The Issue The issues are whether a beach restoration and dune nourishment project proposed by Respondent Town of Palm Beach, Florida is entitled to a joint coastal permit (coastal construction and environmental resource permits), pursuant to Section 161.055, Florida Statutes, and Florida Administrative Code Rule 62B-49.003; proprietary authorization for activities on sovereign submerged lands, pursuant to Section 253.77(1), Florida Statutes; and variance from water quality standards, as set forth in the rule limiting permissible mixing zone limits, pursuant to Section 403.201(1), Florida Statutes.
Findings Of Fact Introduction Overview Palm Beach, a municipality, has applied for the permits necessary to construct a beach restoration and dune nourishment1 project along a portion of the shoreline of Palm Beach Island known as Reach 8. Specifically, Palm Beach seeks a joint coastal permit (JCP), which consists of an environmental resource permit (ERP) and coastal construction permit (CCP); letter of consent constituting authorization to use state-owned lands; and variance to water-quality standards. Palm Beach seeks approval for the following major activities: excavating Borrow Areas (BA) V and VI, which are about 1500 feet offshore of Reach 8; slurrying the fill from these borrow areas by pipe and placing the slurried fill on the existing beach of Reach 8; except for the southernmost 2764 feet of Reach 8, contouring the fill from the dunes to the intertidal zone to conform with the permitting template; for the southernmost 2764 feet of Reach 8, contouring the fill along the dunes only; covering during (i.e., directly) and after (i.e., indirectly) construction about seven acres of nearshore existing hardbottom immediately adjacent to and downdrift from (south) of the location in which the fill is placed; and creating about eight acres of nearshore mitigation hardbottom north of Reach 8. The ERP is for dredging and filling activities mostly in, but also adjacent to, surface waters and includes upland dune nourishment because the expected, post-construction erosion of the dune will result in fill entering surface waters. The CCP is for activities seaward of the erosion control line. The proprietary authorization is for a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) for the use of state-owned land, which is that seaward of the mean high water line: this authorization would pertain to the borrow areas and the fill area seaward of mean high water. The water-quality variance is for an expanded area, or mixing zone, of elevated turbidity levels--during construction only--in the area at which the hydraulic residue from the slurry runs off the beach and re-enters the ocean. Lake Worth, also a municipality, intervened in this case to oppose Palm Beach's application. Most of Reach 8 is within the jurisdiction of Palm Beach, but, as noted below, a short segment of Reach 8 is within the jurisdiction of Lake Worth. This segment consists of the Lake Worth Municipal Beach, which includes the Lake Worth Pier. Because this segment is within Reach 8, but not within the project area, it is sometimes referred to as the Lake Worth Gap. DEP is the state agency with all relevant permitting or authorization responsibilities--where necessary, by agreement with the South Florida Water Management District (SFWMD) and pursuant to the policy of the Board of Trustees. Reach 8 spans 10,818 feet, or about two miles, of shoreline on Palm Beach Island, according to the latest survey.2 The net project area, though, is 9472 feet, or about 1.8 miles, because of the exclusion of the Lake Worth Gap, which covers 1346 feet of shoreline.3 Locations along the shoreline will be identified by DEP reference monuments, such as "R-137."4 Reach 8 extends from R-125 to R-134 plus 350 feet.5 The following planview of Reach 8 depicts the project area, as described in more detail below. This is Figure 1, Town of Palm Beach Reach 8 Beach Restoration Project Environmental Assessment, prepared by Palm Beach's consultant, Coastal Planning & Engineering, Inc. (CPE) (October 2007). For the purposes of this case, Reach 8 comprises four segments. From north to south, these segments are the North Segment (R-125 to R-127 plus 597 feet), Lake Worth Gap (R-127 plus 597 feet to R-128 plus 954 feet), Center Segment (R-128 plus 954 feet to R-133 plus 500 feet), and South Segment (R-133 plus 500 feet to R-134 plus 350 feet). The Lake Worth Pier is at R-128 plus 50 feet. The land boundaries dividing Lake Worth's upland ownership from adjacent upland, in the immediate vicinity of the Lake Worth Gap, are perpendicular to the shoreline and regular or linear. These four segments largely correspond to DEP designations of Critically Eroded Beaches (CEBs), which are discussed in more detail below. The North Segment, which is 2725 feet, and South Segment, which is 1047 feet, are CEBs. The Center Segment, which is 5700 feet, is not a CEB. The northernmost one-third of the Lake Worth Gap is CEB;6 the remainder of the Lake Worth Gap is not CEB. Thus, only 38 percent of Reach 8 is CEB. Excluding the CEB within the Lake Worth Gap, only 35 percent of the beach within Reach 8 that is proposed for beach restoration or dune nourishment is CEB. The dune-only portion of the project covers the entire South Segment plus the southernmost 1717 feet of the Center Segment. Thus, the only portion of Reach 8 that is both CEB and proposed for beach restoration is the 2725 feet of the North Segment. The Inlets, Jetties, and Reaches of Palm Beach Island As shown in the preceding illustration, Palm Beach Island is in central Palm Beach County along the shore of the Atlantic Ocean, which is Class III waters in this vicinity. Palm Beach Island is a barrier formation with various reported lengths, all between 15 and 16 miles. In 1992, Palm Beach Island varied in width from 250 feet to 3600 feet and in height up to 25 feet. Reach 8 occupies the southern third of Palm Beach Island. Ten miles north of the north end of Reach 8 is the Lake Worth Inlet (also known as the Palm Beach Inlet). Three miles south of the south end of Reach 8 is the South Lake Worth Inlet (also known as the Boynton Inlet). These are two of the eight artificial inlets on the east coast of Florida, which now has 19 inlets.7 The Lake Worth Inlet was cut in 1917, and the South Lake Worth Inlet was cut in 1927. Because sand naturally transports along the shoreline, jetties were constructed at each inlet to slow the rate at which sand filled the dredged channel of each inlet. In general, sand naturally transports north to south, due to the predominant wave direction, although lesser transport to the north takes place during the summer. Thus, for nearly a century, these jettied inlets have interrupted the natural transport of sand along this part of the east coast of Florida. To offset the sand losses caused by both inlets, sand transfer plants were constructed on each inlet's north jetty to pipe some of the detained sand across the inlet. The sand transfer plant for the Lake Worth Inlet was built in 1957, meaning that this jettied inlet interrupted the transport of sand to Palm Beach Island, without inlet-sited compensation, for nearly 40 years.8 At least twice in recent years, the Lake Worth Inlet sand transfer plant was not operational. The longer of these two interruptions was from May 1990 to May 1996, at which time the plant was repaired and upgraded in connection with the 1995 Midtown Project, described below. The sand transfer plant sustained damages during the 2004 hurricane season and was not in operation from November 2004 to March 2005. In 1996, Palm Beach's Shore Protection Board, which is discussed below, divided Palm Beach Island into 11 reaches. The division of shoreline into reaches was based on the extent to which each shoreline segment shared four characteristics: predominant coastal features, including sand movement and erosion rates; reefs and hardbottom; number and condition of shore-protection structures; and existing adjacent land uses. Reach 1 runs from the Lake Worth Inlet to the south, ending at Onondaga Avenue. Extending from R-76 to R-78, Reach 1 is the shortest reach, covering only 2410 feet. The longest reach, at 13,660 feet, Reach 2 runs from Onondaga Avenue to 1080 feet north of Wells Road, or R-78 to R-90 plus 400 feet. Reach 3 runs from 1080 feet north of Wells Road to Via Bethesda, which is at the south end of The Breakers golf course. Reach 3 is 5800 feet long, spanning R-90 plus 400 feet to R-95. Reach 4 runs from Via Bethesda to 270 feet south of Banyon Road; this reach is also known as Midtown, as it includes Royal Palm Way, which connects Palm Beach with the central business district of West Palm Beach. Reach 4 is 8065 feet long and extends from R-95 to R-102 plus 300 feet. The Midtown beach offers public access, but little public parking. Reach 5 extends from 300 feet south of Banyon Road to 170 feet north of Widener's Curve. Reach 5 is 9065 feet long and runs from R-102 plus 300 feet to R-110 plus 100 feet. Reach 6 runs from 170 feet north of Widener's Curve to Sloan's Curve. Reach 6 is 6685 feet long and extends from R-110 plus 100 feet to R-116 plus 500 feet. Reach 7 extends from Sloan's Curve to the Ambassador Hotel. Reach 7 runs 8725 feet, from R-116 plus 500 feet to R-125. Palm Beach's Phipps Ocean Park is located at the north end of this reach and provides the public with beach access and parking. The second longest of the 11 reaches, Reach 8 runs from the Ambassador Hotel to La Bonne Vie. Ten years ago, when the data for the other reaches were collected, Reach 8 extended 10,690 feet.9 Palm Beach County's Kreusler Park is located in the Lake Worth Gap and adjoins the Lake Worth Municipal Beach and Lake Worth Pier. Considerable public parking supports these facilities. Except for some metered parking, there is little public parking and little public access north of the parks located in Reaches 7 and 8. Reach 9 runs from La Bonne Vie to the Lantana Avenue access. Reach 9 runs 3655 feet from R-134 to R-137 plus 400 feet. Reach 10 runs from the Lantana Avenue access to Chillingsworth Curve. Reach 10 runs 8560 feet from R-137 plus 400 feet to R-145 plus 740 feet. Reach 11 runs from Chillingsworth Curve to the South Lake Worth Inlet. Reach 11 runs 5530 feet from R-145 plus 740 feet to R-151 plus 300 feet. Physical Environment and Natural Processes Selected Terms and Concepts The beach extends from mean low water landward to the vegetation line.10 The beach and dune system is that portion of the coastal system where there has been or there is expected to be, over time and as a matter of natural occurrence, cyclical and dynamic emergence, destruction, and reemergence of beaches and dunes.11 Landward to seaward, the sand-sharing system or beach profile comprises the dune, dry berm, beach face, and nearshore bar. The dry berm is the flat part of the beach that is subaerial. The beach face, or wet beach, is the seaward-sloping part of the beach that receives the uprush from wave action. The swash zone is the area that is alternatingly wet and dry from wave action. The surf zone is the area from the seaward extent of the swash zone to the breakers. Sometimes, the nearshore is used synonymously with the surf zone; nearshore designates nothing more than the area immediately seaward of the mean low tide. In either case, the offshore runs seaward from the seaward extent of the nearshore. Longshore is the direction parallel to the shoreline. Cross shore is the direction perpendicular to the shoreline. A plan view (or planview) of the beach is the view from above. A profile view of a beach is from the side. For example, a line running from the left hand side of this page in a downward direction to the right hand side of this page may depict part of the beach profile by tracing, from left to right, the descending elevation, from landward to seaward, of the dune, dry berm, and beach face. The proposed beach restoration template comprises advance fill and design fill. Sacrificial in nature, advance fill is expected to erode during the life span of the nourishment project, leaving the design fill, which is what is intended for the more persistent protection of upland structures. After the contractor contours the fill to conform to the beach-restoration template, which extends seaward of mean low water, the natural processes of waves, currents, and wind move the fill cross-shore and longshore until it reaches a point of equilibrium. Movement by wind is largely irrelevant to this case. In response to the forces of waves and currents, particles of sediment will move by bedload or entrainment into the water column, depending on conditions discussed in more detail below.12 Movement by bedload is movement along the bottom by rolling or sliding, but the particle remains in contact with the bottom and never entrains into suspension in the water column. Stationary grains or grains moving by bedload do not create turbidity or sedimentation. Movement by entrainment into the water column is movement that lifts the particle into the water column where it remains in suspension unless and until energy conditions are reduced sufficiently to allow the particle to settle out of the water column. Suspended particles contribute to turbidity, which is a measure of the loss of the water column to transmit light. Settled particles contribute to sedimentation of objects, such as hardbottom, that has previously been uncovered, although these objects may also be covered by particles moving by bedload. For the most part, the equilibration process involves the movement of the fill based on such factors as the slopes of submerged bottoms, grain sizes of bottom sediments, and expected movement of sediments in response to waves and currents. A calculation of the point of equilibrium is a useful approximation, but the point of equilibrium is only a point of substantial equilibrium, and the equilibration process only substantially concludes. Over time, when subjected to sufficient forces, fill (and pre-project sediments in the area) will continue to move. At the point of equilibrium, the depth of the water at the point farthest offshore is the closure depth. There is no similar term for the location of the fill in the longshore direction at the point of equilibrium.13 The movement of fill during the equilibration process is by bedload, as discussed below, rather than by entrainment into the water column, also as discussed below, except for the transport of fill insignificant distances by entrainment into the water column. The forces of wind, current, and wave, which move sediments on the beach, along the submerged bottom, and into the water column, are strongest when associated with storms, whose intensity is generally described by return intervals. In any given one-year period, a 100-year (or greater) storm has a one percent chance of occurring, a 25-year (or greater) storm has a four percent chance of occurring, and a 10-year (or greater) storm has a ten percent chance of occurring. The record does not suggest a precise relationship between the intensity of these storms and the forces that they produce. For present purposes, it is sufficient to acknowledge that the forces increase in direct relationship to the intensity of a discrete storm. The sediments in this case are predominantly siliciclastic or carbonate in origin. Siliciclastic materials, such as quartz, derive from terrestrial deposits, such as the Appalachian Mountains, from which they are transported by rivers to the Atlantic coast. These siliciclastic materials are then transported southerly along the coast by the prevailing wave direction. These materials resist breakage. Carbonates are biogenic materials consisting mostly of offshore shell and coral fragments. Grains of carbonate materials are much more susceptible to breakage than siliciclastic grains when subjected to increased forces, such as when dredged from relatively tranquil depths and placed in the surf zone. Upon exposure to the higher energy forces of the surf zone, relatively coarse materials are abraded to clay- or silt-sized materials in as little as one week. The resulting turbidity associated with these abraded materials often bears the signature of a milky appearance in the water column. Rigid coastal structures include jetties, groins, breakwaters, seawalls, revetments,14 and geotextile bags.15 A groin is a structure installed, usually in a cross-shore direction, to trap or alter longshore transport of sediment or to retard erosion of coastal system.16 Groins may be constructed of rock, concrete, or geotextile bags. A breakwater is a structure that protects shoreline areas, harbors, inlets, or basins from the forces of currents or waves.17 A revetment is a sloped, seaward-facing structure made of an armoring material, such as large rocks or pieces of concrete, that is designed to protect an embankment or upland structure from erosion from waves or currents.18 Armoring means to install an artificial structure to prevent erosion of upland property or protect structures from waves and currents and includes geotextile tubes or bags, seawalls, revetments, and retaining walls, but not groins, jetties, or other structures whose purpose is to add sand to the coastal system, alter the natural coastal currents, or stabilize the mouths of inlets.19 A geotextile container is a bag or tube, made of "blanket-like" synthetic fibers manufactured in a loose or woven manner, that contains a large mass of sand, so as to form a rigid tubular structure.20 Based on an article that he co-authored five years ago, Dr. Finkl has classified Florida beaches as dissipative, intermediate, or reflective. Beaches in Dade and Broward counties are reflective. Most beaches in Palm Beach County, including Reach 8, are intermediate although closer to reflective. Beaches in northern Palm Beach, Martin, St. Lucie, Brevard, and Volusia counties are dissipative. Reflective beaches have medium- to coarse-grained sand, surging breakers, low wave heights, constant wave reflection, no bars, steep beach profiles, and low sediment transport, mostly as bedload. This means that relatively large forces, in the form of waves and currents, are required to move the larger-grained sediments forming reflective beaches, and, when they move, they roll or tumble along the bottom, rather than enter into suspension and become transported within the water column. Reflective beaches provide more protection to upland structures than dissipative beaches do, although there is an inverse relationship between protection to upland structures and morphodynamic stability in beaches, meaning that dissipative beaches will change in dimensions frequently. Dissipative beaches are flatter and formed by fine- grained particles. These beaches are characterized by large waves, multiple low-relief bars, multiple spilling breakers, and relatively flat berms and beach faces. Dissipative beaches are morphodynamically stable, partly due to the storage role of the bars, but offer little protection of upland structures because their low profiles and low berms facilitate overwash by surge. The flat profiles of dissipative beaches allow high waves to quickly submerge the beach, and the dissipative beaches' fine grains are more readily eroded and entrained into the water column. Intermediate beaches have fine- to medium-grained sand, medium wave heights and periods, one or two bars, and a high degree of shoreline mobility. However, intermediate beaches provide the most protection, evidently due to their protection of upland structures and morphodynamic stability. Geology, Sedimentology, and Coastal Processes Physiographically, subaerial southeast Florida occupies the coastal plain adjacent to the continental shelf. Most of this part of the continental shelf was subaerial as recently as 18,000 years ago, during the last period of expanded glaciation. The present interface has been near its present elevation for the past 5000-6000 years, and the present shoreline has been maintained for about 3000 years, although many believe that sea levels are again on the rise. Although the regulatory timeframe is well short of geologic time, the functions of the ecological resources and systems, such as the nearshore and beach, that are the focus of this case must be understood in terms of the geological and coastal systems, of which these resources and systems are a part. The extent to which proposed activities coordinate or fail to coordinate with these resources and systems assists in determining the extent of any impact of the proposed activities on these resources and systems. In particular, the geology of Reach 8 provides a backdrop against which the offshore reef and nearshore hardrock can be evaluated. The geology of these resources reveals their rarity and the vast periods of time required for their formation and emergence. The geology of Reach 8 also complicates the process of describing and predicting sediment transport. The Anastasia Formation informs the behavior of the entire island in response to storm events and beach erosion and the resulting nearshore sediment transport, especially as it is affected by the occurrence of nearshore hardrock. Much of the present offshore reef structure, which defines the boundary between the continental shelf and the deeper continental slope, was exposed during the last glacial maximum. The exposure of carbonate structure to air resulted in an irregular topography, upon which the modern offshore reef became established. Episodic submergings have contributed to the complexity of this structure, which is now known as the Florida Reef Tract or, simply, offshore reef. The third largest barrier reef chain in the world, the Florida Reef Tract extends from the Florida Keys north to the Bahamas Fracture Zone, which, as depicted in the following figure, crosses Florida's east coast between the Lake Worth Inlet and Reach 8. The Florida Reef Tract is generally continuous, although it contains gaps, including three offshore of Reach 8. The Florida Reef Tract is relatively close to the shoreline along central and south Palm Beach County. The offshore shelf zone tends to be quite narrow from the Bahamas Fracture Zone to the Hillsboro Inlet, which is an inlet in north Broward County that is 26 miles south of the Bahamas Fracture Zone. The offshore shelf zone in this area ranges in width from six miles in north Palm Beach County to 1.25 miles at the Palm Beach/Broward county line. This narrowed offshore shelf zone marks the southernmost extent of a discontinuous field of diabathic channels, which are described below. An abrupt and steep slope seaward of the Florida Reef Tract forms the western edge of the Straits of Florida. For obvious reasons of practicality, the landward edge of the Florida Reef Tract marks the limit of the area from which bottom sediments may be mined for fill to be placed on the beach along Reach 8. Interpreting mapping derived from laser airborne sounding done from 2001 to 2007, Dr. Finkl has mapped the seabed components landward of the offshore reef. Landward of the Florida Reef Tract, these components are, in order, the backreef apron, offshore sand flat, diabathic channel field, nearshore sand flat, and, where present, nearshore rock. The figure below is a map of the seabed prepared by Dr. Finkl; the area is just north of Reach 7, but includes the site (R-106 to R-108) proposed for the mitigation nearshore rock in this case and, according to Dr. Finkl, sufficiently represents the seabed directly offshore of Reach 8. This is Figure 2.b in "Shelf Geomorphology along the Southeast Florida Atlantic Continental Platform: Barrier Coral Reefs, Nearshore Bedrock, and Morphosedimentary Features," Journal of Coastal Research, Vol. 24, No. 4 (2008), by Charles W. Finkl and Jeffrey L. Andrews. The backreef apron contains materials driven by storms off the Florida Reef Tract. Such materials are mostly broken pieces of coral, shell hash, and other carbonates. The grain size of the sediment of the backreef apron thus tends to be large, but subject to breakage when introduced into higher- energy settings. The sand flats were paleolagoons during periods of lower sea level. BA III and IV, which were the borrow areas for the Reach 7 project described below, are located in the sand flats, relatively close to the backreef apron of the offshore reef. This probably explains the deposits of relatively coarser-grained sediments that were excavated, at least from BA III, for the Reach 7 project, also as discussed below. Also known as a hurricane storm bar, a long, discontinuous field of diabathic channels extends from Martin County south to the Hillsboro Inlet. Each diabathic channel, which is oriented perpendicular to the channel field, runs in a cross shore direction and is about 300 meters wide from channel edge to channel edge. Diabathic channels are of particular importance in this case because BA V and BA VI have been sited within such channels, and it does not appear that these channels have previously been excavated, at least intentionally. Previously, as in the cases of BA III and BA IV, sediments have been excavated farther seaward in the sand flats. As Dr. Finkl testified, the mean grain size of offshore sediments is a function of place, but also time in relationship to major storm activity, as sand is constantly in movement in both cross shore and longshore directions. The role of diabathic channels, which are carved into what is essentially a long storm bar, is to store sand removed from the beach after hurricanes until natural forces return the sand back to the beach, although the period required for the sand to be returned to the beach may be quite long. Excavating the diabathic channels, rather than the offshore sand flats, provides greater protection to the offshore reef due to the greater distance between the excavation site and the offshore reef. However, excavating the diabathic channels presents its own risks because deep borrow areas closer to shore raise the risk of altering wave action so as to accelerate beach erosion, especially if the closure depth of the equilibrated beach extends into a borrow area. Also, excavating the diabathic channels, rather than the offshore sand flats, presents a great risk of impact to the nearshore hardbottom, again due to the proximity of the excavation to the resource. In contrast to areas south of Palm Beach Island, where a middle coral reef and inner coral reef may be found landward of the Florida Reef Tract, the area offshore of Palm Beach Island contains sedimentary deposits framed only by nearshore hardbottom and the offshore reef. These sedimentary deposits comprise the above-described sand flats, diabathic channels, and some reef overwash on the landward (or leeward) side of the offshore reef. Based on his interpretation of the laser airborne sounding, Dr. Finkl has estimated that the offshore bottom, from Martin County to Hillsboro Inlet, is about 47 percent hardbottom, which encompasses both reef and rock. However, very little of this hardbottom is found landward of the Florida Reef Tract, which, itself, constitutes only about 1.5 percent of this area. In terms of nearshore bottom coverage, nearshore reef accounts for about 0.4 percent, nearshore patch reef is about 0.1 percent, and nearshore rock is 0.1 percent of the bottom. The nearshore rock expresses the geological control of Reach 8, Palm Beach Island, and much of the east coast of Florida. Palm Beach Island is perched on this bedrock, which, when exposed from beneath the sediments, is the nearshore hardbottom. Shoreline recession facilitates the emergence of this hardbottom, which typically is buried at a relatively shallow depths--two to three meters--for native beach berms in Florida. Although Dr. Finkl's mapping, as shown in the figure immediately above, describes the nearshore structure as "nearshore reef," he testified that "nearshore rock" would better describe this structure. When uncovered, this hardbottom outcropping appears as it does in the following photograph of a portion of Reach 8. This is Photograph 13, Town of Palm Beach Reach 8 Beach Restoration Project Environmental Assessment, prepared by CPE (October 2007). However, when viewed by the Administrative Law Judge during the late afternoon and early evening in early October 2008 (about two hours after low tide), the beach revealed hardly any exposed hardbottom, visible from the beach. As Dr. Finkl has written, geologically controlled barrier islands do not migrate like sandy barrier islands in response to energy inputs and rising sea level. Described aptly by Dr. Young as a rock ridge, Palm Beach Island is thus not prevented from migrating by shoreline armoring and upland development. This geological control along Reach 8, interrupting a relatively uniform sandy bottom, also undermines the ability of models to predict longshore sediment transport, as discussed below. The nearshore reef identified by Dr. Finkl in the illustration is more prevalent north of Reach 8. However, smaller nearshore reefs may occur throughout the nearshore, and any nearshore rock may also host coral-algal formations. The habitat value of relatively these isolated patches of nearshore hardbottom may enhanced by their scarcity. The remainder of the seafloor--slightly greater than half--is sandy bottom or covered by other sedimentary material. This sandy bottom is of obvious interest as a sand source, but, as noted below, the sandy bottom hosts various ecological functions. Nearshore sand flats constitute about 25 percent of the entire area. These flats are composed of mainly sand-sized siliciclastics and carbonates. Offshore sand flats make up about 9 percent of the entire area. Diabathic channels form about 6.6 percent of the entire area and represent about 15 percent of the sand resources of Palm Beach County. Occurring in water depths of 7.5-10 meters, diabathic channels average about 300 meters in length and width. They lie about 400 meters off the shoreline--500-750 meters off Reach 8--and display about one meter in relief. Diabathic channels, which mark a slope change on the shoreface, are probably unrelated to offshore reef gaps, which nonetheless may be important passageways as sand from offshore sand flats, seaward of the Florida Reef Tract, may be transported landward under the right conditions. Characteristics of Sediments by Grain Size and Role of Grain Size on the Performance of a Beach Grain size determines whether a particle is classified as clay, silt, sand, or gravel, in ascending order of size. A grain size less than .0039 mm is clay; a grain size greater than clay, but less than .0625 mm, is silt; and a grain size greater than silt, but less than 2.0 mm, is sand. Coarser grained particles, which are not relevant to this case, are granule, pebble, cobble, and boulder, in ascending order of size, according to the Wentworth classification system. Nothing in this record suggests that these classifications in grain size were developed to correspond in any way to beach function. A curious relationship exists in certain natural settings between siliciclastic grain size and nondimensional sheer stress, at least involving laminar surfaces, such as the unidirectional water current running along the bottom of a river or drainage canal. The lowest value of sheer stress, which may be thought of as velocity, to cause a grain to entrain into suspension occurs when the grain is about 0.2 mm in size--not larger and not smaller. As noted above, this size is within the finer range of sand. It is intuitive that higher velocities are required to suspend larger grains, which first enter into bedload movement before entering suspension. But grains smaller than 0.2 mm also require higher velocities to enter suspension: they do not first enter into bedload movement and resist entering into suspension due to electrical charge and cohesiveness. Using the grain-size classification system set forth above, siliciclastic fine sands at 0.2 mm in size will offer less resistance to entrainment into suspension than will siliciclastic silts, clays and sands finer than 0.2 mm, as well as, of course, siliciclastic sands coarser than 0.2 mm. A graphic display of this phenomenon is called Hjulstrom's Curve. There are three views as to the applicability of Hjulstrom's Curve to this case. In Dr. Wanless's view, it governs in the swash zone, surf zone, and nearshore. However, the bidirectional flow in the swash and surf zones, turbulence introduced by wave action, and absorption of a portion of the wave energy into the porous beach face itself preclude a finding that Hjulstrom's Curve applies to the swash and surf zones. In Mr. Brantley's view, Hjulstrom's Curve is irrelevant. Taking an intermediate view, Mr. Finkl and Dr. Dean agree with Mr. Brantley that the law does not apply in the swash and surf zones. Mr. Finkl believes that Hjulstrom's Curve could be used seaward of the surf zone. Dr. Dean testified that Hjulstrom's Curve may have limited applicability in this case, but not within the swash and surf zones. The intermediate view of Mr. Finkl and Dr. Dean is credited. The consequence of this finding is that, as velocities along the bottom increase seaward of the surf zone, the first sediments to entrain into suspension are not silts or clays, but finer-grained sands, about 0.2 mm in size. The consequence of the distinction between transport by bedload and transport by entrainment into the water column is that, although both will cover hardbottom, only transport by entrainment into the water column causes turbidity also. The transport of sediment by bedload does not contribute to turbidity because the sediment remains in contact with the submerged bottom. However, another size of importance is 0.02 mm, which is within the silt range. After entrainment, particles larger than 0.02 mm tend to settle to the bottom quickly, but particles smaller than 0.02 mm tend to remain suspended in the water much longer. Grain size alone does not determine the susceptibility of a particle to entrain. Carbonate particles of the same size as siliciclastic particles may enter suspension with less energy due to their shape or porosity. Also, larger carbonate particles dredge from deeper waters, when deposited in the swash or surf zone, will abrade into smaller particles. The percentage of carbonates in Florida beaches is as high as 60 percent, at Cocoa Beach, and many beaches containing more than 40 percent carbonates and less than 60 percent siliciclastics. Beaches closer to warm marine waters, which are highly productive, tend to display higher carbonate percentages. Because finer grains will support shallower slopes, the addition of, say, finer-grained sediments to an intermediate beach will push it toward a dissipative beach, with its characteristic low protection of upland structures. Dr. Finkl testified on rebuttal that the mean grain size of 0.23 mm and 0.24 mm in BA VI and BA V, respectively, as compared to a presumed existing mean grain size of 0.30 mm, was not a sufficient reduction in grain size to cause the Reach 8 beach to transform from an intermediate beach to a dissipative beach. But he admitted that 0.20 mm "might" be very close to the boundary between the intermediate and dissipative beach states. However, many factors drive beach state and, as between grain size and energy, energy is ultimately going to determine the beach state more than the size of grains placed by man onto the beach profile. In other words, the forces to which a beach has always been subject will rework the fill placed on the beach and restore the beach to its preexisting state--in the above scenario, back to intermediate from dissipative. The process by which excessively small particles are distributed seaward, until they finder lower-energy locations in deeper water, is called cross-shore sorting. It is not unlikely that the finer the fill, relative to the existing beach sediments, the quicker the forces will work to reestablish the pre-existing beach state, given equal energy inputs. Even an unrestored beach within any of the three classifications is going to experience cross-shore sorting in response to wave and current forces. Where the highest energy is experienced, which is in the intertidal zone, the largest grain sizes will be found. Grain sizes decrease in size as the water deepens because the forces on the bottom sediments decrease in direct relation to increasing depth. As Dr. Dean memorably testified, the finer-grained sediments behave in this respect no differently than dust on one's floor, which works its way to the lowest-energy nooks and crannies of the house. Erosive Factors at Reach 8 By far, the most substantial factor removing sediments from Reach 8, over the long run, is not storms, seawalls, or groins; it is the Lake Worth Inlet and its jetties. Dr. Dean has estimated that 80-85 percent of the erosion on Florida's east coast beaches is caused by jettied inlets, and Dr. Finkl agrees that this remains true today. Dr. Dean has estimated that, from 1918 to 1942, the inlet deprived the beaches to the south of 6.2 million cubic yards of sand. From 1929 to 1986, Dr. Dean estimates that 5.2 million cubic yards were dredged from the inlet and placed at sea, and 1.2 million cubic yards were dredged from the inlet and placed inland. It is difficult to allocate the remaining sand losses between other anthropogenic factors and storms, but clearly the construction of seawalls and groins north of Reach 7 and seawalls along Reach 8 have contributed substantially to any sand deficits that Reach 8 has suffered. Seawalls accelerate beach erosion by reflecting waves, causing increased turbulence and entraining additional particles, and accelerating longshore currents. In 1998, about 1630 feet of Reach 8 was seawalled. Presently, 5260 feet of the 10,985 feet of Reach 8 is seawalled, including all 1300 feet of the Lake Worth Gap. Also, as noted below, the groins north of Reach 7 will require decades before they fill in and effectively stop intercepting sand on its natural journey south along Palm Beach Island, although, given the apparent effect of the cessation of operation of the sand transfer plant on Reach 8, the unfilled groins north of Reach 7 may pass some sand, in certain energy conditions, at least when the sand transfer plant is operating. The long-term impact of storms on Reach 8 is difficult to quantify. Palm Beach County beaches enjoy some protection from the Bahamas Banks, at least from long swells from the east, although prevailing winds from the north or south may generate long swells that can cause considerable beach erosion. Dr. Dean testified that beaches fluctuate in the short-term due to seasonal and storm effects, perhaps implying that long-term fluctuations are not as dependent on seasonal effects and storms. The record would bear out such an implication. From November 1974 to August 1990--a 16-year period-- the shoreline advanced for all of Reach 8, except for the portion south of R-132. The North Segment experienced a 10-30 foot advance. The shoreline of the Center Segment advanced from 60 feet at R-129 to 0 feet at R-132. South of R-132, the shoreline of the Center Segment retreated from 0 feet to 30 feet. The shoreline of the South Segment retreated about 38 feet. During this entire 16-year period, the sand transfer plant piped sand across the Lake Worth Inlet for longshore transport south of the inlet. From August 1990 to September 2000, the shoreline for nearly all of Reach 8 retreated, except for a short length at the extreme north end. From R-125 to R-126, the advance was 20 feet to 0 feet. The rest of the North Segment experienced a retreat from 0 feet to 57 feet. For the Center Segment, the shoreline from R-129 to R-132 retreated from 57 feet to 0 feet. From R-132 to R-134 plus 350, which is the remainder of the Center Segment and all of the South Segment, the shoreline advanced from 0 feet to 30 feet. During the first six years of this 10-year period, the sand transfer plant was not operational. Based on historical data, Dr. Dean has estimated that, over the past 2000 years, 591 hurricanes have passed within 300 nautical miles of Palm Beach County. More recently, though, Palm Beach Island has experienced a marked increase in strong storm activity. The 2004 hurricane season was the most active in Florida since weather records began in 1851, and the 2005 hurricane season broke all records with 27 named storms, of which five hurricanes and two tropical storms impacted Florida. However, Florida experienced a mild tropical season in 2006 and a relatively mild tropical season in 2007, although persistent northeasterly storms in the winter of 2007 eroded a few Atlantic erosion hotspots.21 Major summer storms impacting Palm Beach Island in the past five years are Hurricanes Frances and Jeanne in September 2004, Hurricane Wilma in October 2005, Subtropical Storm Andrea in May 2007, and Tropical Storm Noel in November 2007. The combined effect of Hurricanes Frances and Jeanne, which were only two weeks apart, was the equivalent of a 213-year return storm. In other words, the likelihood of such a storm event, represented by both storms, in any single year is less than one- half of one percent. For Palm Beach Island, Hurricane Wilma was a 27-year storm, and Subtropical Storm Andrea was a 19-year storm. From August 2004 to April 2008, various transects revealed that the shoreline of the North Segment advanced from 81 feet to 35 feet, the shoreline of the Center Segment retreated from 105 feet to two feet, and the shoreline of the South Segment advanced nine feet. More particularly, from August 2004 to August 2006, while the sand transfer plant was again not operational, the beach retreated, but, from May 2007 to April 2008, coinciding with the return to service of the sand transfer plant, the beach regained some of its earlier losses. Even two hurricanes as close together as Frances and Jeanne, which removed sand from the observable beach, may not permanently deprive the beach of this eroded sand. As noted in a study cited in "Rapid Changes in the Nearshore Habitat: Is Resource Burial an Appropriate Measure of Project Impact" by Matthew Lybolt and Sandra Tate, both employed by CPE, the twin hurricanes of 2004 removed from a study area 259,700 cubic meters of sand from the dunes to a depth of -3.7 m, but deposited 251,500 cubic meters from a depth of -3.7 m to -9.1 m. For 2004-05, three transects in the North Segment reflected, from north to south, advances of 97 and 29 feet and a retreat of 16 feet. Five transects in the Center Segment reflected, from north to south, retreats of 42 feet, 33 feet, 35 feet, 45 feet, and nine feet and an advance of 24 feet. One transect in the South Segment reflected an advance of 19 feet. Suggestive of a natural restorative process, for the quieter one-year period from May 2007 to April 2008, the North Segment transects reflected advances of 25 feet, 79 feet, and 88 feet; the Center Segment transects reflected a retreat of 28 feet and advances of 6 feet, 23 feet, 13 feet, and four feet; and the South Segment transect reflected an advance of five feet. The natural process of erosion and accretion varies by season. Winter is normally a time of beach erosion as episodic strong winds produce strong waves with a strong seaward motion after the wave breaks, pulling large amounts of beach sand out to sand bars. Summer is normally a time of beach accretion as the typical waves exhibit greater landward motion than seaward motion, transferring large amounts of sand from the sand bars back to the beach. Beach-Restoration and -Nourishment Projects on Palm Beach Island Reaches 1-6 The record details no beach-engineering projects until the mid-1940s, but the reaches22 probably received fill from the dredging of the Lake Worth Inlet at an early date, even though the record does not identify the source of fill for the early beach projects described immediately below. As part of the federal Palm Beach Harbor Navigation Project, the Lake Worth Inlet is dredged frequently to maintain a depth of 35 feet. In 1984 and 1985, 2.1 million cubic yards of sediment was dredged from the inlet, but it was all dumped offshore. However, from 1975 to 1990, 558,000 cubic yards of sand and other sediments were dredged from the inlet and placed on the beaches of Palm Beach Island. From 1990 to 2001, 1.048 million cubic yards of sand and other sediments were dredged from the inlet and placed on the beaches of Palm Beach Island. In broad terms, one source23 reports over 1 million cubic yards of fill to Reach 2 in 1948, over 1 million cubic yards of fill to Reaches 4 and 5 in 1948, nearly 900,000 cubic yards of fill to Reach 4 in 1977 and 1995, and nearly one-third million cubic yards to Reach 6 from 1949 to 1987. In 1944, 282,000 cubic yards of fill was placed on the beach adjacent to Mediterranean Avenue (Reach 1). In 1948, 225,000 cubic yards of fill was placed "south of Lake Worth Inlet," and 2.3 million cubic yards of fill was placed on the beach adjacent to Eden Road (Reach 2), Tangier Road (south end of Reach 2), and Banyan Road (south end of Reach 3). In 1949, 380,000 