Post Office Box 771 Islamorada, Florida 33035 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 27th day of February, 2015.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
