The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue Whether Petitioners are "affected persons" entitled to pursue the instant challenge to the City of Miami Beach's Year 2000 Comprehensive Plan pursuant to Section 163.31B4(9), Florida Statutes? If so, whether the City of Miami Beach's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach: An Overview The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands that lie to the east of the Dade County mainland. They are separated from the mainland by Biscayne Bay. To their east is the Atlantic Ocean. The City is now, and has been for some time, virtually fully developed. Less than 2% of the land in the City is vacant. Those parcels that are vacant are generally small in size and they are scattered throughout the City. The City is situated in the most intensely developed area in Dade County. Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population Tourism is the backbone of the City's economy. Golf is among the activities visitors to the City are able to enjoy. There are two public 18-hole golf courses and one private 18-hole golf course in the City. The City also has a public 9-hole golf course, hereinafter referred to as the Par 3 Golf Course. Par 3 Golf Course and Surrounding Area The Par 3 Golf Course is owned by the City and leased to the American Golf Corporation, which operates the course. The course consists of nine relatively short holes. The longest of these holes is 180 yards. The shortest is 100 yards. The remaining holes average 150 yards in The course has been completely renovated and is currently in excellent condition. Since the renovation work, the number of players has increased significantly. Nonetheless, the course is still under-utilized. The land upon which the golf course is built is not environmentally sensitive. There are, however, a number of large, mature trees on the property. The Par 3 Golf Course is located on a 25 acre tract of land in the south central part of the City. It is bounded by 28th Street on the north, Dade Boulevard and Collins Canal on the south, Pine Tree Drive on the east, and Prairie Avenue on the west. All of these roadways are classified as "urban" by the Florida Department of Transportation Pine Tree Drive is one of the major north-south thoroughfares in the City. It is part of the Dade County Road System and has been assigned a Level of Service of "D" by the County. That portion of the roadway which borders the golf course has four lanes of through traffic, plus two parking lanes, and is divided by a median strip. The area surrounding the golf course is entirely developed. The development is primarily, but not exclusively, residential in nature. Residential structures are particularly predominant to the north and to the west of the golf course. Among the nonresidential structures found in the immediate vicinity of the golf course are: the Youth Center to the north; the Hebrew Academy's elementary school building, Miami Beach High School, and a City fire station, maintenance yard and fuel facility to the south; and the Fana Holtz Building, a five story building, with a basement parking garage, which currently houses the Hebrew Academy's junior and senior high school program, to the east on the other side of Pine Tree Drive. Parking is inadequate in the area of the golf course. The City is currently investigating ways to alleviate the parking problems in the area. Option to Exchange Property On June 7, 1989, at a regularly scheduled meeting, 1/ the City Commission voted to give the Hebrew Academy, a private educational institution, an option to purchase from the City a 3.87 acre portion of the Par 3 Golf Course located immediately adjacent to and north of the Hebrew Academy's elementary school building, in exchange for the Fana Holtz Building and the land on which it is situated. The Hebrew Academy has plans to construct a new junior and senior high school building, which will be able accommodate more students than the existing facility, on the land it will acquire if it exercises its option. The Hebrew Academy's acquisition of the land and its construction of a building on the site will disrupt the operations of the golf course. In addition, at least some of the large, mature trees that presently stand on the site will have to be removed. The course's third and fourth holes now occupy the land that the Hebrew Academy has been given the option to purchase. The course therefore will have to be redesigned to eliminate or relocate these holes if the Hebrew Academy purchases the land and constructs a building on it. Golfers playing the Par 3 Golf Course generally have the benefit of cool breezes that blow from the southeast. A multistory building situated on the land now occupied by the third and fourth holes will block some of these breezes that golfers playing other holes now enjoy. If the City acquires the Fana Holtz Building, it may move the offices of several City departments into the building. Such a move, coupled with an increase in the size of the Hebrew Academy's enrollment, would create a need for additional parking spaces in an area where parking is already a problem. Petitioners Falk and Miami Beach Homeowners Association Mildred Falk is now, and has been for the past 53 years, a resident of the City of Miami Beach. The Miami Beach Homeowners Association (Association) is a nonprofit organization of Miami Beach homeowners. Its primary purpose is to educate the public concerning matters of local interest in the City. For the past 15 years, Falk has been the President of the Association. Falk does not require formal permission from the Association's Board of Directors to address the City Commission on behalf of the Association. Falk has an understanding with the members of the Board that, if they take a position on an issue that will come before the City Commission, she will represent their collective views at the City Commission meeting in question without being formally requested to do so. Falk regularly appears before the City Commission in her capacity as a representative of the Association. As a general rule, though, she does not expressly state during her presentations that she is representing the Association. She considers it unnecessary to provide such an advisement because the persons she is addressing already know of her role as a spokesperson for the Association. On April 5, 1989, Falk Submitted a completed Lobbyist Registration Form to the City Clerk. On the completed form, Falk indicated that she had been employed by the Association to engage in lobbying activities with respect to a particular item, unrelated to the instant controversy, that was then before the City Commission. On February 5, 1990, Falk submitted another completed Lobbyist Registration Form to the City Clerk. On this completed form, she indicated that she had been employed to lobby with respect to "[a]ll issues that affect Miami Beach before the City Commission, Authorities or Boards." There was no indication on the form, however, as to what person or entity had employed her to engage in such lobbying activity. These are the only completed Lobbyist Registration Forms that Falk has filed with the City Clerk. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. Notice of these adoption proceedings was published in the "Neighbors" section of the Miami Herald. 2/ The Miami Herald is a newspaper of general paid circulation in Dade County. The "Neighbors" section of the Miami Herald is circulated twice weekly along with other portions of the Herald in the following towns and municipalities: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Plan. On the future land use map (FLUM), adopted by the City Commission as part of the plan, that portion of the Par 3 Golf Course which the Hebrew Academy has the option to purchase is designated PFE (Public Facility- Educational). The property that the City will receive if the Hebrew Academy exercises its option has a land use designation of PF (Public Facility- Fire, Police, Other) on the FLUM. Policy l.2q. of the plan's future land use element contains the following discussion concerning the land use designation of these parcels of property: On June 7, 1989, the City Commission approved an option with the Hebrew Academy to exchanged [sic] private land for a portion of the Par 3 Golf Course. At the exercise of the option, the affected portion of the Par 3 Golf Course shall automatically be designated as Public Facilities [sic]- Educational. The property that the City will obtain will be designated as Public Facility- Other. 3/ During the public hearings that culminated in the City Commission's adoption of the City's Year 2000 Comprehensive Plan, Falk made oral presentations to the City Commission. She criticized the decision that had been made to allow the Hebrew Academy to purchase, at its option, the "affected portion of the Par 3 Golf Course" referenced in Policy 1.2q. of the plan's future land use element. It was her contention that, in accordance with a restrictive covenant entered into between the City, the Alton Beach Realty Company and the Miami Beach Improvement Company on June 17, 1930, the City was prohibited from allowing any portion of the land on which the golf course was built "to be used for any purpose whatsoever, other than for a golf course and/or golf links." At no time during her remarks did she contend that the plan ultimately adopted by the City Commission was contrary to any requirements dealing with the subject of urban sprawl. Nor did she argue that the notice of the adoption hearings that the City had provided was in any way deficient or inadequate. Falk did not identify herself at the adoption hearings as a representative of the Association. 4/ Nonetheless, in presenting her remarks to the City Commission, she was expressing not only her own views, but those of the Association as well. Prior to these hearings, she had informally polled the members of the Association's Board of Directors and they had each indicated to her that they opposed the "land swap" between the City and the Hebrew Academy. While they did not formally request that she appear before the City Commission to voice their concerns, it is not their standard practice to issue such requests. Neither Falk nor the Association submitted any written comments concerning the City's Year 2000 Comprehensive Plan during the City's review and adoption proceedings Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" a- "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leap frog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. * * * Low-density, Single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas should be protected from urban development. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it is necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities per square mile: Density Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the techniques recommended in the memorandum to curb "urban sprawl" is "[p]romoting urban infill development and redevelopment." The construction of a multistory building on the Par 3 Golf Course and the conversion of the Fana Holtz Building to government use would not constitute any of the three types of development that the Department has indicated in its memorandum are characteristic of "urban sprawl." Rather, these activities would be in the nature of "infill development and redevelopment" inasmuch as they would occur, not in a "rural area" or on the "urban fringe," as those terms are used in the memorandum, 5/ but rather in the heart of an area of the "highest urban density."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1990. STUART M. LERNER 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 13 day of August, 1990.
The Issue Whether the Sherry Petitioners have standing to initiate the proceeding in Case No. 10-0515? Whether the Oceania Petitioners have standing to initiate the proceeding in Case No. 10-0516? Whether the MACLA Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP, the Variance and the SSL Authorization?
Findings Of Fact Setting and Preliminary Identification of the Parties These consolidated cases are set in Okaloosa County. They concern the Consolidated NOI issued by the Department to the County that indicate the Department's intent to issue state authorizations to allow the restoration of a stretch of beach known as the Western Destin Beach Restoration Project (the "Western Destin Project" or the "Project"). In addition to the Western Destin Project, there are other beach restoration efforts (the "Other Beach Restorations") which concern the Gulf of Mexico coastal system along the shores of the Florida Panhandle and about which the parties presented evidence in this proceeding. The applicants for the authorizations in the Other Beach Restorations efforts are either Okaloosa County or Walton County, the coastal county immediately to the County's east, and concern Okaloosa and Walton County property or are on federal property used by Eglin Air Force Base (the "Eglin Projects" or "A-3" or "A-13"). The Eglin Projects have been completed. The source of the sand use in the Eglin Projects is a borrow area designated by the County and its agent, Taylor Engineering, as "OK-A" ("OK-A" or the "OK-A Borrow Area"). The County intends that the OK-A Borrow Area be the source of sand for the Western Destin Project. West of East Pass, a passage of water which connects Choctawhatchee Bay and the Gulf of Mexico, the OK-A Borrow Area is between 4,000 and 5,000 feet off the shores of Okaloosa Island. Okaloosa Island is not an island. It is an area of the incorporated municipality of Fort Walton Beach that sits on a coastal barrier island, Santa Rosa Island. Except for the part of the final hearing conducted in Tallahassee, the final hearing in this case took place in Okaloosa Island. As Mr. Clark put it (when he testified in that part of the hearing not in Tallahassee), "I am in Okaloosa Island. [At the same time], I am on Santa Rosa Island." Tr. 521 (emphasis added). Petitioners in Case No. 10-0515, David and Rebecca Sherry and John Donovan (the "Sherry Petitioners") live along a stretch of beach that is in Okaloosa Island. They do not live along the stretch of beach that is within the area subject to the Western Destin Project. The Sherry Petitioners' stretch of beach is the subject of another beach restoration effort by the County (the "Okaloosa Island Beach Restoration Project"). The Okaloosa Island Beach Restoration Project, in turn, is the subject of another case at DOAH, Case No. 10-2468. The OK-A Borrow Area is much closer to the Sherry Petitioners' property than to the beach to be restored by the Western Destin Project. The Sherry Petitioners recognize the need for the restoration of at least some of the beaches in the Western Destin Project. The Sherry Petitioners initiated Case No. 10-0515, not to prevent the Western Destin Project from restoring those beaches, but because they are concerned that the beaches