cubic yards of fill was placed on the beach adjacent to Mediterranean Avenue, and 100,000 cubic yards of fill was placed south of Sloan's Curve (Reach 7). In 1953, 463,000 cubic yards of fill was placed "south of Lake Worth Inlet." From 1970-1978, 450,000 cubic yards of fill was placed "south of Lake Worth Inlet." In 1976, the beach adjacent to Chilean Avenue (Reach 3) received 86,000 cubic yards of fill, and beach from Sloan's to Widener's Curves (Reach 6) received 100,000 cubic yards of fill. Reach 1 has benefited from the operation of the Lake Worth Inlet sand transfer plant. From 1975 to 1990, the Lake Worth Inlet sand transfer plant pumped 1.6 million cubic yards of sand across the inlet. After upgrades in 1995, in connection with the 1995 Midtown Project, described below, the sand transfer plant transferred 885,300 cubic yards from 1996 to 2001. From 1994-2000, Reach 1, which has wide beaches, received annually an average of 289,000 cubic yards from the sand transfer plant and the placement of spoil from inlet maintenance dredging. From 2000 to 2004, the average annual volume of sediments dredged from the Lake Worth Inlet was slightly in excess of 100,000 cubic yards. Reach 1 has also received nearly all of the dredge spoil from maintenance dredging of the Lake Worth Inlet, at least when such spoil is placed on the beach of Palm Beach Island. This spoil is deposited within 3000 feet of the south jetty, which would span Reach 1 and only the northernmost 600 feet of Reach 2. It is not entirely clear from the source,24 but it appears that all of this spoil was placed on Reach 1 and the northernmost 600 feet of Reach 2. Reach 1 and Reach 2 probably continue to receive annually about 100,000 cubic yards of dredge spoil and, as discussed above with respect to the Lake Worth sand transfer plant, about 200,000 cubic yards of bypassed sand. It is unclear whether Reach 2 has received much sand from the Lake Worth Inlet sand transfer plant, but this reach experienced accretion from 1974-90, while the plant was in operation, and erosion from 1990-97, while the plant was shut down. In any event, Palm Beach plans to upgrade the Lake Worth Inlet sand transfer plant by extending its discharge pipe 2000 feet south to transfer relatively small amounts of sand directly to Reach 2. This activity will also benefit the north end of Reach 3, as pumped sand is expected to be spread across the remainder of Reach 3 and northern part of Reach 4. From 2000 to 2004, the sand transfer plant bypassed annually an average of 202,000 cubic yards of sand--which is its goal since expansion. For the preceding four years, though, the plant averaged only 115,000 cubic yards of bypassed sand. Reach 3 received sand in connection with the 2003 Midtown Project, described below. With Reach 4, Reach 3 has received a Prefabricated Erosion Prevention (PEP) Reef on two occasions in 1987 and 1991. The first installation was found to have little beneficial effect before it was removed, and the second was found to have accelerated erosion, rather than accretion, so it too was removed. By 1988, nearly the entire length of Reach 3 was seawalled and its southern end features several groins, which are at the north end of the Breakers property. Due to a combination of the prevalence of groins along its shoreline and to the south and the distance from the sand transfer plant outfall, Reach 4 probably represents the southernmost beneficiary of sand from the sand transfer plant. Nearly 80 percent seawalled by 1987 and displaying groins nearly its entire length, Reach 4 has been the subject of at least three recent, fairly large beach-engineering projects, so Reach 4 cannot be entirely discounted as a source of sand for Reach 8, although, again, intervening groins would greatly limit the amount of sand that can escape these reaches with numerous unfilled groins. In late 1995, Reach 4 received 880,000 cubic yards of sand through the Midtown Beach Restoration Project, as mitigation for impacts from the Lake Worth Inlet Management Plan. The sand source was an offshore borrow area 2000 feet south of the Lake Worth Inlet, just south of the Lake Worth Inlet ebb shoal. This project added advance fill for a projected duration of eight years; the design fill was for a 25-foot wide beach at 9 feet NGVD.25 The 1995 Midtown Project also involved the replacement of old groins with 11 new, adjustable groins, which were completed in April 1996. Because there were no impacts projected to nearshore hardbottom, no mitigation was required. The 1995 Midtown Beach Restoration Project maintained the beach berm for its eight-year life expectancy, but suffered significant erosion at the north and south ends of the beach fill. At the end of four years, the project retained about 70 percent of its fill, and, at the end of seven years, it retained about 50 percent of its fill. The persistence of this project was likely influenced by the numerous groins along Reach 4. In early 2003, Reaches 3 and 4 received a nourishment/restoration of 1.27 (or 1.29) million cubic yards of sand as part of the 2003 Midtown Project. The source of the fill was an offshore borrow area adjacent to the one used for the 1995 Midtown Project. The fill was placed in two segments to leave a 400-foot gap to avoid impacting The Breakers' "Rock Pile," which is the site of concrete rubble from an old pier. The Rock Pile has since been colonized by wormrock and other benthic species. The permit required quarterly environmental, post-construction monitoring, which reportedly revealed no unanticipated hardbottom impacts a couple of years later. The 2003 Midtown Project was considerably less durable than the 1993 Midtown Project. The 2004 hurricane season removed all of the advance fill and at least part of the design fill of the 2003 Midtown Project, so FEMA funded a nourishment known as the 2006 Midtown Project to nourish Reaches 3 and 4 to restore the design template from the 2003 Midtown Project. This involved the placement of 893,000 cubic yards of fill. The 2006 Midtown Project was constructed from January 24 to February 24, 2006. Featuring numerous groins along their lengths, Reaches 5 and 6 are fairly healthy, and Palm Beach has no plans for these beaches other than to monitor them.26 By 1987, over 80 percent of the Reach 5 shoreline was fronted by seawall or revetment, and groins lined its entire length. By 1987, over 90 percent of the Reach 6 shoreline was fronted by seawall or revetment. However, Sloan's Curve, which is at R-116, received 34,000 cubic yards of sand in 1987 to restore the dunes. Also, in the same year, the Florida Department of Transportation placed a rock revetment north of Sloan's Curve to provide storm protection, and the revetment remains in place. The ability of these extensively groined shorelines along Reaches 5 and 6 to deprive reaches to the south of naturally transported sand is significant, as perhaps suggested by their relative health today. The cumulative impact of the groins and revetments may be partly revealed by the accelerated rate of sand loss in Reach 7 in recent years: the average annual rate of sand loss in Reach 7 from 1990-97 was 3.5 times greater than the rate of sand loss in Reach 7 from 1974-90. The three miles of shoreline north of Sloan's Curve is especially marked by extensive armoring structures, such as revetments, seawalls, and groins--including a "monster" groin at Widener's Curve (near R-110) that has yet to fill in with sand. Final Supplemental Environmental Information Statement for Reach 7 project, p. 64. The statement reports that this groin and others may require "decades" before filling with transported sand and allowing excess sand to continue transporting longshore to the south.27 Reaches 9-11 Due to their proximity to the north jetty of the South Lake Worth Inlet, whose sand transfer plant obviously does not transfer all of the trapped sediment across the inlet, Reaches 9-11 have benefited materially from this interruption in longshore transport of sand, although Palm Beach has received, in the past, a consultant's recommendation to restore or nourish Reaches 9 and 10. Even if any restoration work has taken place on these reaches, it would have almost no impact on Reach 8 given the normal direction of longshore transport of sediments to the south. Reach 8 Until the hurricanes of 2004 and 2005, Palm Beach merely monitored Reach 8, like it monitors Reaches 5 and 6. The proposed project is the first beach-engineering project for Reach 8, except for some relatively minor work that Palm Beach undertook after the recent hurricanes. In 2005, Palm Beach trucked 50,000 cubic yards of sand from upland sources and placed it landward of the mean high water line to form an emergency berm. In 2006, Palm Beach transferred something less than 58,500 cubic yards of sand that had been excavated for Reach 7 and nourished the dunes from R-116 to R-134 plus 100 feet. (Palm Beach had received permission to transfer 58,500 cubic yards, but the start of turtle nesting season brought a halt to the project just before it was completed, so the amount of fill placed in these dunes is less than 58,500 cubic yards.) Reach 7 Reach 7 has undergone a single restoration project. Known as the Phipps Ocean Park Beach Restoration Project or Reach 7 Project, this project used 1.1 million cubic yards of sand from BA III and BA IV to restore 1.4 miles of beach to 9 feet NGVD, although a related project, at about the same time, focused on Reach 7 and 8's dunes. At the time of these projects, DEP had designated all of the beach as CEB. The Reach 7 Project involved the construction of 3.1 acres of mitigation hardbottom to mitigate for adverse impacts to 3.1 acres of ephemerally exposed hardbottom. The contractor constructed the mitigation hardbottom in mid-2004, and constructed the project itself from February 19 to April 17, 2006, so that it began as the 2006 Midtown Project was ending. All of the advance fill from the Reach 7 Project eroded offsite within the first two years, post-construction; based on the anecdotals set forth below, a substantial portion of the erosion process probably took place in the first year. Unfortunately, the record does not reveal the storm events associated with this accelerated erosive process. Compared to 2004 and 2005, 2006 and 2007 were not significant for summer storms, but, as noted above, greater erosion occurs during the winter, when the storms bear no names; in any event, the record does not supply storm information for winters. The hardbottom that was exposed prior to the project, but that was covered directly or indirectly by the project, is again exposed today, two and one-half years post-construction. These aspects of the project performance are important to the present case for three reasons. First, undetermined amounts of fill from Reach 7 transported to Reach 8, probably very shortly after the completion of the Reach 7 project. These sediments may have transported to Reach 8 prior to the collection of sediment-size data by CPE in 2006 and thus biased the data toward smaller values. Second, the turbidity associated with the Reach 7 project was significant. As noted below, evidence of turbidity is anecdotal and derived from persons who, with one exception, are not professional collectors of such data. However, these persons have intimate familiarity with the beach, both before and after construction. Absent professional collection of post- construction turbidity data in connection with normal and storm conditions, the alternative to amateur data collection is no data collection. Palm Beach expert, Craig Kruempel, conducted a post- construction assessment of submerged bottom 36 months after the construction of the Reach 7 mitigation reef. Because this reef was built two years prior to the Reach 7 beach and dune projects, Mr. Kruempel's work took place in 2007--only one year after the completion of the Reach 7 beach and dune projects and emergency Reach 8 dune project. His findings were complicated by the effect of storms, but, in any event, involved sedimentation only. To the extent that he found uncovered hardbottom, it is an indication of the movement of excessive fines by entrainment into suspension with the suspended particles carried relatively far in the water column, as opposed to movement by bedload. His report refers to another sampling event in 2008, prior to the hearing, but this report is not in the record. Third, the Reach 7 project provides useful information in determining mean grain size of the existing beach at Reach 8, suggesting a range of overfill ratios for Reach 8, and describing possible issues with post-construction turbidity or reduction in water clarity. The Reach 7 Final Supplemental Environmental Impact Statement discusses native beach sediments at some length, finding that the mean grain size of 0.34 mm, as reported in 1977, had been supplanted with sediments with larger mean grain sizes, as years of erosion removed the finer-grained particles. After wave action and erosion, mean grain sizes in 1993 ranged from 0.44 mm to 0.57 mm for four locations within Reach 7. Physical sampling six years later suggested 0.43 mm as the most representative value. On the other hand, the mean grain sizes within the Reach 7 borrow areas--BA III and IV--were, respectively, 0.32 mm and 0.22 mm. The mean grain size of BA III is probably misleadingly large because it proved to contain coarser-grained carbonates that quickly abraded when placed in higher-energy zones than those from which they had been dredged. Also, the existing beach lacked any silt, but BA III was 2.9 percent silt, and BA IV was 1.5 percent silt. Although other factors are involved in calculating overfill factors, the mean grain sizes of the sand source and existing beach are important factors. For BA IV, for which the mean grain size was 0.22 mm, and the "existing native beach," for which the mean grain size was 0.43 mm, the overfill factor was 3.0, according to the Reach 7 Supplemental Environmental Impact Statement. This means that three times as much fill was required as would have been required if the mean grain size of the borrow area had been the same as the mean grain size of the beach. Although the Reach 7 Supplemental Environmental Impact Statement does not address the discrepancies in mean grain sizes on the existing beach and in BA III and IV, it warns that turbidity is one of the major limiting factors for coastal water quality in Palm Beach County. The statement notes that background turbidity is highest in the winter, in connection with winter storms, and lowest in the summer. However, the discussion of the proposed project and turbidity is limited to turbidity during construction and the need for a mixing zone and never addresses post-construction turbidity. As is found elsewhere in the literature sponsored into evidence by Palm Beach's witnesses, the Reach 7 Supplemental Environmental Impact Statement dismisses concerns about the impact of turbidity on the nearshore biological communities with the observation that the nearshore organisms occupy an already-turbid environment. As is true of the other literature, the Reach 7 Supplemental Environmental Impact Statement dismisses the impact of turbidity on these communities without attempting to quantify the intensity, persistence, or frequency of turbidity, pre- and post-construction (i.e., before and after placing, in the case of BA IV, sediments whose particle size was half the size of the existing sediments' particle size). Not all of the available anecdotals are relevant. One complaint of piles of coarser-grained fill placed on Reach 7 has no bearing to this case, except to the limited extent that the coarser-grained materials abraded into finer-grained materials. Located farther landward from the backreef apron source of larger carbonate materials, BA V and VI do not likely contain such coarser-grained materials. Second, one or more complaints of extensive post- construction sedimentation off Reach 7 resulted in an investigation by a DEP scientist. He found, as had DEP scientists elsewhere along the east coast, that a muddy grey layer of sediment, associated with a mid-column plume of turbidity, had covered much of the bottom structure. He justifiably attributed the source of these sediments to deeper marine deposits that had been disturbed by recent storms. The presence of the same conditions elsewhere militates strongly against any association with the Reach 7 project. The remaining anecdotals are relevant to this case because they describe the post-construction consequences, in terms of increased turbidity or decreased water clarity, of introducing finer-grained particles, though not necessarily silt-sized, into a beach consisting of considerably coarser- grained particles. Contrary to the approach of DEP to the issue of post- construction turbidity, the point is not that, per se, turbidity increased at all, or that it increased in excess of 29 NTUs above background turbidity. The point is that the turbidity increased sufficiently, regardless by how many NTUs over background, to eliminate all or nearly all of the functional value of a significant area of marine habitat along Reach 7 for a significant period of time, pursuant to a permit that required absolutely no mitigation for these losses except to the extent that they involved some nearshore hardbottom. Kerri Smith, former president or chair of Surfrider's Palm Beach Chapter, described persistent murkiness in the water along Reach 7, post-construction. The excavated sediments deposited on the beach were much siltier than the existing sediments on the beach. Hardbottom was likewise covered by these dredged sediments, although presumably this was hardbottom for which DEP had required mitigation. A surfer, Ms. Smith testified that the murkiness of the water precluded surfing due to the enhanced possibility of a shark, unable to ascertain the shape in front of it, attacking a surfer. The last observations by Ms. Smith, who is herself a beachfront owner south of Reach 8 on Palm Beach Island, were in the fall of 2007. Ms. Connie Gasque, a resident of Palm Beach County for over 30 years, assists the Reef Research Team in collecting in-water data, usually by diving. She also is a member of the board of directors of Surfrider's Palm Beach Chapter. Ms. Gasque testified that Reaches 7 and 8 are the only places to which she can drive, park her car (at Phipps Ocean Park in Reach 7 and the Lake Worth Municipal Beach/Kreusler Park in Reach 8), and snorkel in the nearshore waters adjacent to the beach. Public access, especially in the form of parking, precludes these activities along much of Palm Beach Island, north of Reach 9. Due to the prevalence of nearshore hardbottom, Ms. Gasque regularly observed, during these excursions prior to the Reach 7 Project, tarpons, snook, hammerhead sharks, spinner sharks, nursery sharks, green turtles, parrotfish, juvenile grunts, crabs, and other marine life. Although Ms. Gasque's reports of covered hardbottom along Reach 7 must be considered in light of the mitigation required for such impacts, her description of post-construction turbidity identifies a condition for which no mitigation was required. One time, she saw a turbidity plume extending from the northern end of Reach 7 as far as she could see. She got into her car and followed the plume for 12 miles before it finally disappeared at the Lake Worth Inlet. Although Ms. Gasque's reports of coarse-grained materials are irrelevant to the present case for the reasons stated above, she found, post-construction, considerable deposits of finer-grained materials, mud-like in consistency. This material ran from the Lake Worth Pier north a considerable distance. Captain Danny Barrow is a charter guide captain and writer for Outdoor Florida magazine. He has walked the beaches and fished the nearshore waters of Palm Beach Island his entire life. As a charter guide captain, he targets inshore fish, mostly snook and tarpon. Although Captain Barrow catches snook as far out as the offshore reef, he mostly catches them in water from the shoreline to 10 feet of depth. He also catches live bait along the shoreline. These baitfish consist largely of menhaden, cigar minnows, Spanish sardines, and finger mullet, which are plentiful around the Lake Worth Pier. Captain Barrow described the pre- and post- construction scenes along Reach 7 in terms of marine life displaced for extensive periods following construction. Prior to construction, he snorkeled the hardbottom along Reach 7 and found juvenile lobsters, crabs, croaker (favored by snook), juvenile snook, and a small school of three or four tarpon ranging in size from 20 to 40 pounds. After construction was completed in May 2006, the water was so milky that Captain Barrow would not enter it. He tried fishing the area and caught nothing; there was no sign of life. Two or more weeks later, he returned again and found conditions unchanged. Even the sand fleas that normally occupy the wet beach, and are an important food source for pompano and permit, were absent. Over the next several months, the water off Reach 7 began to clear up. By the fall of 2006, the water clarity was much better. But Captain Barrow reports that water clarity remained unduly sensitive to wave energy: as the waves picked up, so did the turbidity, much more than the turbidity had been, during similar wave conditions, prior to construction. In November 2006, Captain Barrow returned to Reach 7 during a storm, and the turbidity was as bad as it had been during active construction. At Phipps Ocean Park, he reported a "nasty milky color" to the water, and Captain Barrow found similar water conditions at the Lake Worth Pier. Captain Barrow reports no fish kills from the post- construction turbidity. Instead, the bait fish and their predators left the nearshore waters of Reach 7 until the waters cleared. Once the natural process of removing the fill from the observable beach was completed, the waters off Reach 7 returned to pre-construction condition, the hardbottom was re-exposed, and bait and predator fish returned to the nearshore waters. As of the time of the hearing, Captain Barrow described the nearshore waters off Reach 8 as "beautiful." However, he testified that the Reach 7 nearshore waters remain uncharacteristically susceptible to clouding in response to storms, at which point the fishing again suffers. Selected Local and State Actions to Preserve Beaches Palm Beach In addition to its participation in various beach- engineering projects, in 1996, Palm Beach formed a Shore Protection Board to advise the Town Council on beach management issues. As noted above, this board divided Palm Beach Island into 11 reaches in 1996. In a preliminary report, the Shore Protection Board stated 12 conclusions, including that the Lake Worth Inlet is the primary cause of Palm Beach's erosion, Palm Beach projects should be combined in a plan with other municipalities to achieve an "inlet to inlet" concept in place of "crisis management" or "spot projects," and all beach projects must include ongoing monitoring because "[l]ack of solid historical data is one of the Town's biggest problems and has crippled its ability to determine which programs have been successful " In discussing proposed projects, the Shore Protection Board specified an intent to obtain beach protection against a 15-year storm. The fill would thus be sufficient to absorb the erosion between nourishment events, which the board assumed would be eight years, and the occurrence of one 15-year storm. Based on his modeling, in 1992, Dr. Dean calculated that the beach profile containing Reach 8 would experience an 8.6-foot total storm tide from a 30-year storm, an 8.3-foot total storm tide from a 25-year storm, a 7.7-foot total storm tide from a 20-year storm, a 6.5-foot total storm tide from a 15-year storm, and a 5.6-foot total storm tide from a 10-year storm. As noted below, the design elevation of the beach berm in this case is 9.0 feet, so that it appears designed to protect from the 30-year storm. The Shore Protection Board noted that the few failures of nourishment projects in Florida have been due to inadequate quantities of sand, fine grain size, short project length, or extraordinary circumstance. Dr. Dean explained the importance of project length: essentially, the longer the beach nourishment project, the longer the nourished beach will last. The general rule, according to Dr. Dean, is that doubling the length of a project quadruples its longevity. Dr. Dean testified that a beach nourishment project of less than one mile is "not effective." As Dr. Dean explained, a project loses sand in the longshore and cross shore directions, but the supply of fill at the ends is less than the supply of sand along the template's much longer seaward face. DEP DEP is the state agency with primary responsibility over Florida's 825 miles of unsheltered beaches, including 389 miles on the Atlantic Coast. Palm Beach County contains 45 miles of unsheltered beaches, which equals the total of such beaches in Broward and Dade counties. In May 2008, DEP updated its Strategic Beach Management Plan for the state of Florida. The Strategic Beach Management Plan begins with the following statement: Beaches are dynamic land forms at the edge of the ocean or Gulf of Mexico subject to both natural and man-induced erosion. Sand moves along the shore due to wind driven currents and tides, and storms can cause dramatic changes to the beach. The majority of man-induced erosion is due to the creation and maintenance of inlets, where the sand has historically been removed from the coastal system, and the natural drift of sand along the shore is blocked by jetties, trapped in channels, or moved into ebb and flood shoals. Development and the placement of infrastructure too near the shore has also contributed to coastal erosion by limiting the amount of sand stored in dunes and hardening the shore in order to protect upland property.28 The Strategic Beach Management Plan identifies repair and maintenance strategies to carry out the state responsibilities of a comprehensive, long-range, statewide program of beach erosion control, beach preservation, restoration and nourishment, and storm and hurricane protection by adhering to the following principles: Maximize the infusion of beach-quality sand into the coastal system; Implement those projects that contribute most significantly to addressing the state’s beach erosion problems; Promote inlet sand bypassing to replicate the natural flow of sand interrupted by improved, modified or altered inlets and ports; Extend the life of beach restoration projects and reduce the frequency of nourishment; Encourage regional approaches to ensure the geographic coordination and sequencing of projects; and Reduce equipment mobilization and demobilization costs.[29] The Strategic Beach Management Plan warns that projects included in the plan must still obtain all necessary state and federal permits. Among the various permitting considerations are "an assessment of the compatibility of sand proposed to be utilized with the existing beach; project dimensions that may adversely affect nearshore hardbottom . . .; [and] turbidity levels at the borrow site and placement site[.]"30 DEP's Strategic Beach Management Plan for the Southeast Atlantic Coast Region, issued in May 2008, identifies 20.7 miles of beaches as the Palm Beaches subregion, which includes Palm Beach Island. This subregion contains 14.9 miles of CEBs, of which 6.1 miles have been restored or maintained. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region divides the Palm Beaches subregion into three smaller areas: Northern Palm Beaches, Palm Beaches, and Southern Palm Beaches. Palm Beaches includes all of Palm Beach Island plus short segments of beach north and south of the two inlets defining the island. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region states that Northern Palm Beaches includes 13.3 miles of beach, of which 8.4 miles are CEB, including 3.6 miles of beach that has already been restored and maintained; Palm Beaches includes 20.7 miles of beach, 14.9 miles are CEB, including 6.1 miles of beach that has already been restored and maintained; and Southern Palm Beaches includes 11.8 miles of beach, of which 7.9 miles are CEB, including 6.7 miles of beach that has already been restored and maintained. Palm Beaches contains only two segments of nonCEB. The northerly of these is Reach 8's Center Segment. This means that DEP has designed as CEB a continuous stretch of beach from the Lake Worth Inlet almost to the Lake Worth Pier. This span of CEB encompasses Reaches 1-7 in their entirety and, as noted above, the northernmost 3117 feet of Reach 8: the North Segment and the northernmost 392 feet of the Lake Worth Gap. The CEB designation that attaches to the South Segment continues past the end of Reach 8 at R-134 plus 350 feet to R-137.4.31 The remainder of Palm Beach Island from R-136.7 to the South Lake Worth Inlet is nonCEB. This means that Reaches 10 and 11, and the southernmost 300-400 feet of Reach 9 are all nonCEB, which confirms the range of influence of the north jetty of the South Lake Worth Inlet. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region discusses potential beach-management strategies and the availability of offshore sand sources for each of the three subsubregions. For Palm Beaches, the plan notes that Palm Beach has agreed with the U.S. Army Corps of Engineers (COE) for the latter to deposit on Midtown spoil from the maintenance dredging of the Lake Worth Inlet, and it acknowledges the subject Reach 8 Project, including as to the nonCEB. Also, the plan recommends that Palm Beach implement a "regional beach, inlet, and offshore data collection and processing program [for] their monitoring programs."32 As for potential sand sources, the Strategic Beach Management Plan for the Southeast Atlantic Coast Region warns that DEP and COE had found sufficient offshore sand for restoration, but not "long- term nourishment." Nor is much offshore sand available to the north and south. For Northern Palm Beaches, the Strategic Beach Management Plan for the Southeast Atlantic Coast Region reports that DEP and COE have conducted an extensive offshore sand search and found sufficient sand for restoration, but not maintenance, of these CEBs. The situation is only a little better for Southern Palm Beaches. The plan states that transferring sand from the ebb tidal shoal at the Boca Raton Inlet may be sufficient for a project known as the South Boca Raton Project, but it is not yet clear whether sufficient offshore sand has been found for the "long-term project needs" of the Delray Beach, Boca Raton (North), and Boca Raton (Central) projects. Due the widespread acknowledgement of the limited availability of offshore beach compatible sand, DEP has not previously approved a beach restoration or nourishment project, using offshore sand, for a nonCEB until this case. As noted above, DEP is proposing the use of this limited resource for a beach that, by far, is mostly nonCEB. DEP attempts to work in cooperation with federal and local authorities in managing Florida's beaches. From 1964 through 2006, Florida has expended over $582 million in beach nourishment and hurricane recovery, under the Strategic Beach Management Plan, pursuant to Chapter 161, Florida Statutes. These cooperative efforts and expenditures are crucial in Florida. Of the state's 825 miles of beaches, 485 miles are experiencing erosion; 387 miles have experienced "critical erosion," which, as noted below in the discussion of CEBs, indicates a level of erosion that threatens substantial development, recreational, cultural, or environmental interests; and 192 miles have been restored. From 1989 to 2003, the miles of CEBs increased from 218 to 333, and, in 2003, 62 percent of the shoreline in southeast Florida was designed CEB. In the 1998-99 fiscal year, Florida transitioned from its previous beach management policy of focusing on local, short-term needs and began assisting local governments in the preparation of Long Range Beach Management Plans, which emphasize a regional approach to beach management. Biological Functions and Potential Post-Construction Impacts Communities of the Nearshore and Beach A robust food chain exists in the beach and nearshore. Waves bring onshore phytoplankton to create a nutrient-rich zone in the nearshore waters. The base of the food chain, phytoplankton requires light to grow. Nothing in the record provides guidance as to the effect, if any, of ongoing, elevated turbidity and the resulting attenuation of light in the water column on the abundance of phytoplankton in the nearshore water column. The smaller organisms feed on the phytoplankton. In turn, macroinvertebrates, such as coquina clams (Donax) and mole crabs or sand fleas (Emerita talpoida), nourish bottom-feeding surf fish, such as pompano and flounder, and shore birds. Small fish in the nearshore environment are food for these fish and birds, as well as mackerel, jack, and blues. Wind and waves limit the number of species that occupy the high-energy beach habitats. Intertidal beaches host relatively few species, although in relatively great abundance. The upper portion of the beach is dominated by various talitrid amphipods and the ghost crab (Ocypode quadrata). In the midlittoral zone, polychaetes (a class of worms), isopods (e.g., sea mites or pill bugs), and haustoriid amphipods (shrimp-like crustaceans) dominate. In the swash and surf zones, coquina clams and mole crabs are found. Shallow subtidal habitats, which are in up to three feet of water, are occupied by polychaetes, gastropods (snails), portunid crabs, and burrowing shrimp. In water 3-10 feet deep, polychaetes, haustoid and other amphipod groups, and bivalves such as coquina clams prevail. Fish favoring the softbottom surf zone are relatively few. In order of prevalence in Palm Beach County (most common to least common), they are Atlantic threadfin herring, blue runner, spotfin mojarra, southern stingray, greater barracuda, yellow jack, and ocean triggerfish, none of which has any commercial value. The individuals in this nearshore area tend to be small or juvenile, although larger individuals will visit the nearshore to find prey. The offshore soft bottom provides habitat to a greater variety of species than the nearshore soft bottom because the offshore areas are less subject to wave distress. Offshore soft bottom is dominated by polychaetes with seasonal, extensive growth of macroalgaes. Larger invertebrate macrofauna in the offshore soft bottom between the second and third reef lines include the queen helmet, king helmet, Florida fighting conch, milk conch, Florida spiny jewel box, and calico clam. The only commercially valuable species is the Florida lobster, which crosses this area as it migrates from offshore to nearshore areas. The habitat of greatest value in the nearshore is hardbottom. As noted above, it is relatively scarce. But the value of hardbottom is in its physical characteristics, as compared to the more prevalent soft bottom. Hardbottom, or "beach rock," presents habitat in the nearshore areas in the form of coquina shells, sand, and calcareous limestone--i.e., the Anastasia outcropping described in detail above. The intermittent outcrops of hardbottom represent the highest elevations of a contiguous formation, which, where exposed, exhibits the spur and groove characteristics of reefs exposed to wave action. Hardbottom outcrops are often found in 0-10 feet of water and are stressed physically by waves, sediment transport, turbulence, and lack of water clarity. The width and vertical profile of the hardbottom outcrop determines its significance as a biological resource and natural wave break. Larger outcrops display greater habitat heterogeneity, which generate increased biomass, biodiversity, and abundance. The suitability of a specific hardbottom outcrop as habitat is a function of its permanence and rugosity. The larger outcrops tend to be persistent; the smaller outcrops tend to be ephemeral because they are more likely to be buried by sand and more likely to be buried longer by sand. Hardbottom outcrops serve as habitat for epibenthic species that are able to attach to the hard substrate. The considerable fluctuations in the physical environment permit colonization of hardbottom mostly by encrusting and boring organisms. Different algal species will occupy the outcrop, depending on whether it is low profile, smooth, subtidal, or intertidal (algal mat communities); exposed and intertidal (green algae Ulva lactuca and barnacle Tetraclita squamosa); subtidal; or high profile. Various macroinvertebrates--encrusting and nonencrusting--are found along the nearshore hardbottom in Palm Beach County. Among the most prevalent species are star coral (Siderastria radians), various species of wine glass hydroids, several species of tube-type sponges, the boring sponge (Clinoa celata), the wormrock-building polychaete (Phragmatopoma lapidosa), and the fire coral hydroid (Millipora alcicornis). The wormrock-building polychaetes live in tubes that they build around themselves by cementing sand grains together and, in suitable areas, build large, biologically significant wormrock reefs. Wormrock structure added to hardbottom provides habitat of significant complexity and, thus, value. The list is long of species that favor wormrock reefs and hardbottom in general. Toward the top of the food chain, bull and tiger sharks, as well as coastal pelagic species, such as Spanish mackerel, jacks, mullet, and bluefish, visit the nearshore hardbottom primary to find smaller fish for food. Of these, Spanish mackerel and mullet have commercial value. Surf zone fish typically seen around the hardbottom include the Atlantic croaker, pompano, snook, jacks, anchovies, and herrings, of which only the snook and pompano have commercial value. Reef fish also use the hardbottom outcrop when traveling from the offshore reef. These species include snapper, grouper, grunt, and wrasses, as well as some damselfish, blennies, gobies, angelfish, and parrot fish, of which the snapper and grouper have commercial value. Smaller mobile species such as the Florida lobster, sea urchins, and brachyuran and xanthid crabs also use the nearshore hardbottom, mostly the holes and crevices. In general, due to the complexity of the habitat providing both sanctuary and food, nearshore hardbottom provides nursery habitat for 34 species of fish. Early-life individuals constitute over 80 percent of the individuals at nearshore hardbottom sites. Nearshore hardbottom is critical habitat for juveniles of another species, green turtles, and, to a lesser extent, hawksbill and loggerhead turtles. After spending 3-5 years in the open ocean, juvenile green turtles move into coastal waters during the "many years" required for them to reach sexual maturity. "Home Range and Habitat Use of Juvenile Atlantic Green Turtles on Shallow Reef Habitats in Palm Beach County, Florida," November 2005, by Christopher Makowski, et al. (including Michael Salmon), p. 1167. While in the coastal waters, nearshore hardbottom provides juvenile green turtles with critical foraging and resting habitat. The diet of juvenile green turtles is primarily algae and sponges that colonize the nearshore hardbottom, although they will feed on sandy bottom with seagrass or patches of algae. Id. at p. 1174; "A Survey of Juvenile Green Turtles and Their Resting and Foraging Habitats Off Broward County, Florida 03/01/86 - 12/31/87," January 1988, by Robert Wershoven and Jeanne Wershoven, p. 8. Among the favorite food sources of the green turtle, which is the only herbivorous sea turtle,33 according to Rare and Endangered Biota of Florida, Volume III, edited by Paul E. Moler, is a red algae (hypnea musciformis) that grows on hardbottom along Palm Beach Island. The loggerhead also favors algae and sponges. The juvenile green turtle's algal food sources are vulnerable to the increases in turbidity associated with beach- restoration or -nourishment projects. Wershovens, pp. 13-14. As the water loses its ability to transmit light, the algae decline, just as they do when they are covered by sediment. It is not merely that the algae cannot grow; in response to the heavy forage of juvenile green turtles, the algae must re-grow repeatedly in order to supply the turtles with nourishment. Makowski, p. 1174. The juvenile green turtle displays considerable site fidelity, both for foraging and resting. Resting and foraging in the same hardbottom provides security, especially from sharks. Makowski, p. 1177. At night, each of four turtles tracked by Makowski returned to each of four identical resting sites. Two turtles maintained two separate resting sites at opposite ends of their relatively limited home ranges. Makowski concluded that site fidelity for foraging and feeding is probably linked to the need for hiding spots and escape routes in the face of the constant threat of predation. Id. at p. 1173. Engaging in a longterm capture-and-release study of juvenile green turtles, whose range of carapace length was from about 11 inches to 26 inches, Wershovens at p. 9, Robert and Jeanne Wershoven reported that nocturnal recapture locations of 19 juvenile green sea turtles and two hawksbill varied by an average of 0.5 km. Wershovens at p. 8. Two green turtles were recaptured under the identical ledge where they were originally captured--one after 18 months had elapsed since the preceding capture. The same hawksbill was recaptured seven times. The Wershovens described the hardbottom ledge habitat--the most valuable hardbottom habitat for juvenile green turtles--as a "time share" arrangement because the turtles shared, at different times, the limited, higher-relief hardbottom in the study area. Id. at p. 8. Of course, the other habitat of importance in this case is the dry beach. Palm Beach Island provides especially favored habitat for the reproduction of sea turtles because they lay their eggs in the sandy sediments of the island's beaches, including Reach 8. Florida is the second largest nesting site for loggerheads in the world, and Palm Beach County is second only to Brevard County among Florida counties for loggerhead nesting activity. Palm Beach County is also second only to Brevard County for numbers of green turtle nests in Florida. Actual and Potential Impacts to Biological Processes from Reach 8 Project Actual and Potential Impacts to Dry Beach as Nesting Habitat The impact of beach-nourishment projects on nesting sea turtles has received considerable attention from the scientific and regulatory communities, likely due to the relative accessibility of the dry beach habitat and the widespread popularity of beach-climbing and burrowing sea turtles, as distinguished from, say, the furtive wanderings of bug-like isopods or the distribution in the nearshore water column of multitudinous, typically imperceptible phytoplankton. Nearly all of the relevant risks have long been addressed by the sponsors of beach-nourishment projects, their consultants, and DEP. If the fill is too coarse, the turtle will be unable to excavate a burrow because the sides will fall in. If it is too fine, oxygen will not pass through the sand to the eggs. A variance in color between the fill and existing beach may alter the ability of the sand to transmit heat to the eggs, which can alter the gender of the hatchlings. Pre- and post-construction variations in beach compaction, beach slopes, escarpment formation, and possibly salinity levels may impede nesting, including by producing more false crawls in which the sea turtle crawls out of the surf and onto the beach seeking to dig a burrow and deposit her eggs, but returns to the sea without completing these tasks. Experts do not seem to dispute with much conviction that the nourished or restored beach is of reduced value for nesting for the first year, post-construction, or that sea turtles successfully nest on the beach the following year. The potential impact in subsequent years is at issue in this case. The problems in the first year include a variety of disturbances. Recent research suggests, for instance, that excessive total dissolved solids in the fill may deter females from using the post-construction beach for the first year. During the first year, rain and stormwater rinse these total dissolved solids out of the fill, which can then return to a salinity level approximating what existed prior to the construction. Regardless of design and implementation of a particular beach project, rain will eliminate this problem by the end of the first year, so the quality of the beach project does not especially affect the duration of the loss of nesting habitat for sea turtles. Conceivably, the contractor could rinse the fill artificially at the time of construction and restore post-construction salinity levels immediately, but no one has attempted this, and its practicability is not yet established, especially because other factors may still discourage first-year utilization. In contrast to the possible problem with total dissolved solids, scientists have long recognized that first- year problems with beach slopes, escarpments, and compaction discourage nesting on the newly restored or nourished beach. It is unclear as to whether, or to what extent, a beach filled with excessive fines is likely to succumb repeatedly to these conditions, at least until the coastal system removes the excessive fines from the dry beach. But as discussed in some detail immediately below, the removal process in this case is unlikely to take more than one year. Potentially more serious is the presence of excessive coarse materials because, to the extent they are siliciclastic and will not abrade in their new, high-energy setting, these particles will resist erosion by wind and surf. However, this issue is irrelevant to the proposed project, as there is no evidence whatsoever that BA V and VI may contain excessive coarse materials. Also potentially more serious is the presence of different colored sediments in the fill, as compared to the existing beach. The proposed fill is greyish, as compared to the tanner existing beach, but the difference appears to be small and some lightening can be expected once the sediment is exposed to the elements. Surfrider's expert, Dr. Michael Salmon, testified that, although the nourished beach is unsuitable nesting habitat the first year after construction, it is typically suitable nesting habitat the second year. In this regard, Dr. Salmon and Palm Beach's main witness on this issue, Dr. Kirt Rusenko, are in agreement. They part company, however, when Dr. Salmon opines that ongoing erosion deterred sea turtles from nesting on the nourished beaches in the third and following years. Clearly, Dr. Salmon's testimony identifies a potential long-term risk to nesting habitat, but it does not apply in this case. Dr. Salmon's testimony partly relies on other testimony suggesting that the beach, once nourished, will always require nourishment, implicitly due to accelerated erosion. Nothing in the record explains this process. In particular, the Administrative Law Judge has examined the record to find some suggestion that nourishment or restoration increases pre-construction erosion processes or reduces pre- construction accretion processes, but he has found nothing to this effect. Theoretically, a beach project could alter nearshore bottom so as to alter wave and tidal forces--a possibility that Surfrider's witness tried, without success, to establish in this case with respect to the quality of waves for surfing. More likely, an alteration might change erosion patterns at a nearby beach, but this record is undeveloped as to when and under what conditions such a process takes place. Based on the present record, any suggestion that the excavation of BA V and VI and placement of sandy sediments in the nearshore bottom can alter the long-term erosion or accretion experienced by a beach, after cross-shore sorting of the fines in the fill has been completed, remains a hypothesis to be tested. Rejecting this part of Dr. Salmon's testimony raises one of the central factual issues of the case: how long, post- construction, will the cross-shore sorting process generate incidents of substantially reduced water clarity as the excessive fines are transported to deeper waters? As noted below, CPE has materially understated the mean grain size and overstated the silt content of the existing beach. CPE's understatement of mean grain size of the existing beach relieved it of the necessity of dealing with a much larger overfill factor than the 1.68 factor stated by CPE, which uncovers one of the conundrums of this case: would the contractor place fill in conformity with the template of advance and design fill, as expressed in the post-construction beach profiles, or in conformity with the Permit provision of 724,200 cubic yards of fill? The contractor cannot comply with both specifications due to the understatement in the overfill ratio. It seems less likely that the contractor will attempt to calculate volumes while the dredge is slurrying sediments onto the beach than that the contractor will try to place fill within the design templates provided it by CPR. This means that substantially more than 724,200 cubic yards of fill would be placed on Reach 8. The potential impact to sea turtle nesting after year 2 is thus inapplicable to this case due to the evident reliance by Dr. Salmon on elevated or even ongoing erosion of the restored or nourished beach during those years. Based largely on the Reach 7 experience and the role of grain size in coastal processes, the excessive fines proposed for Reach 8 would undergo cross-shore sorting much more quickly than projected by Dr. Dean, who testified that the advance fill on Reach 8 would last six years. Findings of a shortened fill-erosion process should be consistent with Dr. Dean's pioneering work on overfill ratios, as well as his testimony that doubling project length quadruples project life and that Reach 8 has become a fairly short project. But, regardless whether consistent with Dr. Dean's views on these matters, the finding is that CPE's attempt to push Reach 8, an intermediate beach tending toward reflective, to a dissipative state promises a quick push back by the natural forces that produced, in the first place, an intermediate beach tending toward reflective. A process that might take six years, if the consultant were to maintain beach states with identical sand in terms of mean grain size, silt content, and sustainable slopes, will take substantially less time given present circumstances. Because of the likelihood of a relatively quick fill- erosion process, Dr. Salmon's testimony concerning loss of nesting habitat after year 2 for Reach 8 is rejected. Although Dr. Salmon described in detail one beach in which sea turtle nesting suffered in years three and following, he did not provide the relevant details of the restoration or nourishment project, so he failed to demonstrate that the performance of that beach is relevant to the performance of Reach 8, post- construction. Perhaps the fill-erosion process took longer in that case, and erosion after the second year was especially disturbing to nesting sea turtles. On the other hand, Dr. Salmon's testimony concerning the relative abundance of suitable nesting habitat along Florida's coast for sea turtles is credited. In particular, given the accretion patterns for Reach 8 discussed above, Dr. Salmon's testimony is credited over the contrary testimony of Palm Beach's experts, who suggested that the no-action alternative would leave harm sea turtles because of the loss of Reach 8 beach for nesting. Relying in part on Dr. Salmon's testimony concerning ample nesting habitat for sea turtles, it is also found, as Palm Beach's experts testified, that, for the year that the female sea turtles find the post-construction beach unsuitable for depositing eggs, they can move up or down the beach a relatively short distance and finding suitable nesting habitat. For these reasons, the potential for nesting disturbances after year one is irrelevant in this case. Even compaction is not an issue, although excessive fines lend themselves to compaction. Permit conditions require anti- compaction procedures, which will become unnecessary after one year due to the removal of most of the fill by then. 2. Potential Impacts to Hardbottom Habitat and Water Column For the same reason that impacts to nesting after year two are not likely in this case--i.e., accelerated erosion of excessive fines placed on an intermediate beach tending toward reflective--the proposed project is likely to cause impacts to hardbottom habitat in the form of burial of more than 6.9 acres and to the water column in the form of reduced clarity for at least one year. This is developed in more detail below. The burial of hardbottom destroys the algae, sponges, and coral that support the bottom of the food chain. The burial of the hardbottom deprives multiple species of this valuable habitat for foraging and resting. Prominent among such species is the juvenile green turtle. The National Marine Fisheries Service (NMFS) determined that the burial of 6.9 acres of hardbottom, as allowed by the Permit, would result in the death of some juvenile green turtle, according to NMFS. This finding by NMFS is credited. In a letter dated March 13, 2008, the National Marine Fisheries Service stated that, at the rate of five juvenile green turtles per acre of hardbottom, 35 juvenile sea turtles would be displaced by the burial of 6.95 acres of hardbottom. NMFS declined to find that all 35 individuals would be injured or killed from this impact. Instead, the NMFS reasoned that, based on typical rates of infection with fibropapillomatosis, which is a benign tumor disease to which green sea turtles are particularly susceptible, 19 of these 35 individuals are infected. NMFS then assumed that the stress from the loss of habitat would be enough to kill already- infected individuals, so the take, in the form of death, is 19 juvenile green turtles. The NMFS opinion concludes that this loss would not jeopardize the endangered species, which evidently is the criterion for a letter permitting this incidental take. In his written report, Dr. Rusenko correctly challenges the NMFS calculation as unduly pessimistic in one respect: juvenile green turtles in nonlagoon settings experience a much lower infection rate, about 14.8 percent. The resulting take would be 5, not 19, turtles. Although Dr. Rusenko does not accept that even five turtles would die from the loss of 6.9 acres of habitat, this finding of NMFS is credited. The potential exists for even more mortality among uninfected juvenile green turtles. Given the unusual degree of site fidelity exhibited by juvenile green turtles, it is possible that some of the 30 fibropapillomatosis-free individuals will suffer fatal predation due to their increased vulnerability caused by the confusion, disorientation, and even malnutrition following their loss of their familiar habitat. However, the record permits no finding as to the likelihood of this taking place or how many uninfected juvenile green turtles would also likely suffer mortality from the loss of habitat, so the take, in the form of death, will be found to be five per 6.9 (actually 7, as approximated by NMFS) acres of impacted hardbottom. While allowing the incidental take of 19 juvenile green turtles, NMFS added a conservation recommendation to its incidental take statement. The recommendation implies concern that CPE's projections of indirect hardbottom coverage are unduly optimistic. NMFS recommended that Palm Beach limit the fill to no more than 260,000 cubic yards, based on 40 cubic yards per linear foot, which NMFS believed is sufficient to protect against the 25-year storm. NMFS also recommended that COE prepare an environmental impact statement for the cumulative effects of beach nourishment projects on nearshore hardbottom to determine the impacts on listed species using such habitat. Palm Beach presented considerable evidence that elevations in turbidity and sedimentation would not affect or would not materially affect at least certain organisms in the beach or nearshore waters. In general, this evidence is credited for the proposed project, but only after about one year. As seen below, even the scholarly articles on which Palm Beach relies anticipate displacement of certain biological communities for different periods of up to one year. One of the recurring problems with Palm Beach's no- impact evidence is its failure to account for a nourishment project specifying fill with excessive fines and the resulting reduction in water clarity and increase in sedimentation that will ensue as that fill is redistributed in the nearshore environment. For instance, in "Guidelines for Beach Restoration Projects, Part I: Biological," July 1985, at pages 35-36, Walter G. Nelson attempts to support the assertion that large- scale storms produce impacts to the beach and nearshore similar to those impacts from beach nourishment projects--thus, nearshore fauna could survive post-construction turbidity. Nelson cites several studies that generally found little or no disturbance to various macroinvertebrates following strong storms. However, Nelson makes no effort to determine the intensity, frequency, or duration of turbidity following comparable storm events--one impacting an unnourished beach, for which little, if any, cross-shore sorting is taking place, and one impacting a beach nourished by excessive fines, where cross- shore sorting is ongoing. Nelson completely ignores the relationship between energy input and sediment particle size, instead implying that the impact to water clarity is the same following equal forces of waves and currents striking beaches with already-sorted native sediments versus beaches with excessive fines, which are awaiting these forces to redistribute these fines to lower-energy sites in deeper water. For the most part, the witnesses called by CPE, Palm Beach, and DEP implicitly accepted the idea that organisms would not use the filled beaches and nearshore for a short time after construction. The real dispute between the parties was how long would these habitats be deprived of their habitat functions. One of Surfrider's expert witnesses, Dr. Pete Peterson, testified for a longer-term loss of habitat value, post- construction, but admitted that the conditions of his primary experience were materially different from the conditions that would be produced by the proposed project. His experience was with excessive coarse-grained materials, which present entirely different problems from projects with excessive fine-grained materials. The findings below rely heavily on evidence presented by Palm Beach concerning the duration of species abandonment due to habitat impacts, but blends this evidence with the anecdotal evidence presented by the witnesses called by Surfrider. The critical period for the elimination of functional habitat, even including the burial of nearshore hardbottom, seems to be about one year. Precluding the use of habitat for one year corresponds with how long it took the coastal system at Reach 7 to move a substantial fraction of the excessive fines from the beach and nearshore to deeper waters. The proposed fill for Reach 8 is also excessively fine, although by a slightly smaller amount, so one year is probably a reasonable estimate of how long it would take the coastal system to move a substantial fraction of the fines from the beach and nearshore to deeper waters. Nelson himself seems to adhere to this general time frame when he suggested post-construction biological sampling at weekly intervals for one month after nourishment and monthly for nine to twelve months, although characteristically he made no effort to link the sampling with storm events. Nelson, p. 49. Extending somewhat the duration of species abandonment from the values suggested by Palm Beach's evidence is supported on several grounds. First, the authors of the articles offered by Palm Beach and admitted into evidence failed to address the re-entrainment of excessive fines into the water column more often, in greater intensity, and for longer periods of time than occurred at the same beach, pre-construction, due to the greater resistance of coarser-grained materials to enter into suspension or, given Hjulstrom's Curve seaward of the surf zone, the lesser resistance of particles almost exactly the size of those proposed for fill in this case to entrain into the water column. Second, nothing in the record addresses the impact of subsequent turbidity events on the phytoplankton, algae, and sponges, on which the nearshore hardbottom habitat relies for its foraging value. In addition to the processes that are based on grain sizes, as described above, the most persuasive facts are the dead zone that Surfrider's witnesses reported in the nearshore waters along Reach 7 for up to one year after the project was completed, and the ongoing, uncharacteristic susceptibility of this coastal system to display abnormally high turbidity following storms that previously had not produced turbidity of this intensity or duration. Palm Beach and DEP have not accounted for the impacts of post-construction elevations of turbidity, focusing instead on post-construction sedimentation of hardbottom. But in the face of what these concerned citizens saw and what is known about the performance of beaches based on comparative mean grain sizes, likely impacts from the Reach 8 project would include biologically significant impacts not only to hardbottom, but also to water clarity for a period of approximately one year after construction. Upon placement of the fill, the beach and nearshore will experience the loss of nearly all life through death by burial or movement away from the disturbance. After construction, the filled area will be devoid of common macroinvertebrates, such as mole crabs and coquina clams, but also the algae and sponges that are covered by fill. The record does not permit a finding as to the post-construction presence of phytoplankton in the nearshore waters. However, there will clearly be a major disturbance of the bottom of the nearshore food chain. With a better match of existing grain size with fill grain size, the beach and nearshore habitats, except for hardbottom projected for burial, would recover most functions within six months and nearly all of the remaining functions within one year after construction. The role of sediment size in resource recovery is not a new concept. As noted by works cited in "Deposition and Long-Shore Transport of Dredge Spoils to Nourish Beaches: Impacts on Benthic Infauna of an Ebb-Tide Delta," by Melanie J. Bishop, et al. (including Dr. Pete Peterson), p. 531: "The degree of concordance between native and introduced sediments is considered the most important factor determining the rate of recovery of populations of beach invertebrates following nourishment." When the fill contains excessive fines, it is not, as suggested by one of Palm Beach's witnesses, merely a matter of the availability of new individuals, who may be readily recruited34 to the impacted beach and nearshore by waves and currents. When the fill contains excessive fines, it is also a matter of whether these newly recruited individuals find, upon their arrival at the filled site, sufficient functional habitat in terms of such important items as food supply and, in some cases, water clarity. Nelson noted that mole crabs, which occupy the swash zone, will typically recolonize a nourished beach within six months after the construction. Mole crabs are more susceptible to mortality from burial in coarser sediments than finer sediments, but demonstrate survival in finer sediments only in burial depths of about four inches--considerably less than what is proposed in this case. Nelson at p. 37. Given the last sentence in this paragraph, it is not unlikely that Nelson was studying projects with excessive fines in the fill, so his finding of six months' disturbance is entitled to some weight. However, even after six months, Nelson concedes that only the numbers of individuals are the same; because of disproportionately high numbers of juveniles, the biomass available as food was still "greatly reduced" at six months, post-construction. Id. at p. 15. Interestingly, Nelson cites a study that suggests that the adults were lost during the preceding winter due to increased, post-construction turbidity. Id. Occupying the intertidal zone, coquina clams also begin to repopulate a nourished beach about six months after the construction. Due to limited mobility, coquina clams suffer mortality from burial by sediment and are especially sensitive to burial in finer sediments. Id. at pp. 18 and 37. Intertidal-dwelling haustoriid amphipods are slow to return to nourished beaches, probably because they are not strong swimmers and, residing where the effects of filling are the greatest, suffer high mortality rates during construction. Id. at p. 24. Residing higher up on the beach, ghost crabs may be reduced by 50 percent during the summer after nourishment, which is often about six months, post-construction. Although the fill is largely placed seaward of the portion of the beach that they occupy and they are able to burrow through the overburden, the reduced population is probably due to the loss of food source for the ghost crab. Id. at p. 30. Nelson noted that nearshore fish may suffer from relatively high (but unidentified) turbidity values because the gill cavities of the fish will fill with fine sediments and the fish will suffocate. Pelagic, filtering fish are more susceptible to this than benthic feeding fishes. Also, juvenile fish, which, with small adults, tend to predominate in the nearshore, also tend to be more affected by particles in the water. And sublethal concentrations may still produce serious stress levels in the fish. Nelson, p. 28. Nelson cited a study that reported that fish returned to nourished beaches within four months after construction, but notes that the author cited no data to support his assertion. Nelson reported that this author suspected that the destruction of nearshore habitat may be a bigger factor on fish presence than turbidity because nearshore fish tolerate high turbidities, but, as is typical, neither author attempted to measure the turbidities following a beach-nourishment project with the turbidities associated with the same beach, pre-construction. Nelson, pp. 28-29. Where the other author stated that the populations of jawfish, a cardinalfish, and a blenny had been negatively affected seven years after construction, though, Nelson faulted the author for failing to consider alternative explanations. Nelson, p. 29. Without comment, Nelson cited another study that finds an increase of fish immediately post- construction. However, the absence of specifics in that study precludes reliance upon it. Turbidity or reduction in water clarity works in at least four ways to reduce the function of the nearshore habitat. First, by reducing the ability of the water to transmit light, elevations of turbidity limit the abundance of algae and sponges, which are important food sources for, among other things, juvenile green turtles. Second, by reducing the transparency of the water, elevations of turbidity disturb the balance between predator and prey in which pre-construction kill rates reduce substantially because sight-feeding predators, such as permit and pompano, can no longer find their prey. Third, elevations of turbidity may result in sedimentation as the particles settle out; like fill, sedimentation will kill algae, sponges, and coral. Fourth, as noted above, elevations of turbidity may damage the gills of certain fish. Recreational Opportunities on Reach 8 Based on the testimony of Brett Fitzgerald, who lives near Reach 8 and regularly takes his wife and two young children to the Lake Worth Municipal Beach, the nearshore hardbottom at the beach is in the swash zone, so he and his children, since they were three years old, are easily able to snorkel the area and see tropical fish that they could not see elsewhere. The water is so shallow that one can easily stand up and walk out of the water. The mitigation reef proposed for Reach 8 would be near Sloan's Curve, which is about one mile north of Phipps Ocean Park. The ease with which Mr. Fitzgerald and his wife can pack the children and beach accessories into the car, drive to the Lake Worth Municipal Beach, lay out their things, and enter the water would be lost at the mitigation reef. The one-mile haul with the children and beach accessories would prevent them from swimming with the children on the mitigation reef. With their children, they could effectively access the reef only with a boat, but do not have one. The loss of water clarity, post-construction, also raises fears of shark attacks. Frequenting the pier are various sharks, including bull, tiger, hammerhead, blacktip, and spinner. The risk of attack increases with turbidity. Reduced clarity, presumably well short of increases of 29 NTUs over background, raises the risk that the shark will confuse humans in the water for preferred prey and mistakenly bite the humans. In addition to a favorite swimming beach, largely due to plentiful public parking relative to elsewhere along Palm Beach Island other than Phipps Ocean Park, the Lake Worth Municipal Beach and Lake Worth Pier are the focus of considerable surfing. Wave conditions and accessibility attract surfers from all of southeast Florida and even the entire east coast of the United States. Surfers are attracted by the break in the water that produces good waves for surfing. The waves at the pier feature an open shoulder that permits surfers to practice maneuvers and improve their skills, so they can go on to national and international competition. Eight-time world champion and Florida native Kelly Slater has surfed the Lake Worth Pier. Three others who started surfing at the Lake Worth Pier have become professional surfers. Surfrider uses the Lake Worth Pier to sponsor annual events to introduce children to the sport of surfing. The Lake Worth Pier is also Captain Barrow's favorite place to find bait, such as menhaden, cigar minnows, and Spanish sardines. Every October, the mullet run along the shoreline, and they draw their predators, such as snook, in large numbers. In the spring, as the water warms, redfish and tarpon begin to visit the beach in larger numbers. The Lake Worth Pier is a popular spot for shore fishing all year, as fishers without boats, or fishers looking to get out of their boats and save fuel, take advantage of the good fishing on either side of the Lake Worth Pier. At sunrise in October, as many as 30 persons may be surf fishing along the beach around the pier. Many of the fishers are retirees, so the pier area may be used for fishing throughout the day. Sunset and evening are also popular times for fishing. However, Captain Barrow reports that the fines that have spread from Reach 7 have caused the nearshore waters along the Lake Worth Municipal Beach to cloud up considerably whenever wave action increases--far more often and cloudier than the same wave action produced before the Reach 7 project. No one disputes that the placement of fill on the North Segment would quickly spread onto the submerged bottom of the Lake Worth Gap. Due to the excessive fines in the fill, the Lake Worth Municipal Beach would experience substantial turbidity increases and sedimentation for a period of at least one year. During this year, fishing at the Lake Worth Municipal Beach would cease because of the disruption of the food chain and absence of fish. Swimming would probably cease, as the turbid waters would discourage nearly all persons from entering them on grounds of aesthetics and safety, not just from shark attacks, but also from collision with any unseen underwater hardbottom incompletely covered by the spreading fill from the North Segment. It is impossible to determine the impact on waves of this spreading fill, but the increasingly turbid waters, without regard to any loss of wave break, would discourage surfing, as well. Even the visual attraction of the beach would be diminished by the unappealing presence of cloudy waters washing up onto the beach face. Except for persons seeking to lie on the warm sand and tan, typical beach users would likely cease using the beach, even though they would not have any nearby alternatives offering the same combination of recreational opportunities and accessibility. The loss of a year or possibly two of use would be especially hard on retirees and young children, for whom the window of recreational opportunity or, in the case of the children, recreation-induced personal development is more limited. Application and Responses to Requests for Additional Information Activity Prior to Filing Application In meetings with DEP prior to filing the application described immediately below, Palm Beach proposed placing one million cubic yards of fill on Reach 8 from R-125 to R-134. DEP warned that the hardbottom impacts at the south end of the project would be too great and suggested shortening the southern end of the project. Application: June 2005 In June 2005, Palm Beach filed with DEP the Town of Palm Beach Reach 8 Beach Restoration Project Joint Coastal Permit Application (Application). The Application, which was submitted CPE, combines requests for a JCP and proprietary authorization from DEP and a dredge and fill permit from the COE. The COE has simultaneously processed the Application and is awaiting state water-quality certification, which takes the form of final agency action from DEP issuing the JCP. The summary of the contents of the Application and each response to a request for additional information omits material information, if a subsequent submittal were to change the information, unless the earlier statement of this information is useful to an understanding of the facts of this case. The Application states that the intent of Palm Beach was to obtain COE and DEP approval for Reach 8 construction in the fall of 2005 or winter of 2006, so the Reach 8 project could be conducted at the same time as the 2006 Midtown Project and Reach 7 Project. The Application states that the north end of Reach 8 is a continuation of the Reach 7 Project. However, the Reach 7 Project was too far along for the Reach 8 Project to catch up. In the Application, Palm Beach shortened the project by about 3600 feet to 6990 feet (1.3 miles) by proposing fill from R-125 to R-131, instead of R-134, as originally proposed, and reducing the volume of fill to 506,000 cubic yards of "compatible beach quality sand." The proposed fill is in the shape of a trapezoid. The two shortest sides, which are approximately equal in length, are on the northern and southern ends of the project. The longest side is the landward, shoreline-parallel side. Thus, the proposed fill tapers off as it extends into the water. The two ends taper between R-126 and R-125 and R-130 and R-131. The planform diagrams disclose three bands of fill from landward to seaward. The characteristics of these bands is revealed by the profile diagrams. From the planview, the project is depicted in the following illustration, in which the yellow depicts the construction berm crest and the more seaward line, with lines extended from the yellow in a cross-shore direction, depicts the construction toe of fill where the slope is 1:15: The profiles, which are not uniform from north to south, depict the current and equilibrium beach profiles, as well as a design profile for the beach project. Each profile reveals, from landward to seaward, a design berm elevation of 9 feet, a slope of 1:50 to an elevation of 7 feet (i.e., for 100 feet), followed by a slope of 1:10 to the seaward toe of the fill. Characteristic of beach nourishment or restoration projects, the proposed project involves the placement of considerable fill in the water so as to effectively extend the shoreline seaward. Characteristic of beach nourishment or restoration projects, the proposed project anticipates the loss of a considerable amount of this fill, as well as fill added at higher elevations, as the nourished beach seeks equilibrium after the completion of the project. At R-130, for instance, the fill would extend the mean high water line about 150 feet seaward of its present location, although, at equilibrium, the mean high water line would only be about 50 feet seaward of its present location. Fill would be added about 200 feet seaward of the present mean high water line. Also, the nearshore bottom at equilibrium would be a little higher (i.e., the water would be shallower) 300-500 feet seaward from the present mean high water line, and the bottom would equilibrate about 1400 feet seaward of the present mean high water line, which is about -22 feet: this is the closure depth. Addressing BA III and BA IV, which were originally proposed as sand sources for Reach 8, the Application notes that, respectively, the composite mean grain sizes are 0.32 mm and 0.22 mm, and the average silt content is 2.3 percent and 1.7 percent. The Application states that each of the berm widths described above averages about 143 feet, and the fill template will provide about 72 cubic yards of fill per linear foot of beach. The slope and fill per linear foot of beach are partly driven by the mean grain size: the smaller the grain, the shallower the slope. The Application addresses CEBs. Noting that DEP had already designed the North and South segments as CEBs, the Application, citing the 2004 hurricanes, requests reconsideration of the Lake Worth Gap and the Center Segment, so all of Reach 8 would be CEB. This request is in the form of a letter dated February 7, 2005. In support of the request, Attachment 7, Table 1, shows, for R-128 to R-133, an average shoreline loss of 5.9 feet from 1990 to August 2004 and an average shoreline loss of 30.9 feet from August 2004 to November 2004. A series of beach profiles revealed that the second hurricane in quick succession had a relatively greater effect on the beach above NGVD 0 (or mean sea level), that the effect of Hurricane Frances had been to transfer sand to a higher-than-prestorm elevation seaward to a depth of about -8 feet NGVD (roughly 150-250 feet seaward of the point at which NGVD 0 intersected the beach, post-Hurricane Jeanne), and that CPE did not survey to this depth or distance, post-Hurricane Jeanne. DEP has declined at all times to designated these segments as CEB. Attachment 23 identifies existing shoreline structures. Some of the armoring of Reach 8, at the south end, is close to the surf zone and may interrupt longshore sand transport. The most seaward-located seawall is about 700 feet north of R-134. More landward-located seawalls are near R-127, R-129, and R-130. A wall extends 1300 feet along the Lake Worth Gap, which represents all, or nearly all, of the Lake Worth Gap. The Lake Worth Pier extends seaward 950 feet from the vegetation line, but the pilings of the pier do not affect coastal processes nearly as much as would an impermeable groin. Also, at the time of the submittal of the Application, the effect of the pier was further reduced by its partial destruction during the recent hurricanes. Attachment 27 calls for construction to start as early as November 1, 2005. The first 10-14 days of construction would be for the mobilization of the dredge, dredging and filling would continue for 30 days, and demobilization would take another 10 days. Any necessary beach tilling would be completed before May 1, 2006. Attachment 29 describes the three major resource areas affected by the project: 1) beach, dune system, and uplands; 2) nearshore ocean habitats; and 3) offshore ocean habitats. The most prominent resource is the beach nesting habitat provided for three of the five sea turtles found in the area: green turtle, leatherback turtle, and loggerhead turtle. U.S. Fish and Wildlife Service (FWS) has listed the first two as endangered and the third as threatened. Noting that the beach width is generally less than 100 feet in Reach 8, Attachment 29 states that the beach may provide resting and foraging habitat for shore and wading birds, such as pelicans, herons, egrets, terns, plovers and sandpipers. Also inhabiting the beach zone are infaunal invertebrates, such as amphipods, isopods, coquina clams, polychaetes worms, and various crabs, such as mole crabs and ghost crabs. The dune system found at Reach 8 is dominated by sea grape. Also present are sea oats, inkberry, bitter panicum grass, bay cedar, and seashore elder. The nearshore provides habitat in two zones: intertidal and subtidal. The intertidal zone is inhabited by the following invertebrates: polychaetes worms, isopods, sand dollars, amphipods, mole crabs, and coquina clams. Invertebrates occupying the subtidal zone include annelid worms, crustaceans, gastropod mollusks, sponges, and various species of crabs and shrimps. Fish using these nearshore waters include snook, jack, seatrout, grouper, snapper, redfish, and grunt. Algae found in the nearshore environment include Caulerpa taxifolia, and stony coral are also found in this setting. In February 2005, CPE investigated the nearshore hardbottom from R-125 to R-134 plus 100 feet. Along this 2.05 miles of coastline, which is only 250 feet short of the ultimate project area (less the Lake Worth Gap), CPE observed nine areas of hardbottom and documented the associated biota. Hardbottom occurred frequently in the intertidal zone south of the Lake Worth Pier. In March 2005, CPE investigated the hardbottom south of R-132. The landward edge of this hardbottom occurs about 300-325 feet offshore of the dry beach. CPE set three cross- shore transects covering the area of this hardbottom. The results were findings of mostly low relief hardbottom (under one foot) in water depths of 6-13 feet. Average percentages in excess of 0.7 percent of coverage were as follows: sediment--41.8 percent, turf algae--21 percent, bare hard substrate--14.9 percent, and macroalgae--12.7 percent. Attachment 29 notes that the project area includes Essential Fish Habitat, as designated generically by the South Atlantic Fisheries Management Council. However, for each fish or shellfish likely to use such area, it is capable of escape upon encountering the adverse conditions of construction. Nothing in Attachment 29 addresses the impact of post- construction water clarity on this Essential Fish Habitat. Attachment 30 addresses endangered and threatened species. The threatened loggerhead sea turtle nests on coastal islands of the United States from North Carolina to Florida. It is the most common sea turtle in Palm Beach County. Its nesting and hatching season in Palm Beach County takes place from March 15 to November 30. The loggerhead female nests from one to seven times per season with a mean of four nests. The mean clutch size is 100-126 eggs in the southeastern United States. Eighty percent of the nests in the southeastern United States are found in Brevard, Indian River, St. Lucie, Martin, Palm Beach, and Broward counties. Over 10,000 females nested in south Florida in 2004, and Palm Beach County was the location of 13,413 nests in 2003. The green sea turtle breeding populations in Florida and the Pacific coast of Mexico are endangered; otherwise, the species is threatened. Large numbers of nests are in the same six counties listed above for the loggerhead sea turtles. Some nests have been found along Florida's Gulf coast. Green sea turtle nesting and hatching season takes place from May 1 to November 30 in Palm Beach County. The green sea turtle nests one to nine times per season with an average of 3.3 nests. The average clutch size is 136 eggs. Sometimes, females will produce clutches in successive years. FWS estimates that 150 to 2750 females nest each year along the coasts of the continental United States. Palm Beach County was the location of 763 green sea turtle nests in 2003 and 968 green sea turtle nests in 2004. According to Attachment 30, the wide-ranging, but endangered, leatherback sea turtle can be found from Canada to Argentina. They nest in small numbers along the southeast coast of Florida from mid-February through mid-November. Palm Beach County was the location of 306 leatherback turtle nests in 2003 and 166 leatherback turtle nests in 2004. The endangered Hawksbill sea turtle is found in the tropical and subtropical waters of the Atlantic, Pacific, and Indian oceans. Its nesting and hatching season in Palm Beach County would extend from February 15 to November 15, but only a few nests occur from the Florida Keys to Cape Canaveral. No Hawksbill nest has ever been found in Palm Beach County, although the Hawksbill can be found in the offshore waters adjacent to the county. According to Attachment 30, the endangered Kemp's Ridley sea turtle has never been known to nest in Palm Beach County and is seen only rarely in the offshore waters adjacent to the county. Only one nest of the Kemp's Ridley turtle has been found in Florida since 1988 and that was in 1989 in Madeira Beach. Attachment 30 reports that West Indian manatees and numerous types of whale, including the Finback, Humpback, Sperm, and highly endangered Right whale, but no impacts to whales was anticipated. Manatees are addressed in the Permit. Attachment 33 itemizes the project's effects on the coastal system. In general, Attachment 33 states that the net effects are positive. For the dune system, Attachment 33 states that the project area includes a "large natural dune system that supports a variety of plants and animals." Attachment 33 identifies these dunes within Reach 8 as a "relatively unique resource" due to the loss of most dunes in south Florida to development or erosion. Attachment 33 concedes that about 50 feet of these dunes will need to be removed to allow the contractor's equipment access to the beach, but the "project specifications" will require the restoration of this vegetation, post- construction. Also, the restoration of the foredune will protect the dune from wave attack. Attachment 33 states that sea turtle nesting will be enhanced by the project due to the replacement of material lost to erosion. Attachment 33 advises that a monitoring and nest- relocation program will be implemented if fill placement occurs during nesting season. Attachment 33 addresses hardbottom communities in terms of susceptibility to coverage by fill spreading cross- shore and longshore. As to cross-shore spreading, Attachment 33 notes that the closure depths of the Manalapan and Ocean Ridge projects were -22 feet, which is the closure depth projected for the Reach 8 project. Assuming even a larger amount of cross- shore spreading, Attachment 33 nonetheless states that no offshore hardbottom coverage will ensue from the project and the movement of the fill during the equilibration process. As to longshore spreading, Attachment 33 notes the nearshore hardbottom extending from R-132 to R-134 plus 500 feet, which, at the time of the original Application, was outside the project area. Attachment 33 states that impacts to this hardbottom were reduced or eliminated by shortening the project area and reducing the fill volume, as noted above. Relying on GENESIS, a longshore sand-transport model that is discussed in detail below, Attachment 33 assures that no more hardbottom would be covered by the reduced project than would have been covered if the project did not take place. As to turbidity, Attachment 33 states that increases will occur in the nearshore mixing zone as a direct result of fill placement. The contractor will monitor water clarity to ensure that turbidity does not increase by more than 29 NTUs outside of the permitted mixing zone. Excavation of fill from the borrow areas may result in the temporary loss of benthic infauna and the temporary generation of localized, increased turbidity, and beach infauna may be lost by the placement of fill. Also, the borrow areas may not return to their pre- dredging composition, depending on changes in sediment grain size composition. Nothing in Attachment 33, the Application, or subsequent responses to requests for additional information discusses post-construction turbidity. Attachment 33a is the description of the use of the GENESIS shoreline model. GENESIS, which stands for Generalized Model for Simulating Shoreline Change, is a numerical model for predicting wave-driven longshore transport of sediment. The model is used in planning a beach nourishment or restoration project and predicting the transport of the fill, post- construction. For this project, CPE linked GENESIS with STWAVE, which is a model for wave height and angle. Outputs from STWAVE were wave heights at the projected closure depth of -22 feet. Using these outputs as inputs, GENESIS could then predict longshore sediment transport, once it has been suitable calibrated and verified. CPE calibrated GENESIS using shoreline data from 1990-2000 for shoreline from R-105 to R-150. Attachment 33a, Table 33-2, reveals considerable shoreline retreat in Reach 8 during this ten-year period. The initial calibration run of GENESIS did a fairly good job of predicting the direction and amplitude of change for Reach 8; the final calibration run did a better job. After calibrating GENESIS to the conditions at Reach 8, CPE verified the model by running it for the same shoreline during an earlier period, 1974-1990. The purpose of this process is to run a calibrated model in a setting for which real-world data are available--and to see how well the calibrated model does in "predicting" these natural processes. This verification effort was an irredeemable failure. But CPE proceeded with the calibrated model as though the verification process had been successfully completed. The most likely explanation was that Palm Beach wanted to commence construction within five months of filing the Application, and there was not time to fix the model verification or find a new model and run it. Attachment 33a, Table 33-3, reveals that the calibrated model was useless for "predicting" shoreline retreat or advance during this period. In reality, Reach 8 experienced shoreline advances of 20 feet at the north and south ends of Reach 8 and 80 feet in the center. As calibrated, GENESIS predicted almost the exact opposite: no change at the north end and a retreat of 20 feet at the south end and a retreat of 70 feet in the center. The verification run produced the same result for Reach 7 and for much of the remainder of the shoreline modeled. For the majority of the shoreline modeled, GENESIS, as calibrated by CPE, produced a rough mirror image of what actually took place in terms of shoreline advance or retreat. In Attachment 33a, CPE gamely described the verification run as follows: "Over the majority of the study area, the model overestimated the amount of erosion." For areas of accretion, this statement is misleading. CPE tried to explain the anomalies by stating: "These discrepancies occurred due to the fact that erosion prior to 1990 occurred in different locations than it did after 1990." This statement implies that GENESIS is of no value if the erosion or accretion moves from one area to another within Reach 8 during the period modeled and that GENESIS cannot identify such shifts. CPE attempted to justify continued reliance on its calibration of GENESIS by noting: "Overall, the verification indicates that near the Reach 8 project area, the calibrated model is a conservative shoreline model." It is difficult to understand the use of "conservative" in this statement, as CPE concludes that, within Reaches 7 and 8, the calibrated model can "overestimate" the amount of erosion. Again, this statement is misleading. Again, "overestimating" erosion meant "predicting" erosion of a certain magnitude when accretion of the identical magnitude actually took place. These problems with CPE's use of GENESIS for the Reach 8 project did not go unnoticed, as CPE had evidently hoped. In its response to the Application, which is described below, DEP essentially rejected the GENESIS data and the analysis based on such data. DEP's expert witness, Bob Brantly, testified that he did not rely on the GENESIS model output in considering whether to issue the Permit. Petitioner's expert witness, Dr. Robert Young testified that the GENESIS output, in this case, was unreliable. Dr. Young reasoned that the geological control characteristic of this area undermines conventional expectations concerning the movement of sand in response to wave action. Lacking a thick envelope of sand, the beach profile of a geologically controlled area responds differently, such as in finding equilibrium after nourishment, than does the beach profile of a beach with a thick envelope of sand. Also, Dr. Young explained how a beach subject to geological control, which can be extremely variable over a short distance, does not behave as predictably as other beach systems. This testimony of Dr. Young is credited. Relying on GENESIS, CPE projected the longshore transport that would take place, post-construction. At this point, CPE's reliance on GENESIS was an embarrassment, and its predicted limits of longshore transport were worthless. Frankly, the main effect of GENESIS in this case is to cast doubt on CPE's other assurances concerning the performance of this project and, specifically, belated new findings of a finer mean grain size on the existing beach, as discussed below. The first discussion of the mean grain size of the existing beach is in Attachment 33c, which considers the compatibility of the fill material with the "native" sediment. The native sediments are derived from samples collected by Palm Beach in 1993 at R-127 and R-130; the only fill added since 1993 was a relatively small amount of trucked fill after Hurricane Jeanne. Attachment 33c, Table 33c-1, states that the mean grain size of the native sediment at R-127 and R-130 is 0.35 mm with no silt, 44 percent carbonate, and a dry Munsell color of 10YR-6/2. Table 33c-1 explains that the dry Munsell color information covers hue, value, and chroma. Hue indicates the combination of red, yellow, green, blue, and purple colors. Sands with higher color scores are at the blue/purple end of the spectrum. Value, the most important of these three characteristics, refers to the lightness of the sand color with a higher number indicative of a lighter sand sample. Grey sand equals 5 or 6, light grey sand is a 7, and very light grey to light brown sand is at 10. The native sand at R-127 and R-130 is brownish grey. Chroma refers to the intensity of color with the higher number being more intense. Attachment 33c, Table 33c-1, reports for BA III and IV, respectively, mean grain sizes of 0.32 mm and 0.22 mm, silt of 2.66 percent and 1.71 percent, and dry Munsell color of 5Y- 6/1 (for both sources). Attachment 37 claims that no mitigation is required due to the information obtained from the GENESIS modeling, which showed no difference between the project and the no-action alternative in terms of hardbottom impacts. This later changed. Attachment 38 considers project alternatives. Alternative A is the no-action alternative, for which CPE predicts continued erosion and shoreline recession--claims unsupported by the record, as noted above. Alternative B is the continuous beach fill alternative through the entire Reach 8. This option would result in hardbottom impacts offshore of R-132 to R-134. Alternative C is the reduced-impact fill alternative, in which the project area is reduced, evidently as presented in the Application. Although the benefits in terms of beach recreation and sea turtle nesting habitat are reduced, the Application states that, with this alternative, Palm Beach would be most likely able to place fill in the fall of 2005. Alternative D is the discontinuous beach fill alternative, in which restoration activities would be limited to CEBs. According to CPE, the potential hardbottom impacts are the same as in Alternative B, but the disadvantage of this alternative is that Palm Beach would not be able to restore the beach at the Lake Worth Gap, which was still in the project area at the time of the Application. Alternative E is dune enhancement only, which would provide "modestly increased storm protection to a portion of Reach 8," which Attachment 33d does not identify, but would provide little protection to the rest of Reach 8. Response to First Request for Additional Information: June 2006 By letter dated July 13, 2005, DEP provided CPE with the First Request for Additional Information (RAI 1). One of DEP's concerns was the discrepancy between, on the one hand, the estimated loss of 105,000 cubic yards of sand between R-128 and R-133 and the relatively low background erosion rate and, on the other hand, the proposal to fill this segment of Reach 8 with 506,000 cubic yards of material. DEP questioned the need for this fill, reasoning that it had declined to designate this segment of Reach 8 as a CEB because "the existing dune and beach provide a measure of protection against damage from high- frequency (minor) storm events." DEP also asked for the post- Jeanne profile to be extended as far seaward as the pre-Frances and post-Frances profiles extended, as noted above. DEP questioned CPE's closure depth of -22 feet and, in particular, its reliance on the Ocean Ridge beach project, where few of the profiles extended beyond the -20 foot contour. On a related point, DEP noted that the GENESIS verification run provided no reasonable assurance for the predicted results. DEP requested the use of an analytical solution of longshore spreading of fill. DEP questioned the absence of mitigation for impacts to the nearshore hardbottom. Citing a 2002 report by Applied Technology and Management, Inc., which had done most of the Reach 7 design work, DEP noted that this low-relief, algae- covered rock had persisted in the intertidal zone since at least 2001 and thus had not emerged due to the recent hurricanes. DEP requested mitigation for the hardbottom directly covered by the fill and for the hardbottom indirectly covered by the fill as it drifted offsite to the south, past R-136. On June 28, 2006, CPE filed its response to RAI 1 (RRAI 1). In the cover letter, CPE advised that it had lengthened the project by extending it to R-134 plus 250 feet and increasing the volume to 900,700 cubic yards, although the revised project now excluded the Lake Worth Gap. RRAI 1 identifies BA III and BA IV as the sand sources. In addressing the need for the Reach 8 project, RRAI 1 asks DEP to reconsider its decision not to designate the Center Segment as CEB. RRAI 1 adds that the project will cover nearshore hardbottom, and Palm Beach will construct an artificial reef as mitigation for the loss of this hardbottom. In addressing the request to survey post-Jeanne profiles as far seaward as the post- and pre-Frances profiles extended, RRAI 1 states that surveys had been conducted that extend these beach profiles past the predicted closure depth. In the narrative, RRAI 1 notes that 486,300 cubic yards of sand eroded from Hurricanes Frances and Jeanne, including 98,200 cubic yards from the dry beach. Following Hurricane Frances, the submerged profile partially recovered, but, even after a trucked-fill operation in January 2005, the post-Jeanne dry beach had 53,900 cubic yards less than it had pre-Frances. RRAI 1, Table 7-2, depicts volume changes since Hurricane Frances to May 2005 to the North Segment and the north half of the Center Segment, but not to the rest of the project area. At closure depth, for the North Segment, the profile along the transect from R-125 lost 59.5 cubic yards per linear foot, the profile along the transect from R-126 gained 4.4 cubic yards per linear foot, and the profile along the transect from R-127 lost 20.6 cubic yards per linear foot. At closure depth, for the north half of the Center Segment, the R-129 profile lost 0.4 cubic yards per linear foot, the R-130 profile gained 51.3 cubic yards per linear foot, and the R-131 profile lost 18.2 cubic yards per linear foot. At 0 feet NGVD, for the North Segment, the R-125 profile lost 20.1 cubic yards per linear foot, the R-126 profile lost 6.7 cubic yards per linear foot, and the R-127 profile lost 13.4 cubic yards per linear foot. At 0 feet NGVD, for the north half of the Center Segment, the R-129 profile lost 3.6 cubic yards per linear foot, the R-130 profile lost 0.6 cubic yards per linear foot, and the R-131 profile lost 10.2 cubic yards per linear foot. RRAI 1 states that, following Hurricane Wilma in 2005, Palm Beach constructed a dune nourishment project from April 5 to May 4, 2006, using stockpiled fill from the Reach 7 project. RRAI 1, Table 7-3, depicts shoreline changes from Hurricane Frances to May 2005 for all of Reach 8. The shoreline reportedly advanced 26 feet at R-133 and 15 feet at R-134, retreated about eight feet at R-126 and five feet at R-132, and retreated from 20-46 feet at all other monuments within Reach 8. The average retreat for all of Reach 8 was 23.4 feet. RRAI 1 states that more losses resulted from Hurricane Wilma in 2005 and explains that, between April 5, 2006, and May 4, 2006, Palm Beach stockpiled some fill during the Reach 7 project and, upon completion of that project, trucked the fill to Reach 8 and placed it along the dune line as a temporary protective measure. In response to a DEP comment noting that the equilibrium toe-of-fill was based on anticipated cross-shore spreading only and asking for an equilibrium toe-of-fill based on anticipated cross-shore and longshore spreading, the RRAI 1 states: "An equilibrium toe-of-fill evaluation that includes longshore spreading cannot be predicted accurately from models." The RRAI 1 adds that RRAI 1, Attachment 25, provides an equilibrium toe-of-fill based on cross-shore spreading. In response to a DEP comment about the details of construction, the RRAI 1 states that a hydraulic cutter head dredge "may" be used to excavate BA III and BA IV: at the hearing, Palm Beach committed to the use of a hydraulic cutter head dredge. RRAI 1 states that the contractor will place the submerged pipeline to avoid contact with the hardbottom. Bulldozers will construct dikes on the beach to contain the material deposited there and reduce turbidity. Construction will require 60-75 days to complete. RRAI 1, Figure 1, discloses that BA III and BA IV are in an area of inter-reefal sand, just seaward of the diabathic channels. RRAI 1 states that inter-reefal sands have been the source of fill for beach nourishment since the early 1960s. The deposits in these sediments, which accumulate between the reefs, are relatively uniform in composition--i.e., siliciclastics with small carbonate fractions--and grain size--i.e., sand sized. But there are finer and coarser facies. According to RRAI 1, the shallower inter-reefal sand deposits often have sediments resembling the active beach landward. Deeper inter-reefal sand deposits have beach sands mixed with reworked marine sediments and reef fragments. Thus, inter-reefal sediments are finer in the center, but coarser seaward and landward. RRAI 1 offers detailed analysis of the sediments in BA IV in response to a DEP comment that the sediments in this area were only "marginally acceptable." Covering about 95 acres in 30-45 feet of water, BA IV extends from R-132 to R-134 and is about 0.6 to 0.7 miles offshore. The mean grain size for BA IV is 0.21 mm with silt content averaging 1.79 percent. RRAI 1 concludes that BA IV sand, which was used for Reach 7, was within the sediment quality limits for Reach 7 and should be suitable for Reach 8. Given Reach 7's performance, this assertion inspires little confidence in CPE's ability or willingness to identify comparable sediments, in terms of mean grain size, between sand sources and the existing beach. RRAI 1, Table 33a-1, responds to DEP comments concerning closure depths. The closure depths for Reach 8 from August 1990 to May 2005 averaged -22 feet, with only one value as shallow as -19 feet and no value deeper than -23 feet. Responding to DEP comments about the calibration and verification of the GENESIS model, RRAI 1 again explains how erosional areas moved with time, so that calibrations based on one period of time may not yield satisfactory results in another period of time. RRAI 1 states: "Such undulational erosion patterns make the accurate calibration and verification of plan- view shoreline change models such as GENESIS, DNRBS (Dan and Grant, 1988), or the Walton and Chiu (1979) analytical models difficult." RRAI 1, p. 27. This is an interesting comment, given CPE's choice later to use the Walton and Chiu to confirm its work with the GENESIS numerical model in projecting longshore spreading. Responding to DEP concerns that the native beach sand composite mean grain size, based on 1993 data, may have been affected by a fill project done after Hurricane Jeanne, RRAI 1 acknowledges that about 50,000 cubic yards of beach and dune fill were placed above mean high water in January 2005 from R-117 (Sloan's Curve) to R-134 plus 136 feet. Not surprisingly, given the history of data collection in connection with beach projects, no one took samples of the fill material, so CPE was unable to determine how the beach composition may have been altered due to fill placement. RRAI 1 states that the impacts to infaunal organisms at the borrow areas are significant, and the recovery time for abundance and diversity recovery may be 1-2 years. However, impacts to benthic organisms on the dry beach and in the intertidal zone are reported to be generally less significant, partly due to the likelihood that organisms adapted to the high- energy intertidal zone can adapt better to the impact of filling, so that recovery of these organisms takes 2-7 months. This claim has been discredited above. The impact on shorebirds and fish feeding on such infauna is reportedly minor, given the ability of the shorebirds and fish to move to nearby foraging habitat. RRAI 1 notes that Florida previously required infaunal community sampling at borrow and fill sites among the monitoring requirements imposed on sponsors of beach nourishment projects, but discontinued this requirement in the mid-1990s due to reportedly rapid recolonization of these sites by natural recruitment of infauna. As noted above, the Reach 7 experience rebuts this assertion. RRAI 1 identifies only three project alternatives. Under the no-action alternative, the beaches "may" continue to degrade. Again, CPE's claims of erosion for Reach 8 are seriously overstated. Under the alternative of continuous beach fill, fill would be placed for the entire length of Reach 8 and would provide the greatest storm protection. Under the alternative of discontinuous beach fill, fill would be placed for all of Reach 8, except the Lake Worth Gap. CPE identifies this alternative as feasible. RRAI 1, Attachment 7, contains beach profiles as of August 2004 (pre-Frances), November 2004 (post-Jeanne), and May 2005. A typical transect in the North Segment, R-127, shows retreat of the shoreline above mean high water from August 2004 to present (with no accretion from November 2004 to May 2005), and the loss of elevation in the surf zone (with no accretion from November 2004 to May 2005, but considerable recovery since November 2004 at a depth of about 10 feet, which is roughly 200 feet offshore. Two transects in the Center Segment, R-130 and R-132, show that the shoreline above mean high water has regained much of its loss from August to November 2004. For R-130, the profile shows sediment at a higher elevation in May 2005 than in August 2004 out about 150 feet, in four feet of water. This improvement continues out to about 500 feet, in about six feet of water, where, for a short distance, the May 2005 bottom elevation is several feet lower than the August 2004 bottom elevation, but eventually the May 2005 bottom elevation is at least a couple of feet higher than the August 2004 bottom elevation for 700 feet. The situation is roughly the same for the R-132 transect, except the differences are smaller. The only transect in the South Segment, R-134, shows that the shoreline above mean high water has advanced from where it was in November 2004 (and even August 2004) and generally has improved upon the conditions in August 2004, except for about 300 feet starting about 500 feet out, in about eight feet of water. RRAI 1, Attachment 24c, is water quality monitoring results for the dredging and filling areas in the Reach 7 project over three days in February 2006. Turbidity sampling took place at the borrow areas, fill site, and hardbottom site. On only one occasion did an increase of over 29 NTUs take place and that was at the fill site when the dredge hit bottom; a few minutes later, another set of samples revealed no turbidity violation. This is a measure of the unlikelihood that post- construction turbidity would exceed 29 NTUs over background. RRAI 1, Attachment 28c, is the Sand Quality Control/Quality Assurance Plan (SQCQA Plan) for Reach 8. Stating that it is required by Florida Administrative Code Rule 62B-41.008(1)(k)4.b, the SQCQA Plan is to ensure that the sediment from the borrow areas will meet the Permit standards. The SQCQA Plan allocates responsibilities among the engineer, Palm Beach, the contractor, and the state of Florida. As for the engineer, the SQCQA Plan states that it has relied on "limited" remote sensing techniques and a "limited" number of vibracores to design the borrow areas. The engineer has the personnel and testing facilities to sample and test sediment that has been placed on the beach. Palm Beach has the authority to modify the project within the constraints of the Permit, if non-beach compatible sediments are placed on the beach. The contractor will rely on the engineer's findings and may assume that all sediment from the authorized dredge cuts is beach compatible, but will have onsite personnel to identify "obvious changes" in sediment quality at the pipeline discharge. The contractor has or can acquire the equipment and personnel necessary to remediate the beach, if directed to do so by Palm Beach. The state of Florida acknowledges that "unsuitable" sediments may exist in the permitted borrow areas. The SQCQA Plan requires the contractor to operate the dredge at all times with electronic positioning equipment to monitor the precise position of the dredge and its depth. The horizontal accuracy must be within three feet, and the vertical accuracy must be within 0.1 feet. The contractor must record this information. If the contractor encounters "unacceptable" material during dredging, it shall cease dredging, relocate the dredge cutter head into acceptable material, and notify the engineer. The contractor must visually monitor the fill placed on the beach and must notify the engineer or Palm Beach if it observes any non-beach compatible sediment. The SQCQA Plan requires Palm Beach and the engineer "to seek to enforce" the Permit and construction contract related to sediment quantity. During active construction, construction observation and contract administration shall be performed seven days per week, 12 hours per day, with the possibility of random nighttime observations. The engineer shall provide onsite observation by an individual with relevant training or experience, and the project manager shall supervise the observer. The engineer will review the contractor's daily reports of the nature of the sediments and the dredge positions. The engineer will collect a representative subsurface sediment sample from each 100-foot long section of constructed beach to visually assess fine gravel content, coarse gravel content, wet Munsell color, shell hash content, and silt content. If the engineer determines that the content of any of these items fails to comply with the quality requirements of the SQCQA Plan for a continuous area greater than 10,000 square feet, the engineer will notify the contractor and Palm Beach, and the material will be removed and replaced or otherwise remediated. In the event of such a noncompliance, DEP must be notified. Remediation includes excavating the noncompliant material and mixing with specification material to achieve a sand mixture that complies with sediment criteria; excavating the noncompliant material, transferring it to an upland location, and replacing it with compliant material; or excavating the noncompliant material, transferring it to a submerged portion of the profile, and replacing the it with compliant material. The state of Florida is encouraged to visit the beach during construction to observe sand quality. Table 1 of the SQCQA Plan specifies the limits of the parameters mentioned above. For wet Munsell value, it is 5 or lighter. For shell hash content, it is 0-20 percent, based on a visual estimate. For maximum fine gravel, it is 12 percent. For maximum coarse gravel, it is 1 percent. For maximum silt, which is any material passing a #230 sieve, it is 5 percent. A #230 sieve will allow to pass any particle smaller than 0.06 mm. It is impracticable to expect a contractor to differentiate between grain sizes of 0.2 mm and 0.3 mm in real time as slurry is deposited on the beach or the fill is moved into the water. Response to Second Request for Additional Information: March 2007 On July 28, 2006, DEP issued RAI 2, in which it again declined to designate the Center Segment and the undesignated portion of the Lake Worth Gap as CEBs. RAI 2 asks for an analysis of the remaining sediment in BA III and IV in terms of quantity and mean grain size, as well as other characteristics. For longshore spreading projections, RAI 2 asks for analytical support of the numerical output of GENESIS, whose "verification . . . does not match the observed data and does not give reasonable assurance for the model predicted results." RAI 2 questions the equilibrium profile shape of the fill, in its cross-shore dimension, based on the particle size expected to be excavated. RAI 2 states that DEP engineering staff rejected CPE's method of calculating this shape because "the grain size distribution of the proposed beach fill material (0.22 mm) is significantly finer than the existing beach sediments (0.35 mm). RAI 2, p. 7. RAI 2 also questions the proposed slope of 1:10, which the contractor had been unable to maintain in other projects. RAI 2 warns that the relationship between hardbottom impacts and the steepness of the slope (i.e., the steeper the slope, the more fill placed on the beach) may result in a Permit condition prohibiting overfilling, which would mean that the contractor could not achieve the anticipated beach width if the contractor were unable to maintain a 1:10 slope. RAI 2 asks for the analysis of the storm protection afforded by the proposed beach restoration project. DEP advises that storm protection will be "critical" in justifying the impacts. On March 26, 2007, Palm Beach filed its RRAI 2. RRAI 2 notes that, assuming that construction of Reach 8 would take place in 2007 or 2008, Palm Beach decided to extend the project and increase the fill to 900,700 cubic yards. However, after the issuance of RAI 2, Palm Beach had decided, in an effort to expedite permitting, to terminate the project at R-132 and limit the fill to 505,700 cubic yards, plus periodic dune maintenance fill. RRAI 2 again asks DEP to reconsider its refusal to designate the remainder of Reach 8 as CEB. RRAI 2 again promises an erosion control line survey. As it had previously, DEP reminded CPE that it had to obtain an erosion control line survey, prior to obtaining a letter of consent, so that the landward limit of sovereign land could be determined prior to construction; otherwise, this line of demarcation would shift seaward with the mean high water line as a result of the addition of the fill. RRAI 2 mentions that CPE is considering alternatives to BA III and IV in the form of additional borrow areas. RRAI 2 notes that BA III has some rock and BA IV has "includes somewhat finer sand" and has the potential for rock. Thus, CPE would probably be proposing two additional borrow areas. RRAI 2 notes that the Reach 7 fill samples, which were not so numerous as to permit statistical analyses, revealed that the mean grain size of sediments placed from R-119 to R-124 was 0.25 mm with average silt of 1.01 percent, and the mean grain size of sediments placed at R-125 was 0.45 mm with average silt of 1.92 percent. RRAI 2 adds revised longshore spreading projections based on the analytical method of Walton and Chiu. RRAI 2 changes the construction slope from 1:10 to 1:15 to avoid scarping. RRAI 2, Attachment 33, reports that the mean grain size of BA III is 0.32 mm and the silt value is 2.66 percent, and the mean grain size of the native beach is 0.35 mm and the silt value is 0. In response to DEP's concern about CPE's methodology to predict cross-shore adjustment of the fill, given the fact that the mean grain size of the fill, at 0.22 mm, is "significantly finer" than the mean grain size of the existing beach sediment, at 0.35 mm, RRAI 2 states that CPE is finding new borrow areas and reanalyzing the existing sediment on the beach. As seen below, unable to find sand sources with significantly larger mean grain sizes, CPE eventually tried to reduce the mean grain size of the existing beach. Prior to 2006, when excavation took place for Reach 7, the mean grain size of BA III was 0.32 mm, and the mean grain size of BA IV was 0.22 mm. Noting that most of the dredging took place in BA IV, CPE implied that BA III would be more likely the source of fill for Reach 8, provided the rock issue could be solved. The methodology used by CPE was reportedly valid if the difference in mean grain size was 0.32 mm in the fill and 0.35 mm in the existing beach. Attachment 33 to RRAI 2 states that the design berm width is 25 feet. At construction, including the advanced fill, the berm width will range from 110-223 feet. At equilibrium, excluding the effects of erosion and spreading, the berm width will be 68-92 feet. And at six years, the end of the useful life of the project, the berm width will be 25-34 feet. Again, the berm elevation is specified at nine feet NGVD. At construction, fill will be placed at depths ranging from -3.2 feet to -5.9 feet NGVD, and, at equilibrium, the fill will reach a closure depth of -22 feet NGVD. The mean grain size of the fill and the mean grain size of the native beach are assumed to be 0.32 mm and 0.33 mm, respectively. Attachment 33 states that the area of hardbottom to be covered is 4.48 acres. The 9507-foot long dune project will receive 25,000 to 50,000 cubic yards of fill to an elevation of 14-16 feet NGVD. The life expectancy of the dune project will be six years, assuming two feet of erosion per year. Attachment 33 indicates that, from 1974-1990, when the sand transfer plant at the Lake Worth Inlet was in continuous operation, Reach 7 gained 1.4 feet per year, and Reach 8 gained 2.6 feet per year. From 1990-2004, which was marked by a six-year cessation of operation of the sand transfer plant, Reach 7 lost 1.9 feet per year, and Reach 8 was unchanged. The 2004 data are prior to Hurricane Frances. Attachment 33 states that Hurricanes Frances and Jeanne struck Martin County and caused shoreline retreat of 40 feet along Reach 8. A year later, Hurricane Wilma caused shoreline retreat of 23 feet in the same area. Although the beach fill area had regained some of its losses, post-Wilma, the dry beach and dunes had not, and the gains along Reach 8 were likely due to the longshore transport of the fill placed in Reach 7 in early 2006. With these data, Attachment 33 explains the need of the project, noting that a storm of at least tropical storm strength passes within 50 miles of Reach 8 every 2.5 years, on average. One of the unadopted alternatives discussed in Attachment 33 is groins. Using a T-headed rock groin field with individual groins spaced 240 feet apart, similar to the Ocean Ridge project already in place, would require 31 such groins, all filled with beach compatible sand. The total cost of this project would be $31 million, plus the cost of the sand to fill the groins. Geotextile groins in this array would cost only $6.2 to $9.3 million, but would last only 5-10 years, as compared to 20-50 years for rock groins. Another alternative discussed in Attachment 33 is periodic dune maintenance. Noting that Palm Beach had nourished the dunes in January 2005, as described above, and added 25,000 cubic yards to Reach 8's dunes in early 2006, Attachment 33 describes dune nourishment as only a temporary solution. One problem is the most eroded beaches offer the narrowest area within which to nourish dunes. Attachment 33 described CPE's use of the Walton and Chiu analytical model to project longshore spreading of the fill. The model operator must input a closure depth. Cross- shore spreading is then estimated using a translated beach profile from 9 feet to -22 feet. The translated beach profile is a key component in this exercise. Attachment 33 explains that CPE chose the translated beach profile over the Dean equilibrium profile "because the grain sizes of the native material and fill material are assumed to be similar at this time." RRAI 2, Attachment 33, p. 22. Attachment 33 adds that the mean grain size of the of the native beach is 0.35 mm, and the mean grain size of BA III is 0.32 mm. Noting the mean grain size of 0.22 mm in BA IV, Attachment 33 cautions as to the unsuitability of such a fine grain size: "given the fine grain size [of BA IV] and that potentially new borrow areas are being developed [BA V and VI--which CPE did not yet know would produce sediments with about the same mean grain size as those produced in BA IV], only a small portion, or none of [BA] IV will be used to construct the Reach 8 project." RRAI 2, Attachment 33, p. 23. In discussing fill-volume alternatives, CPE selected a background erosion rate of 2 feet per year, explaining that that was the rate for Reach 7 from 1990-2004. Attachment 33, p. 24. This is of course true, but the background erosion rate for Reach 8, which is receiving the fill, was zero during the same period, so the first assumption of CPE produced overfill. Attachment 33 then analyzes alternatives with 313,400 cubic yards of fill, 389,300 cubic yards of fill, 488,900 cubic yards of fill, and 505,700 cubic yards of fill. The selected alternative is the last, which will terminate beach fill at R-131. This alternative includes a 25-foot design berm fronted by six years of advance fill. Choosing the project with the most fill because it will produce the most beach and upland protection, CPE asserts that the fill will not spread past R-133 plus 540 feet or cover, directly and indirectly, more than 4.48 acres of hardbottom, on average over time. Attachment 33 acknowledges the need for a shallower construction template of 1:15, rather than 1:10, to avoid escarpment. The equilibrium cross-sections assume a translated beach profile due to the similarity of the existing and borrow sediments in terms of mean grain size. Attachment 33 notes that, if the borrow sediments prove larger than the existing beach sediments, the fill volume for the selected alternative will provide a longer life expectancy for the project. But if the borrow sediments prove smaller than the existing beach sediments, Palm Beach will either have to settle with the approved fill volume, which would mean a shorter life expectancy for the project, or add more fill to the project to compensate for the smaller-sized borrow sediments. It is consistently assumed in the RRAI materials that the solution will be more fill, not a shorter life expectancy for the project. The design beach profile template governs over estimates of approximate volumes of fill for the overall project. Attachment 33 notes that sand collected in 2006 was "currently being analyzed to support borrow area investigations." CPE never explains why the existing-beach data collected in 2006 would not yield a mean grain size and silt value for over one year after the collection of the data--that is, until CPE had ascertained the mean grain sizes and silt values for the new borrow areas. Thus, Attachment 33 continues to report that the mean grain size of the existing beach is 0.35 mm and the existing beach contains no silt, as compared to BA III, whose mean grain size is 0.32 mm and silt value is 2.66 percent. CPE reasoned that, because the BA III sediments were below 5 percent silt, the "DEP limit," the silt content of BA III is "acceptable as beach quality material." RRAI 2, Attachment 33, p. 31. However, CPE promised to reevaluate the silt content of the existing beach and new borrow areas as part of its ongoing geotechnical work. Noting that grain size compatibility is quantified by the overfill factor, RRAI 2, Attachment 33, explains that a factor of 1.0 means that no extra fill is required because of no difference in mean grain sizes between the sand source and the existing beach. An overfill factor of 1.28 means that 28 percent more fill is required to achieve the same performance as that which would have ensued if the sand source mean grain size had equaled the mean grain size of the existing beach. Raising the overfill factor does not extend the life of the project. The overfill factor ensures that the beach profile template will be filled and, in the case of smaller grains from the sand source, compensates for the particle size difference by increasing the volume, so the same effect is achieved as would have been achieved if the fill grain size had perfectly matched the existing beach grain size. If the project life remains the same, more fill must be eroded, over the same period of time, to result in the beach profile template that applies at the end of the project's life expectancy. This means that, the higher the overfill factor, the faster the rate of erosion. Attachment 33 identifies two methods of calculating overfill factors: COE's Shore Protection Manual and Dean's Overfill Ratio, which tends to result in smaller overfill factors than those produced by the Shore Protection Manual. For BA III and the native beach, the Shore Protection Manual overfill factor is 1.25, and Dean's Overfill Ratio is 1.05. Attachment 33 states that the relatively low ratios indicate compatibility between the sand in BA III and on the existing beach and "justify" the "use of the translated beach profile to estimate volume requirements and cross-shore spreading." RRAI 2, Attachment 33, p. 32. Attachment 33 explains that, based on recent experience, specifying the location of the dune fill is impractical, as the needs and desires of upland property owners and project sponsors required numerous adjustments to dune alignment in the field. Based on these previous projects, though, it was likely that the dune nourishment would be to 14-16 feet NGVD with side slopes of 1:3 with 25,000 to 50,000 cubic yards of fill required. Third Response to Request for Additional Information: July 2007 On April 26, 2007, DEP issued RAI 3. This response indicates that DEP is considering Palm Beach's request to designate the Center Segment as CEB. This response also challenges Palm Beach's elevated shoreline change value of two feet per year of erosion for Reach 8 from 1990 to 2004. This response questions the trade-off of environmental impacts for a beach project that would offer protection against a one-year storm, as described by Palm Beach. With respect to the failure to specify an alignment for the dune nourishment, DEP noted that escarpments had formed along the dunes added to the north end of Reach 8 at the time of Reach 7 construction, and the dune fill had encroached into the active beach profile. RAI 3 addresses sand sources and questions CPE's post-project spreading analysis. First, DEP notes that it cannot accept BA III as a sand source for the Reach 8 project. Second, DEP states that Palm Beach needs to identify grain-size distribution in BA IV, so that cross-shore spreading and closure depths could be projected. Third, for longshore spreading, Palm Beach needs to explain its withdrawal of the GENESIS model and substitution of the Dean method with a simplified assumption of incident wave direction. Also, DEP questioned the assumption of two feet per year of shoreline erosion on Reach 8, given its long term stability. On July 7, 2007, CPE issued the RRAI 3, which describes another change in the project size. Beach restoration and dune nourishment will take place from R-125 to R-132, and dune nourishment only will take place from R-132 to R-134 plus 350 feet, for a total of 724,200 cubic yards of fill. RRAI 3 identifies BA V and BA VI as new potential sources of fill, although Palm Beach was still seeking permission to use all four borrow areas to ensure that it could excavate sufficient fill for the project. RRAI 3 states that CPE reran GENESIS for the new proposal of 724,200 cubic yards of fill to confirm spreading projections from the Walton and Chiu model. Addressing the ongoing effort to obtain DEP designation of CEB for the portion of Reach 8 not already so designated, RRAI 3 states that, in response to Tropical Storm Andrea in May 2007, the Reach 8 shoreline retreated an average of 35 feet and that much of the dune fill placed in 2006 was lost. In response to the objection concerning the use of a shoreline erosion rate of two feet per year from 1990 to 2004, RRAI 3 states that CPE will break down the shoreline change rate into three rates during this period of time and add a fourth period, August 2004 to February 2006. In response to a related comment concerning CPE's assumption of erosion throughout Reaches 7 and 8 and admission of difficulty in extrapolating from a wave-like pattern of erosion, RRAI 3 notes that CPE's erosion analysis treats Reaches 7 and 8 as a single beach-fill project, as the erosion wave extends from Sloan's Curve at R-116.5 (the northern end of Reach 7) to Lantana Public Beach at R-138. In RRAI 3, CPE finally discloses the information obtained from samples taken of the existing beach the prior year. The mean grain size of the existing beach is now 0.30 mm, and the silt value is 1.21 percent. RRAI 3 also reports the values for BA V and VI, which are, respectively: 0.24 mm and 1.49 percent and 0.23 mm and 1.50 percent. RRAI 3 restates these values for BA III and IV, which are, respectively: 0.33 mm and 1.46 percent and 0.26 mm and 0.78 percent. Using these values, the Shore Protection Manual overfill factors are 1.47 and 1.68 for BAs V and VI, respectively, and the Dean Overfill Ratios are 1.18 and 1.25. The following fill volumes and cross-shore estimates assume the highest overfill ratio, 1.68. These new values for the existing beach are derived from 2006 sampling, but RRAI 3 does not provide support for these new values. The December 2005 Environmental Assessment for Reach 8 reports the mean grain size for the existing beach as 0.35 mm and no silt, and the October 2007 Environmental Assessment for Reach 8 reports these values as 0.30 mm and 1.21 percent--with no discussion of the reason for the changes. Neither RRAI 3 nor the October 2007 Environmental Assessment discloses the proximity in time of the Reach 7 project in early 2006 and the sampling, also in 2006, as the relatively quick erosion of finer materials from Reach 7 could have influenced the sediments sizes found along Reach 8. Of particular assistance would have been a discussion of the differences between the 2006 sampling and the 1993 data, on which CPE had been relying up to this point. Likewise, there is no analysis of the new data on mean grain size and silt for BA IV. However, as the new sand sources did not yield larger sediment sizes, CPE reduced the sediment size of the existing beach. RRAI 3 discusses the use of the Walton and Chiu model in a passage almost identical to that contained in RRAI 2. However, this time, after explaining that cross-shore spreading is estimated using a translated beach profile, there is no justification of this method based on the assumed similarity of mean grain sizes of the sand sources and existing beach. Before, CPE justified the translated beach profile on the basis of the similarity of the particle sizes; now that the particle sizes are not similar, CPE merely uses the translated beach profile. RRAI 3 selects the same alternative as that selected in RRAI 2: the 25-foot design berm with six years of advance fill. Comparing RRAI 3, Attachment 33, Table 19, with RRAI 2, Attachment 33, Table 11, the effect of the dissimilarity in mean grain sizes is apparent. Both RRAIs describe the same length of beach restoration. RRAI 2 calls for 505,700 cubic yards of fill, and RRAI 3 calls for 639,500 cubic yards of fill--both for beach restoration only without any dune nourishment. Even crediting, for the sake of discussion, CPE's newer value of 0.30 mm mean grain size for the existing beach, the incompatibility in sediments necessitates that CPE add another 135,000 cubic yards of fill to the beach--which additional 135,000 cubic yards of fill will wash out with the remainder of the advance fill, if not also portions of the design fill, within six years following construction, according to CPE, but much sooner, based on the experience at Reach 7. Interestingly, RRAI 3, Attachment 33, reports that, at year 3, longshore spreading will not extend past R-133 plus 560 feet, which is only 20 feet farther south than the extent of longshore spreading at year 3 projected in RRAI 3. Even if this projection were reliable, and it is not due to discrepancies in mean grain sizes, it understates the longshore spreading because CPE has understated the mean grain size of the existing beach and has thus distorted the application and output of the Walton and Chiu model. RRAI 3 projects that total hardbottom impacts will now be 6.4 acres. Regarding the use of GENESIS, RRAI 3 reports that CPE reran the model for the new project length, now to confirm the projections of the Walton and Chiu model. Attachment 33, which is the Revised Engineering Report dated July 2007, discusses the results obtained from both models. The Walton and Chiu model projects little or no erosion of the design fill during the six- year life of the project and no spreading south of R-133 plus 560 feet, for total hardbottom coverage would be 6.4 acres. The new run of the GENESIS model predicts some erosion into the design fill by year three, but no spreading south of R-132 plus 1154 feet, for total hardbottom coverage of 5.8 acres. Appendix F of Attachment 33 of RRAI 3 reveals a new effort at validating the GENESIS model. After calibration, CPE ran the model to "predict" shoreline change from May 1986 to August 1990. Prudently shortening the validation period from 16 years in the earlier, failed attempt to four years in this attempt, CPE was able to avoid the mirror-image effect of the earlier validation run, in which GENESIS correctly projected the magnitude of change, but unfortunately predicted erosion when accretion actually occurred. Even shortening the projection period by 75 percent, CPE was evidently compelled to satisfy itself as to the validation process by accepting that GENESIS would continue to "predict" erosion when accretion actually took