subject to the Okaloosa Island Project (including "their" beach) will suffer impacts from the dredging of the OK-A Borrow Area whether the dredging is done to serve the Western Destin Project or the other Projects the OK-A Borrow Area has served or is intended to serve. In contrast to the Sherry Petitioners, the Petitioners in Case No. 10-0516 (the "Oceania Petitioners") do, in fact, live on beaches in a section of the Western Destin Project that was slated for restoration when the Consolidated NOI was issued. The Oceania Petitioners are opposed to the restoration of the beaches subject to the Western Destin Project. They initiated Case No. 10-0516, therefore, because of that opposition. Walton County applied authorizations from the state for the Walton County/East Destin Project (referred-to elsewhere in this order as the "Walton Project"). The Walton Project, like the Eglin Projects, is completed. Unlike the Eglin Projects, and the intent with regard to the Western Destin Project and the Okaloosa Island Project, the Walton Project did not use the OK-A Borrow Area as its source of sand. The Walton Project used a Borrow Area to the east of OK-A (the "Walton Borrow Area"). The Walton Borrow Area is in an area influenced by the ebb tidal shoal formed by the interaction between East Pass and the Gulf of Mexico. The MACLA Intervenors (all of whom own property deeded to the MHWL of the Gulf in the stretch of beach subject to the Western Destin Project) together with the Sherry Petitioners and the Oceania Petitioners, seek findings in this proceeding concerning the impacts of the Walton Borrow Area to the beaches of Okaloosa County. They hope that findings with regard to Walton Borrow Area beach impacts will undermine the assurances the County and the Department offer for a finding that the Western Destin Project will not cause significant adverse impacts to the beaches of Okaloosa County. The Holiday Isle Intervenors support the Project. They are condominium associations or businesses whose properties are within the Project. Like the Eglin Projects, the Walton Project is complete. The Walton Project was the subject of a challenge at DOAH in Case Nos. 04-2960 and 04-3261. The challenge culminated at the administrative level in a Final Order issued by the Department that issued the state authorizations necessary to restore the Walton Project beaches. The Walton Project Final Order was appealed to the First District Court of Appeal where it was reversed. But it was reinstated in a decision by the Florida Supreme Court. The Florida Supreme Court decision was upheld when the United States Supreme Court issued a unanimous 9-0 decision less than two months before the commencement of the final hearing in these consolidates cases: Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl Prot., 130 S. Ct. 2592 (2010). The Court held in Stop the Beach Renourishment that the Walton County Project was not a regulatory taking of property that demanded compensation to affected property owners under the Fifth Amendment to the United States Constitution. Stop the Beach Renourishment was argued before the United States Supreme Court in December of 2009, shortly before filing of the petitions that initiated these consolidated cases. The final hearing in these cases was not set initially until July 2010 in the hope that the Stop the Beach Renourishment case would be decided, a hope that was realized. In the meantime, another event threatened to affect these consolidated cases: the Deepwater Horizon Oil Spill (the "Oil Spill") in the Gulf of Mexico. The spill began with the explosion of the Deepwater Horizon oil platform in April of 2010 and continued until August of 2010 when the Oil Spill was stopped while these cases were in the midst of final hearing. The Joint Coastal Permit issued by the Department was revised to address impacts of the Oil Spill. No impacts, however, were proven in this proceeding by any of the parties. The Parties The Sherry Petitioners and Their Property David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [ a condominium unit] of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . . . of Okaloosa County, Florida."2/ Their address is 554 Coral Court, #511, Fort Walton Beach, FL 32548. The Sherrys entered the lease for their condominium unit in May of 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," tr. 840, the unit became their permanent residence. They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified: Tr. 841. This particular area we chose because of the beach quality. Quite frankly, . . . I was surprised when I first saw the place . . . the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen. Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the sugar white sand." Tr. 936 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry's routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island. Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed, I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.] Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it: I . . . swim. I surf on the skim board, float out in the water . . . I help Dave fish, we crab, . . . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen. * * * I've always run barefoot. That's the reason [we chose the beach next to the Surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . . [cross the beach] barefoot. Tr. 939. I actually think the project will impact me, at least, as much as my husband, David . . . my husband is . . . involved with . . . being board president of the Surf Dweller[.] I spend at least as much time as he does on the beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm . . . extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in . . . I don't miss my morning walk. Tr. 950. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island,3/ Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium,4/ is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority and recorded in the Official Records of the County at Book 121, Pages 233-250. See County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4.5/ Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas."6/ Part F of the Protective Covenants and Restrictions, provides, in part, Beach Protection * * * The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority . . . One hundred fifty feet inland from the mean water line, in front of all B1 and B2 Areas, will be public beaches. The next 150 ft. inland will be private beaches as set out on subdivision plats . . . County Ex. 13, at page marked "BOOK 121 PAGE 242." The Surf Dweller Condominium property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller condominium property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions. John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN . . . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA."7/ The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, FL 32548. Petitioner Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island: I've . . . got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf. * * * I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks. Tr. 973-4. In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as: A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF SANTA ROSA ISLAND A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is located) is also in Zone B-2 set up by the Protective Covenants and Restrictions. Block 8, just as Block 5, is governed by Part F, Beach Protection, of the Protective Covenants and Restrictions that places the beaches, for at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County Ex. 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium lies between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat that is the last page of County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," Exhibit P-7, last page (un-numbered), landward of the Gulf of Mexico, that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions, landward of the public beach designated by the same provision. Neither the Surf Dweller Condominium Property in which the Sherrys reside, nor the El Matador Condominium Property inhabited by Mr. Donovan abuts or is a part of the area subject to the Western Destin Beach Restoration Project. The two properties in Okaloosa Island are to the west of the Project. The Sherrys and Mr. Donovan did not initiate Case No. 10-0515 because they oppose the restoration of the beach subject to the Project. They initiated the proceeding because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island and situated in such a way that once dredged it will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches. The Beach, Post-Hurricane Opal and Other Tropical Storms Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. See his testimony quoted, below. The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its ever-changing nature might have on the width of the beaches declared public and private8/ between the MHWL and the Surf Dweller and El Matador condominium properties, however, there can be no doubt on the state of the record in this proceeding that at the time of hearing there existed a 150 foot-wide stretch of beach water-ward of the two condominiums that the public has the legal right to occupy and use. Indeed, Petitioner David Sherry, when asked about the private beach and public beach governed by the Part F of the Protective Covenants and Restrictions in cross-examination conducted by Mr. Hall on behalf of the County, confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife: Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium? A . . . [N]o, they wouldn't have the right to do that. Q . . . [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium? A In that area, no. In the area south of that [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don't have any problem with that. We let people do it -- Q On [the] public beach[.] A On the public beach they're perfectly free to do that. * * * Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct? A Essentially, from the building to the Gulf of Mexico. * * * Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline? A Correct. Q So, there would be enough room today, based on the language of the restrictive covenants to have . . . 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13] now? A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded], yes. Tr. 891-3, (emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach and its width is at least 150 feet.9/ From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See Tr. 986-87. Mr. Donovan is concerned about the erosion and turbidity impacts the borrow site could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. Turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, a change in the beach and shoreline along the El Matador Condominium property as drastic, in Mr. Donovan's view, as that contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium. The Guidry Petitioners and Their Property Roland Guidry, a retired Colonel in the United States Air Force, is co-trustee of the Guidry Living Trust and the President of the Oceania Owners' Association, a condominium association governed by chapter 718, Florida Statutes. The Guidry Living Trust is the owner of Condominium Unit 605 in the Oceania Condominium, a condominium established under chapter 718, Florida Statutes. The address of the unit is 720 Gulf Shore Drive, Unit 605, Destin, Florida, 32541. In his capacity as co-trustee, Mr. Guidry has the independent power to protect, conserve, sell, lease or encumber, or otherwise to manage and dispose of trust assets, which include Unit 605 in the Oceania Condominium. The Oceania Owners' Association is mandated by the Oceania Declaration of Condominium to "maintain, manage and operate the condominium property." Ex. P-6 at 4. The declaration also declares, "[a]ll unit owners shall automatically become members of the association after completion of closing of the purchase of a unit in Oceania, A Condominium." Id. The Guidry Living Trust, therefore, is a member of Oceania Condominium Association. The powers of the officers and directors of the Oceania Owners' Association are set forth in the Declaration of Condominium that governs Oceania: The officers and directors of the association shall have the powers set forth in this declaration and the association bylaws, and shall, at all times, have a fiduciary relationship to the members of the association and shall operate and manage the association in the best interest of its members. Id. Oceania's Declaration of Condominium, furthermore, prescribes that "[t]he association shall have all powers granted by Chapter[s] 718 and 617, Florida Statutes." Id. at 5. Every member of the Oceania Owners' Association Board of Directors approved the initiation of Case No. 10-0516, according to the testimony of Colonel Guidry, but there was no documentary evidence offered that a vote had been taken of the Board of Directors at a board meeting on the issue of whether to file the petition that initiated Case No. 10-0516 or the outcome of any such vote. As an owner of a unit in Oceania, The Guidry Living Trust owns an undivided share of the Oceania Condominium's common property10/ which "comprise[s] all the real property improvements and facilities to Oceania, A Condominium, including all parts of the building other than the units . . . and . . . [certain] easements . . . ." P-6 at 1, 2. The Oceania Condominium real estate is deeded to the "APPROXIMATE MEAN HIGH WATER LINE OF THE GULF OF MEXICO". P-6, Exhibit "B." The Surveyor's Certificate on the survey of Oceania, A Condominium, attached to the Oceania Declaration of Condominium is dated January 16, 1996. The date is more than two months after Hurricane Opal made landfall and damaged the Okaloosa County coastline in October of 1995. Standing of the Oceania Petitioners Colonel Guidry did not appear at hearing in a personal capacity. He appeared in his capacities as co-trustee of the Guidry Living Trust and President of the Oceania Owners' Association. In contrast to the Sherry Petitioners, therefore, Colonel Guidry did not allege his personal use and enjoyment of the beach as a basis for standing. As to injury and standing of both the Guidry Living Trust and the Oceania Owners' Association, Colonel Guidry asserted a number of interests that he believed will be substantially affected by the Project. They fall into four categories of concern. The first concern is with regard to the action of the sand along the shoreline of the Oceania property after the two reaches of beach to the east and west will have been restored under the revisions to the Draft JCP. After construction activities, sand along the shoreline will equilibrate, that is, the sand will move or be transported so as to stabilize the shoreline. This stabilization or achievement of shoreline equilibrium will tend to move the shoreline along the Oceania property waterward. Colonel Guidry expressed