place. Reducing the prediction period to only four years, though, permitted CPE to obtain a model output that reduced by half the amount of erosion when compared to the amount of erosion predicted by the first run of GENESIS. However, GENESIS still does not produce reliable output in this case. This time, though, CPE seems to concede as much. CPE's explanation of the obvious deficiencies of GENESIS in this application reveals the inaptness of the model for this project. Appendix F to Attachment 33 to RRAI 3 concedes that GENESIS is "not well suited to projecting the future erosion rates." Appendix F, p. F-4. CPE observed that the problem with the GENESIS model was that Reaches 7 and 8 exhibit no erosion hot spots, but instead, as noted above, experience erosion as a wave, evidently from south of Sloan's Curve. The discussion offers GENESIS as a tool in comparing longshore spreading, if the project is built with longshore spreading under the no-build alternative, but the relationship between erosion, such as in projected closure depths, and longshore spreading suggests very limited use for the model, even in this modest undertaking. RRAI 3, Attachment 33, discusses depth of closure for Reach 8. Data for the 2006 Midtown Project suggest a depth of closure of -18 feet, but data for Reach 8, Manalapan, and Ocean Ridge suggest a range of -22 to -25 feet. Attachment 33 explains that CPE focused on data from three different periods for Reach 8, which suggested a range of -18 feet to -27 feet, for a median of -23 feet. This estimate approximates the -22 feet closure depth for Manalapan, so CPE chose to use this figure. This analysis is generally reasonable except for the fact that it does not analyze differences between mean grain sizes and silt values for the sand source(s) and existing beach at Manalapan. RRAI 3 acknowledges the impact of mean grain size on closure depth and longshore spreading. Using 0.30 mm for the existing beach and 0.23 mm for the sand source with the smallest mean grain size (BA VI), RRAI 3 estimates an overfill factor of 1.68 at the fill site to compensate for this difference. RRAI 3, pp. 14-15. Given the actual mean grain size for the existing beach, the overfill factor is probably closer to 2.00. Essentially, the smaller grain size in the fill, as compared to the beach, requires more overfilling to fill the beach profile template, and this makes more sediment available for post-construction transport. Of course, at least landward of the breakers, the sediment is more available for transport before of its smaller grain size. RRAI 3, Attachment 33, implicitly acknowledges the critical role of similarity in sand size between the source and the fill sites. At page 36, RRAI 3, Attachment 33, completes the same discussion of the Walton and Chiu model as took place in RRAI 2, Attachment 33. However, RRAI 2, Attachment 33, justifies the use of a translated beach profile from 9 feet to -22 feet "because the grain sizes of the native material and fill material are assumed to be similar at this time [i.e., 0.35 mm for the native beach and 0.32 mm for BA III]." RRAI 2, Attachment 33, p. 22. This quote is omitted from the otherwise nearly identical discussion in RRAI 3, Attachment 33, of the use of the Walton and Chiu model. RRAI 3, Attachment 33, p. 36. And CPE offers no explanation. The evolving statements of discrepancy between the mean grain sizes of the sand sources and the existing beach spell trouble for the use of the Walton and Chiu analytical model in this case. As noted below, the 1993 data, which are credited, supply an even higher value for the existing beach than 0.35 mm. When compared to sand sources with mean grain sizes barely over 0.20 mm, this large of a discrepancy no longer justified CPE's use of the Walton and Chiu analytical model for predicting longshore spreading. This left CPE with no model support for its projection of the limits of longshore spreading. RRAI 3, Attachment 33, considers various alternatives. The selected alternative provides six years of advance fill by the construction of a 25-foot-wide beach berm seaward of the design fill line. With the dune fill, this alternative offers protection from the 19-year storm and, without the fill, this alternative offers protection from the 12-year storm. For six years of protection from the 19-year storm (actually, during the first three years, the project would protect against at least the 24-year storm), the selected alternative requires 639,500 cubic yards of fill on the beach and 84,700 cubic yards of fill on the dunes, for a total of 724,200 cubic yards of fill. With the correct overfill factor, the total fill would be considerably more than 724,200 cubic yards. Further analysis of the selected alternative includes graphs showing that, at the third year, post-construction, the longshore spreading of fill would extend roughly midway between R-133 plus 560 feet; this would cover, directly and indirectly, 6.4 acres of hardbottom (including 2.8 acres covered directly by construction). At year six, which represents the maximum limit of spreading projected by CPE, the longshore spreading would extend to R-134 plus roughly 300 feet, but the analysis does not project the area of hardbottom to be covered directly and indirectly. RRAI 3, Attachment 33, notes that the spreading analysis for each of the alternatives used the Walton and Chiu analytical model and GENESIS model. As previously noted, use of these models are problematic for the present project. Exacerbating the problem, the Design Summary in RRAI 3, Attachment 33, at page 64, implies that CPE used mean grain sizes for the sand sources of 0.23 mm to 0.33 mm--even though BA III, which was 0.33 mm, would soon be withdrawn, and the remaining three borrow areas were around 0.24 mm. Fourth Response to Request for Additional Information: October 9, 2007 On August 7, 2007, DEP issued RAI 4, which is the final request for additional information. As with the three preceding requests, this one also addressed considerable biological information. One comment notes that DEP staff believe that hardbottom impacts will occur south of R-133.5 to about R-137. This is a reasonable response to the problems set forth in the preceding section. As for sands, RAI 4 requests more analysis of comparative grains on the beach and in the borrow areas. RAI 4 notes that the beach sand is tanner, and the sand from the borrow areas is greyer. RAI 4 states that DEP expects to be able to approve BA V and VI, but not BA III due to an excessive incidence of rock in the fill excavated from this area during the Reach 7 project. RAI 4 requests an alternative analysis of longshore spreading based on a closure depth of -15.9 feet. RAI 4 asks why, if additional longshore spreading takes place between years 3 and 6 of the project, CPE did not project additional coverage of hardbottom. On October 9, 2007, CPE filed RRAI 4. Concerning the possibility of additional coverage of hardbottom, the RRAI 4 states that CPE has already conducted extensive numerical and analytical modeling of longshore and cross-shore spreading, and the "modeling results provide a consensus that the hardbottom seaward of the sandbar south of R-134 will not be impacted by the project." RRAI 4, p. 9. According to RRAI 4, DEP offered no basis for its opinion, as contrasted to the "extensive analytical and numerical modeling of potential longshore and cross-shore spreading." RRAI 4, p. 10. The consensus of the two models, according to RRAI 4, is that the longshore coverage will not extend past about R-133.5. In an abundance of caution, CPE has extended projected impacts to R-134, and Palm Beach will agree to monitor, post-construction, hardbottom farther south, but this is the final word from CPE and Palm Beach on the critical issue of how far longshore spreading will extend, post- construction. Given the bad inputs concerning mean grain size of the existing beach and probably the sand sources (by including BA III's large value), the ensuing problems with the Walton and Chiu model, and the ongoing problems with GENESIS, CPE picked a bad moment to dig in and, relying on its modeling, disagree with DEP's analysis that hardbottom impacts would extend to R-137. In response to a request for a map showing where CPE collected the samples for analysis of mean grain size for the existing beach, RRAI 4 references a map at Attachment 33b-1. The map shows where CPE collected samples in March 2007 and August 2007, not 2006 as previously indicated. Attachment 33b-1 shows collection sites at R-125, R-128, and R-131 extending from the dune to points evidently seaward of the surf zone; these are for March 2007. Attachment 33b-1 also shows collections in August 2007 at R-127, R-133, and R-138 at or possibly landward of the dune line, but not seaward of the dune line. However, nothing else in RRAI 4 addresses the collection of these samples, the methodology used, or the analysis of the information obtained. Clearly, by 2007, finer fill from Reach 7 was in Reach 8. However, RRAI 4, Attachment 33b-3, is a compatibility analysis of the fill sediments with the existing beach sediments. The existing beach data is from samples collected in 2006, but, again, nothing is revealed about the circumstances of this collection event. The values for BA IV, V, and VI, as well as for the existing beach, are as reported in RRAI 3. The analysis states that the fill materials are grey, and the existing beach is greyish brown. After another summary of the COE and Dean overfill ratios, Attachment 33b-3 concludes with the assurance that any extra fill required due to differences in mean grain sizes "will be accounted for in the cross-shore spreading analysis and the total fill volume estimates," Attachment 33b-3, unnumbered p. 4. Not only was CPE unjustifiably sticking to its earlier projections of spreading--cross shore and longshore--in terms of hardbottom impacts, this statement indicates that the design beach template will govern over projections of fill volume when it came to the contractor's filling of the beach. It is unclear if 724,200 really assumes a 1.68 overfill volume, but, even if it did, the actual volume of fill, if the overfill volume is 2.00, may be in the area of 850,000 cubic yards. Addressing DEP's request to run a longshore spreading analysis with a shallower closure depth, RRAI 4 states that CPE did so, using one closure depth of -15.9 feet and another of -30 feet, which is the maximum observed closure depth observed in the area. At year 3, the farthest reaches of longshore spreading at -15.9 feet, -22 feet, and -30 feet closure depths are R-133 plus 1022 feet, R-133 plus 560 feet, and R-133 plus 136 feet, respectively. RRAI 4 concludes that the Walton and Chiu model used to project longshore spreading is not highly sensitive to the input of a closure depth. Concerning the failure to indicate covered hardbottom at year 6, RRAI 4 explains that CPE used the Walton and Chiu year-3 projection due to its agreement with the GENESIS model results through year 6. Proposed JCP, Proprietary Authorization, and Water-Quality Variance Intent to Issue On February 29, 2008, DEP issued a Consolidated Intent to Issue Joint Coastal Permit, Variance, and Authorization to Use Sovereign Submerged Lands dated February 29, 2008 (Intent to Issue). The JCP constitutes a certification of compliance with Florida water quality standards, so the COE may proceed with its permitting. The JCP also constitutes a finding of consistency with Florida's Coastal Zone Management Program. The Intent to Issue states that Palm Beach will excavate "beach-quality sand" from BA V and BA VI and restore the beach and nourish the dune from DEP reference monument R-125 to R-134 plus 350 feet. The Intent to Issue excludes activities at the Lake Worth Gap and allows dune restoration only from R-132 to R-134 plus 350 feet. Subject to this exclusion and limitation, Reach 8 extends from R-125 to R-134 plus 350 feet. The Intent to Issue identifies the North Segment, Lake Worth Gap, Center Segment, and South Segment. The Intent to Issue states that the berm elevation will be about 9.0 feet NGVD with a seaward slope of 1:15 (vertical to horizontal). The Intent to Issue states that the dune elevation will be about 16.0 feet NGVD with a slope of 1:3. The Intent to Issue states that DEP designated the North Segment as CEB due to continuity of management with Reach 7. The Intent to Issue states that the Strategic Beach Management Plan for the North Segment is beach restoration and periodic beach nourishment. The Intent to Issue states that DEP did not designate the Center Segment as CEB because it has been historically stable. The Intent to Issue states that DEP designated the South Segment as CEB due to historic beach recession that threatens upland development. The Intent to Issue states that the Strategic Beach Management Plan for the South Segment is dune restoration. The Intent to Issue identifies four other major components of this project: two borrow areas (BA V and BA VI), an artificial reef to be created as mitigation, a mixing zone, and a monitoring area. According to the Intent to Issue, BA V and BA VI, which will provide 724,200 cubic yards of sand to nourish the beach and restore the dunes, are about 1500 feet seaward of the fill area. BA V extends from R-129 to R-136 in depths of 22-30 feet. To the north of BA V, BA VI extends from R-122 to R-127 in depths of 23-33 feet. BA III and BA IV, which served the Reach 7 project, are 3500 feet offshore. BA V abuts the landward side of BA IV, and BA III is generally in the gap between BA V and BA VI, although, as noted, it is about 2000 feet farther offshore. According to the Intent to Issue, Palm Beach will be required to construct an eight-acre artificial reef to offset the anticipated destruction of seven acres of nearshore hardbottom. The artificial reef will be located about 300 feet offshore, in about 10 feet of water, between R-106 and R-108, which is north of the Reach 8 project alongside Reach 5. The Intent to Issue states that, if additional hardbottom is impacted south of R-132, Palm Beach will have to increase the mitigation. According to the Intent to Issue, the Variance will allow an expanded mixing zone of 300 meters offshore and 1000 meters downcurrent from the point at which water returns into the ocean following the hydraulic discharge of sand onto the beach undergoing nourishment. According to the Intent to Issue, Palm Beach shall be required to monitor the hardbottom from R-132 to R-137 to check for unanticipated hardbottom impacts. The area to be monitored will include the hardbottom seaward of the sandbar between R-134 and R-134 plus 250 feet. After the 2004 and 2005 hurricane seasons, according to the Intent to Issue, dune fill was placed along parts of the project area to stabilize the beach. In January 2005, Palm Beach placed about 50,000 cubic yards of sand landward of mean high water within Reach 8 under an emergency permit to replenish the dune system using an upland source. In 2006, dune construction was undertaken within part of the Reach 7 project-- specifically between R-116 plus 450 feet to R-134 plus 100 feet--but this work has not dispensed with the perceived need for this project. The 2006 dune project within Reach 8, according to the Notice of Intent, was a major modification of the Reach 7 Project. The Reach 7 Project authorized 1.1 million cubic yards of sand to be dredged from BA III and BA IV. Only 24,000 cubic yards of the 58,500 cubic yards were placed in the dune area south of R-126 because of time constraints due to the start of the 2006 sea turtle nesting season. According to the Intent to Issue, the scope of the Reach 8 project has changed based on negotiations between Palm Beach and DEP. Initially, Palm Beach proposed beach restoration from R-125 to R-134, using one million cubic yards of dredged sand. Concerned with hardbottom impacts south of R-132, DEP induced Palm Beach to shorten the southern limit of the project by 3600 feet, to R-131, and reduce the required fill volume to 506,000 cubic yards. After submitting its application with this southern limit, Palm Beach revised its proposal to extend the southern limit to R-134 plus 250 feet, thus increasing the required fill to 900,700 cubic yards. Concerned about the increased fill and potential impacts to downdrift hardbottom, DEP induced Palm Beach to accept a southern terminus of R-132 with a fill volume of 505,700 cubic yards. However, Palm Beach again revised the project to its current southern termini: beach nourishment to R-132 and dune restoration only to R-134 plus 350 feet. The first "resource of concern" analyzed in the Intent to Issue is the hardbottom communities. The Intent to Issue states that these communities comprise three types: intertidal, nearshore hardbottom; shallow, subtidal, nearshore hardbottom in depths of less than three meters; and deeper, subtidal hardbottom located about 105-120 meters offshore, seaward of the shore-parallel sand bar, in depths of 2.5-3.5 meters. According to the Intent to Issue, the hardbottom is different north and south of the Lake Worth Gap. North of the Lake Worth Gap, the intertidal and shallow subtidal hardbottom is more susceptible to sand cover due to lower vertical relief and shallower water. According to the Intent to Issue, south of the Lake Worth Gap, most of the hardbottom is only partly covered by sand, and the subtidal hardbottom is continuous past the southern terminus of the project. The higher relief of the hardbottom south of the Lake Worth Pier--up to one meter vertical relief--protects the benthos from migrating sediments and enhances survival of certain organisms. The growth of colonies of S. siderea, a coral, as large as 10 centimeters in diameter suggests that this hardbottom community is exposed persistently for long periods of time--i.e., 5-10 years--and that periods of sand burial are relatively brief. The Intent to Issue states that these nearshore hardbottom areas are important foraging, shelter, and nursery habitat for several species of migrating fauna, including juvenile sea turtles and larval/post- larval fish. The Intent to Issue states that intertidal hardbottom habitat typically displays low cover and diversity of macroalgae. The community is dominated by microalgae and blue- green algae. Common benthic fauna include barnacles, limpets, and periwinkles. Some crab and fish species may occupy small pools in the intertidal hardbottom. The Intent to Issue states that subtidal nearshore hardbottom communities are characterized by an increased number of macroalgal species and fauna. These communities are adapted to a dynamic environment, even to the point of sand cover or scour, and the habitat would not considered to be degraded unless the natural cycle were altered. The Intent to Issue states that, although the deeper subtidal hardbottom, which is south of the shore-parallel sand bar and in water depths of 2.5-3.5 meters, is fragmented parallel to the South Segment, it resumes its continuity south of the southern terminus of the project. Coverage and diversity of macroalgal and sessile fauna, such as corals, increases in the deeper nearshore community. Also, sediment coverage, in terms of thickness and areal extent, is less, so this habitat is used by a higher diversity of open-water fish species. The Intent to Issue determines that each of the three hardbottom communities supports different communities and provides different habitat functions, and each is "vital to this ecosystem." Thus, to mitigate for the loss of these habitats, the mitigation proposal must include all functions provided by these three hardbottom types. The second "resource of concern" covered in the Intent to Issue is sea turtles. The loggerhead turtle, green turtle, leatherback turtle, hawksbill turtle, and Kemp's Ridley turtle--all endangered or threatened--are present offshore of Palm Beach County, according to the Intent to Issue. The sea turtle nesting season in this area generally extends from March 1 through November 30, with the main portion running from May 1 to October 31. During the 2006 season, 12,755 sea turtle nests were recorded in Palm Beach County. The Intent to Issue states that the Florida Fish and Wildlife Conservation Commission's (FWC's) Imperiled Species Management Section reviewed the project and recommended permit conditions to help construction avoid and minimize impacts to sea turtles. The Intent to Issue notes that the impacts to sea turtles will likely result in a take, so the FWS and NMFS must grant "Incidental Take" permits or statements in their "Biological Opinions." The Intent to Issue states that FWS has issued a Biological Opinion for the loss of nesting habitat, and this document includes various conditions, which DEP has incorporated into the Draft Permit. The Intent to Issue states that NMFS is preparing a Biological Opinion with conditions that will, if deemed necessary, be included in a modification of the Permit, but, if NMFS fails to allow an Incidental Take, Palm Beach may not commence construction. The third "resource of concern" is manatees. The Intent to Issue notes that the FWC's Imperiled Species Management Section has recommended specific Permit conditions. The Intent to Issue notes that, pursuant to Section 161.088, Florida Statutes, beach restoration projects for CEBs are in the public interest and eligible for state funding. Because the Center Segment is not designated as a CEB, the Intent to Issue states that Palm Beach must provide reasonable assurance that the proposed activity is not contrary to the public interest, pursuant to Section 373.414, Florida Statutes. The Intent to Issue acknowledges that Palm Beach is required to submit alternatives to the proposed project that would minimize adverse impacts to the coastal system, such as burial of the exposed hardbottom and temporary reduction in marine turtle nesting. Because the hardbottom within the boundaries of the fill area is in the surf zone immediately offshore of the beach, even a significantly reduced volume of fill will bury this existing exposed hardbottom, according to the Intent to Issue. DEP thus recommended dune restoration only in the area proposed for beach restoration, but Palm Beach contended that a project limited to dune restoration would not protect upland buildings from storm erosion cause by the direct impact of a major hurricane. Thus, Palm Beach offered mitigation for the loss of hardbottom that will be covered by fill. The Intent to Issue notes that, pursuant to Section 161.144, Florida Statutes, beach-quality sand for nourishment is an exhaustible resource that must be carefully managed. Noting that such sand would be used in this project on beaches that are and are not designated as CEBs, the Intent to Issue warns that, while DEP did not determine that this use made the project contrary to the public interest, "the supply of beach quality sand in the region may become a consideration for future nourishment events, depending on the status of the sand source and the competing needs of critically eroded beaches." The Intent to Issue defines beach restoration as the placement of beach compatible sand onto an eroded beach for the primary purpose of providing storm erosion protection for upland structures. The beach fill template comprises the design berm, which protects from storms and is designed to remain intact between periodic beach nourishment events, and "advance beach nourishment," which is seaward of the design berm and is designed to erode from normal wave and tidal conditions, but undergoes replenishment with periodic beach nourishment. The Intent to Issue identifies the principle design objective as protection from storm erosion. The design storm is the 25-year storm event. The Reach 8 project will create a 25-foot wide design berm. Palm Beach's engineer has estimated that the design berm will provide storm protection to upland development from the impacts of a 19-year storm event. However, DEP considers this a conservative projection; DEP projects that the design berm will protect upland structures from the 25-year storm event. According to the Intent to Issue, the addition of the Reach 8 beach fill will "likely" increase the storm erosion protection for upland structures to greater than a 50-year storm event. The Intent to Issue notes that the other primary design component is the volume of fill needed for the beach nourishment project. The specified volume of fill is derived from the historical erosion rate plus additional material to account for spreading losses due to the effect of waves and tides acting on the bulge left in the shoreline by the placement of beach fill and the dissimilarity of sediment grain size between the existing beach sand and the fill material from the borrow areas. The design objective is to maximize the longevity of the beach nourishment with the minimal amount of fill necessary to preserve the design berm between renourishments. The Intent to Issue notes that, due to construction constraints associated with the placement of fill below the water line, the seaward slope of the beach fill template during construction is steeper than the equilibrium slope after exposure to wave forces. The profile adjustment can adjust rapidly during the first year and give the appearance of significant erosion losses. Thus, a wider beach berm width is designed in the knowledge that it will recede as the slope adjusts through the cross-shore spreading of fill material to the submerged part of the beach profile. The Intent to Issue states that Palm Beach's engineer demonstrated adequate design analyses to provide reasonable assurance that the cross-shore profile adjustment and alongshore spreading of fill under normal wave and tide conditions will not impact adjacent environmental resources, but the demonstration "does not eliminate the potential for unexpected spreading losses." Thus, DEP required Palm Beach to implement a monitoring program. The engineer has used a background erosion rate of two feet per year in the design of the beach nourishment. Although historical shoreline data do not support this rate, the Intent to Issue states that the additional fill volume is not significant compared to the volume needed to offset spreading losses. The Intent to Issue states that Palm Beach's engineer submitted numerical modeling and analysis of ocean wave and coastal littoral processes that provide reasonable assurance of the expected effects of the excavation of the borrow areas on the coastal littoral system. The analysis shows that the excavation of the borrow areas will "change nearshore conditions under a limited range of weather conditions, but will not have the potential to interfere with the natural functioning of the coastal system or cause changes in the patterns of erosion and accretion of the beach" distinguishable from natural fluctuations in the shoreline position. The Intent to Issue states that, pursuant to Florida Administrative Code Rule 62B-41.007(2)(j) (Sand Rule), only beach compatible fill may be placed on a beach or dune system. Palm Beach provided DEP with the results of geotechnical and geophysical investigations of the offshore borrow areas. The resulting vibracores yielded samples of BA V and BA VI that had a carbonate content of 48 percent, as compared to the composite carbonate content of 47 percent at the beach. According to the Intent to Issue, BA V has about 899,500 cubic yards of fill material, and BA VI has about 974,800 cubic yards of fill material, which, together, are more than double the volume required for the project. According to the Intent to Issue, the fill material in both borrow areas is similar to the native beach sediment in grain size, color, sorting, silt content, shell content, and carbonate content. The Intent to Issue states that the artificial reefs would be constructed in water depths similar to the natural hardbottom and would have similar vertical relief. Thus, DEP expects the artificial reefs to provide very similar habitat functions as those provided by the natural hardbottom habitat. Applying the Uniform Mitigation Assessment Method (UMAM), DEP assumed a time lag of two years for the artificial reefs to provide similar habitat functions as provided by the natural nearshore hardbottom, and DEP also anticipated the frequency and duration of exposure and characterized the hardbottom communities in the two borrow areas. Based on its UMAM analysis, DEP required eight acres of mitigation. According to the Intent to Issue, the artificial reef will be in a location where about two feet of sand covers the underlying limestone formation. If the artificial reef is constructed at the same time as the beach fill is placed, a two- year time lag is expected for the mitigation functions to become similar to natural hardbottom functions. If construction of the artificial reef is completed after placement of the beach fill, the mitigation area will be increased by 0.3 acres per year. The artificial reef will be located in an area with sediment thickness of less than one meter. Hardbottom communities have been identified in the vicinity of the mitigation area, so a 50-foot buffer must be maintained around the natural hardbottom. The Intent to Issue states that the artificial reef will be constructed of clean, dense limestone boulders with an average diameter of 1.1 meters and average weight of 1.9 tons. Vertically, the boulders placed on the bottom may not exceed 1.2 meters. The Intent to Issue states that the dune fill material will extend seaward to the mean high water line, so it will be affected by wave run-up almost immediately after placement. About 1.5 to 1.7 acres of nearshore intertidal and subtidal hardbottom habitat exist immediately seaward of the dune-only segment (between R-132 and R-134 plus 350 feet). The Intent to Issue reports that DEP expressed concern that impacts to more than the anticipated seven acres of hardbottom might occur due to the combined downdrift and cross-shore spreading of the dune and downdrift spreading of beach fill. Likewise, the expanded mixing zone could deposit sediments on hardbottom outside of the seven acres anticipated to be buried. Thus, in accordance with Florida Administrative Code Rule 62B-49.005(13), DEP determined that "additional reasonable assurance" is needed to ensure compliance with applicable rules and statutes, so DEP required submittal of such by a special condition. The Permit contains conditions for physical and biological monitoring of the performance of the beach fill, the associated effects on downdrift nearshore hardbottom, and a Contingency Mitigation Plan. The Intent to Issue states that the Contingency Mitigation Plan will be triggered by identified indicators of an unacceptable adverse impact to downdrift hardbottom communities. The Contingency Mitigation Plan shall demonstrate that adverse impacts will be adequately offset. The plan shall address the "mitigation type, design, location, funding, and ratio (pursuant to Rule 62-345, F.A.C.)." DEP must approve the draft Contingency Mitigation Plan prior to the issuance of a Notice to Proceed. The Intent to Issue states that the "complexity of coastal dynamics and bottom communities in this area make it difficult to predict the direct and secondary impacts of the beach restoration project," including the extent of offshore and longshore spreading of fill and the increased sedimentation from the adjusting fill. These direct and secondary impacts to nearshore hardbottom communities from the beach and dune fill are "primary concerns." Thus, DEP will require a Biological Monitoring Plan. As used in the Intent to Issue, "secondary" impacts means incidental impacts, especially as erosion and wave forces spread the fill beyond where it was originally intended. The Intent to Issue provides that monitoring of nearshore hardbottom will include assessments of hardbottom flora, sessile fauna, and fish populations. Monitoring will determine the condition and dynamics of nearshore hardbottom communities, movement of sand, effects of sedimentation and turbidity, the extent of burial from the seaward and downdrift adjustments of fill placed for beach and dune construction, the actual extent of equilibrating sand as compared to the predicted Equilibrium Toe of Fill (ETOF), secondary (i.e., indirect) impacts seaward and downdrift of the ETOF, impacts from the pipeline placement, and effects on marine turtle foraging habitat use. Biological monitoring and habitat assessments of the artificial reef shall assess the efficacy of the artificial structure to mitigate for the effects of burial of the shallow nearshore hardbottom habitat in the area of the project. The Intent to Issue does not require detailed biological monitoring of the borrow areas because of the distance between each borrow area and the adjacent nearshore hardbottom and adjacent offshore hardbottom. According to the Intent to Issue, these buffers provide reasonable assurance that the potential for impacts to hardbottom communities adjacent to the borrow areas is minimal. The Intent to Issue requires physical monitoring of the project through aerial photography and topographic/bathymetric surveys of the beach, offshore, and borrow areas. The objective is to measure the performance of the project, any adverse effects, and the need for any adjustments, modifications, or mitigation. These data will also facilitate the design of followup projects and reducing the impact on the environment. The Intent to Issue states that direct impacts to water quality from dredging material from the borrow areas is expected to be minimal. The hydrodynamic processes at the beach discharge point may cause turbidity to exceed 29 NTUs above background levels downdrift of the beach placement location within the maximum allowable mixing zone of 150 meters. Palm Beach has asked for a variance to extend the mixing zone 300 meters offshore and 1000 meters downdrift from the point of sand discharge at the beach disposal site. Palm Beach's analysis shows that turbidity should not exceed 29 NTUs above background levels outside of a 1000 meter shore-parallel mixing zone downdrift from the point of discharge and 300 meters offshore. Palm Beach shall maintain a shore-parallel sand dike to prevent water from the dredged discharge from running directly back into the ocean. By forcing most of the return water to flow over sand for a sufficient distance down the beach, most of the suspended sediment will settle out, according to the Intent to Issue. The Intent to Issue states that there are no practicable means to further minimize the potential for elevated turbidity using the selected borrow material and the hydrodynamic processes involved in the construction process. Pumping will cease if the turbidity plume exceeds 29 NTUs above background outside the approved mixing zone or causes excessive sedimentation on hardbottom. The Permit will not be valid until and unless DEP issues the Variance. Draft Permit The Permit, in is present form, did not exist at the start of the hearing. During the second week of the hearing, the Administrative Law Judge accepted a stipulation from DEP and Palm Beach that the method of dredging would by the cutterhead, which operates by suction on the sediments and water. At the conclusion of the second week of the hearing, on September 6, DEP provided the parties and Administrative Law Judge with copies of the "Final Mitigative Artificial Reef and Biological Monitoring Plan" dated September 5, 2008. The parties had been awaiting final DEP approval of the form of this plan. DEP also provided the parties with a marked Permit, showing changes from the version challenged by Petitioners. Lastly, on September 18, 2008, DEP issued a final draft permit. This document contained substantive amendments to the draft permit that DEP had previously proposed to issue. These amendments are noted separately in the discussion below. The Permit is a five-year permit issued under the authority of Chapters 161 and 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 62 and operating agreements between DEP and the water management districts. The Permit authorizes Palm Beach "to construct a beach restoration and dune nourishment project using beach- quality sand" from BA V and BA VI, which are about 1500 feet seaward of the fill area. The Permit states that sand for beach restoration will be placed from T-125 to R-132, except for the Lake Worth Gap at R-127 plus 597 feet to R-128 plus 954 feet, and the dunes-only component will extend from approximately to R-134 plus 350 feet. The berm elevation will be about 9 feet NGVD with a seaward slope of 1:15, and the dune height will be at about plus 16 feet NGVD with a slope of 1:3. The Permit requires eight acres of mitigation in the form of an artificial reef about 300 feet seaward of the shoreline, to offset the expected burial of about seven acres of nearshore hardbottom. The Permit warns that delays in the construction of the mitigation will require additional mitigation because of the increased time lag and that "additional, unanticipated adverse impacts will also require additional mitigation." The Permit requires that the mitigation reef be located offshore of the shoreline segment that lies between R-106 and R-108, in about 10 feet of water. In anticipate of future nourishment events, perhaps for the same shoreline, the Permit states: Assuming that the mitigation is successful and remains intact and ephemerally exposed when these impacts are repeated for subsequent nourishment events, this shall be the only mitigation required for the anticipated events. The Permit expressly constitutes a finding of consistency with Florida's Coastal Management Program, as required by Section 307 of the Coastal Zone Management Act. The Permit also constitutes certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act. Also, the Permit states that DEP has determined that the facility is located so it will not adversely impact Outstanding Florida Waters or Class II waters. The Permit does not disclose whether the adjacent Class III waters have been approved for shellfish harvesting. The Permit states that the activity qualifies for proprietary authorization to use sovereign submerged lands, and the Permit grants a Letter of Consent for the activity. The Permit contains 11 General Conditions, including one that requires the immediate cessation of all activities in the immediate area of any historic or archaeological artifacts uncovered anywhere on the project site. Another General Condition requires, within 30 days after the completion of construction or a subsequent maintenance event, Palm Beach shall provide DEP a written statement of completion and certification by a professional engineer, which shall verify all locations and elevations specified by the Permit and confirm that all authorized activities have been performed in compliance with the plans and specifications approved by the Permit, or describe any deviations. Specific Conditions 1-8 address general matters, Specific Conditions 9-16 address mitigation, Specific Conditions 17-19 address dredging, Specific Conditions 20-21 address biological monitoring, Specific Conditions 22-27 address manatees, Specific Conditions 28-45 address sea turtles, Specific Conditions 46-51 address shorebirds, Specific Condition 52 addresses water quality monitoring, Specific Conditions 53-54 address pipeline monitoring, and Specific Conditions 55-59 address physical monitoring. Specific Condition 2 provides that, prior to construction, the Board of Trustees must establish the line of mean high water for any affected area that does not already have an erosion control line, so as to distinguish between sovereign lands and upland properties. Specific Condition 3 prohibits any work until and unless DEP issues the Variance, which will relieve Palm Beach from the obligation to comply with Florida Administrative Code Rule 62-4.244(5)(c) and will authorize it to establish an expanded mixing zone for the project. As stated in the last revision of the Permit, Specific Condition 5 states that DEP may require additional monitoring of the mitigation reef and the nearshore hardbottom area between R-134 and R-138, consistent with Special Conditions 14, 15, 20, and 21 and the Final Mitigative Reef and Biological Monitoring Plan, "beyond the expiration date of this permit but before the time in which the beach and dune restoration project performance is complete, if a determination is made that the mitigation is not successful pursuant to [Specific Condition] 14 or that additional impacts to hardbottom have occurred pursuant to [Specific Conditions] 15 and 21." Specific Condition 6 prohibits any work until Palm Beach has received a Notice to Proceed from DEP. DEP will not issue the Notice to Proceed until it has received the Physical Monitoring Plan described in Specific Condition 56, documentation of an executed and recorded Erosion Control Line, final construction plans and specifications, and the turbidity monitoring qualifications described in Specific Condition 7. The last revision of the Permit removed some conditions that were vague. Specific Condition 7 requires that an independent, qualified consultant monitor the construction "to ensure that turbidity levels do not exceed the compliance standards" set in the Permit. Additionally, an individual familiar with beach construction techniques and turbidity monitoring must be present at all times when fill is discharged onto the beach, and this individual must have authority to alter construction techniques or shut down dredging or beach construction if turbidity levels exceed the compliance standards. Specific Condition 9 states that the "unavoidable" burial of about seven acres of nearshore hardbottom from the placement and spreading of beach fill shall be mitigated by the creation of "a minimum of 8.0 acres of hardbottom substrate." If the construction of the artificial hardbottom will be completed prior to or concurrent with the construction of beach fill, the mitigation area will be eight acres; otherwise, the mitigation area shall be increased by an area of 0.3 acres per year that the mitigation follows the construction. The last revision of the Permit requires the completion of the mitigation reef no later than two years after completion of beach construction. Specific Condition 10 provides that the mitigation reef shall be located in about 2.4 to 3.6 meters (8 to 12 feet) of water and placed on sandy bottom that has a sediment thickness over rock substrate of less than one meter (three feet), but generally at least 15 cm, and that does not contain any signs of hardbottom benthic community growing through the sand cover. After subsidence of the boulders onto the stable platform, the vertical relief of the artificial reef shall be generally between one and three feet above the sand substrate, although portions of the constructed mitigation reef, like the natural hardbottom impacted in the project area, may at times be completely covered by sand. Specific Condition 11 states that Palm Beach shall maintain a 50-foot buffer around any natural hardbottom to provide adequate protection during boulder placement. The greatest dimension of each boulder shall be placed parallel to the bottom, and a controlled method of placement shall be used with each boulder to place it on the sandy ocean bottom. Specific Condition 12 requires that boulders be placed side-by-side without stacking. Optimal spacing is for adjacent boulders to touch each other, but maximum spacing shall not exceed two feet (0.6 meter) between boulders. Specific Condition 13 requires the inspection and washing of boulders prior to placement to ensure that they are within the specific limits of size and free of cracks, soft seams, and other structural defects. Cleaning shall remove all debris and sources of pollution, prior to placement. The reef construction materials may not include reinforcing steel bar, steel, or other protruding materials. Specific Condition 14 specifies mitigation success criteria. Specific Condition 14.a states that, after the artificial reef boulders have subsided to their terminal elevation, each portion of the eight-acre artificial reef (or more, if required by Specific Condition 9 or 15) must be periodically exposed during natural seasonal fluctuations. The average area of mitigation reef exposed during the three post- construction monitoring events shall be at least 50 percent. If the three monitoring events reveal a trend toward permanent coverage, DEP may require additional monitoring to ensure that permanent coverage has not occurred prior to determining that this condition has been met. Specific Condition 14.b requires that 75 percent of all species or genera of macroalgae and attached invertebrates that were recorded on the natural hardbottom must be present in the artificial reef. Specific Condition 14.c requires evidence that the artificial reef is providing the same functions that were lost when the natural nearshore hardbottom was buried. Evidence shall include: documentation that juvenile green sea turtles are observed utilizing, or that the success of the colonization on the mitigation reef boulders enables the species to utilize the artificial reef as feeding habitat and shelter, and post-larval fish are using the artificial reef as shelter as specified in this permit and the Final Mitigative Artificial Reef and Biological Monitoring Plan. Specific Condition 15 states that Palm Beach shall be required to construct additional mitigation if, "after 3 years of post-construction biological monitoring," pursuant to Specific Condition 21, additional hardbottom impacts have occurred; if, within three years of construction of the mitigation reef, the original mitigation has not achieved success, pursuant to Specific Condition 14; or if construction of the original eight acres of mitigation is not complete prior to the completion of the beach construction, pursuant to Specific Condition 9. The additional mitigation shall conform to the requirements of the Contingency Mitigation Plan within the Mitigative Artificial Reef and Biological Monitoring Plan and Specific Conditions 10-14. Palm Beach shall "implement" the additional mitigation within 12 months of a new letter of consent for the additional mitigation. Specific Condition 15 concludes: Prior to any subsequent nourishment events, the physical success of the mitigation shall be evaluated using the same survey methodology as specified in the Mitigative Artificial Reef and Biological Monitoring Plan . . .. If the mitigation is not determined to be fully intact and ephemerally exposed as defined by success criterion 14.a, additional mitigation shall be required. Specific Condition 16 requires Palm Beach, after construction of the artificial reef, to complete a Materials Placement Report and submit it to FWC and DEP. Specific Condition 17 requires the contractor to push its equipment into the project area, rather than tow it, when within 1.5 miles of the shoreline to avoid cable drags and inadvertent impacts to offshore hardbottom resources. During all dredging operations, the contractor shall have electronic positioning equipment continuously measuring the vertical and horizontal location of the cutterhead at all times. The horizontal positioning equipment shall be interfaced with a depth-monitoring device. The position of the equipment shall be recorded, and the record shall be submitted as part of the final project report. Specific Condition 18 requires Palm Beach to notify DEP within 24 hours of anytime that the dredge operates beyond the borrow area boundaries or exceeds the authorized dredge depth. Specific Condition 19 states that, if the dredge operates outside the approved borrow areas, DEP shall be notified within 24 hours or the next business day, if the unauthorized dredge operation occurs during a weekend or holiday. If any damage is found, DEP may conduct a site inspection or require a field survey by qualified biologists to assess the potential for damage to adjacent hardbottom. Within seven days of the discovery of any damage, Palm Beach shall submit to DEP a detailed description of the damage, including an estimate of the area damaged, photographs, and a plan to prevent further damage. If significant irreparable damage remains, Palm Beach shall submit a Contingency Mitigation Plan, pursuant to Specific Condition 15. DEP reserves the right to take enforcement action as a result of the damage. Specific Condition 20 requires biological monitoring of the mitigation artificial reef immediately after its construction and during the next three summers for at least three years, using the same methodology as that specified for the natural hardbottom communities in Specific Condition 21. The biological monitoring shall coincide with the monitoring of the natural nearshore hardbottom. Monitoring shall include the degree of boulder subsidence until equilibrium is achieved; areal extent, location, and depth of burial or sedimentation on the artificial reef, which shall be compared to the results of the other monitoring events to determine the duration of burial; annual quantitative assessments of percent cover by algal species or genera, algal height, and biomass of different algal species or general (using the lowest taxonomic level possible); and a qualitative assessment of post-larval and juvenile fish utilization. The results of this monitoring shall be included in the monitoring reports required by Specific Condition 21. Specific Condition 21 requires monitoring of the nearshore hardbottom between R-134 and R-138 to detect adverse impacts from the project from burial or sedimentation. The monitoring shall quantify the degree and extent of any adverse impacts and compare changes over time. Specific requirements of the monitoring are set forth in several subparagraphs. The last revision to the Permit reduced the number of permanent compliance transects for the monitoring of hardbottom communities from "at least ten" to four. Specific Condition 21.a requires biological monitoring of intertidal-subtidal nearshore hardbottom communities by using permanent, cross-shore transects covering the entire width of exposed hardbottom. Specific Condition 21.a requires the establishment of at least 10 permanent compliance transects in the area directly south of the project in the intertidal-upper subtidal hardbottom between R-134 and R-138. At least five permanent control stations shall be established between R-139 and R-142. At least five permanent compliance transects shall be established in deeper subtidal hardbottom areas east of the nearshore sandbar between R-133 plus 300 feet and R-135 plus 200 feet. At least three permanent control transects shall be set between R-139 and R-142 along the same depth contours as the compliance transects. Each transect shall be run from the shoreward edge to the seaward edge of the hardbottom. Palm Beach shall conduct these monitoring events pre-construction, immediately post-construction in the summer following project construction, and again for three subsequent years (June through September) for a total of five monitoring events. Palm Beach shall establish appropriate control transects outside of the area of potential project influence and shall concurrently monitor them. DEP may require additional surveys beyond the three-year post-construction monitoring event, if impacts attributable to the project are evident at the conclusion at the end of the three-year monitoring. Specific Condition 21.b states that hardbottom monitoring shall include macroalgal surveys, which shall include annual quantitative assessments of percent cover by species or genera, algal height per quadrat and per species or general, and amount of sediment with the quadrat. The assessments shall also include the biomass of different algal taxa that are present. Long-term monitoring shall be done in replicate quadrats, as specified in the Mitigative Artificial Reef and Biological Monitoring Plan. Algal biomass shall be measured and the taxa identified in additional plots measuring about 10 centimeters by 10 centimeters. To determine whether the lost functions have been offset, Specific Condition 21.c requires the qualitative assessment and comparison of summer use of nearshore hardbottom impact sites and post-construction mitigation sites by post- larval and juvenile fish, and Specific Condition 21.d requires the quantification and comparison of summer use of nearshore hardbottom impact sites and post-construction mitigation sites by juvenile marine turtles. Specific Condition 21.e requires aerial photography to obtain additional and comparative information on hardbottom distribution and beach/dune fill development. Palm Beach shall survey beach and nearshore areas between R-125 to R-137 immediately prior to construction, immediately following construction, and annually during the summer (June through September) for the three-year period following construction (five mapping events). Specific Condition 21.f requires Palm Beach to provide annual reports within 120 days of the completion of the hardbottom-related survey, but no later than December 1st of each year. The final report of the biological monitoring program shall be submitted to DEP within 120 days after completing the last survey. Specific Condition 21.g requires Palm Beach or its consultant to submit monthly progress reports from the time of commencement of each annual survey to the time of the submission of the associated report. The reports shall consist of a brief narrative describing the work progress during the month and the predicted schedule for the next month. Specific Condition 22 requires instruction of all personnel associated with the project regarding manatees, smalltooth sawfish, and sea turtles (in the water); speed zones; and the need to avoid collisions with and injury to manatees. Specific Condition 23 imposes an idle speed/no wake limit on all vessels associated with the construction project, when such vessels are in the immediate area and in water with less than a four-foot clearance from the bottom due to the draft of the vessel. Specific Condition 24 requires that any siltation or turbidity barriers be constructed of material that cannot entangle manatees, smalltooth sawfish, and sea turtles and shall be properly secured and regularly monitored to prevent entanglement of these listed species. Any such barriers may not impede movement of these species. Specific Condition 25 requires all onsite project personnel to observe water-related activities for the presence of manatees, smalltooth sawfish, or sea turtles. If one of these species approaches within 50 feet of the operation, all in-water operations, including vessels, must be shut down until the animal moves beyond a 50-foot radius of the project operation or until 30 minutes have elapsed since the animal last appeared. Animals may not be harassed into leaving the area. Specific Condition 28 requires that beach restoration start after October 31 and be completed before May 1. From May 1 to October 31, no construction equipment or pipe may be placed or stored on the beach. Specific Condition 29 provides that, if sand is placed from March 1 through May 1, early morning surveys for sea turtle nests must be conducted daily from March 1 through the end of nesting season. If the beach restoration project takes place from November 1 through November 30, early morning sea turtle nesting surveys must be conducted 65 days prior to project initiation and continue through September 30. Specific Condition 29.a requires that only experienced and trained personnel, with a valid FWC permit, may conduct the surveys and relocate eggs. Nesting surveys must take place daily from sunrise to 9:00 a.m. Construction may not take place until the surveyor notifies the contractor that the survey has been completed. Specific Condition 29.b states that, although nourishment may take place 24 hours per day, no new construction activities "should" proceed after 9 p.m. and before the morning sea turtle survey, unless a nighttime nesting survey has been conducted to ensure that no nesting turtles or unmarked nests are present. Specific Condition 29.c provides that only those nests that may be affected by construction will be relocated, and they must be moved no later than 9:00 a.m. on the morning after deposition. The eggs must be removed to a nearby self- release beach site in a secure setting where artificial lighting will not interfere with hatchling orientation. Relocated nests must be randomly staggered along the length and width of the beach in settings not expected to experience daily inundation by high tides or routine severe erosion or egg loss. Relocation may take place only to the extent that construction threatens nests. Specific Condition 29.d requires that nests deposited in areas where construction activities have ceased or will not occur for 65 days must be marked and left in place, unless other factors threaten the success of the nest. A marker must be placed in the beach wherever a nest has been relocated. A 10-foot radius must be staked around the nest, and nest sites must be inspected daily. Specific Condition 30 requires that Palm Beach submit reports of all nesting activity and marine turtle protection measures taken during construction for the initial nesting season after the completion of construction and for at least two additional nesting seasons. Specific Condition 31 provides that, if beach restoration will occur from March 1 through April 30, Palm Beach must conduct daytime surveys for leatherback sea turtle nests beginning March 1, and nighttime surveys for leatherback turtles shall begin when the first leatherback crawl is documented in the project area and through April 30 or, if earlier, completion of the project. Nesting surveys must be conducted nightly from 9:00 p.m. until 6:00 a.m. Specific Condition 32 limits direct lighting of the beach and nearshore waters from March 1 through April 30 and November 1 through November 30 to the immediate construction area. Lighting on offshore or onshore equipment must be minimized through reduction, shielding, lowering, and appropriate placement to avoid excessive illumination of the water surface and nesting beach. Shields must be attached to the light house to block light from all lamps from being transmitted outside the construction area. Specific Condition 33 requires that, during April, staging areas for construction equipment shall be located off the beach. Nighttime storage of construction equipment not in use shall be off the beach to minimize disturbance to sea turtle nesting and hatching activities. Specific Condition 34 requires that, from March 1 through April 30 and November 1 through November 30, staging areas for construction equipment must be located off the beach to the maximum extent practicable. Specific Condition 35 states that, immediately after completion of the placement of beach fill and prior to March 1, for three subsequent years, if placed sand remains on the beach, Palm Beach shall till the beach or obtain a waiver of this requirement. Tilling shall be to a depth of 36 inches and must be completed by March 1. If compaction surveys are conducted pursuant to Specific Condition 36, Palm Beach shall annually submit them to FWC. If the project is completed just before nesting season, tilling shall not occur in areas where nests have been left in place or relocated unless authorized by FWS in Incidental Take Statement. DEP may modify this condition if sand compaction problems are identified. Specific Condition 36 describes the process by which Palm Beach may obtain a waiver of the tilling requirement. The condition specifies a methodology for sampling at 500-foot intervals to check for sand compaction. Specific Condition 36.d requires tilling prior to April 15 if the average value for any depth sampled exceeds 500 pounds per square inch for two or more adjacent sampling sites. Specific Condition 37 requires visual surveys for escarpments along the fill area immediately following completion of the project and prior to March 1 for the following three years, if placed sand remains on the beach. All scarps shall be leveled or the beach profile shall be reconfigured to minimize scarp formation. Also, weekly surveys must be conducted during the two nesting seasons after completion of fill placement. Specific Condition 37.b requires, prior to March 1, leveling of escarpments that interfere with sea turtle nesting or greater than 18 inches for a distance of 100 feet, provided Palm Beach has obtained authorization from FWS for Incidental Take during scarp removal. If weekly surveys during marine turtle nesting season document subsequent formation of escarpment greater than 18 inches for at least 100 feet, Palm Beach shall contact FWC to determine appropriate action. Specific Condition 38 requires Palm Beach or a local sponsor to manage artificial beachfront lighting in the beach restoration area. Specific Condition 40 requires Palm Beach to submit reports on all nesting activity for the initial nesting season and for at least three additional nesting seasons. Palm Beach must monitor nesting activity in the seasons after construction by daily surveys and additional methods authorized by FWC. Palm Beach shall report the following data for the restored areas and adjacent areas, of equal length, of beach outside the project area: all nesting activity, nesting success rates, hatching success of all relocated nests, hatching success of a representative sampling of nests left in place (if any), and dates of construction. Specific Condition 41 states, upon the excavation of a sea turtle nest, all work shall cease, and an egg-relocation person must be notified so that the eggs can be moved to a suitable relocation site. Specific Condition 42 states that Palm Beach must notify FWC upon finding a dead, injured, or sick sea turtle that is listed as endangered or threatened. Specific Condition 44 requires Palm Beach to provide reports on the distribution and abundance of marine turtles near the nearshore hardbottom in the project area, including hydraulic fill locations and dune restoration locations and adjacent, undisturbed control sites. These reports shall be provided prior to any beach fill activity and for at least two additional years. Palm Beach shall monitor in-water sea turtle distributions by annual surveys in accordance with the Mitigative Artificial Reef and Biological Monitoring Plan. Surveys for marine turtles shall be conducted within the locations of hydraulic fill placement, dune restoration, the hardbottom comparison areas (from R-125 to R-136), the mitigative reef, and adjacent undisturbed control sites. Survey transects shall run immediately adjacent to the shoreline, at or slightly deeper than 30 meters from the shoreline, 300 meters from the shoreline, and 600 meters from the shoreline--all for the impact site and mitigation reef site. Specific Condition 45 details the requirements of marine turtle monitoring activities. Data must be collected for the restored beach and an equal length of unrestored beach and must include the number of nests lost to erosion or wash out. Data must be reported by number and type of false crawls, in which the turtle crawls onto the beach but fails to produce a nest, lighting impacts, nests lost to inundation, erosion, vandalism, or lost markers, and emergence and hatching success. Specific Condition 46 requires Palm Beach to conduct shorebird surveys by qualified persons. Surveys of nesting season, which runs generally from April 1 to September 1 (although some nesting may occur through September), shall begin on April 1 or ten days prior to project commencement, if later, and shall be conducted through August or construction, which is earlier. Weekly surveys shall continue through August or fledgling or loss of identified nests or hatchlings, whichever is later. Surveys for detecting new nesting activity shall be done daily prior to moving equipment, operating vehicles, or performing other activities that could potentially disrupt nesting behavior or harass the birds, their eggs, or their young. The bird monitor must notify FWC within 24 hours once breeding is confirmed. Specific Condition 47 requires a 300-foot buffer around any location were shorebirds have been engaged in nesting behavior, including territory defense. All construction activities, including the operation of vehicles, shall be prohibited in the buffer zone. The width of the zone shall be increased if the birds appear agitated or disturbed by construction or other activities in adjacent areas. However, reasonable and traditional pedestrian traffic must be maintained where nesting birds will tolerate such traffic, generally including lateral movement of beach goers parallel to the shoreline at or below the highest tide line. Palm Beach must post designated buffer zones around the pedestrian access, and no construction activity, including the movement of vehicles or stockpiling of equipment, make take place within this buffer. Specific Condition 48 requires Palm Beach to obtain FWC approval for travel corridors outside the buffer areas. If adjacent to nesting sites, equipment, vehicles, and pedestrians may move past the nests, but may not stop or turn. These travel corridors must avoid critical areas for shorebirds, such as known nesting sites, wintering grounds, FWC-designated Critical Wildlife Areas, and FWS-designated critical piping plover habitat, as much as possible. To the extent possible, Palm Beach shall maintain some activity in these corridors daily. Specific Condition 49 requires the posting of shorebird nesting sites in the construction area. Specific Condition 50 suggests that Palm Beach "should" till and remove escarpment outside the shorebird nesting season, and contractors should avoid tilling and removing scarp in areas where nesting birds are present. Specific Condition 50.b requires that the contractor approximate the natural slope between the mean high water line and mean low water line. Specific Condition 51 prohibits the placement of pipes or sand seaward of a known shorebird nesting site during the shorebird nesting season. Specific Condition 52 directs Palm Beach to sample and analyze for turbidity at least three times daily, about four hours apart, during all dredging and filling operations. Background samples shall be collected at surface, mid-depth, and, if depths are greater than six meters, two meters from the bottom, all outside the influence of any artificially generated turbidity plume. Background samples shall also be taken about 150 meters from the dredge site in the opposite direction of the prevailing current flow and about 500 meters upcurrent of the point where the dredge discharge reenters the ocean, at the same distance offshore as the associated compliance sample, and outside of any turbid plume associated with the project. Compliance samples shall be collected at the surface, mid-depth, and, if depths are greater than six meters, two meters from the bottom, in the densest part of any visible turbidity plume generated by the project. Compliance samples shall be taken 150 meters downcurrent from the dredge head in the densest part of any visible turbidity plume and no more than 300 meters offshore and 1000 meters downcurrent from the point where the dredge discharge reenters the ocean within the densest part of any visible turbidity plume. Specific Condition 52 provides that the compliance locations are the limits of the temporary mixing zone for turbidity allowed during construction. If analysis reveals turbidity at any compliance site is more than 29 NTUs above the associated background levels, construction activities shall cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. Construction shall also cease immediately if sedimentation is observed on hardbottoms located in the mixing zone, but outside the area of predicted burial, and this sedimentation is greater than that concurrently observed in the control areas. The latest revision to the Permit adds turbidity monitoring obligations following construction. This post- construction monitoring shall take place twice monthly for one year after the end of construction or, if turbidity levels exceed 29 NTUs above background, then for an additional year, for a total of two years. The samples shall be taken "immediately offshore" of R-127 plus 597 feet, R-132, and R-134 plus 350 feet. These locations mark, respectively, the north end of the Lake Worth Gap, the north end of the dune-only project, and the south end of Reach 8. The samples are to be taken from the densest portion of any turbidity plume seaward of the surf zone. Samples are to be taken at either one meter or mid-depth, "whichever depth provides more indicative results." For background turbidity values, samples shall be taken at one meter depth offshore of R-116 and R-142. These samples must be taken immediately after the obtaining of the compliance samples and at the same distance offshore. The lower turbidity value shall be used for comparison with the compliance samples. Specific Condition 52 requires Palm Beach to submit to DEP all monitoring data, during construction, within two weeks of analysis and, after construction, within one week of analysis or two weeks of collection. Monitoring reports shall also include water temperature, time of day taken, depth of water body, depth of sample, antecedent weather, tide and direction of flow, and wind direction and velocity. Specific Condition 53 requires that a diver observe the entire length of the submerged pipeline from the western edge of the borrow area to the surf zone within one week of pipeline installation. If no hardbottom resources are observed or if to-be-impacted hardbottom is present, weekly vessel-based surface observations will be sufficient to monitor the submerged pipeline for leaks. These surface-based observations shall be conducted during periods of dredge operation. If a leak is detected, within 24 hours (weather permitting), a diver shall check for the presence or absence of a leak, and the contractor shall take any corrective measures necessary. Specific Condition 54 states that, if previously unidentified hardbottom resources are found within the pipeline corridor, weekly diver observations of the area within 400 feet of these resources shall take place. These observations are to detect leaks. All dredge and fill operations shall cease if substantial leaks are found; these are leaks resulting in turbidity in excess of state water quality standards. Operations may resume after appropriate repairs. Specific Condition 55 requires, pursuant to Florida Administrative Code Rule 62B-41.005(16), physical monitoring of the project to acquire project-specific data, including at least topographic and bathymetric surveys of the beach, offshore, and borrow site areas, aerial photography, and engineering analysis. The monitoring data will allow Palm Beach and DEP to observe and assess, with quantitative measurements, the performance of any project, any adverse effects that have taken place, and the need for any adjustments, modifications, or mitigative responses. This scientific monitoring also supplies Palm Beach and DEP the information necessary to plan, design, and optimize followup projects. Specific Condition 56 requires that, prior to the issuance of the Notice to Proceed, Palm Beach provide DEP with a detailed Physical Monitoring Plan, which shall indicate the project's predicted design life. The Physical Monitoring Plan shall consolidate data collection, analysis, and reporting of the information collected from the monitoring of Reach 7 and Reach 8. The engineering report shall include findings on the effects of the projects on each other. Approval of this Physical Monitoring Plan shall supersede the physical monitoring set forth in the Reach 7 permit. At the request of Palm Beach, DEP may revise the approved Physical Monitoring Plan. Specific Condition 57.a requires the Physical Monitoring Plan to include topographic and bathymetric profile surveys of the beach and offshore conducted within 90 days prior to commencement of construction, and within 60 days after the completion of the construction of the project. Monitoring surveys shall then be conducted annually for three years and then biennially until the expiration of the project design life. Monitoring surveys shall be performed during a spring or summer month and repeated as close as practicable during that same month of subsequent years. Palm Beach may request a postponement of the first annual survey to the following spring/summer, if it would otherwise take place less than six months after the immediate post-construction survey. Palm Beach may submit a prior design survey of the beach and offshore for the pre-construction survey, if consistent with other requirements of this Specific Condition. Specific Condition 57.a adds that the monitoring area shall include profile surveys at each of the DEP reference monuments along at least 5000 feet of the adjacent shoreline on both sides of the beach fill area (5000 feet south of R-134 and 5000 feet north of R-125). All work activities and deliverables shall be conducted in accordance with DEP's Monitoring Standards for Beach Erosion Control Projects, Sections 01000 and 01100. Because of the potential for impacts to nearshore hardbottom south of the beach fill area, additional physical monitoring data shall be required in the form of surveys conducted along the intermediate profiles spaced 250 feet apart in the southern part of the project, from R-132 to R-137. Beach and offshore profile surveys shall be conducted along each reference monument profile and intermediate profile about mid-point between reference monuments. The offshore survey shall extend seaward to a minimum of 3000 feet or -30 feet NAVD88, whichever is reached first. Additional intermediate beach profiles, between each of the above-described profiles, shall be conducted only to wading depth. All beach profile surveys shall be conducted to a minimum wading depth of -4 feet NAVD. Specific Condition 57.b requires bathymetric surveys of the borrow areas within 90 days prior to commencement of construction and within 60 days after completion of construction, concurrent with the beach and offshore surveys required above. A prior design survey may be submitted for the pre-construction survey if consistent with the other requirements of this Specific Condition. Survey grid lines shall be spaced not more than 500 feet and shall extend a minimum of 500 feet beyond the boundaries of the borrow area. Work activities and deliverables shall be consistent with DEP's Monitoring Standards for Beach Erosion Control Projects, Section 01200. Specific Condition 57.c requires aerial photography of the beach taken concurrently with the post-construction survey and each annual and biennial monitoring survey required above, as close to the date of the beach profile surveys as possible. The limits of the photography shall include the surveyed monitoring area described above. All work activities and deliverables shall be consistent with DEP's Monitoring Standards for Beach Erosion Control Projects, Section 02000, with a different protocol if nearshore hardbottom is present within the project area. Specific Condition 57.d requires Palm Beach to submit an engineering report and monitoring data to DEP within 90 days after completion of the post-construction survey and each annual or biennial monitoring survey. Specific Condition 57.e requires Palm Beach to submit monitoring reports and data to DEP and warns that a failure to timely submit these reports is a ground for revocation of the Permit. Section 1.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan states that the purpose of the plan is to address concerns of DEP and the COE about "intertidal and nearshore hardbottom impacts" from the placement of "beach compatible sand" on Reach 8. The Final Mitigative Artificial Reef and Biological Monitoring Plan notes that the dune fill will make up 84,700 cubic yards of the 724,200 cubic yards intended for the entire project. Fill for the dune project thus accounts for only 11.7 percent of the entire fill to be placed on Reach 8. Section 1.2 of the Final Mitigative Artificial Reef and Biological Monitoring Plan acknowledges that intertidal and nearshore hardbottom is present along portions of Reach 8. The plan states: "live/hardbottom habitat consists of a solid substrate to which an epibiotic community attaches, and around which mobile fauna is attracted." The epibenthic communities include macroalgae, sponges, octocorals, stony corals, bryozoans, and tunicates. The Final Mitigative Artificial Reef and Biological Monitoring Plan notes that Anastasia Formation outcrops exposed in the surf zone are smoothed by wave and current action. In Palm Beach County, these outcrops are found along Palm Beach Island. In Reach 8, exposed intertidal hardbottom outcrops are found from R-129 to R-132, which is the approximate range of the entire beach project south of the Lake Worth Gap. Intertidal hardbottom is also prevalent from R-132 to R-137, which may not be the southern terminus of this area of prevalent intertidal hardbottom because the data collection and analysis ended at this point. The Final Mitigative Artificial Reef and Biological Monitoring Plan reports that the intertidal hardbottom outcrops are typically ephemeral, as they are buried and exposed by seasonal fluctuations and high-energy events, such as tropical storms and hurricanes. The Final Mitigative Artificial Reef and Biological Monitoring Plan states that, for about three years after construction, as the fill is transported longshore until it reaches equilibration, the exposed hardbottom from R-132 to plus 560 feet (the approximate southern limit of the Center Segment) will suffer indirect impacts (i.e., be buried). In an abundance of caution, according to the plan, Palm Beach calculated mitigation based on direct and indirect impacts to hardbottom to R-134. The Final Mitigative Artificial Reef and Biological Monitoring Plan assures that Palm Beach will construct the mitigation prior to the completion of the beach restoration project. If construction of the beach restoration project precedes the construction of the mitigation, an additional 0.3 acres of mitigation shall be added for each year's delay. For hardbottom located between R-134 to R-137, the plan reports that Palm Beach will monitor for impacts from burial or sedimentation attributable to the beach restoration project. Any observed impacts are addressed in Section 7 of the Final Mitigative Artificial Reef and Biological Monitoring Plan, as discussed below. Section 1.3 of the Final Mitigative Artificial Reef and Biological Monitoring Plan states that the mitigation reef will be constructed offshore of R-106 to R-108 in 8-12 feet of water where less than three feet of sand overlies the bedrock formation. A specification of seven acres for the mitigation reef was deleted from Section 1.3, but this specification remains in Specific Condition 9 of the Permit. Section 3.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan identifies the goal of the monitoring is to assess, quantitatively and qualitatively, habitat and fish populations at the impacted and mitigated sites. In particular, the plan will allow Palm Beach to implement a mitigation relief that will meet specified acreage and physical relief, the biological criteria (over time) of the impacted natural hardbottom resources within and adjacent to the project area, and the overall ecosystem function (i.e., reproduction, recruitment, and support of the food chain) similar to the impacted natural hardbottom. To achieve these objectives, Palm Beach will conduct biological monitoring of the mitigation reef to confirm that it provides ecological functions similar to those provided by the impacted natural hardbottoms, provide statistically rigorous testing for reporting purposes, conduct physical and biological monitoring to determine if impacts due to burial or sedimentation have resulted from the project in excess of the seven acres projected to be directly and indirectly impacted, and conduct reasonable biological monitoring and analysis. Section 3.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan describes an elaborate benthic sampling methodology, developed by CPE, of sediment, macroalgae, turf algae, sponge, hydroid, octocoral, stony coral, tunicate, bare hard substrate, seagrass, anemone, zonanthid, Millepora, sessile worm, bivalve, bryozoan, and sessile anthropod. For sediment, the data are broken down into sand, shell-hash, and mud, and, for turf algae, the data are broken down into green, red, and brown. All assessment is noninvasive. Section 3.4 of the Final Mitigative Artificial Reef and Biological Monitoring Plan identifies four natural hardbottom sites--two north of Reach 7 and two south of Reach 8--for the production of data to compare with the data collected at the mitigation reef. Five monitoring events shall take place: one preconstruction, one in the summer following construction, and one in the summer of the first through third years following construction. Section 3.5 states that DEP may use these data to determine if hardbottom south of R-134 suffered sedimentation or if there are changes in the hardbottom community, by the end of three years after construction, so as to require additional mitigation. Section 3.8 states that sedimentation will be measured against the baseline condition and control sites and will be considered an unauthorized impact only if it exceeds such other sedimentation "by a statistically significant amount," although this section seems to provide that any burial of hardbottom constitutes an unauthorized impact. Sections 3.9 and 3.10 of the Final Mitigative Artificial Reef and Biological Monitoring Plan describe the methods of sampling fish and benthic invertebrates. Section 3.11 identifies the method of sampling macroalgae biomass. Section 3.13 identifies statistical inferences that Palm Beach will draw, in connection with these sampling efforts, so as to compensate for the possibility that intermittent community usage of a habitat may take place, but not during the monitoring event. Section 3.14 provides for aerial photography to monitor for hardbottom impacts. Section 4.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan acknowledges that the monitoring of intertidal and nearshore hardbottom may assist in determining if the project impacts exceed the expected limits within three years after project completion. The transects to be established for this monitoring include five permanent transects seaward of the nearshore sandbar between R-133 plus 300 feet to R-135 plus 200 feet. Control transects will be set at R-139 and R-142. Section 4.1.3 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires preconstruction macroalgae biomass sampling at the two control sites north of Reach 8 and two control sites south of Reach 8. During the preconstruction monitoring event, two sampling sites will be placed along exposed hardbottom in the southern portion of Reach 8. Macroalgae biomass sampling will then take place at these locations, as well as the mitigation reef, immediately after the mitigation reef's construction and annually for the three following summers. The assessment method and statistic inferences will be as described above. Likewise, sediment monitoring and aerial photography will take place as described above. The final revision of the Final Mitigative Artificial Reef and Biological Monitoring Plan deletes various provisions for the monitoring of the offshore reef. These provisions were originally applicable only if Palm Beach excavated fill from BA IV, but, after Palm Beach dropped BA IV from its plans, the provisions bore no purpose. Section 4.3.5 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires Palm Beach to conduct turbidity monitoring at the fill and borrow sites by means of an independent contractor not associated with the dredging contractor. Section 5.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan contains the schedule of monitoring activities. The occasions of monitoring are immediately prior to construction, during construction, immediately after construction, one year after construction, two years after construction, and three years after construction. The only activity specified to be performed on all six of these occasions is sea turtle nesting; on each of these occasions, Palm Beach must submit monitoring reports also. Four activities must be performed on all of these occasions except during construction: nearshore/intertidal hardbottom biological monitoring, sea turtle inventory in the water, aerial photography and hardbottom mapping, and mitigative reef biological monitoring. Monitoring of the restored beach for escarpment formations and compaction takes place on the four occasions commencing with immediately after construction. Although the matrix states that water quality monitoring is required on only one occasion, during construction, Section 5.2.2 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires Palm Beach to conduct water quality monitoring at the fill and control sites after construction every two weeks for one year and, if exceedances are detected, for an additional year. However, the lone regulatory consequence for an exceedance (other than extended the monitoring for one year) is that DEP will "consider. . ." them in evaluating future project proposals. The final revision to the Final Mitigative Artificial Reef and Biological Monitoring Plan contains a new section devoted to contingency mitigation. (This is the Contingency Mitigation Plan referenced in the Permit.) Section 7.0 restates the requirement that if completion of the mitigation reef occurs after completion of the project, Palm Beach must add 0.3 acre to the mitigation reef for every year of delay. Section 7.