his concern as follows: [The Oceania property] would be sandwiched . . . between two public beaches . . . mother nature will fill in what I call the Oceania Gap. Right now the only line we have on our beach is our southern property line [the MHWL of the Gulf][11] . . . . That's the only line I know of that's on our beach or will be placed on our beach. But if sand fills in, then that creates a cloud of confusion, if the State lays claim to this sand that accumulates in the Oceania Gap, as a result of the construction on both sides of us. Tr. 764, (emphasis added). The second category of concern relates to the location of the property post-construction between "two public beaches." Such a location, in Colonel Guidry's view, would make individual units at the Oceania Condominium less valuable. The third category is that the public would be more likely to trespass on private Oceania property. The fourth concern of Colonel Guidry is that the Project will have undesirable impacts to Oceania property owners' littoral rights to accretion and to touch the water. The first three concerns all stem from a decision made by the Board of County Commissioners after this proceeding was commenced to remove the Oceania property from the Project. Oceania Removed The beach and shore in the southern part of the Oceania condominium property,12/ (the "Oceania Beach Segment of Shoreline" or the "Oceania Gap") were originally subject to the Consolidated NOI for the Western Destin Beach Restoration Project. But on the eve of the date scheduled for the commencement of the final hearing in these cases, the Board of County Commissioners for Okaloosa County voted to remove the Oceania Beach Segment of Shoreline from the application for the Project. Taylor Engineering (the County's Agent) submitted a request to the Department that reads: On behalf of Okaloosa County, Taylor Engineering submits its request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project . . . The applicant has decided to remove the Oceania Condominium Property from the beach fill placement area. The revised project, as described in the enclosed permit drawings, includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R-22.6) and Reach 2 extends from approximately 200 feet east of R-023 (R- 23.2) to R-25.5. The Oceania Property defines the gap between Reach 1 and Reach 1. Additionally, we request the FDEP modify Specific Condition 1 of the Draft Joint Coastal Permit to reflect the modified project area. More specifically, we request that the Mean High Water Line Survey requirement of Specific Condition 1 exclude the Oceania Condominium property. Notice of Filing Request for Modification and Revised, Draft Joint Coastal Permit, Exhibit A. Revisions to the Original Draft JCP In light of the vote and based on the County's request, DEP filed a Revised Notice of Intent on July 26, 2010, which included revision of the Draft JCP (the "First Revised Draft JCP"). The First Revised Draft JCP eliminated the Oceania Beach Segment of Shoreline from the Project and took other action such as requiring the applicant to check for oil in the OK-A Borrow Area prior to construction by both visual inspection and analysis of sand samples because of the ongoing Deepwater Horizon Oil Spill in the Gulf. The revision also included changes to Specific Condition 5 of the Draft JCP.13/ On August 18, 2010, the Department gave notice of another revision of the JCP (the "Second Revised Draft JCP"). The Second Revised Draft JCP changed Specific Condition 1 of the JCP by eliminating the requirement that the County establish a pre-project MHWL prior to undertaking construction activities and instead requires the County to conduct a survey in order to locate an erosion control line ("ECL"). The revisions to the Draft JCP stirred interest in participating in this proceeding among a group of property owners who do not want the beaches along their properties restored: the MACLA Intervenors. The MACLA Intervenors and Their Properties On September 8, 2010, a petition to intervene (the "MACLA Petition to Intervene") was filed by nine putative intervenors: MACLA LTD II, a Limited Partnership ("MACLA"); H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust ("Hughes Trust"); Kershaw Manufacturing Company, Inc. ("Kershaw"); Kayser Properties LLC ("Kayser"); Destin, LLC ("Destin"); Paul Blake Sherrod, Jr., and Cindy M. Sherrod ("Sherrods"); Blossfolly, LLC ("Blossfolly"); 639 Gulfshore, LLC ("639 Gulfshore"); and Laura Dipuma-Nord ("Nord"), (collectively, the "MACLA Intervenors.") All nine of the MACLA Intervenors own real property in the City of Destin within the Project area that fronts the Gulf of Mexico. All nine properties have the MHWL of the Gulf as their southern boundary. MACLA is a Texas Limited Partnership. Louise Brooker is its president. The address of its property is 620 Gulf Shore Drive. The Hughes Trust owns a one-third interest in real property at the address of 612 Gulf Shore Drive. H. Joseph Hughes is a trustee of the Hughes Trust. Kershaw is an Alabama corporation. The address of its property is 634 Gulf Shore Drive. The address of the Kayser property is 606 Gulf Shore Drive. The address of the Destin property is 624 Gulf Shore Drive. The address of the Sherrods' property is 610 Gulf Shore Drive. The address of the 639 Gulfshore property is 6346 Gulf Shore Drive. The address of the Blossfolly property is 626 Gulf Shore Drive. The address of Ms. Dipuma-Nord is 600 Gulf Shore Drive. The properties owned by the MACLA Intervenors are among 18-single family lots located between a rough mid-point of reference markers R-020 and R-021 and a rough mid-point of reference markers R-022 and R-023. See Ex. P-238. These 18 single-family lots are in the approximate middle of the Project. The Oceania property, eliminated from the Project at the time of the filing of MACLA Petition to Intervene, is just to the east of the 18 single family lots in which the properties of the MACLA Intervernors are located. (Reference marker R-023 is set along the shoreline adjacent to the Oceania property.) The MACLA Intevenors' properties and the Oceania property are within the area from R-020.3 to R-023.3 (the "Middle Segment", see discussion of Critically Eroded Shoreline, below). According to an evaluation conducted by the Department on January 7, 2009, the Middle Segment of the beach is one in which "[u]pland development is not currently threatened." Ex. P-238. Timeliness of the MACLA Petition to Intervene The MACLA Petition to Intervene was filed well after the commencement of the hearing. Under rule 28-106.205, because it was filed later than 20 days before the commencement of the hearing, it could only be accepted upon "good cause shown" or if the time for filing were "otherwise provided by law." The MACLA Petition to Intervene was also filed after the Department had entered an order dismissing petitions for administrative hearings filed by three of the MACLA Intervenors14/ to contest the Second Revised JCP. The order of dismissal with prejudice by the Department dated September 7, 2010, was entered on the following bases: First, the Petitioners had a clear point of entry to challenge the proposed permit after it was publicly noticed on January 9, 2010. The Petitioners failed to timely challenge the proposed permit when given the opportunity to do so. Second, it is well settled that any proposed modifications to a proposed permit made during the course of a de novo proceeding to formulate final agency action do not create a new point of entry. Accordingly, the Petition is dismissed without prejudice to amend. Petition to Intervene, filed September 8, 2010, Ex. A, at 2 of 8. The Department was aware that the Western Destin Project "because of its size, potential effect on the environment, potential effect on the public, controversial nature or location, is likely to have a heightened public concern or is likely to result in a request for administrative proceedings." Consolidated NOI, at 13 of 17. The Department therefore took pains to ensure that parties affected by the Western Destin Project would be provided notice of the Project and have an opportunity to timely assert their rights to challenge the permitting and authorization of the Project. The Consolidated NOI required publication within 30 days in the legal ad section of a newspaper of general circulation in the area a public notice of the Consolidated NOI. It also required proof of publication. The County complied on both counts. A notice was published on January 9, 2010, in the Destin Log, in Okaloosa County. The public notice specifically identified the project location as between reference monuments R-16.6 and R-25.5 in Okaloosa County, which includes the segment of the shoreline adjacent to the MACLA Intervenors Property. The Department also provided a detailed statement of the "Rights of Affected Parties," including their right to petition for an administrative hearing pursuant to sections 120.569 and 120.57 within 14 days of receipt of written notice of the Consolidated NOI. The point of entry into the administrative proceedings to challenge the Consolidated NOI, therefore, in the case of affected parties with notice by virtue of the publication on January 9, 2010, expired on January 23, 2010. The section of the Consolidated NOI that governed the rights of affected parties also warned: Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the permit or even a denial of the application. * * * The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S. Consolidated NOI, at 14 of 17. The MACLA Intervenors read the Destin Log at least on occasion and communicated with counsel for the Oceania Petitioners. Some believed they were represented by counsel for the Oceania Petitioners and had contributed to legal fees incurred by the Oceania Petitioners. Despite the foregoing, the MACLA Petition to Intervene was granted (subject to proof of standing) on the basis that the MACLA Intervenors had shown good cause for the filing after the deadline imposed by rule 28-106.205. At the time a point of entry into administrative proceedings was provided by the combination of the Consolidated NOI in December of 2009 and publication in the Destin Log of the notice on January 9, 2010, the Draft JCP called for the applicant to provide a survey of a Pre-project MHWL rather than the establishment of an ECL. Neither notice of the Second Revised Draft JCP, filed on July 26, 2010, nor the Second Revised Draft JCP, itself provided a point of entry into formal administrative proceedings to parties whose substantial interest were at stake. A new substantial interest, however, had been injected into the proceedings by the Second Revised JCP. The Second Draft JCP requires the establishment of an ECL as a condition of the permit in lieu of provision of a survey of Pre-project MHWL. The MACLA Intervenors promptly sought a point of entry to contest what is plainly a drastic change in circumstances with significant consequences to the boundary of their properties toward the shoreline with the Gulf of Mexico. The effect of this change and the difficulty of keeping up with beach restoration activities in Okaloosa County, particularly for affected persons whose permanent residence is elsewhere, was demonstrated by the testimony of Louise Brooker, who lives in Amarillo, Texas. When asked "[w]hy did you wait until September of this year [2010] to file the intervention?," she testified: [O]ur group thought that we were being represented by the Oceania group . . . when I did find out [the JCP had been issued], it was after the 30-day period . . . I hadn't been reading the Destin Log every day because it's very difficult to do, and then it changed. * * * Then it made a huge difference between using the mean high water line * * * And then the ECL being established, which was the ECL that I do not agree with, then that was being put in the permit. So that changed things a great deal. (emphasis added). Tr. 1526-7. Once their petitions for formal administrative proceedings had been dismissed with prejudice by the Department (or in the case of the MACLA parties whose petitions for an administrative had not been dismissed yet but appeared likely to meet the same fate), the MACLA Intervenors promptly sought relief through filing the MACLA Petition to Intervene. When the petition to intervene of the MACLA Intervernors was opposed by the County and the Department, the placement of the substantial interest at stake in the proceeding of a fixed ECL as the southern boundary of their property by the Second Revised JCP and the quick action of the MACLA Intervenors in contesting in contesting it was viewed as good cause for the filing of their petition later than required by rule. The Other Parties Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP, the Variances and the SSL Authorization. The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations. The Holiday Isle Intervenors are businesses and condominium associations, all of whose members own real property or conduct businesses along the segment of the beach to be restored by the Project. Their properties (unlike the Oceania property and the MACLA Intervenors' properties in the Project "gap" between R-22.6 and R-23.2) are along shoreline that has been designated by the state as critically eroded.15/ Critically Eroded Shoreline Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline": "Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects. Fla. Admin. Code R. 62B-36.002(4), (the "Critically Eroded Shoreline Rule"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. Consideration of the Project on this basis leads to the Project being broken into three segments: a segment from R-17 at the west end of the Project to roughly R-20.3 (the "Western Segment"); a segment roughly between R-20.3 and R-23.2 (the "Middle Segment"); and a segment roughly between R-23.2 and R-25.5 (the "Eastern Segment"). Mr. Clark described the impact of a 25-year storm event on the Western and Eastern Segments: [T]hose two areas, based on the evaluation and the projection of the impact of a 25-year storm event, which is a high frequency storm event, showed that there would be erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. Tr. 499. As for the Middle Segment, "the same evaluation did not show that the 25-year storm event would provide that same level of threat." Id. The Middle Segment, however, for the purposes of continuity of the management and design integrity, was also designated as Critically Eroded Shoreline and the entire stretch of shoreline, including all three segments, Western, Middle, and Eastern, was originally included in the Project.16/ The Project With the elimination of the Oceania Gap, the Project calls for the placement of 831,000 cubic yards or so17/ of beach- quality sand along 1.7 miles (less the 600 feet of the Oceania Gap) of shoreline within the City of Destin between reference monuments R-16.6 and R-22.6 and between R-23.2 and R-25.5. The Project is designed to restore the shoreline to conditions that existed before Hurricane Opal in 1995. The useful life of the Project is estimated to be eight years. The Project will restore beach along 32 separate parcels of property, 31 of which are privately owned. The exception is a small area of publicly owned beach at the extreme west end of the Project. The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that work zone, there is a lot of heavy equipment that moves the sand around . . . looking at the Project . . . [from] an aerial view, roughly half the sand will be placed seaward and half the sand . . . landward of . . . [the] Mean High Water Line." Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a back berm and a wide variable berm. The dune has an elevation of 8.5 feet and a crest width of 30 feet. The berm has an elevation of 5.5 feet. The width of the construction varies but averages about 200 feet. Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. "That near shore bar acts as a wave break . . . and dissipates wave energy during storms. So having a good healthy bar out there can definitely provide storm protection." Tr. 140. "Using "two to 250 feet a day,"18/ as a "good approximation for the progress . . . [in] constructing the"19/ Project, construction on any particular individual property should take between one or two days "depending on how . . . wide the property is and how fast the construction progresses." Tr. 141. A property along a lengthier segment of the beach, like the 600 feet at the seaward boundary of the Oceania Property had it remained a part of the Project, therefore, would take "two to three days." Tr. 142. Storm erosion models on the construction berm showed that the Project will provide protection from a fifty-year storm. Selection of the Sand Source: Borrow Area OK-A The engineers of the Project, ("Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore" site. The far-shore site is eight miles offshore and about a mile east of East Pass and is designated "OK-B." The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, it is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately 0.9 miles wide north to south, it covers approximately 700 acres. At its landward-most side, it will be dredged to 10 feet into the existing bottom. Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone.20/ Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf."21/ Tr. 513. It is referred as the near- shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site." The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts. Sand quality is "the number one criteri[on]." Tr. 143. It involves grain size, soil and shell content, and sand color. Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand. If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8 miles distance from shore that it would not impact the shoreline in any way. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely.22/ A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distance. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B. Taylor Engineering (and ultimately the County) selected OK-A as the sand source. The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October of 2009. The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13.23/ The selection of OK-A was not upset by Taylor Engineering's OK-A Borrow Area Impact Analysis. Borrow Area Impact Analysis An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July of 2008. Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion. Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents. The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" Tr. 149. The basis was the 100-year storm data from Hurricane Opal. The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it: Tr. 150. When you use . . . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . . . the propagation of distance of the waves is relatively short. And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . . in applications like [Okaloosa County's for the Western Destin Project], you ignore the effects of bottom friction. The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." Tr. 152. In the case of OK-A, it is intended to serve the Eglin Air Force Base Project, the Okaloosa Island Project and the Western Destin Project. These projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling. With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible. Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." Tr. 152. ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area. Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the borrow area would be negligible whether in normal or "storm" conditions. The Application Coastal Construction Permits and CCCL Permits The Application was processed as one for a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit. Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits. The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053 of the CCCL Statute provides as follows in subsection (9): "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 161.041 [the Shore Protection Statute] " The Department interprets section 161.053(9) to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP. b. The "Written Authorization" Provision Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute. Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1) and (2). Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4). Section (1) of rule 62B-41.008 provides, in pertinent part, as follows: A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department . . . The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" . . . is hereby incorporated by reference . . . . The application shall contain the following specific information: * * * (c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida. * * * (n) Written authorization for any duly- authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application. (emphasis added). Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B-41.008(1)(f), (h), (i), (j), (k), (l), or (m), F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (c) or (n). The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). It did not contain written proof of ownership of any property that will be used in carrying out the Project nor did it contain authorization for such use from the property owner upland of mean high-water, information required by paragraph (c). It did not contain written authorization for any duly-authorized member of the Department staff to enter upon any private property to be used in carrying out the Project for the purpose of evaluating the site conditions prior to final processing of the permit application, information detailed in paragraph (n). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the 31 privately-owned properties within the Project area, including the MACLA intervenors. As part of the Application, however, the County requested a waiver of the requirements related to authorizations. A waiver was requested under number 14 of the Application. It provides: Satisfactory evidence demonstrating that the applicant has sufficient control and interest in the riparian upland property, as described in Section 18-21.004(3)(b), Florida Administrative Code. Governmental entities that qualify for the waiver of deferral outlined in this rule must provide supporting documentation in order to be eligible. If the applicant is not the property owner, then authorization from property owner for such use must be provided. Joint Ex. 1, at 3 of 9. The County, through its agent, Taylor Engineering, responded to number 14 of the Application as follows: Response: The applicants request a waiver of the requested information under Rule 18- 21.004(3)(b), which grants an exception to the upland interest requirement for restoration and enhancement (e.g. nourishment) activities conducted by a government agency. According to Rule 18- 21.004(3)(b), satisfactory evidence of sufficient upland interest is not required for the proposed activity, because the proposed offshore borrow area is not riparian to uplands and the beach fill activities will not unreasonably infringe on riparian rights. Joint Ex. 1, Attachment A, at 3rd un-numbered page. Rule chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004(3)(b) ("the Upland Interest and Riparian Rights Rule") provides as follows: (3) Riparian rights. * * * (b) Satisfactory evidence of sufficient upland interest is required for activities on sovereign submerged land riparian to uplands, unless otherwise specified in this chapter. * * * Satisfactory evidence of sufficient upland interest is not required . . . when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights. (emphasis added). Item number 18 of the Application calls for signatures related to "any proprietary authorizations identified above," such as those identified in item number 14. Consistent with the request for a waiver from providing the requested information with regard to satisfactory evidence demonstrating sufficient control and interest in the riparian upland property, no signatures were provided by the County or its agent. Rule 62B-49.003(3), entitled "Policy" provides: Any application submitted pursuant to this chapter shall not be deemed complete, and the timeframe for approval or denial shall not commence until the Department has received all information required for: a coastal construction permit under Section 161.041, F.S., and Chapter 62B-41, F.A.C.; an environmental resource permit under Part IV of Chapter 373, F.S., and Title 62, F.A.C.; and a proprietary authorization, under Chapter 253, F.S., and Chapters 18-18, 18-20 and 18-21, F.A.C. See the material bound and attached to the Request for Official Recognition filed August 2, 2010, Tab "Chapter 69B-49, F.A.C." The Department deemed the Application complete on December 30, 2009. Amendment of the JCP re: Written Authorizations The petition for formal administrative hearing filed in Case No. 10-0516 challenged the Consolidated NOI on the bases, inter alia, that the Application had failed to "provide 'sufficient evidence of ownership' as defined in rule 62B- 33.008(3)(c), F.A.C., to be a proper applicant for the Permit"24/ and that the County had not "provided satisfactory evidence of sufficient upland interest to be entitled to a letter of consent to use sovereign submerged lands."25/ To support their allegation that the County is not a proper applicant for the JCP, the Oceania Petitioners amended their petition on July 13, 2010, to add the following: The County must provide the Department "[w]ritten evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high-water but not sovereign land of the State of Florida", as required by [paragraph (c) of the JCP Application Specific Information Rule]. The Department must receive "[w]ritten authorization for any duly-authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application", as required by Rule 62B- 41.008)1)(n), F.A.C. The Amendment was made despite the existence in all of the versions of the Draft JCP, the original version and the revised versions, of General Condition Six: This permit does not convey to the Permittee or create in the Permitee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. Joint Ex. III at Tab 9 at 4 of 26. With the filing of the Oceania Petitioners' Second Amended Complaint in Case No. 10-0516, the issues appeared to be fully joined. Before the case proceeded to hearing, however, the County voted to remove the Oceania Property from the Project (see paragraphs 31 and 32, above). The vote led to a formal request from the County to DEP to revise the Project and a revision by the Department of the Project's drawings and the Draft JCP (the "First Revised Draft JCP"), notice of which was filed on July 23, 2010. The revisions to the Draft JCP necessitated by the elimination of the Oceania property from the Project was not the only revision made to the Draft JCP as noticed on July 23, 2010. The Department also revised the Draft JCP's Specific Condition 5. This latter revision prompted the Sherry Petitioners to file a petition for an administrative determination concerning un- adopted rules. DOAH assigned the petition Case No. 10-6205RU. During the final hearing, the Department revised the Draft JCP a second time (the "Second Revised Draft JCP".) The second revision inspired the MACLA Petitioners' petition to intervene. Just as with the Sherry Petitioners, the revision to Specific Condition 5 prompted the MACLA Petitioners to petition for an administrative determination concerning un-adopted rules. DOAH assigned this second un-adopted rule challenge to Specific Condition 5 Case No. 10-8197RU. Case Nos. 10-6205RU and 10-8197RU In general, the revision to the Draft JCP's Specific Condition 5 advised the County that no beach restoration work can be performed on private upland property unless authorization from the owner of the property has been obtained and submitted to the Department ("the Upland Property Authorization Requirement"). The revision also provided an exception to the Upland Property Authorization Requirement: the County could submit an authorization from a court of competent jurisdiction that such an authorization is not required. Case Nos. 10-06205RU and 10-8197RU were heard at the same time as these consolidated cases.26/ A final order was issued with regard to the two cases on November 4, 2010. The final order dismissed the case because the Sherry Petitioners and the MACLA Petitioners had not demonstrated that they would be "substantially affected" by Specific Condition 5 as required by section 120.56(3) for a party to have standing to challenge an agency statement that constitutes a rule which has not been adopted pursuant to the rule-making procedures found in section 120.54(1)(a). Case Nos. 10-6205RU and 10-8197RU were two of three petitions seeking administrative petitions concerning un-adopted rules that were consolidated and heard with the consolidated cases subject to this Recommended Order. The third was a case that had been filed by the Oceania Petitioners earlier in the proceeding: Case No. 10-5384RU. Case No. 10-5384RU Case No. 10-5384RU was filed by the Oceania Petitioners in order to challenge as an un-adopted rule Specific Condition 1 as it appeared in the Original Draft JCP ("Original Specific Condition 1"). Original Specific Condition 1 contained several requirements. In general, it required the County to record a certificate before the commencement of construction associated with the Western Destin Project. The certificate was required to describe all upland properties along the shoreline of the Project. The certificate was also required to be accompanied by a survey of a pre-project mean high water line (the "Pre-project MHWL) along the entire length of the Project's shoreline. The case claimed that the Department had made another statement that constituted an un-adopted rule which violated the rule-making provisions of chapter 120: "that an Erosion Control Line (the 'ECL') is not required to be established pursuant to Section 161.161, Florida Statutes, for a beach restoration project unless 'state funds' are used for the construction (as opposed to just the design) of a beach restoration project." Case No. 10-5384RU, Petition for an Administrative Determination Concerning Unadopted Rules, at 2. During the course of the final hearing, however, the Department filed a notice of a set of revisions to the First Revised Draft JCP. These revisions (the "Second Revised Draft JCP") included a revision of Specific Condition 1. The Second Revised Draft JCP The notice by the Department that alerted the parties to the Second Revised Draft JCP was filed on August 18, 2010. The August 18, 2010, Notice contains two changes to the First Revised Draft JCP. The first change deletes entirely the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5384RU). It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. Thus, the first change noticed by the Department on August 18 deleted the requirement that the County submit a survey of a Pre-project MHWL. It requires, instead, that the county establish an ECL consistent with applicable statutory provisions. The second change was made with respect to Specific Condition 4(c) of the First Revised Draft JCP, which lists items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed (with construction) by the Department. The existing language was deleted in its entirety and the following language was substituted: Id. Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Disposition of Case No. 10-5384RU The same Final Order that disposed of Case Nos. 10- 6205RU and 10-8197RU disposed of Case No. 10-5384RU. The Petitioners in Case No. 10-5384RU were found to lack standing to challenge Original Specific Condition 1 and the petition that initiated the case was dismissed. In addition, the Final Order concluded that had the Petitioners had standing to bring the challenge, the case would still have been decided in favor of the Department. This conclusion was based on the remedy called for by section 120.57(1)(e).27/ That remedy was found to have been achieved when the Department changed Specific Condition 1 to require an ECL rather than a Pre-project MHWL. See Final Order, Case No. 10- 5384RU (DOAH November 4, 2010). In addition to the record made with regard to the three rule challenges during the final hearing on the Sherry and Oceania Petitions, most of the rest of the evidence at the final hearing concerned the application of the regulatory authority of the Department and the Board of Trustees found in the Florida Statutes and the Florida Administrative Code, especially the environmental impacts of the Project as permitted by the Second Revised Draft JCP and as authorized under the Variance and the Sovereign Submerged Lands Use Authorization. Impacts The depth of OK-A should not exceed -49.4 feet, NGVD in an area where the depth of the ocean bottom is roughly -40 feet, NGVD. The excavation of the borrow site is designed in two dredging phases. The first phase, anticipated to provide up to 116 percent of the sand needed by the Project, is designed to a depth of 47.4 feet. "If for some reason, the contractor needs more sand . . ., then he can move into Phase II . . . [at a depth] of minus 47.4 to minus 49.4 feet [NGVD]. . . [,] a two foot deep layer throughout the entire borrow area." Tr. 165. OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area.28/ Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." Tr. 633. Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts. Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally General Wave Dynamics "[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also become involved with diffraction. Shoaling is a growth in height from interaction with the shallow bottom or a shoal. Refraction is a process of alignment of waves with bottom contours. Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features. As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions. Dr. Dally offered the following description of wave changes as they close in on the face of the beach and approach interaction with the shoreline. The description includes the potential impacts of an excavated OK-A on the beaches and shores of Okaloosa Island adjacent to the Surf Dweller and El Matador condominium property: As they pass into the very nearshore . . . they, of course, grow in height. They then break . . . [or] [s]ometimes, as they pass over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation . . . * * * Wave reflection from abrupt bathymetric changes. . . in this case, the landward most . . . notch of the borrow area would be a reflective surface . . . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they will reflect and begin defraction [sic] so that it becomes a . . . complicated wave field . . . . Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport. Sediment Transport "Sand can move along or away from the beach in two ways." Tr. 1141. It can move along the shoreline or it can move offshore. Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, rather than those that break straight onto the beach. The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west. The Sherrys and Mr. Donovan Petitioners own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "[t]hose beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." Tr. 1143. This area of the Okaloosa County's beaches and shores is the area most likely to be affected by an excavated OK- A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site. Borrow Site Impacts Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area. The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," tr. 640, in essence, a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea. The second wave process creates the potential for the waves to become "very, very, complicated." Tr. 640. They could "trip", that is, the notch in the borrow area could break the waves. "[B]rag scattering" (tr. 641) could make the waves deteriorate into shorter period waves. If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport. Just as Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial. The area of shoreline that would be affected by wave impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern . . . increases the size of the shadow zone," tr. 680, to a size much larger "than the actual shadow zone of the . . . borrow area." Id. Along these same lines, if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property. Distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And that's when you can really cause impacts to the beach, both accretive and erosive impacts." Id. (emphasis added). The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that adverse impacts will occur. The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach. In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report. The OK-A Borrow Area Impact Analysis Generally Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report. Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction. The only numerical data analysis specific to the excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report. The Report described its evaluative efforts: [T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes. STWAVE (Steady-State Spectral Wave Model) simulated normal (average) and extreme (100- year (yr) storm) waves propagating over the baseline and post-dredging bathymetries. ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet. County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics. Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data is not measured wave data. Instead, it consists of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data is then placed in a model coded to represent the entire Gulf. The WIS station from which data was collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurement, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurement would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however, If you don't have [field measurement data], then . . . especially over the long-term . . . a year or more [or] if you're analyzing your beach profile data over a 10 year period, you would like to have . . . wave data to accompany that 10 year period. Generally we don’t and that's when we start relying on models to fill in this missing information. Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is . . . limited to [the] deployment period." Tr. 1234. It is not practical to take 10 years' worth of field measurement. As Mr. Trudnak explained: Typically, you would install those gauges for . . . a month or a couple of months . . . you want to use representative conditions . . . you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions. * * * [W]hen you . . . install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you . . . capture representative conditions. Id. (emphasis added). The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data. For its extreme STWAVE modeling, Taylor relied on WIS information generated during Hurricane Opal in 1995. Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County. Criticisms of Taylor's STWAVE Modeling Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction results from its STWAVE models or conduct any sediment transport analysis. Mr. Trudnak offered refutations of the criticisms. For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't . . . feeling the bottom so they're not being affected by the bottom friction." Tr. 1236. The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort. Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling were not sufficient to support an opinion of "no impacts", but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches.29/ See Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models are." Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id. With regard to the modeling used in Taylor's Borrow Area Impact Analysis, Dr. Young summed up: [W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer . . . it's not precisely the right answer, but . . . nobody knows how wrong the answer is. I don't know it, Mr. Trudnak doesn't know and Mr. Clark doesn't know. And that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data. Tr. 1160. In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore Borrow Area Impacts Analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any.30/ Taylor Engineering used STWAVE and not Boussinesq as the model for the Borrow Area Impact Analysis because the Boussinesq Model is typically used where diffraction plays the dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area, making the STWAVE Model, if not more appropriate than the Boussinesq Model, certainly an acceptable model under the Project's circumstances. When asked about the Bousinessq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience (rather than actual testing or modeling the impacts of OK-A as done by Taylor), he was "almost certain," tr. 691, that Bousinessq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion . . . [that is] momentary . . . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial. When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system. Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing. In short, Dr. Dally roundly criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his testimony whether the impacts will be entirely de minimus, see rule 62B-41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County, a system whose ocean bottom, beaches and shores already contain scalloped features. Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project. The Walton Project and Its Borrow Area Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County (East Destin) and western Walton County. Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project. Location and Comparison to the OK-A Borrow Area The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See Ex. P-13. The area between the easternmost point of the OK-A Borrow site and the westernmost point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its easternmost point is roughly one-half mile off-shore. Comparison of the Walton Borrow Area and OK-A shows that OK-A is larger and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water than the Walton Borrow Area. Nonetheless, Petitioners characterize the two borrow sites as similar,31/ mainly because with less than 1.5 miles separating them, they are relatively close to each other. Despite proximity, there are significant differences, however, between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK- A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . . . further offshore . . .[s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." Tr. 306. In addition to distance from shore, the predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . . . and it included the outer flanks of the ebb shoal." Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone. Walton Borrow Area Impact Analysis and Monitoring Taylor Engineering's borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." Tr. 156. The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year. Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach. As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report. Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008. After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend . . . ." Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." Tr. 160. Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier. Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre- construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area. In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area) is having a beneficial impact on the beaches to the west of the project and its borrow area. Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes.32/ In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton Borrow Area which showed erosion early after completion of the Project is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts which are beneficial. Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark. Mr. Clark and The Department's Review of Western Destin Project Borrow Site Impacts Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer. During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water . . . ." Id. He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." Tr. 486. Among his specific duties is the review of "scopes of work and project feasibility studies that are provided . . . by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review of the Western Destin permit application and additional information related to the Project. After review, Mr. Clark reached the conclusion that the "Project is a well designed Beach Restoration Project that's critically needed . . . to restore the beaches of Western Destin to provide needed storm protection, recreational benefits and wildlife habitat." Tr. 488. With regard to his overall conclusion as to the Project's physical impacts, Mr. Clark testified: Id. In my opinion, the placement of 831,000 cubic yards of beach compatible sand fill along Western Destin will provide a positive, beneficial impact to the beach and dune system of Western Destin. The excavation of that material from the proposed borrow area [OK-A], along with the excavation of material for four other fill projects proposed for Santa Rosa Island, three of which have been approved, is not expected to have any adverse impact to the beaches of Santa Rosa Island. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity; extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents. Mr. Clark has reviewed 136 beach restoration projects. Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number" tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas." Id. The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies. Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips. In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project Over his 37 years, Mr. Clark served on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico. Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document" tr. 494, now electronically available to the public on the Department's website. The report prepared by Mr. Clark which led to the designation of the Western Destin Project beach as critically eroded showed that the areas from R-17 to roughly R-20.3 and R- 23.2 to R-25.5 revealed erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. The report is based on evaluation and projection of the impact of a 25-year storm event. The same report did not conclude that a 25-year storm event would provide the same level of threat to the area between R-20.3 and R-23.2 (the shoreline along the MACLA Intervenors' Property and the Oceania Gap) although that stretch of the beach is "potentially threatened by a 50 to a 100-year storm event." Tr. 499. The "R-20.3 to R-23.2" segment was included in the critically eroded designation for design and integrity of the Project and continuity of management of the coastal system. The designation of the Project area as critically eroded was made in 2006 and was updated by the Department at the request of the County in 2008. The 2008 update indicated no need to change the designation. Although not as threatened as the rest of the shoreline in the Project, the shoreline along the Middle Segment, (including the MACLA Intervernors' Property and the Oceania Gap) is erosional. Data obtained as late as October 19, 2009, indicate that there had been more erosion since a Mean High Water Survey located the MHWL in 2008. The data does not show volumetric change, only that "there is a continued trend of erosion" of the shoreline in the Oceania Gap. Tr. 506. With the Oceania Gap eliminated from the Project, elimination of the rest of the property in the Project's Middle Segment (between R-20.3 and R-23.2) would make the remainder of the Project unstable. It would "isolate a 2,000-foot segment between R-23.2 and R-25.5 [the Eastern Segment] . . . and a 2,000-foot fill segment is not long enough to be a stable fill segment." Tr. 507. Although the elimination of all of the Middle Segment would not hurt "the very far west end" of the Project "very much," tr. 508, the elimination of the entire Middle Segment from the Project would also make the very east end of the Western Segment "relatively unstable." Tr. 508. The Middle Segment, therefore, while not critically eroded, would benefit from beach restoration. Restoration will provide protection from the erosion it is experiencing and from 50-year and 100-year storm events should they occur during the life of the restoration. Restoration will include dune work that will provide protection from storm surge and dissipate the wave energy seaward of any structures in the Middle Segment. Recent storm events have been 50-year and 100-year events. In the area of the Project, "Hurricane Opal was comparable to a 100-year storm event." Tr. 509. In Pensacola Beach, Ivan was a 200-year event. In the Destin area, Ivan "probably dropped to just below a 100-year storm event in terms of its magnitude. Hurricane Dennis was probably comparable to a 50-year storm event." Id. The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. The OK-A Borrow Area is an offshore borrow area. Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island. In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area. Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach . . . ." Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." Tr. 520. If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but to the beach to the west of the borrow area the impact would be accretion. Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores of Okaloosa County. For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering. Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island. Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse impact from a borrow area . . . ." Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id. Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young: [W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And . . . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design. * * * We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated. Tr. 1150-1. When asked the question of whether there is a definition of a failed beach restoration project in the literature or that is generally accepted by the coastal engineering community, see tr. 1152, Dr. Young testified, "I have not seen one." Tr. 1152. He added, " I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." Tr. 1152-3. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts. Variance The "Variance" referenced in the Consolidated NOI concerns two related variances: one from rule 62- 4.242(2)(a)2.b., and the other from rule 62-4.244(5)(c). The northern boundary of the proposed borrow area is within Outstanding Florida Waters ("OFW"). That location led the County to seek a variance from the limitation in rule 62- 4.242(2)(a)2.b. that turbidity can exceed background conditions in OFW during permitted construction activity for no more than 30 days. Section (2) of rule 62-4.242 sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows: (a) no Department permit . . . shall be issued for any proposed activity . . . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that: * * * 2. The proposed activity . . . is clearly in the public interest, and . . . * * * b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity . . . , except on a temporary basis during construction for a period not to exceed thirty days . . . . The County also sought a variance from rule 62- 4.244(5)(c) which governs mixing zones in surface waters and reads: In no case shall the boundary of a dredge and fill mixing zone be more than . . . 150 meters in radius in . . . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants. Section 120.54(2) authorizes an agency to grant a variance as follows: Variances . . . shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or violate principles of fairness. Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150 meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150 meter radius, the County "would have had to almost continually be shutting down . . . .[its hopper] dredge," tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150 meter radius. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the variances for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more down time and conditions [could cause] a cutterhead . . . to stop dredging and go into safe harbor into East Pass." Tr. 173. The variance from rule 62-4.244(5)(c), therefore, was needed because the standard size mixing zone would have created a substantial hardship for the County. In addition to outlining the substantial hardship, the County provided two additional bases in its application to justify the variances: (a) no resources in the area, such as hard bottom or sea-grass beds, would be affected by a turbidity plume and an expanded mixing zone; and (b) citation to the Pensacola Naval Air Station ("NAS") project claimed to be similar in that it involved OFW and had received a variance. Upon receipt of the application for the variances, the Department requested additional information to establish whether OK-A, in fact, would be within OFW and more analysis of the comparability with the Pensacola NAS project. The Department's engineering section determined that the comparability of the Pensacola NAS project was not adequately demonstrated because of a lack of detail about the hydrodynamics and mixing zone sizes of the two sites. Nonetheless, the staff responsible for making the final decision on the variances (and ultimately the Department) determined the County's information justifying the variances to be sufficient. In granting the variances, the Department did not rely on the County's comparison of the Project to the Pensacola NAS project. As explained by Dr. Edwards at hearing, "[H]aving the data . . . from an actual project to back up and . . . calibrate a mixing zone is an added bonus, but we just didn't have it in this particular case." Tr. 420. The Department based its decision, in part, however, on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500- meter mixing zone was determined to be appropriate. Independent of the information provided by the County, the decision, therefore, was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that there was a comparable project in the area (not the Pensacola NAS project) that had been allowed a 1500- meter mixing zone. In applying the standard from section 120.54(2) related to the underlying intent of the rules at issue and the statutes, the Department determined that "[t]he Project in the OFW was clearly in the public interests, according to [section] 373.414 and the minimum Water Quality Standards, even within the mixing zone[,] would still be met." Tr. 421-2. There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI. Petitioners presented no evidence to rebut the testimony elicited by the Department and the County that the purpose of the statute underlying the rules from which the variances are sought will be met by other means and that the application of the rules will create a substantial hardship. Changed Site Conditions 267. Rule 62B-49.005(16) provides: If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 9-day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the County's application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico. No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area. The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See tr. 175. Western Destin Erosion Control Line The requirement for an Erosion Control Line is in section 161.161: Once a project is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to . . . locate an erosion control line. * * * In lieu of conducting a survey, the board of trustees may accept and approve a survey as initiated, conducted, and submitted by the appropriate local government if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. § 161.161(3), Fla. Stat. The Draft JCP as originally issued did not require the establishment of an ECL. It required the establishment of a Pre- project Mean High Water Line instead. The Second Revised Draft JCP dispensed with the requirement of a Pre-project MHWL. It requires that an ECL be established for all properties within the 1.7 miles stretch of beach in the Project area subject to beach restoration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order issuing the Joint Coastal Permit, Variance, and Sovereign Submerged Lands Authorization as revised during the course of these proceedings. DONE AND ENTERED this 29th day of June, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2011.
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
The Issue The issue in these cases is whether the Santa Rosa County comprehensive plan, as adopted on September 27, 1990, and the remedial amendments adopted on April 22, 1993, are in compliance.
Findings Of Fact Exception #2. The Hearing Officer, in an October 15, 1993 order, determined that the issues in the consolidated cases would be those 13 issues stated in the petition filed on July 15, 1993, in Case No. 93-4980, which ruling was observed by the parties at the final hearing (RO page 3). Petitioners/Intervenors take issue, thus, "At no time during these proceedings did the Petitioners abandon the issues raised in their Petitions to Intervene filed in the original noncompliance proceeding." The Respondent County and the Petitioner/Respondent Department take the position that the original, noncompliance proceeding was extinguished when the Department issued its cumulative notice of intent pursuant to section 163.3184(16), Florida statutes. The County and the Department further disagree with the Hearing Officer's conclusion of law determining that the issues of public access and Navarre Beach dune system should be determined pursuant to the preponderance of the evidence standard in section 163.3184(10), Florida statutes. The County and the Department urge the Agency to enter its order addressing all issues accordingly. Subsection (9) of section 163.3184, Florida statutes, governs proceedings if the local plan or amendment is in compliance. In the words of the statute, "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Subsection (10) of section 163.3184, Florida statutes, governs proceedings if the plan or amendment is determined to be not in compliance. The statute specifies, in this subsection: In the proceeding, the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. Subsection (16) of section 163.3184, Florida statutes, authorizes the Department of Community Affairs to enter into voluntary compliance agreements to resolve issues raised in proceedings initiated pursuant either to subsection (9) -- in compliance determinations -- or subsection (10) -- not in compliance determinations. It is under this subsection that the cumulative notice in this case was issued. Paragraph (f) of subsection (16) provides, in part, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending s. 120.57 proceeding concerning the plan or plan amendment shall be dismissed by the hearing officer as to the department. Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9). The language of the statute is somewhat problematic. It is unclear how a proceeding can be dismissed as to one of the parties, in this case, the state land planning agency issuing the notice of intent. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91- 6039GM (DOAH January 13, 1994)(approving interpretation of statute). Further, this statutory language as to dismissal of the proceeding as to the department arguably is at odds with the next sentence, which states that affected persons may challenge the plan or amendment which is the subject of the cumulative notice by filing a petition with the agency as subsection (9) provides. The statutory language does not say, "Any other affected person" may challenge; it says "Any affected person" may challenge, which ending s. 120.57 proceeding. Paragraph (f) also deals with the issue of a cumulative notice that the plan amendment is not in compliance, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment not in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings, which shall consolidate the proceeding with the pending proceeding and immediately set a date for hearing in the pending s. 120.57 proceeding. It is clear from that statutory language that the cumulative notice proceeding is consolidated with the pending original proceeding if the Department of Community Affairs finds the amendment not in compliance, in contrast to the language used if the Department's cumulative notice is an "in compliance" determination. Finally, paragraph (f) deals with persons who are not parties to the pending original proceeding, as follows: Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10). This language seems to do more than provide for persons who are not parties to the underlying proceeding to file subsection (9) or subsection (10) petitions depending upon whether the cumulative notice is an "in compliance" one or a "not in compliance" one, as the case may be. The language also aids in interpreting the previous sentence of the paragraph, "Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9)." If that sentence were only intended to apply to affected persons who were not parties to the underlying proceeding, there would be no need for the sentence above-quoted, "Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10)." As the state land planning agency and the Agency of final jurisdiction in an "in compliance" proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985.) The Department of Community Affairs interprets the subject provisions of section 163.3184(16), Florida statutes, to mean that, if the Department issues a cumulative notice of "in compliance," the previously existing, original proceeding is extinguished. Thereafter, all affected parties must file petitions challenging the cumulative notice, and the proceeding is governed exclusively by the "fairly debatable" standard and the procedures set out in subsection (9) of section 163.3184, Florida statutes. The particular standard of proof to be applied is based upon the issuance of a notice of intent to find the plan or amendment in compliance or not in compliance. Sheridan v. Lee County, DOAH Case No. 90-7791GM, Final Order No. DCA93-158- FOF-CP (Department of Community Affairs, June 28, 1993). In Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-FOF-CP (Department of Community Affairs, February 24, 1994), the Department of Community Affairs expressly adopted the interpretation of Hearing Officer J. Lawrence Johnston as set forth in the Recommended Order of Dismissal and Final Order Closing File in the case of Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM (January 19, 1993), approved, Final Order No. AC-94-990 (Fla. Admin. Comm. January 31, 1994), a copy of which is attached hereto as Exhibit B and incorporated by reference. That recommended order at footnote 3 -- recognized that there is contrary dicta in the Recommended Order in Department of Community Affairs, et al. v. Hillsborough County, DOAH Case No. 89-5157GM (December 8, 1992). In the instant case, the Hearing Officer erred in treating the proceeding as one in which both subsections (9) and (10) of section 163.3184, Florida statutes, continued to apply. The burdens of proof -- whether the fairly debatable standard, or the preponderance of the evidence standard -- could be alternatively assigned to a given issue, depending upon whether the issue remained from the original proceeding, or arose as a result of the proceeding brought in response to the cumulative notice. But the statute does not appear to allow the proceeding to be resolved as it was in the instant case, i.e., under both subsections (9) and subsections (10). If that were the case, it would be unclear in a given case as to which entity appropriately should enter the final order, the Administration Commission, or the Department of Community Affairs. Clearly, that does not comport with the objective of the Legislature in specifying the entities with final order authority separately in subsections (9) and (10). Petitioners/Intervenors suggest, in Exception #34, which is dealt with below, that both the Administration Commission and the Department of Community Affairs enter a final order in this. This would result in untenable situations, such as the potential for inconsistent rulings, separate appeals, etc. The Hearing Officer should have treated the proceeding exclusively as one arising as a result of a cumulative notice of "in compliance" governed under the auspices of subsection (9) of section 163.3184, Florida statutes. In that case, the issues should have been those directed to the cumulative notice; thus, Petitioners/Intervenors' complaint in this exception -- that the Hearing Officer should not have limited the issues to those set forth in the July 15, 1993 petition, which was filed as a result of the cumulative notice -- is not well- taken. Further, the standard of proof in a proceeding brought following a cumulative notice of "in compliance" must be the "fairly debatable" standard of section 163.3184(9), Florida Statutes. In this case, however, the Hearing Officer made his various determinations and weighed the evidence with respect either to the fairly debatable standard, or to the preponderance of evidence standard, depending upon the issue. It would be implausible at best, impossible at worst, for the Agency now to attempt to reweigh the selected issues -- those that have been determined using the preponderance of the evidence standard -- under the fairly debatable standard. The Department of Community Affairs, as the Agency entering the Final Order in this cause, is not free to reweigh evidence; that is the prerogative of the Hearing Officer when there are factual issues of ordinary proof. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Moreover, such a reweighing of the issues, even if authorized, would not change the outcome. The issues that were decided under the preponderance of the evidence standard were decided against the Petitioners/Intervenors in this case. The outcome would not change if the fairly debatable standard were applied to those issues. The Agency therefore declines the invitation to apply the fairly debatable standard throughout the proceeding, as it should have been done by the Hearing Officer. Nonetheless, the Agency also must deny Petitioners/Intervenors' Exception #2. PETITIONERS/INTERVENORS EXCEPTION #2 is DENIED. Exception #3. This exception is directed to the Hearing Officer's exclusion of testimony regarding Petitioners/Intervenors' allegations of "urban sprawl." Petitioners/Intervenors assert that a cursory review of the subject petition reveals that "urban sprawl" was properly raised as an issue, even though that precise term was not used. The Hearing Officer heard argument directed to the issue of the "urban sprawl" question (TR Vol. I, pp. 12-18) and determined that it was not within the scope of the petition filed on July 15, 1993 (see Exception #2, above). The Agency has reviewed the subject petition and the portions of the record dealing with argument directed to this issue, and the Agency does not find a sufficient basis for granting the exception. PETITIONERS/INTERVENORS EXCEPTION #3 IS DENIED. Exceptions #4, #5 and #6. The basis for these exceptions is the Hearing Officer's finding of fact, in paragraph 13 of the Recommended Order, that publicly-owned lands in the Garcon Point Project would not be injured by the development of privately- owned lands north of the project. According to the Petitioners/Intervenors, "The evidence introduced at the administrative hearing clearly refutes this finding." Petitioners/Intervenors allude to witness testimony that contradicts the conclusion of the expert who was tendered in general ecology and natural systems, Dr. Joe A. Edmisten [TR Vol. III, pages 78-87] on this point at hearing; it is upon Dr. Edmisten's testimony that the paragraph is supported. The contradictions notwithstanding, however, the paragraph to which these exceptions are directed is supported by competent, substantial evidence in the record, and thus the exceptions must be denied. [Edmisten (TR Vol. III), pages 95-96.] PETITIONERS/INTERVENORS' EXCEPTIONS #4, #5, AND 6 are DENIED. Exception #7. This exception is directed to paragraph 14 of the Recommended Order, in which the Hearing Officer found, "More than 95 percent of Garcon peninsula is jurisdictional wetland for the U.S. Army Corps of Engineers . . . ." According to the Petitioners/Intervenors, no evidence was introduced to support this finding. There is competent, substantial evidence in the record sufficient to support the finding. [Edmisten (TR Vol. III), page 89.] PETITIONERS/INTERVENORS' EXCEPTION #7 is DENIED. Exception #8. In Exception #8, Petitioners/Intervenors take exception to the following finding of fact in paragraph 15 of the Recommended Order, "Little development will occur on the Garcon peninsula . . ." The Petitioners/Intervenors assert that the evidence at the hearing "clearly refutes this finding" and, in support thereof, refer to Future Land Use Map indications of densities of up to four dwelling units per acre and commercial development for Garcon peninsula. The finding is supported by competent, substantial evidence in the record. [Edmisten (TR Vol. III), pages 90-91.] PETITIONERS/INTERVENORS EXCEPTION #8 is DENIED. Exception #9. Petitioners/Intervenors take exception to the findings of fact of paragraph 20 of the Recommended Order, which relates to the condition of the Navarre Beach dune system and the testimony of the expert in coastal geomorphology. The apparent basis for the exception is stated by Petitioners/Intervenors thus, "The fact that the Navarre Beach dune system is still a valuable resource is a compelling reason for implementing a dune protection program which will ensure the system's long-term viability." A finding of fact cannot be overturned on the basis of the argument stated by the Petitioners/Intervenors. Moreover, the findings of fact in paragraph 20 are supported by competent, substantial evidence. [Stone (TR Vol. II), page 155.] PETITIONERS/INTERVENORS' EXCEPTION #9 is DENIED. Exception #10. The Petitioners/Intervenors take exception to paragraph 26 of the Recommended Order wherein the Hearing Officer finds, "The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleashed status." The Petitioners/Intervenors state that the evidence clearly refutes the finding, and that the Navarre Beach Future Land Use Map does not identify beach access points. The finding is based upon sufficient competent, substantial evidence of record, and must be sustained. (Miller [TR Vol. I), pages 166-167; Joint Exhibit 1, Plan Objective 11.A.9, and policies 11.A.9.1-9.S, pages 11-6 through 11-7.] PETITIONERS/INTERVENORS' EXCEPTION #10 is DENIED. Exception #11. Petitioners/Intervenors take exception to paragraph 30 wherein the Hearing Officer states that the expert of the Petitioners/Intervenors "did not critique the plan, but said it was laudable." The Petitioners/Intervenors assert in this exception that the evidence clearly refutes this finding in that the expert in question, Dr. Sneed B. Collard, criticized the Santa Rosa County Comprehensive Plan for failing to contain policies and objectives to implement the plan's goal to protect the Pensacola Bay system. The context in which the Hearing Officer made the statement to which exception is taken is important to an understanding of the finding. paragraph 30 of the Recommended Order, in its entirety, reads as follows: Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable. [FF 30; RO page 14.] That having been clarified, the specific statement to which Petitioners/Intervenors take this exception is supported by competent, substantial evidence of record, to wit, the testimony of Dr. Collard, "I didn't critique the Santa Rosa Plan. I said it was laudable." [Collard (TR Vol. I), page 140]. PETITIONERS/INTERVENORS' EXCEPTION #11 is DENIED. Exception #12. The Petitioners/Intervenors take exception to the finding in paragraph 31 of the Recommended Order that finds "that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers." The Petitioners/Intervenors take this exception based on relevancy. The context of the statement is not clear from the exception. The entirety of paragraph 31 reads as follows: Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge. It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers. It is clear from the context that the information was "noted" and not accorded great weight in the findings. Moreover, the Hearing Officer's inclusion of the information was not erroneous. Thus, there is an insufficient basis to grant the exception. PETITIONERS/INTERVENORS' EXCEPTION #12 is DENIED. Exception #13. Petitioners/Intervenors take exception to the findings of fact contained in paragraphs 37-54 of the Recommended Order, as follows: The Hearing Officer failed to consider or give any ruling with respect to the proposed findings of fact set forth at paragraphs 9-28 and the conclusions of law set forth at paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed Recommended Order. indeed, the Hearing Officer utterly failed to even mention the Wet Prairies and their associated endangered and threatened species. As to the proposed findings of fact included in paragraphs 9-28 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did so rule, "[paragraphs] 7-34. Partially accepted in findings of fact 10-15 and 37- 54." [RO page 38.] As to paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did not make explicit rulings. The subject paragraphs were conclusions of law, which the Hearing Officer is not required to address. In pertinent part, section 120.59(2), Florida Statutes, provides, "If . . a party submitted proposed findings of fact . . . in connection with the proceeding, the order must include a ruling upon each proposed finding . ." It was thus within the sound discretion of the hearing officer to rule only upon the Petitioners/Intervenors' findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #13 is DENIED. Exception #14. Petitioners/Intervenors take exception to the Hearing Officer's finding in paragraph 40 of the Recommended Order that states, "The plan contains extensive provisions designed to implement the Wetlands FLUM (Future Land Use Map) and provide significant protection of wetlands and the natural resource functions of wetlands." The Petitioners/Intervenors assert that no evidence was introduced to support this finding. The finding is based upon competent, substantial evidence, and therefore the exception cannot be granted. [Joint Exhibits 3 and 4, Plan Policies 11.A.4.5 (fig. 7-30); 11.B.3.3; 11.A.1.8.a.b.; 11.A.1.8.c.; 11.A.1.7; 11.A.4.3; 11.B.3.3; 11.A.2.1; 11.B.3.1.; 11.B.3.6; 11.A.1.4; and 11.A.1.8.] PETITIONERS/INTERVENORS' EXCEPTION #14 is DENIED. Exception #15. The basis for this exception is the finding of fact in paragraph 49 of the Recommended Order wherein it is found that the Santa Rosa County Comprehensive Plan "grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area." Petitioners/Intervenors assert that the evidence refutes this finding. The finding is based on competent, substantial evidence in the record. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #15 is DENIED. Exception #16 and #17. In Exceptions #16 and #17, Petitioners/Intervenors take exception to paragraph 50 of the Recommended Order. In that paragraph, the Hearing Officer finds that, short of public acquisition, "no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented." The Hearing officer further finds, "Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation . . Petitioners/Intervenors state that the evidence clearly refutes these findings, that evidence was presented that one dwelling unit per 40 acres was appropriate for the Garcon peninsula, and that designations of up to four units per acre and commercial development would completely destroy the unique ecology of Garcon peninsula. Further, the Petitioners/Intervenors assert that the issue of inverse condemnation was not supported by competent evidence introduced, and that densities of less than four dwelling units per acre can be implemented without creating an "inverse condemnation" situation. As to the reasonableness of the preservation effort, the Agency has reviewed the testimony as to that point, and concludes that the finding is within the allowable inferences from the evidence presented, and within the permissible prerogatives of the Hearing Officer. [Dorman (Vol. III), page 13.] The inverse condemnation finding is rejected as being legally incorrect, but this rejection is irrelevant as to the result because it is cumulative in nature. PETITIONERS/INTERVENORS" EXCEPTIONS #16 and #17 are DENIED. Exception #18. This exception is directed to the finding of fact in paragraph 51 which states that "the great majority of undeveloped areas on the Garcon peninsula currently fall within the wetlands permitting jurisdiction of DEP [Department of Environmental protection] and the federal government. As a consequence, permits for development will be difficult to obtain at best." Petitioners/Intervenors aver that there was no evidence introduced to support this finding. To the contrary, however, the finding is adequately supported by competent, substantial evidence. [Edmisten (Vol. III), pages 90-91.] PETITIONERS/INTERVENORS' EXCEPTION #18 is DENIED. Exception #19. In Exception #19, Petitioners/Intervenors take exception to the finding of fact in paragraph 52 of the Recommended Order, in which it is stated that the Petitioners/Intervenors "failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon peninsula in light of chapter 163 requirements." This is a permissible inference from the evidence presented, both from testimony adduced at hearing, and from the Santa Rosa County Comprehensive Plan itself. PETITIONERS/INTERVENORS' EXCEPTION #19 is DENIED. Exception #20. This exception takes issue with the findings of fact of paragraphs 55-63 of the Recommended Order because the Hearing Officer "failed to consider or give any ruling" on the proposed conclusions of law in the Petitioners/Intervenors' proposed recommended order at paragraphs 142 and 143. The Hearing Officer is not required to do so for the reasons more specifically set forth in disposing of Exception #13, above. PETITIONERS/INTERVENORS' EXCEPTION #20 is DENIED. Exception #21. In Exception #21, Petitioners/Intervenors take exception to the findings of fact of paragraphs 64-70 of the Recommended Order in that the Hearing Officer "failed to consider or give any ruling" on Petitioners/Intervenors' proposed findings of fact at paragraphs 41 and 54-56 of their proposed recommended order, as well as their conclusions of law at paragraphs 112-118 and 121-126 of the same. As to the findings of fact, the Hearing Officer made such rulings, "[paragraphs] 35-56. Partially accepted in findings of fact 16-20 and 64-70." [RO page 38.] As to the conclusions of law, that issue has been addressed above in disposing of Exception #13, as also applied in disposing of Exception #20. PETITIONERS/INTERVENORS' EXCEPTION #21 is DENIED. Exception #22. Petitioners/Intervenors ground this exception on the failure of evidence to support the finding of fact, in paragraph 64 of the Recommended Order, that the Santa Rosa County Comprehensive Plan requires "restoration of preexisting impacts of altered dunes . . The finding is based upon competent, substantial evidence, and therefore the exception must be denied. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #22 is DENIED. Exception #23. Petitioners/Intervenors take exception to the finding of fact in paragraph 69 for the following reasons: The Hearing Officer found that the dune system was protected because the County encourages dune walkovers, sand fences, and other similar methods. The evidence introduced at the administrative hearing clearly refutes this finding. Without a mandatory program of providing such methods to protect the dune system from pedestrian traffic, the plan's alleged protection is illusory. This finding is based upon competent, substantial evidence of record. [Joint Exhibits 3 and 4; Plan Policies 7.A.6.3 and 11.A.1.3.] PETITIONERS/INTERVENORS' EXCEPTION #23 is DENIED. Exception #24. Petitioners/Intervenors base this exception on the finding of fact in paragraph 70 of the Recommended Order wherein the Petitioners/Intervenors assert that the Hearing Officer finds that the Petitioners/Intervenors failed, in the words of the filed exception: "to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan" does not fulfill the Chapter 163 and Rule 9J-5 requirements for protection of the Navarre Beach dune system. The testimony of Dr. Stone clearly refutes this finding. In point of fact, that is not an appropriate paraphrase of the wording of the finding of fact in paragraph 70. The finding of fact, verbatim, is as follows: [P]etitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems. The finding is a permissible conclusion from the evidence adduced at the hearing, and is based upon competent, substantial evidence. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #24 is DENIED. Exception #25. Petitioners/Intervenors take exception to the findings of paragraphs 74-76 of the Recommended Order based upon the failure of the Hearing Officer to consider or rule on conclusions of law contained in paragraphs 128- 132 of the Petitioners/Intervenor's proposed recommended order. As specified in the disposition of Exception #13, above, and as carried forth in the disposition of Exceptions #20 and #21, above, the exception is denied. PETITIONERS/INTERVENORS, EXCEPTION #25 is DENIED. Exceptions #26, #27, and #28. These exceptions are directed to paragraph 75 of the Recommended Order. The findings of the paragraph that are the basis for the exception include the following: The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. The County cannot legally adopt any plan provisions which are inconsistent with a state transportation project. . [P]etitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate. The findings are supported by competent, substantial evidence. [Edmisten (TR Vol. III); Joint Exhibit 2, Vol. I, pages 4-32 through 4-40.] Exceptions #27 and #28 are simply argument of the Petitioners/Intervenors' position in this proceeding and, as such, are insufficient to overturn findings supported by competent, substantial evidence. PETITIONERS/INTERVENORS' EXCEPTIONS #26, #27, and #28 are DENIED. Exception #29. This exception is directed to paragraphs 77-79 of the Recommended Order, alleged to be in error because the Hearing Officer failed to consider or rule on the conclusions of law in Petitioners/Intervenors' paragraphs 133-140 of their proposed recommended order. As more specifically discussed in disposing of Exception #13, and as concluded in the denials of Exceptions #20, #21, and #25, the Hearing Officer is not required to make such rulings. PETITIONERS/INTERVENORS' EXCEPTION #29 is DENIED. Exceptions #30, #31 and #32. In these exceptions, Petitioners/Intervenors assert that there was no evidence introduced to support the findings, in paragraph 77-79 of the Recommended Order, concerning beach access points. In paragraph 77, Petitioners/Intervenors take exception to the finding that reads, "The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation." In support of this exception, Petitioners/Intervenors state, "Indeed, during cross examination of Ms. Miller by the County, counsel for the County attacked Ms. Miller for stating that the beach access points were identified on the Navarre Beach Future Land Use Map." In response, Respondent County and Petitioner/Respondent Department state: The Petitioners' own witness, Yvonne Miller, testified that beach access points were indicated on the FLUM. [Citation omitted.] The fact that counsel for the County obtained clarification from Ms. Miller concerning her understanding of how access points were identified on the map is irrelevant to the validity of this finding of fact, and is not a basis for overturning same. As to paragraph 78, Petitioners/Intervenors take exception to the finding that reads that "petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach." In response, Respondent County and Petitioner/Respondent Department state, "The plan support documents include extensive data and analysis concerning public access to beaches." With respect to paragraph 79, Petitioners/Intervenors take exception to the finding that the Future Land Use Map includes many public access points. The Agency has reviewed the testimony adduced at hearing regarding beach access points [Miller (TR Vol. 1), pages 150- 169]. The Hearing Officer's conclusions drawn from the testimonial evidence are within the allowable range of inferences. Based upon the record testimony, the findings of fact in paragraphs 77-79 to which exceptions are taken is based upon competent, substantial evidence in the record. [Miller (TR Vol. 1), pages 150-169; Joint Exhibit 2, Vol. II, pages 7-17 through 7-19; Joint Exhibit 7.] PETITIONERS/INTERVENORS' EXCEPTIONS #30, #31, and #32 are DENIED. EXCEPTIONS TO CONCLUSIONS OF LAW Exception #33. Petitioners/Intervenors take exception to the conclusion of law in paragraph 87 of the Recommended Order wherein the Hearing Officer concluded that the petitions challenging the plan must fail. Petitioners/Intervenors assert that they have met their burden of proof, and their petition must be granted. The Hearing Officer found that the Petitioners/Intervenors failed to meet their burden of proof. The conclusion of law ultimately was based upon the Hearing Officer's findings of fact in this case. Factual issues susceptible of ordinary methods of proof are the prerogative of the hearing officer. Heifetz v. Department 6f Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). It is for the hearing officer to consider the evidence presented, resolve conflicts, judge credibility of witness, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Id., 475 So.2d at 1281. In this case, the Hearing Officer did so, and his findings of fact did not support the position of the Petitioners/Intervenors. The conclusion of law was the logical result of the Hearing Officer's permissible rulings on the findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #33 is DENIED. Exception #34. Petitioners/Intervenors take exception to the conclusion of law in paragraph 90 of the Recommended Order wherein the Hearing Officer recommends that the Department of Community Affairs enter the final order in this cause, finding the Santa Rosa County Comprehensive Plan in compliance. Petitioners/Intervenors assert that both the Department of Community Affairs and the Administration Commission should enter a final order finding the plan to be not in compliance. For the reasons set out in disposing of Petitioners/Intervenors' Exceptions #1 and #2, above, the Administration Commission is not the entity to whom the Recommended Order in this cause should be directed. The Department of Community Affairs is the appropriate Agency to enter the final order in this cause. As to the issue of compliance, the Department found the plan, as amended, to be in compliance; the Hearing Officer heard evidence and considered the issues, and found the plan, as amended, to be in compliance. The conclusion is the logical and ultimate result of the findings of fact in this case, which were based upon competent, substantial evidence. The Petitioners/Intervenors have not borne their burden of proving that the plan, as amended by remedial amendments, is not in compliance. PETITIONERS/INTERVENORS' EXCEPTION #34 is DENIED. WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, and issues this Final Order determining that the Santa Rosa County Comprehensive Plan, as amended, is in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Community Affairs enter a final order determining the Santa Rosa County comprehensive plan, as amended, to be in compliance. DONE AND ENTERED this 12th day of July, 1994, 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 12th day of July, 1994. Petitioners: APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-7706GM AND 93-4980GM 1-3. Partially accepted in finding of fact 2. 4. Covered in preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-34. Partially accepted in findings of fact 10-15 and 37-54. Partially accepted in finding of fact 9. 36-56. Partially accepted in findings of fact 16-20 and 64-70. 57-65. Partially accepted in findings of fact 31-36 and 74-76. 66-77. Partially accepted in findings of fact 24-26 and 77-79. 78-83. Partially accepted in findings of fact 27-30 and 55-63. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. Respondents: Because respondents' joint proposed order exceeded the forty page limit imposed by Rule 60Q-2.031, Florida Administrative Code, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). COPIES FURNISHED: Linda Loomis Shelly, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Callahan, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Thomas V. Dannheisser, Esquire County Attorney Santa Rosa County Courthouse Room 106 Milton, FL 32570 Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507 David A. Theriaque, Esquire Building F, Suite 100 820 East Park Avenue Tallahassee, FL 32301 Mr. Robert Carl 9277 Deer Lane Navarre, FL 32566 John M. Harold, Esquire J. Dan Gilmore, Esquire 4400 Bayou Boulevard, Suite 45 Pensacola, FL 32503
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