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan largely tracks Permit Specific Conditions 14 and 15, although the requirements to be imposed upon Palm Beach if the project buried additional hardbottom, as promised in Specific Condition 15, are expressed in Section 7.0 as merely that DEP and Palm Beach "will conduct a cooperative effort to estimate compensatory mitigation" using the monitoring data and UMAM. Ultimate Findings Preliminary Matters The existing mean grain size on Reach 8 is at least 0.38 mm, not 0.30 mm. And the existing sediments contain less than 0.55 percent silt, not 1.21 percent silt. Until CPE identified BA V and VI as its sand sources, it did not revise its earlier values for the existing sediments: 0.35 mm and no silt. By the time that CPE collected new samples, the excessive fines from the quickly eroding Reach 7 project had reached Reach 8. The erosion process at Reach 7 had produced increasingly larger sediment sizes: from 0.34 mm in 1977 to 0.43 mm in 1993. There is no reason to believe that, after the short-term erosion process following the hurricanes of 2004 and 2005, the sediment size at Reach 8 had decreased from 0.38 mm in 1993 to 0.30 mm in 2006 and silt had increased-- unless, of course, Reach 7's excessive fines had already contaminated Reach 8. Other evidence supports a value of at least 0.38 mm for the existing beach. As summarized by Dr. Finkl in his report, "Reach 8 Beach-Sediments: Historical and Contemporary Comparisons of Grain Size," dated September 29, 2008, other presumably relevant values are: Manalapan--0.34 mm in 1961; southern Palm Beach County--0.34 mm and 3 percent silt in 1987; Sloan's Curve (R-115) to 2100 feet south of Manalapan (R-141)-- 0.38 mm and 0.44 percent silt; and Midtown--0.42 mm in 1999. A value of 0.38 mm fits with these data better than a value of 0.30 mm, at least when no explanation accompanies the claim of a 0.30 mm value. DEP's expert, Bob Brantly, seemed to display some reluctance over CPE's new figures for the existing sediments. Testifying at the hearing, Mr. Brantly spoke of a mean grain size of 0.30 to 0.35 mm and silt of zero to 1.2 percent. The 1993 data on which CPE originally relied in claiming 0.35 mm does not specify 0.35 mm as the mean grain size for the transects for which data was collected. In the Environmental Assessment of Coastal Resources in Palm Beach, Lake Worth, South Palm Beach, Lantana, and Manalapan, Palm Beach County, Florida, by the Palm Beach County Department of Environmental Resources Management and dated May 18, 1993 (DERM EA), the mean grain size for R-124 (Reach 8 starts at R-125) is 0.44 mm, R-127 is 0.39 mm, R-130 is 0.41 mm, and R-133 is 0.43 mm for an average of about 0.42 mm (with R-124) or 0.41 mm (without R-124). Id. at pp. 37-39. As it happens, Reach 8's mean grain size is typical of the mean grain size for the entire area, which ran from R-115 to R-142: 0.42 mm. Id. at p. 41. Although, perhaps due to a final weighting process, the text of the DERM EA states that the mean grain size for the entire area is 0.38 mm. Id. at p. 43. On the other hand, the values for BA V and VI, in terms of mean grain sizes and silt percentages, are reasonable. Dr. Finkl's sand search took place in conformity with appropriate methodological standards and produced reliable data. These values fit with the values of other offshore sand sources. The significance of a difference of mean grain sizes of, say, 0.22 mm and 0.38 mm is addressed in the DERM EA, which warns that the mean grain size of 0.38 mm is "substantially coarser" than the offshore sand samples, for which the mean grain size was 0.22 mm. Id. The DERM EA elaborates: Material of this quality [0.22 mm] may create a number of adverse effects if used in a beach/dune nourishment project. These include: greater coverage of nearshore hardbottom due to a high overfill ratio and mild slope of the equilibrium toe of fill and an increased probability of compaction and effects on sea turtle reproductive success. Id. at p. 43. Elsewhere, the DERM EA notes the distinction between the existing beach's mean grain size of 0.38 mm and less than 0.55 percent silt and the sand source's values of 0.22 mm and 0.42 percent silt. The DERM EA adds: If better material cannot be located, there will be a number of effects associated with this type of material. These include: a great overfill ratio . . .; short (and possibly long) term impacts on ambient water clarity, nearshore hardbottom and offshore reefs[; and increased sand compaction affecting sea turtles' reproductive success]. Id. at p. 70. The DERM EA warnings are credited: fill sediment with a mean grain size of 0.22 mm is incompatible with an existing beach with a mean grain size of 0.38 mm. It is impossible to reconcile these warnings with the assertions of witnesses called by Palm Beach and DEP who assure that the proposed sand is "high quality sand" or "beach compatible sand." These assurances are unfounded. Until the fill is transported out into deeper water where it will lie undisturbed, the excessive fines in the fill promise considerably more incidents of turbidity of greater intensity and persistence in response to energy inputs when compared to the turbidity that resulted, pre- construction, to the same energy inputs. In its proposed recommended order, DEP asserts that turbidity is a "natural and important part of the nearshore ecosystem." Id. at p. 25. No one can dispute this assertion. But if the unstated implication is that elevated turbidity values are irrelevant until 29 NTUs over background is reached, DEP ignores the fact that the functions of a balanced marine ecosystem may be impacted by elevations of turbidity of less than 29 NTUs, especially when the causes of elevated turbidity are anthropogenic in origin. It is unknown, but unnecessary to determine, whether the placement of nearly one million cubic yards of dredged sediment whose mean grain size is a little more than half of the mean grain size of the existing sediment will raise turbidity by 29 NTUs or more; based on the intra- construction readings near the excavation site on Reach 7, it may be assumed that post-construction erosion of these fines will not approach 29 NTUs over background. However, it is likely that the post-construction erosion of these fines will harm the beach, nearshore, and hardbottom habitats and the organisms using these habitats for a period of probably one year, and these turbidity-based impacts are entirely unmitigated. DEP has failed to distinguish water quality violations due to excessive turbidity with impacts to the water resources of the district from an activity that has caused increased turbidity more frequently for longer periods of time. An increase of one NTU over background is probably harmless to the water resources of the district, and water-quality antidegradation standards are inapplicable to this case because the subject waters are merely Class III waters with no special designation. But an increase of turbidity of less than less than 29 NTUs over background can harm the beach, nearshore, and hardbottom habitat and the species that rely on these habitats. DEP's suggestion that the Sediment Quality Control/Quality Assurance Plan can "account for any unforeseen anomalies in the fill material" (Id.) ignores the facts that: 1) the discrepancies between mean grain size of the fill and existing beach are already known to characterize the two sand bodies in their entirety and cannot be regarded as mere anomalies; 2) even a trained professional cannot, in real time, collect and analyze the fill as it is deposited on the beach and in the surf zone; 3) accounting for hundreds of thousands of cubic yards of excessive fines dumped on a beach is easier said than done, as it is unclear what the contractor would do with these fines once they are slurried out of the borrow area; and 4) as explained in the Conclusions of Law, the assessment of impacts and identification of mitigation must take place prior to, not after, permitting. From a functional perspective, the impact of discrepancy in mean grain sizes and silt values in this case is significant. No one calculated an overfill factor based on these numbers, but the excessive fines will probably require the contractor to place 170 to 200 percent of the fill that it would have been required to place to fill the beach profile templates, if the sand source had contained identical mean grain sizes. For the reasons stated above, the contractor will likely pump as much fill as is needed to fill these templates, without regard to estimates of volume of fill. The additional silt is also significant. The existing beach is probably midway between zero silt and 0.5 percent silt. BA V and VI contain about 1.5 percent silt. Assuming an increase of one percent of the presence silt in the sediments, this means that, if the project resulted in only 724,200 cubic yards of fill, over 7000 cubic yards of additional silt, beyond the pre-existing silt mix on Reach 8, would be added to the beach. The characteristics of sediments by grain size and the effect of discrepancies between sand sources and existing beaches of the magnitude proposed in this case provide a context for understanding the meaning of the post-construction observations of Reach 7 reported by the citizens in the anecdotals collected above. Obviously, the credibility of these reporters is of paramount importance. These witnesses reported honestly what they saw. When the waters were fouled, they said so. When the waters cleared, they also said so. They did not bend their testimony to achieve a desired result. Doubtlessly, it would have been preferable to have comprehensive, detailed, post-construction data collection, linked to storm events, which themselves would be classified by wind, current, and wave forces; duration; and frequency. Palm Beach has long been on notice of the need to collect such data in order to be able to provide the reasonable assurances required by law. The Permit contains important provisions designed to require Palm Beach to do so on this project, but such an undertaking would aid future projects, not this one. The need to obtain comprehensive beach-performance data has long been highlighted in the professional literature, as well as by local officials, such as the Palm Beach DERM and the Palm Beach Shore Protection Board. Palm Beach cannot complain when the only source of such data is concerned citizens. The situation concerning post-construction hardbottom coverage is different from the situation concerning post- construction water clarity or turbidity levels: federal and state agencies focused closely on post-construction hardbottom coverage. And both NMFS and DEP expressed justifiable reservations about CPE's assurances about hardbottom coverage. By its conservation recommendation, NMFS implied either that a take of 19 juvenile green turtles was excessive, even though it expressly allowed the take of this number, or, more likely, that the actual coverage of hardbottom would exceed the 6.9 acres, so that the fill should be reduced to avoid additional impacts to hardbottom. DEP's concerns are more explicit. Consistent with its concerns during the permitting process, DEP required contingent mitigation to offset what it viewed as the possibility of more than 6.9 acres of hardbottom being covered. As already noted, the models on which CPE relied in projecting longshore spreading do not support CPE's conclusion as to the extent of coverage. The problems with the use of GENESIS in this case have been amply described. The problem with the use of the Walton and Chiu model is due to CPE's failure to acknowledge the actual discrepancy in mean grain size between the sand sources and the existing beach. The actual discrepancy and resulting overfill factor, both being much larger than CPE has acknowledged or considered in its modeling, promise that an undetermined amount of additional hardbottom will be covered, for an undetermined period of time, as the excessive fines in the fill transport beyond the limits projected by CPE before eventually undergoing cross-shore sorting into deeper, lower-energy waters. The area potentially affected by additional longshore spreading, though, is rich in hardbottom habitat. For instance, the DERM EA, which studied R-115 to R-141, notes that R-117 to R-124 contains an inner nearshore band of hardbottom of less than 100 feet wide with scattered nearshore bands of hardbottom of less than 40 feet wide near the Lake Worth Pier. The hardbottom became more extensive south of the Lake Worth Municipal Beach and consisted of two bands: an inner nearshore band 60-150 feet wide from just south of the Lake Worth Municipal Beach to south of R-141 and an outer nearshore band 100-250 feet wide from R-132 to south of R-141. Additional spreading to the south would cover more hardbottom. It is possible, on this record, to determine that additional hardbottom that would be covered by the spreading fill, but not the area of this additional hardbottom. Consequently, Palm Beach has failed to provide reasonable assurance that only 6.9 acres of hardbottom would be buried, directly or indirectly. As noted above, the hardbottom provides irreplaceable foraging and resting habitat for juveniles of various species, including the green turtle. The temporary loss--permanent, if ongoing nourishment events are assumed--of 6.9 acres of hardbottom habitat--although not the attendant loss of species, especially the five green turtles--is appropriately mitigated here. Palm Beach has underestimated the area of hardbottom impact and thus, among other things, underestimated the deaths of juvenile green turtles, which will die at the rate of five multiplied by the additional area in acres multiplied by 14.8 percent (the Rusenko fibropapillomatosis-infection rate). In the final revision of the Permit, Palm Beach and DEP removed the monitoring requirements for the offshore reef. The uniqueness of this resource has been detailed above. Because of the rare confluence of conditions required for its creation, the Florida Reef Tract cannot be replaced in any timeframe short of geologic time, so its protection, even from remote risks, must be a matter of exceptional regulatory concern. The turbidity resulting from the excavation seems short-lived. The relatively deep waters of BA V and VI are not subject to energy events sufficient to resuspend these particles, so once the dredge moves on, they quickly resettle to the bottom. Also, BA V and VI are relatively great distances from the Florida Reef Tract. It is not the excavation sites that pose even a potential threat to the offshore reef. Again, though, the performance of the beach, filled with excessive fines, poses a potential threat to the offshore reef. Storm-driven plumes of unnatural turbidity can carry these particles from Reach 8 to the offshore reef, where they may settle on the coral, obviously harming or killing this critical resource. It is impossible to find, on this record, that the likelihood of this event is such that it represents a probable impact to this resource, but, given the paramount importance of the Florida Reef Tract, the requirement of monitoring was not only a prudent, but necessary, provision as part of the reasonable assurance to be provided by Palm Beach concerning the water resources of the district. CRP Criteria Palm Beach has failed to provide adequate engineering data concerning shoreline stability and performance, post- construction, and the potential impacts of the project upon the beach-dune system of Reach 8. Palm Beach has failed to provide sufficient mitigation to assure the performance of the Permit with respect to the covering of hardbottom. Palm Beach has failed to provide reasonable assurance that the direct and indirect coverage of hardbottom will be limited to 6.9 acres, so it has failed to provide adequate mitigation. Palm Beach has failed to provide any mitigation whatsoever for the expected deaths of five juvenile green turtles from the loss of 6.9 acres of hardbottom and additional juvenile sea turtles from the loss of additional hardbottom. Palm Beach has failed to provide any mitigation for the turbidity that would result from the project and deprive a wide range of species from the use of these beach and nearshore habitats, other than the mitigated hardbottom, for a period of about one year. Palm Beach has failed to justify the scope of this project, given the large overfill factor that results from the relatively large discrepancy between the mean grain size of the sand source and the existing beach. Palm Beach has failed to establish that Reach 8 is eroding, especially the majority of it that is not designated CEB. Palm Beach has failed to justify the use of a limited resource--offshore sand--to restore considerable lengths of nonCEB, especially where they may be other, dissipative beaches that are CEBs and that feature mean grain sizes closer to the mean grain size of BA V and VI, so that the ratio of upland protection and environmental impact would be improved compared to the poor ratio offered by the present project. Palm Beach has failed to show that the proposed project would produce a net positive benefit to the coastal system. To the contrary, the project would produce a net negative impact to the coastal system, again due to the use of excessive fines in the fill. The impacts from turbidity are unmitigated; the impacts from hardbottom coverage are only partly mitigated. Palm Beach has failed to undertake a monitoring program to assure that the project does not have an adverse impact on the Florida Reef Tract. Palm Beach has failed to protect all of the environmental functions of Florida's beaches by proposing to fill Reach 8 with fill whose mean grain size is little more than half the mean grain size of the existing beach and will not maintain the general character and functionality of the beach, dune, and coastal system of Reach 8. ERP Criteria Palm Beach has failed to provide reasonable assurance that the project protects the water resources of the district from harm. Palm Beach has failed to provide reasonable assurance that the project is not contrary to the public interest. If, as DEP Director of Division of Water Resource Management Janet Llewellyn testified, the legislative declaration of public interest as to the relatively short North and South Segments is a consideration, but not determinative, in applying the public interest test, Palm Beach's showing in this regard would still be insufficient. Palm Beach failed to show that the project would satisfy any one of the public-interest criteria except the criterion concerning archaeological and historical resources; even for the criterion of temporary versus permanent, the recurring nature of beach nourishments, on a cycle of probably two or three years, lends to the project a certain permanency. The project would affect the property of others in essentially closing the Lake Worth Municipal Beach and Lake Worth Pier for about one year. The project would interfere with public safety by elevating the turbidity of the local waters, so as to raise the risk of shark attacks and collisions between swimmers and partly concealed hardbottom. The project will adversely affect the conservation of fish and wildlife, including endangered species, and their habitats. The project will likely result in the death of five juvenile green turtles plus an unknown number of additional juvenile green turtles based on the destruction of hardbottom in addition to 6.9 (or 7) acres. For about one year, the project will remove a wide swathes of habitats favored by species, many of whom are juvenile and many of whom display marked levels of habitat fidelity, and will remove from this area the species that use these habitats. For about one year, the beach and nearshore waters in the vicinity of Reach 8 will be largely devoid of marine life, and the beach will be unsuitable for sea turtle nesting. The project will remove longer-term (and permanently, if routine nourishments followed the restoration) 6.9 acres of mitigated hardbottom and an unknown additional area of unmitigated hardbottom. The project will cause harmful erosion of the filled beach. The project will adversely affect the fishing, recreational values, and marine productivity of the waters adjacent to Reach 8 for about one year. The project is of a temporary nature, although Palm Beach intends to renourish the beach, as needed, so the temporary impacts would recur, unless Palm Beach found a more suitable source of fill. Dr. Dean predicts a six-year life expectancy for the project, but the renourishments would be needed at more frequent intervals if Palm Beach continued to use excessive fines in the fill. The project will not affect historical or archaeological resources. The current condition and relative value of the functions performed by the hardbottom and beach are high at present. From an environmental perspective, the beach is not as impaired as Palm Beach claims. In due time, from the perspective of, say, sea turtles and their nesting needs, the beach is recovering from sand losses from unusual storm years. It is less clear whether, in due time, from the perspective of upland landowners, the beach is recovering from sand losses from these unusual storm years, although one witness called by Surfrider was an oceanfront owner who opposed the project, except possibly for dunes-only nourishment. The mitigation offered by Palm Beach is inadequate. It fails to mitigate for the impacts, for about one year, to the beach and nearshore, including hardbottom, except for 6.9 acres of hardbottom. It fails to mitigate for the loss of five endangered green turtles plus an additional number of green turtles based on impacted hardbottom in addition to 6.9 (or 7) acres. The project would also cause cumulative impacts. Palm Beach offers mitigation in the same drainage basin, which DEP reasonably construes to be the area between the two inlets. But the mitigation does not offset all of the adverse impacts, so cumulative impacts must be considered. The cumulative impacts of poor beach management practices in the past include failing to maintain the sand transfer plant at the Lake Worth Inlet, managing Palm Beach Island by segments instead of as a single resource, allowing the installation of extensive armoring along Reach 8 (in one case at the south end of Reach 8, well seaward of what the coastal system can tolerate) and extensive groins north of Reach 8, and placing excessive fines on the beaches in the form of dredge spoil and unsuitable borrow area fill without monitoring project-related turbidity and its impacts on the water resources of the district. In terms of the project as the construction of a surface water management system, it would not cause adverse water quantity impacts, adverse flooding, adverse impacts to existing surface water storage and conveyance capabilities or adversely affect the quality of receiving waters such that it would cause a violation of any water quality standards (including turbidity). The project generally meets the other requirements, except that the project would adversely impact the value of functions provided to fish and wildlife by surface waters. Most of the BOR provisions are addressed above. In terms of project design alterations to eliminate and reduce impacts, Palm Beach has reduced (and enlarged) the project, as described above. Some of the alterations reflect the ability to pick up dropped segments in later projects for adjacent reaches. However, the broad exception for public safety enables Palm Beach to show compliance with this requirement. Public safety would be enhanced, however marginally, by placing, on the beach and dunes of Reach 8, as much excessive fines as they could hold; the public safety exception to the requirement to eliminate and reduce impacts does not require consideration of the impact on the water resources of the district. The project obviously involves significant secondary impacts on surface water functions as the fill erodes into the nearshore and generates turbidity in the water column and burial of resources on the submerged bottom. Proprietary Authorization Criteria As detailed above, Palm Beach has failed to show that the project is not contrary to the public interest. Given the projected performance of the project in terms of damaging turbidity for one year, the relatively quick loss of the excessive fines from where they would be placed on the beach, the impact on the Lake Worth Municipal Beach and Lake Worth Pier, and the need for nourishment programs in quick succession to replace the lost sediments, the social, economic, and environmental costs in this case outweigh the social, economic, and environmental benefits. There are reasonable alternatives, even to allowing the natural coastal system to continue to build beach along most of Reach 8, such as maintaining the sand transfer plant with greater vigilance and possibly installing groins to capture sand of more appropriate mean grain size. And, as noted above, Palm Beach has failed to mitigate important impacts to the natural resources. Additionally, Palm Beach has failed to prove that its use of excessive fines in the fill and the consequent turbidity with its impact on the water resources would not unreasonably deprive Lake Worth of its riparian rights, as described below. Variance Criteria If the project were otherwise permittable, it would meet the criteria for a variance. Dune-Only Project Several of the witnesses who otherwise opposed the project testified that they would not oppose a dune-only project. Based on the evidence, especially the vastly lower volumes of fill required, Palm Beach has provided the required assurances so that it would be entitled to a JCP, letter of consent, and variance for such a limited project, even without any mitigation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the request for a JCP, letter of consent, and variance (as it is now moot); provided, however, due to the vastly lower volumes of fill involved, the final order may authorize the nourishment of the Reach 8 dunes, apart from those in the Lake Worth Gap (unless Lake Worth joins in the request), in accordance with the dune template approved in the Permit, without any mitigation. DONE AND ENTERED this 2nd day of March, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2009.
The Issue Whether the Petitioners have standing to initiate this proceeding? Whether the Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP and the Variance?
Findings Of Fact 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." WD Ex. P-8, Bates stamped PET7157. Their address is 554 Coral Court, #511, Fort Walton Beach, Florida 32548. The Sherrys leased their condominium unit in May 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," WD 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: 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. WD Tr. 841. 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, Case No. 10-0515 (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. WD 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, 10-0515. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island, 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 is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. WD Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority in 1955 and recorded in the Official Records of the County at BOOK 121, PAGES 233-250. See WD County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4. See id., Part B: Areas of Application, at BOOK 121 Page 235. Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas." Id. at BOOK 121 PAGE 236. 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 . . . WD 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. Mr. Donovan and His Property 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." WD Ex. P-7, PARTIAL ASSIGNMENT OF SUBLEASE, Bates stamped PET7067. The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, Florida 32548. Mr. 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. WD 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 WD 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium is between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat in County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," see Exhibit P-7, last page (un-numbered), that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions. The public beach designated by the same provision is seaward of the private beach. Concerns of the Sherrys and Mr. Donovan The Surf Dweller Condominium Property that serves the Sherrys' condominium unit and the El Matador Condominium Property that serves Mr. Donovan's condominium unit are along the segment of the beaches and shores of Okaloosa County that will be restored by the Okaloosa Island Project. The Sherrys and Mr. Donovan initiated this proceeding because they are opposed to the Okaloosa Island Project. One of the grounds for their opposition concerns the Project's borrow area to be used as a source of sand. It is offshore but relatively close to the beach immediately landward of the Sherry and Donovan condominium units. The Sherrys and Mr. Donovan presented evidence that the borrow area is sited and situated in such a way that once dredged it will cause impacts to the shoreline of Okaloosa Island. The impacts, they believe, in turn will affect their use and enjoyment of the beach. Mr. Donovan is concerned about the erosion and turbidity impacts that dredging the borrow site which serves the Project 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. He is concerned that turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, the change in the beach and shoreline along the El Matador Condominium property 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 Sherrys and Mr. Donovan have other concerns about the Project. For example, they believe that the sand used in the restoration will not be compatible with Okaloosa Island's "sugar white" sand. They also are concerned about the impact that placement of the sand will have on their view, their walks and their runs and the many ways in which they use and enjoy the beach. Furthermore, they presented evidence that the cost of the Project will outweigh its benefit. The Intervenors Intervenors John Dezzutto and Thomas Wilson own condominium units 102-D and 101-B in the Seaspray Condominium located at 1530 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. At its southern boundary the property that is subject to the declaration of condominium that created the Seaspray Condominium (the "Seaspray Condominium Property") is deeded to the MHWL. Hence, the Seaspray Condominium Property is considered to be "gulf-front." Intervenor David Wallace owns Unit 502 in the Destin West Beach and Bay Resort Condominium located at 1515 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. Similar to the Seaspray Condominium, at its southern boundary the property that is subject to the declaration of condominium that created the Destin West Beach and Bay Resort Condominium (the "Destin West Beach and Bay Resort Condominium Property") is deeded to the MHWL. The property, therefore, is considered to be "gulf- front." The Seaspray Condominium Property and the Destin West Beach and Bay Resort Condominium Property overlap the beaches that are to be restored by the Project. If the County is to restore the area of the beach that is on the condominium properties of the two condominiums in which the Intervenors own condominium units, it will need to heed the advice of General Condition Six in the Draft JCP which is interpreted by the Department as a warning against trespass as well as provide authorization for such use from the property owner as required by the Draft JCP. The County and the Department Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP and the Variance. 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. Okaloosa Island Okaloosa Island is not an island. It is an unincorporated area of Santa Rosa Island. Santa Rosa Island is a barrier island that runs along much of the coast of the Panhandle of Florida. As explained by Mr. Clark at the final hearing, one is "in" Okaloosa Island while being "on" Santa Rosa Island. Okaloosa Island was conveyed to the County by the federal government and then leased by the County under long-term leases. The Surf Dweller and El Matador Condominium Properties (with units that belong to the Sherrys and Mr. Donovan, respectively), are in Okaloosa Island. Some of the other leaseholders in Okaloosa Island opted to have their leases converted to ownership of the leased property in fee simple. The Surf Dweller and El Matador Condominium Properties remain under long-term leases. Dry Beach Adjacent to Surf Dweller and El Matador 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 between the MHWL and the Surf Dweller and El Matador condominium properties, 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 right to occupy and use. David Sherry 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 in the following colloquy on cross-examination by Mr. Hall for the County: 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. WD 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 it has a width of 150 feet. 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 WD Tr. 986-87. Opal and Okaloosa Island Beaches Today Hurricane Opal made landfall near Pensacola in October 1995. Prior to Hurricane Opal, the shoreline in Okaloosa Island had been stable. The width of the vegetated and upper berm and dune systems had been about 175 feet and the un- vegetated beach seaward of the dune system about 100 feet wide. Upland development was protected from storm surge and wave action by a good 285-foot width of dune system and beach. Opal devastated much of the Florida Panhandle. Okaloosa Island was not spared. The shoreline of Okaloosa Island both advanced and retreated. The western half of Okaloosa Island (west of R-8) showed shoreline recession, that is, the shoreline on the western half retreated landward. The shoreline on the eastern half (east of R-8) advanced water-ward. The dune system, however, was destroyed. From the point of protection the beaches and the dune system offer upland development, moreover, the advance of the beaches in the eastern half of Okaloosa Island did not offset the damage done from volumetric reduction of the sand that the eastern half of Okaloosa Island suffered. As for Okaloosa Island as a whole, the area lost considerable sand volume. Opal's damage to Okaloosa Island, in sum, consisted of substantial loss of sand volume, significant deflation of beach profile and erosion of the dune and beach system throughout the area. After Opal, the general trend along Okaloosa Island was recession. Based on an overall average, the recession measured about minus 7 feet per year. See OI Tr. 561. The Okaloosa Island shoreline moved toward upland development. Despite the general retreat of the shoreline, in some areas of Okaloosa Island, the beaches appear to the untrained eye to be healthy because they are usable and quite wide. But even at their widest points, Okaloosa Island beaches are "very low and flat" OI tr. 562. The only dunes (where there are any at all) are "insignificant manmade dunes," id., that do not protect upland development. In short, Okaloosa Island is in need of coastal protection. It is "completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms . . . ." OI Tr. 536. 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 Definition"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. In 2005, the Department designated the area subject to the Okaloosa Island Project as having a "critically eroded shoreline." The designation was in accordance with the Critically Eroded Shoreline Definition and based on post-storm vulnerability after Hurricane Ivan which made landfall in the United States in September of 2004. An investigation was conducted in Fall 2008 to update the designation in response to a request from the County. The investigators concluded that there had been erosion, including deflation and recession of the dune and beach, to such an extent that upland properties and development were threatened between R-1 and R-8.5 and R-12 and R-13. The shoreline in the area between R-8.5 and R-12 (the "Gap Segment") standing alone did not meet the requirements for designation as critically eroded. Nonetheless, the Gap Segment was designated as having a critically eroded shoreline for continuity of management of the coastal system and to facilitate management of the adjacent beached in order to maintain the integrity of the Project's design. The same is true of the segment of the Project east of R-13, that is, from R-13 to R-15. ("Continuity of management and maintenance of a project's design integrity" is a basis for designating a shoreline to be critically eroded under the Department's rule.) Were the Gap Segment to be excluded from the Project, fill placed by the restoration effort in the adjacent, restored areas would collapse into it over time. The restored areas would not remain stable and the restoration effort would be defeated, diminished or endangered. That upland areas in the Gap Segment might not be threatened by a 25-year storm does not mean that restoration is not a useful activity for the segment. To the contrary, the upland areas alongside the Gap Segment will benefit from the Project. While the upland areas adjacent to the Gap Segment's shoreline may not be threatened by less damaging higher- frequency storms, they are "definitely threatened by a 50 or 100-year storm event and are in need of the project from that standpoint." OI Tr. 557. Genesis of the County's Efforts Following the designation by the Department of the shoreline subject to the Project as critically eroded, the County began to consider beach restoration in Okaloosa Island. The efforts gained momentum when the County entered an inter- local agreement with the City of Destin in 2006. The agreement provided that the Tourist Development Council (the "TDC") would be the lead agency in all beach restoration issues. The County chose the shoreline now subject to the Project for restoration because of the Department's designation of it as critically eroded. The Project The Project calls for the placement of 940,000 cubic yards of beach quality sand along a 2.8 mile stretch of shoreline. The shoreline is between the Department's reference markers R-1 and R-15 on Santa Rosa Island in an unincorporated area of the County known as Okaloosa Island, Sections 28 through 30, Township 2 South, Range 23 West, in the Gulf of Mexico, Class III Waters. The Project's entire site is situated within the Gulf Islands National Seashore which extends one mile offshore of Santa Rosa Island, the waters of which have been designated by the state as Outstanding Florida Waters ("OFW"). The placement on the beach of the sand (or fill) will create dunes that have the potential to become stable through vegetation, extend the beach seaward roughly two hundred feet, and elevate the beach an average of roughly five and an half feet. The design includes a 40-foot-wide dune crest at an elevation of 14 feet NAVD, a 60-foot wide backberm at 8.5 feet NAVD, and a variable width berm at 5.5 feet NAVD. The dune will transition into the backberm at a 1:4 (vertical:horizontal) slope; the backberm will transition into the berm at a 1:10 slope; and the berm will transition into the existing sea bottom at a 1:10 slope. In areas where the landward edge of the dune crest does not tie into the existing dune, the landward dune face will merge into the existing topography at a 1:4 slope. The fill for the Project will be dredged from an offshore borrow area. The Project includes the removal of sand placed on Okaloosa Island beaches in 2006. Referred to at hearing as "brown sand," see OI tr. 1668, Case No. 10-2468, the sand had been hauled in from an upland source by truck rather than being from an offshore borrow area as contemplated by the Draft JCP. The brown sand is not the same color as the "sugar white" sand on Okaloosa Island's beaches. It is being removed because it is not compatible on the basis of color with the sand on the beach. The ECL Morgan and Eklund, Inc., Professional Survey Consultants (the "ECL Surveyors"), prepared a document dated October 30, 2008, entitled "MEAN HIGH WATER LINE SURVEY AND PROPOSED OKALOOSA ISLAND EROSION CONTROL LINE FOR FDEP RANGE MONUMENTS R-1 TO R-16 OKALOOSA COUNTY, FLORIDA," see WD County Ex. 7. The document was referred to at hearing by Mr. Trudnak as the "Erosion Control Line drawings for the Okaloosa Island Project." WD Tr. 261. (The document, WD County Exhibit 7, will be referred to in this order as the "Proposed ECL Drawings.") The Proposed ECL Drawings show that a survey of the MHWL survey between R-1 and R-16 was conducted on September 16, 2008. As would be expected, the MHWL depicted on the Proposed ECL Drawings is not a straight line. For the most part, it meanders across the drawings with sections where the line comes to "points" that protrude seaward. For example, one prominent point would be at the end of a perpendicular line (that does not appear on the Proposed ECL Drawings) drawn seaward across the dry beach from a point (also not on the Proposed ECL Drawings) on Surf Dweller Condominium Property. See WD County Ex. 7, Case No. 10-2468. The Proposed ECL Drawings depict three other lines, entitled "LANDWARD LIMITS OF CONSTRUCTION," "POST CONSTRUCTION MEAN HIGH WATER LINE," and "SEAWARD LIMITS OF CONSTRUCTION," all of which are predominately straight lines. On April 21, 2010, the Board of Trustees of the Internal Improvement Fund by resolution (the "Resolution") "approved, adopted and certified for the purposes prescribed by Sections 161.141 through 161.211, Florida Statutes," OI Petitioners' Ex. 22, the Okaloosa Island Project ECL "particularly described in Exhibit A." Id. Exhibit A begins with the legal description of the ECL and ends with drawings entitled "OKALOOSA 001-016 EROSION CONTROL LINE OKALOOSA COUNTY, FLORIDA" (the "Approved ECL Drawings"). With a few exceptions (dates and titles) immaterial to this proceeding, the Approved ECL Drawings are identical to the Proposed ECL Drawings. The Seaward Limit of Construction Line is water-ward of the Post Construction MHWL, both of which are well water-ward of the MHWL set in September 2008. Generally, the width from the Seaward Limit of Construction Line to the Landward Limit of Construction Line on the drawings is about 400 feet. The Landward Limit of Construction The Landward Limit of Construction Line in much of the Proposed and Adopted ECL Drawings is over dry beach which, although under the strict control of the County, was declared to be "private" by the County's Protective Covenants and Restrictions. As its name suggests, the Landward Limit of Construction Line was expected by the ECL Surveyors to be the landward edge of the sand fill placed during construction of the Project. As explained by Mr. Trudnak at hearing, the line is "the back of the dune. So, it is the landward most point where sand will be placed." OI Tr. 270. But Mr. Trudnak explained further that the Landward Limit of Construction Line on the Proposed ECL Drawings (and therefore, on the Approved ECL Drawings as well) would not, in fact, be the actual landward- most point of sand placed during the construction phase of the restoration. Rather, the landward-most point where sand would be placed would be significantly waterward of the Landward Limit of Construction Lines on the drawings. Mr. Trudnak offered several reasons for his position. The Landward Limit of Construction Lines on the drawings are straight lines which is not consistent with what will happen when the construction is actually undertaken. Furthermore, a new limit of construction line will be determined when construction plans are submitted prior to the issuance by the Department of a Notice to Proceed, subsequent to the issuance of a JCP. The ECL Surveyors whose Proposed and Approved ECL Drawings contain the straight Landward Limit of Construction Lines that are too landward were not retained to produce drawings for construction plans. The line on the construction plans, when developed, will be much more seaward than the line on the Proposed and Approved ECL Drawings. The County intends, moreover, to construct the Project so that the landward limit of construction falls inside the 150 feet of public beach immediately waterward of the ECL, much further seaward of the Landward Limit of Construction Lines on the Proposed and Approved ECL Drawings. It is reasonable to expect that the County will be able to carry out its intention. See Okaloosa County Exs. 20 and 21, Case No. 10-2468 and Mr. Trudnak's testimony at OI Tr. 181. To the west of a point relatively close to R-12, that is, from R-1 to roughly R-12, the Project can be built on "public" property, that part of the beach declared by the Protective Covenants and Restrictions to be public and controlled by the officials of Okaloosa County or owned by the federal government as part of Eglin Air Force Base. The same is not true of the property to the east of a point just west of R-12. With the exception of the beach adjacent to Newman Brackin Wayside Park (see OI Joint Ex. 2B, sheet 4 of 4 and OI DEP 24), the property east of the federally owned Eglin property is privately owned to the MHWL. If the County does not get authorization from the owners of this private property to conduct restoration activities on the property, the property "would have to be skipped." OI Tr. 188. That would leave two gaps with no restoration landward of the MHWL: the eastern-most end, from roughly R-13.8 to R-15, and a gap from roughly R-11.9 to R-12.9. "Skipping" private properties in the event of a refusal of consent by the owners to use the property during construction would not mean that the Project should be abandoned. The Project could be fully constructed where consents were not required. Where necessary consents were not obtained, the Project could still be constructed below the MHWL. Thus, the project could be constructed over its entire proposed length from R-1 to R-15; east of R-12, however, the Project would not be at its proposed width along the entire length. Some sand from the areas that are restored fully would be transported to the private properties not restored above the MHWL. The Project width in the fully restored segments adjacent to the gaps would be diminished. The beach width in the eastern part of the Project will be narrower than if the private consents had been obtained and the eastern beach fully restored. If the Project's proposed width is narrowed in parts by lack of consents, the Project will not be as effective had the consents been obtained. Nonetheless, the Project will still provide protection over its entire length from surges and damaging wave action produced by tropical storms. Project Construction 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." WD Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a backberm and a wide variable berm. 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. The near-shore bar acts as a wave break. It dissipates wave energy during storms. A healthy near-shore bar provides significant storm protection. The Project will provide protection from a 50-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, OK-A 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 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. See WD Tr. 513. 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." OI 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]." WD Tr. 143, 10-0515. It involves grain size, soil and shell content, sand color and size of material in the sand, including large shells. See OI Sherry 138. 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-mile distance from shore that it would not impact the shoreline. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely. 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." WD 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 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." WD 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. See further findings, below. The selection of OK-A was supported 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 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.'" WD 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: 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. WD Tr. 150. 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." WD Tr. 152. Borrow Area OK-A is intended to serve five beach restoration projects in all. Three are completed: the two projects on Eglin Air Force Base and the Emergency Holiday Isle Project. The remaining two are the Western Destin Project and the Okaloosa Island Project. These five 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." WD 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." WD Tr. 152. (emphasis added). 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. Upland Private Property Of the properties along the 2.8 miles of shoreline to be restored, six are deeded to the MHWL. The six are the properties of Eglin Air Force Base, the Sheraton Hotel, the Gulfarium, the Ramada Hotel, Destin West Beach and Bay Resort Condominium, and Seaspray Condominium. These properties are all located in the eastern part of the Project, from R-11.3 to Beasley Park at the east terminus of the Project. Intervenor Wallace and his wife Sondra S. Wallace were deeded Condominium Unit 502 in the Destin West Beach and Bay Resort-Gulfside by a Special Warranty Deed executed by Tolbert Gulfside Development Company on March 7, 2003. See OI Petitioners' 112. The Condominium Property associated with Destin West Beach and Bay Condominium extends to the MHWL of the Gulf of Mexico. The Parcel ID Number on the Special Warranty Deed is 00-2S-24-2185-0015-0030 (Parent Parcel). Id. A quitclaim deed admitted into evidence as OI County Exhibit 22 bears the same Parcel ID Number but without reference to "(Parent Parcel)." The grantor of the quitclaim deed is Okaloosa County and the grantee is Tolbert Enterprises, Inc. The deed contains the following language: IT IS THE EXPRESS intent of the Grantor that its reversionary estate in that portion of the original leasehold estate from the Okaloosa County and/or Okaloosa Island Authority which the Grantee now owns in the subject premises shall be merged with such present leasehold interest now owned by the Grantee, subject, however to such terms and conditions contained in the 1963 quitclaim deed of record from the United States of America to the Grantor and all Protective Covenants previously imposed of record on the above land by Okaloosa County or its agent, Okaloosa Island Authority, and by acceptance of this deed, Grantor acknowledges the validity of such Protective Covenants and Restrictions (with the term "owner" being substituted for "leaseholder" or "lessee" therein where appropriate), which are hereby reimposed. OI County Ex. 22 (emphasis in original). Whether the Protective Covenants and Restrictions apply to all of the six properties so that the first 150 feet landward of the MHWL is "public beach" under the "strict control of the County" is a question that cannot be decided on the state of this record. But it appears from the quitclaim deed that constitutes OI County Exhibit 22 that the County took pains when it conveyed the Okaloosa Island property subject to the deed to make sure that the grantees under the conveyances were aware of the Protective Covenants and Restrictions and that the County's intention in the conveyances was for the Protective Covenants and Restrictions to survive. For the properties in the Project that are not deeded to the MHWL, the County has control of the beaches through the Protective Covenants and Restrictions. In addition to the documents of record, the County's control is evidenced by seven main public access-ways to the beach along Okaloosa Island, additional smaller access-ways, public use of the access-ways, public parking serving access of the public to the beaches of Okaloosa Island and public use of the dry, sandy portion of the beach in Okaloosa Island. The Application An Application for a Coastal Construction Permit The Application was processed as 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 WD Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053(9) of the CCCL Statute provides as follows: "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. Application Signatures Item 18 of the Application provides a signature line for the County and "the title of the person signing on its behalf." OI Joint Ex. 1, DEP From 73-500 (05/17/07), p. 4 of 9. The Item opens with: "A. By signing this application form, I am applying . . . for the permit and any proprietary authorizations identified above [see findings below related to "written authorizations"], . . . ." Id., (emphasis added). Item 18 also provides "signature lines" for an agent in Section B if the County designates an agent for the processing of the application. Section 18 C of the Application provides a signature line under the following heading: "PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING." There was no signature provided at any point in the application process by any person authorizing access to the property as called for by Item 18C. Joint Ex. 11, Page 4 of 27. 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 chapter 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). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the privately-owned properties within the Project area, including Intervenors. Demonstration of Property Ownership The Application demonstrated that the County owned much of the property subject to the Project. At the time of final hearing, it had permission, of course, to use that property. The County has also obtained the permission of the federal government to use Eglin Air Force Base property that is within the Project area. As for the other property, all privately owned, no written authorizations as of the final hearing had been obtained from the owners despite discussions between them and the County. Despite the clear requirement in rule 62B- 41.008(1)(c), the Department does not usually require that an applicant provide in the application written authorization from owners of upland property to be used in coastal construction projects. The Department might require written authorization in an application for certain coastal construction projects like a groin construction project, see OI tr. 476, or a similar project that involved one or two upland property owners. The typical beach restoration project, however, involves the use of many different upland properties, too many, in the Department's view to require the application to contain the written authorizations of all the owners. The Department justifies departure from enforcing the requirement of rule 62B-41.008(1)(c) in applications for beach restoration for a number of reasons. First, compliance is impractical. Aside from the significant number of signatures that must be obtained, the moment the application is submitted is too early in the process to require written authorization. In beach towns, where most restorations take place, many of the owners are absent and difficult to contact. By the time the restoration begins, the property may have changed hands. Second, the Department's practice is to require the authorizations as a permit condition and for written authorization to be submitted prior to construction, that is, sometime between when the JCP is obtained and the Notice to Proceed with construction is issued. An applicant in possession of a JCP for beach restoration cannot begin construction activities until a Notice to Proceed is issued. The aim of the rule is achieved in a timely manner whether all consents are submitted with an application or not. Aside from practical considerations and safeguards to ensure consent from upland property owners prior to the commencement of construction activities, written authorization in the application is not relevant in the Department's view in a permitting proceeding. Permitting proceedings are not designed to prevent trespass by an applicant. They are designed to consider environmental impacts. With regard to trespass considerations, there are other safeguards. These include the warning to the applicant in General Condition Six of the Draft JCP: 6. This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. The Draft JCP also contains General Condition Eight: 8. The Permittee, by accepting this permit, specifically agrees to allow authorized Department personnel with proper identification and at reasonable times, access to the premises where the permitted activity is located or conducted for the purpose of ascertaining compliance with the terms of the permit and with the rules of the Department and to have access to . . . copy any records that must be kept under conditions of the permit; to inspect the facility, equipment, practices, or operations regulated or required under this permit; and to sample or monitor any substances or parameters at any location reasonably necessary to assure compliance with this permit or Department rules. Reasonable time may depend on the nature of the concern being investigated. If the applicant conducted construction using upland property without written authorizations from the upland owner, the Department would view the construction to be in violation of the JCP and would bring an enforcement action to halt the construction until written authorization was obtained. There are many opportunities, therefore, to achieve the aim of the rule subsequent to the filing of an application. Lapse in the Application Chapter 62B-49 is entitled, "Joint Coastal Permits and Concurrent Processing of Proprietary Authorizations." Rule 62B-49.005 is entitled, "Application Requirements and Processing Procedures." The following appears in the rule: An application shall be denied if the applicant fails to provide additional information to the Department within six (6) months [the "Six Month Period"] after a written request for such information has been sent to the applicant. However, if the applicant can demonstrate that he or she has been actively working on collecting or developing the requested information, and that additional time will be required to complete their response to the "RAI," the applicant may request up to six (6) additional months to submit their response. Fla. Admin. Code R. 62B-49.005(4). On November 25, 2008, the Department sent its third Request for Information (the "Third RAI") to the County. The Third RAI asked for more information regarding a risk assessment, the permit fee, a biological opinion (the "Biological Opinion") from "Fish and Wildlife," OI tr. 91, and had a question regarding a lighting ordinance. The County did not respond to the Third RAI within six months which expired on May 25, 2009. Nor did it request an extension within the Six Month Period. Mr. Trefilio and others on behalf of the County were in touch with DEP throughout the Six Month Period about various issues concerning the JCP. See OI tr. 90. Mr. Trudnak, for example, in early May, prior to the expiration of the Six Month Period sent an e-mail to DEP personnel to inquire about the permit fee DEP had required because Taylor Engineering believed it was incorrect. The Department did not respond until early June. Taylor Engineering had been "continuously working on the . . . Economic Analysis that addressed the questions that DEP had about the Risk Assessment [and] . . . had been talking to DEP about that." OI Tr. 169-70. Mr. Trudnak corresponded with the Army Corp of Engineers about the Biological Opinion. His hope was that a draft could be timely submitted with the other responses to the RAI. He contacted Ralph Clark and spoke with Jamie Christoff, a Department employee, about its status. But, the County and its agents "were not able to get that done within the six month time frame." OI Tr. 170. On June 3, 2009, Mrs. Sherry wrote an e-mail to Michael Barnett. She asserted that the Application was dormant and had lapsed. She requested that it be denied on the basis of the rule. The next day, an e-mail from Mr. Barnett, Chief of DEP's Bureau of Beaches and Coastal Systems, posed the question to Department personnel, ". . . has there been any verbal or written communication from either the Applicant or their Agent as to when the Department might anticipate a response to RAI #3?" OI Petitioners' Ex. 65, Page 2 of 4. E-mail messages in the file and a conversation with her subordinate, Jamie Christoff, led Dr. Edwards, who was in charge of the processing of the Application, to conclude that the County and its agents had been working on the application during the Six Month Period. After the message from Mrs. Sherry to the Department (and after the expiration of the Six Month Period), Mr. Trudnak requested an extension of time under the rule. The extension was not granted in writing. Dr. Edwards concluded "because there was that active back and forth between the Department and the applicant [during the Six Month Period], there was no need for additional time being granted . . . ." OI Tr. 440. Application Deemed Complete Chapter 62B-49 establishes the joint coastal permit program "by combining the regulatory requirements of the coastal construction program (Section 161.041, F.S.) with the environmental resource (or wetland resource) permit program (Part IV of Chapter 373, F.S.) . . . ." Fla. Admin. Code R. 62B-49.001. The chapter also "provides concurrent review of any activity requiring a joint coastal permit that also requires a proprietary authorization for use of sovereign submerged lands owned by the Board of trustees of the Internal Improvement Trust Fund." Id. Rule 62B-49.003 is entitled "Policy." It provides as follows in pertinent part: Any application submitted pursuant to this chapter shall not be deemed complete . . . until the Department has received all information required for: a coastal construction permit under . . . Chapter 62B- 41, F.A.C.; . . . and Chapters 18-18, 18-20 and 18-21. Fla. Admin. Code R. 62B-49.003(3). Despite the absence in the Application of written authorizations required by rule 62B-41, the clear directive of rule 62B-49.003(3), and the failure of the County to respond in a timely manner to RAI #3 or obtain in writing an extension of the time to respond, the Department deemed the Application complete on December 30, 2009. If Written Authorizations are not Obtained If written authorizations are not obtained from the owners of the six private properties between R-11.3 and the eastern terminus of the Project, the County would have to decide whether and/or how to proceed. If the eastern-most 600 feet of the Project were deleted, for example, the Project could be modified to mitigate the effects of the deletion without much effect on the remainder of the Project. If more of the Project were deleted, it would present more of a challenge to the effectiveness of the Project. In any event, the Project can be completed along its entire length up to the MHWL. The Project may not be at full width where consents are not obtained but it will still provide some storm protection where narrowed. It would also still provide significant protection westward of R- 11.3 all the way to R-1 albeit the closer to R-11.3 the more diminished would be the effectiveness of the Project if the Project is not at full width east of R-11.3. Legislative Declaration of Public Interest Section 161.088, Florida Statutes, bears the catchline, "Declaration of public policy respecting beach erosion control and beach restoration and nourishment projects." It states: Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the . . . Gulf of Mexico . . . from erosion and that the Legislature makes provision for beach restoration and nourishment projects . . . . The Legislature declares that such beach restoration . . . projects, as approved pursuant to s. 161.161, are in the public interest; must be in an area designated as critically eroded shoreline, or benefit an adjacent critically eroded shoreline; . . . (emphasis added). Proprietary Public Interest Test Chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004 sets out management policies, standards and criteria. It opens as follows: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands . . . . General Proprietary. (a) For approval, all activities on sovereignty lands must be not contrary to the public interest . . . "Public interest" is defined as: Demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action . . . Fla. Admin. Code R. 18-21.003(51) (the "Proprietary Public Interest Test"). The rule also states that "[i]n determining the public interest in a request for use . . . [of] sovereignty lands . . . , the board shall consider the ultimate project and purpose to be served by said use " Dr. Fishkind, an economist, conducted an economic cost/benefit analysis of the Project and concluded that the economic benefit is between $5.77 and $12.09 million while the cost of the Project is between $16.30 and $21.58 million. The Department did not present an economist to rebut Dr. Fishkind's analysis. The Department takes the position that the Project is in the public interest and meets the Proprietary Public Interest Test because of the declaration by the Legislature in section 161.088. The Department interprets the Legislature's declaration in section 161.088 that beach restoration projects are in the public interest to relieve the County from having to provide evidence that the Project meets the Proprietary Public Interest Test and to relieve the County and the Department from a need to rebut the evidence provided by Petitioners' economist. The Department draws support for its interpretation from language in section 161.091(3). The language makes reference to the declaration in section 161.088 that beach restoration projects are in the public interest. It finds further "that erosion of the beaches of this state is detrimental to tourism, the state's major industry, further exposes the state's highly developed coastline to severe storm damage, and threatens beach-related jobs, which, if not stopped, may significantly reduce state sales tax revenues " § 161.091(3), Fla. Stat. 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. 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. 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." WD 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." WD Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also begin to diffract. 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 interact with the shoreline. The description includes potential impacts of an excavated OK-A on the beaches and shores 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 . . . . WD 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." WD 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 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: "Those beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." WD 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," WD 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." WD Tr. 640. They could "trip," that is, the notch in the borrow area could break the waves. "[B]rag scattering" (WD 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," WD 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. Like 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," WD 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. The 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." WD 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. WD 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 are not measured wave data. Instead, they consist of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data are then placed in a model coded to represent the entire Gulf. The WIS station from which data were 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 measurements, 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 measurements 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. WD 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." WD Tr. 1234. It is not practical to take 10 years' worth of field measurements. 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." WD 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." WD 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 was 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. See WD 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." WD 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. WD 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. See tr. 1233 and 1234. 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. If not more appropriate than the Boussinesq Model, STWAVE is an acceptable model under the Project's circumstances. When asked about the Boussinesq 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, he was "almost certain," WD tr. 691, that Boussinesq 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." WD 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 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 OK-A 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 WD Ex. P-13. The area between the eastern-most point of the OK-A Borrow site and the western-most 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 eastern-most point is roughly one-half mile off-shore. OK-A is larger than the Walton Borrow Area and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water. Nonetheless, because of proximity, Petitioners characterize the two sites as similar. Despite proximity, there are significant differences 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." WD Tr. 306. 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." WD 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." WD 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." WD 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." WD 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. WD 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. 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 that 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's Review of OK-A 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, and the Murrough P. O'Brien Award from the American Shore and Beach Preservation Association, 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" WD 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." WD Tr. 486. Specific duties of Mr. Clark's include 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 Okaloosa Island Application and additional information related to the Project. On the basis of Mr. Clark's review and his testimony, it is found that "the project is a well designed hurricane protection project that is critically needed to restore the beaches of this beach community of Okaloosa Island " OI Tr. 519. The Project will protect recreational benefits and wildlife habitat in addition to providing necessary storm protection. The placement of 940,000 cubic yard of sand fill as called for by the Draft JCP will provide a significant amount of storm protection from the storm surge and waves of hurricanes or lesser storms that had impacts to the beaches and shores in the Project area. See OI tr. 520. The excavation of the sand from OK-A for the Project along with the excavation of sand from OK-A for all of the other projects the borrow area serves is not expected to have any adverse impacts to the beaches of Santa Rosa Island, including the beaches within the Project area. See WD tr. 488. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system in Okaloosa Island 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," WD 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. During his 37 years of service, Mr. Clark has been 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," WD tr. 494, now electronically available to the public on the Department's website. Mr. Clark performed the "Critically Eroded Shoreline" evaluation for the beaches and shoreline subject to the Project. Storm Protection It is reasonable to expect that hurricanes in the future will have impacts on Okaloosa Island. "Okaloosa Island is completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms and is in need of coastal protection." OI Tr. 536 The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. Comparison to Other Borrow Area Impacts 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." WD 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 . . . ." WD Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." WD 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." WD 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. Modeling and Dr. Young's Opinions 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 . . . ." WD 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. WD Tr. 1150-1 (emphasis added). 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 WD tr. 1152, Dr. Young testified, "I have not seen one." Id.. 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." WD 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. Other Projects Constructed with OK-A Fill The OK-A Borrow Area is the sand source for other projects, several of which have been completed. Of the 7 million cubic yards of sand in OK-A, 1.1 million has been removed for other projects, including two projects on federal property that is part of Eglin Air Force Base, referred to as sites A-3 and A-13 (the "Eglin Projects"), and a small 2600-foot stretch of beach in Destin, referred to as the Holiday Isle Emergency Project. The Eglin Projects The Eglin Projects were completed in May 2010. During the construction phase of the Eglin Projects, hopper loads of OK-A Fill were analyzed on the basis of silt content. "[A] visual shell content analysis and a grain size analysis and color analysis" OI tr. 219, was also conducted on the hopper loads of OK-A Fill. An analysis of carbonate content was not conducted during the construction phase because of expense. Carbonate content analysis was saved for later after "post construction sampling." Id. The Eglin Projects were governed by a Sand Quality Control and Quality Assurance Plan (the "Sand QC/QA Plan") approved by the Department. The Okaloosa Island Project is also governed by a Sand QC/QA Plan. Sand QC/QA Plans The Department requires an application for beach restoration to include a Sand QA/QC Plan by rule: The application shall contain the following specific information: * * * (k) Two complete sets of construction plans and specifications . . . . The plans shall include the following: * * * 4. Permit applications for . . . beach restoration . . . shall include: * * * Quality control/assurance plan that will ensure that the sediment from the borrow sites to be used in the project will meet the standard in paragraph 62B-41.007(2)(j), F.A.C. [the Sand Rule] Fla. Admin. Code R. 62B-41.008(1). The purpose of a Sand QC/QA Plan was explained at hearing by Dr. Koch. It provides an outline of a level of observation and testing that has to be done during construction and post-construction. It provides remediation measures if fill is placed on the beach that is not "beach compatible fill" as defined in the Sand Rule. It is not a method by which the Department obtains reasonable assurance of compliance; reasonable assurance is obtained by the Department through "review of the sediment data." See OI tr. 705. The QC/QA Plan is more like "an insurance policy." Id. If something were to happen that was unexpected or not in compliance with the Sand Rule, the QA/QC Plans ensure that the "dredger is not going to be dredging outside the limits that's . . . outlined in the plan." OI Tr. 706. If non-compatible beach fill "were to be placed on the beach, [the QC/QA Plan] outlines triggers for [remediation] so that [remedial] action can be taken immediately." OI Tr. 707. Application of the Sand QC/QA to Eglin Project A-3 A few of the hopper loads used on Eglin A-3 failed. "One or two had a carbonate content greater than 5 percent. A couple had a grain size that was a millimeter or two under the acceptable range." OI Tr. 220. Given that the hopper used in the Eglin A-3 Project holds 2,500 cubic yards of material and that DEP requires compliance over an area of 10,000 square feet, "sand from one hopper load [that failed] could be blended in with sand from other hopper loads." Id. The remedial measure employed in the Eglin A-3 Project of blending non-compliant fill with good fill did not succeed. Mr. Trudnak offered at hearing that the OK-A Fill used at the Eglin A-3 Project had "a higher percentage of dark material," OI tr. 216, than the fill used in the Emergency Holiday Isle Project and therefore, the sand color in the restored Eglin A-3 Project "is inferior to the [sand color of the restored beach in the Emergency] Holiday Isle Project." Id. The darkness of the material used in the Eglin A-3 Project was confirmed by aerial photography conducted by Dr. Young a month after construction was completed. See discussion, below. Mr. Trudnak attributed the inferior quality of the fill used in the Eglin A-3 Project to the area of OK-A from which it was taken: the southeast and south central portions. Fill taken for the Emergency Holiday Isle Project which Mr. Trudnak opined was superior from the standpoint of color was taken from OK-A's southwest corner. Mr. Trudnak's assessment of the inferior color of the sand placed in the Eglin A-3 Project, however, was not revealed by testing of four post-construction samples taken on May 27, 2010 and tested on June 2, 2010. Those four samples all yielded recorded results for Munsell color at the lightest (and predominate) color assigned to the native beach: 5Y 8/1 or as the post construction testing results admitted into evidence show: "5Y Chroma 1 Value 8." See OI County Ex. 13. These tests results call into question the validity of the tests and other test results of the quality of the sand that is OK-A Fill. Sand Quality Quartz and Carbonate; Native Sand Quartz or Silicon Dioxide, a principal constituent of ordinary sand, is a brilliant, crystalline mineral, occurring in abundance in the earth's crust, most often in a colorless, transparent form. Quartz is usually present in beach sands in high percentages. Like quartz, carbonate also occurs in abundance in the earth's crust and is often present in beach sand. The source of carbonate in beach sand is mainly shells of organisms like clams and scallops. But carbonates that are not from shells also occur in marine environments. These non-shell carbonates may also be constituents of beach sand. The sand on the beaches of Okaloosa Island is predominately quartz and contains an extraordinarily low amount of carbonates. The references to Okaloosa Island beaches as being composed of "sugar white sand" and the beauty of their color which drew the Sherrys to Okaloosa Island is due to their general character as predominately "quartz" beaches to an unusual degree rather than as beaches with a significant amount of carbonate content or other content that would make the color other than "sugar white." As Dr. Young put it in the section of his report which analyzed the carbonate content of OK-A Sand used at A-3, the Eglin East Beach Restoration Project: Okaloosa Island sands are renowned for their unique, mature, quartz composition providing a "dramatic landscape of drifted blinding white sand that often puts northern visitors in mind of snow;" to quote the Walton County Chamber of Commerce website. This project [the Eglin East Project] has replaced that pure quartz sand with beach fill [that] would rank the beach as the highest carbonate content beach on the Panhandle. OI Petitioners' Ex. 40, (un-numbered 5th page). The awareness of the quality and color of Okaloosa Island beaches is accepted by all of the parties to this proceeding. Taylor Engineering, the County's agent, wrote the following in section 3.3 of its Sand Source Investigation Report, entitled "Color Analysis": Residents and visitors cherish the beaches of Okaloosa County for their very white clean sand. Thus, renourishment activity must address maintenance of the native beach sand color. * * * The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y8/1 (white) and described several other samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations . . . . OI Petitioners' Ex. 42 at 16, OKC41283 (emphasis added). In order to ensure that the County's restoration efforts in Okaloosa Island would "address maintenance of the native beach sand color" and other characteristics of the sand native to Okaloosa Island, Taylor and the County made significant effort to comply with the Department's Sand Rule. The Sand Rule Rule 62B-41.007 is entitled "Design, Siting and Other Requirements." Section (1) sets out requirements in general for coastal construction. Section (2) provides special guidelines. Subsection (j) of Section (2) (the "Sand Rule") sets out the guidelines for "beach compatible fill" to be used in coastal construction projects including the beach restoration of the Okaloosa Island Project. The Sand Rule reads as follows: 62B-41.007 Design, Siting and Other Requirements. * * * Coastal construction shall be designed in accordance with established engineering and scientific practice, and the following special guidelines: * * * To protect the environmental function of Florida's beaches, only beach compatible fill shall be placed on the beach or in any associated dune system. Beach compatible fill is material that maintains the general character and functionality of the material occurring on the beach and in the adjacent dune and coastal system. Such material shall be predominately of carbonate, quartz or similar material with a particle size distribution ranging between 0.0062mm (4.0F) and 4.76mm (-2.25F)(classified as sand by either the Unified Soils or the Wentworth classification), shall be similar in color and grain size distribution (sand grain frequency, mean and median grain size and sorting coefficient) to the material in the existing coastal system at the disposal site and shall not contain: Greater than 5 percent, by weight, silt, clay or colloids passing the #230 sieve (4.0F); Greater than 5 percent, by weight, fine gravel retained on the #4 sieve (- 2.25F); Coarse gravel, cobbles or material retained on the 3/4 inch sieve in a percentage or size greater than found on the native beach; Construction debris, toxic material or other foreign matter; and, Not result in cementation of the beach. If rocks or other non-specified materials appear on the surface of the filled beach in excess of 50% of background in any 10,000 square foot area, then surface rock should be removed from those areas. These areas shall also be tested for subsurface rock percentage and remediated as required. If the natural beach exceeds any of the limiting parameters listed above, then the fill material shall not exceed the naturally occurring level for that parameter. Fla. Admin. Code R. 62B-41.007(2)(j) (emphasis added). In compliance with the Sand Rule, the Department seeks to ensure that fill placed on the beach in a restoration project maintains the general character and functionality occurring in the coastal and dune system adjacent to the beach that is the placement site. If a beach is predominately quartz, then the fill should be predominately quartz. The same is true for a beach that is predominately carbonate; the fill to restore that beach should be predominately carbonate. It is the general character and functionality of sand on the beach and the adjacent coastal and dune system where the fill is to be placed that is the baseline against which the Department determines the compatibility of fill. Fill compatible with one beach in Florida is not compatible with all beaches in Florida. Fill that is predominately carbonate, for example, might be compatible with many beaches in the state; it would not be compatible with the predominately quartz coastal and dune systems adjacent to the beaches of Okaloosa Island. OK-A Fill: Not Compatible The environmental functions the Department considered when applying the Sand Rule to this case are nesting habitat for turtles, nesting and foraging habitat for shorebirds and general habitat for beach mice. There may be overlap between the general character of the material at issue and its environmental functionality. Color, a sand characteristic, is a component of the general character of sand. Color can also relate to environmental functionality. It has an effect, for example, on the temperature of the sand which, in turn, determines sex ratios for turtle hatchlings as well as the incubation period for turtle eggs. Sand color, therefore, has an effect on environmental function related to sea turtles. To the extent it affects thermal characteristics of beach sand, color can affect other organisms whose habitat includes beaches. The County and the Department presented evidence that the fill from OK-A ("OK-A Fill") will maintain the environmental functionality on the Project's beaches. The evidence presented by Petitioners to rebut the evidence of the County and Department as to environmental functions or functionality otherwise was insubstantial. The fill from OK-A will maintain the environmental functionality of the Project's placement site. In contrast to environmental functionality, the evidence established that OK-A Fill will not maintain the general character of the native beach subject to the Okaloosa Island Project beach. The finding that the fill will not maintain the general character of the placement site is based on three factors: 1.) carbonate content, 2.) color, and 3.) the presence of 3/4 inch material. Carbonate Content Native Beach Taylor Engineering's Sand Search Investigation Report, see Petitioners' OI 42, Case No. 10-2468, determined the carbonate content of the native beach in Okaloosa Island to be 0.00%. Most beaches in Florida have shell and carbonate content. Carbonate content of "0.00%," therefore, is highly unusual and it underscores the unusual if not unique character of Okaloosa Island beaches. Taylor's determination of "0.00%" carbonate content of the native beach was based on acid digestion tests conducted by Ellis & Associates, a certified laboratory. While there may be other ways of objectively determining carbonate content, acid digestion is the best method. Carbonate content cannot be determined on a percentage basis visually. To arrive at an accurate acceptable percentage, acid digestion is required. See Deposition of Gregory William Stone, Ph.D., at 22. Taylor Engineering conducted tests on 16 sand samples collected by Taylor at four different monuments on the beach and from the adjacent dune system in Okaloosa Island. At R-1 and R- 6, samples were taken at "Mid-Berm," mean high water and mean low water. At R-11 and R-16, samples were taken in areas of dune vegetation, at the dune toe, Mid-Berm, mean high water and mean low water. (Samples were also taken by Taylor in areas of dune vegetation and at the dune toe at R-1 and R-6. These samples were excluded from the analysis by Ellis and Associates because they represented "non-native dune restoration sand trucked in from an upland source." OI Joint Ex. 3G at 2.2). Each of the 16 samples of native beach sand yielded a calcium carbonate content of "0.00%." There was other evidence that indicated that beaches of Okaloosa Island must contain some amount of carbonate, no matter how small, despite Taylor Engineering's testing and analyses that yielded carbonate content at 0.00%. Dr. Stone, the County's witness, testified that in the Okaloosa Island portion of Santa Rosa Island carbonate "is in the swash zone . . . where the waves break, and the water is pushed up and then falls back under gravity." Deposition of Gregory William Stone, Ph.D., at 12. Carbonates from shells are always present in swash zones. Dr. Stone had not conducted carbonate analyses of the native sand and could not testify as to what percentage of Okaloosa Island beach sand is carbonate. During storms, however, large shell fragments are pushed onto the beach. The conflict in the evidence as to the extent to which Okaloosa Island beach sand contains carbonates is resolved by the following. The carbonate content of the native sand is extraordinarily low, at a figure that approaches zero. OK-A Fill Carbonate The persuasive evidence in this case establishes that the carbonate content of OK-A Fill is so much higher than the carbonate content of the sand native to Okaloosa Island beaches that, for this Project, OK-A Fill is not "beach compatible fill," as defined by the Sand Rule. Supportive of the finding is Dr. Young's credible analysis of the OK-A Fill used in the Eglin East Project. The analysis appears in OI Petitioners' Exhibit 40 (marked as "DOAH Case No. 10-2468, Exhibit Sherry 40"), entitled: "Analysis of carbonate content for the Eglin (East) beach nourishment project." Dr. Young acquired 21 random samples of beach sediment in August of 2010 from the Eglin East Project after construction using a sampling grid and ArcGIS. Criticized by the Department because the samples were all taken close to the shoreline and none were taken within the back of the berm to the back of the dune, his methodology for selecting and collecting the samples is found to be reasonable nonetheless. The samples were subjected to standard procedures including "Acid Digestion" for the determination of insoluble residue as an estimate of carbonate content. The data from Dr. Young's "acid digestion/insoluble residue determination," see OI Petitioners' Ex. 40 at 4, show carbonate content to range from as low as 3.89% to as high as 11.81% (using rounded figures). The averaging of the percentage of carbonate content for the 21 samples yields an average carbonate content for OK-A fill of 6.29% (a rounded figure). In addition to Dr. Young's carbonate content results for OK-A fill used in the Eglin East Project, carbonate content acid digestion testing results of OK-A Sand was introduced into evidence as part of the Sand Source Investigation. See OI Petitioners' 42. Table 5.5 of the document, id. at 36, shows that 61 vibracore samples were taken from different locations and different depths at the locations in OK-A. Of the 61 vibracore samples, 24 were subjected to analysis for carbonate content. Several were rejected because they were out of the area to be dredged. The acid digestion tests conducted on Taylor's behalf for the samples selected to be included in the results yielded an average carbonate content of OK-A fill at 3.77%. The carbonate content of OK-A fill, whether measured by Dr. Young or Taylor Engineering, significantly exceeds the carbonate content of seven beaches along the Panhandle of Florida tested for carbonate. These beaches stretch from Perdido Bay in Escambia County to the West to the Walton County 30 A Corridor in the east (with Okaloosa Island being in the middle). The carbonate content in these seven beaches averages 0.6%. The beach with the highest carbonate content of the seven (denominated "Perdido Bay" by Petitioners' Exhibit 3) is located in Escambia County. It is shown to have a carbonate content of 1.4%. Of the seven, the beach with the lowest carbonate content is "Okaloosa Island" at "0." OI Petitioners' 3. The restored beach subject to the Project, therefore, would change from prior to restoration to having either no carbonate content or almost none to being the beach on the panhandle, at least as to its restored portion, with the highest carbonate content by a significant margin. The fill to be used in the Project is not "beach compatible fill" because it will not maintain the general character of the pre-Project sand from the standpoint of carbonate content. 2. Color Unlike the objective testing (acid digestion) that was used to determine the carbonate content of OK-A Fill and sand native to Okaloosa Island, the color of the fill and native sand was determined subjectively. Color determinations were made at various stages in the application process prior to the issuance of the Consolidated NOI. One determination was made when Taylor Engineering conducted an investigation (the "Sand Bleaching Investigation") into how much time it would take for OK-A Fill to lighten up and to what degree it would lighten after it had been excavated and exposed to sunlight and the atmosphere. The investigation led to a report issued in October of 2008 (the "2008 Sand Bleaching Report"). Another determination was made by Ellis and Associates, the laboratory which contracted its work with Taylor. The determinations were reported in a document entitled "Eglin AFB/Okaloosa County/Destin Sand Source Investigation- Okaloosa County, FL" dated October of 2009 (the "2009 Sand Source Report"). Other determinations were made by Department personnel. All of the various color determinations made at the different steps employed the Munsell Color System. The Munsell Color System In Florida, the Munsell System is used to assess the color of beach sand and sand fill used in restoration projects. The Munsell Color System assigns color notations composed of the three dimensions of a color sphere it uses as a model. The three dimensions of the sphere represent hue (five colors of the rainbow and five colors in between each of the five colors), value (lightness), and chroma (saturation or color purity). With regard to hue, Section 3.3 entitled "Color Analysis" of Taylor's Sand Source Investigation Report states, "The hue notation of a color indicates its relation to red, yellow, green, blue and purple." OI Petitioners' Ex. 42 at 16, OKC41283. Hues are identified in Munsell notation by one of ten alphabetical notations that are either a single letter and a number or two letters and a number. The single letter notations indicate the color, "R" for red, "Y" for yellow, "G" for green, "B" for blue and "P" for purple. The double-letter notations are also color notations: "YR" for yellow-red (orange), "GY" for green-yellow, "BG" for blue-green, "PB" for purple-blue, and "RP" for red-purple. The number notation is for one of ten degrees or shades of each hue. The hue that bears a five is not influenced by the adjacent hues. Thus, "5Y" is completely yellow without any influences of "green-yellow" or "yellow-red." The hues that matched the colors of the sand analyzed in this case were either "Y" which stands for "Yellow" or "YR," "yellow-red." The value notation in the Munsell Color System indicates lightness. The Munsell symbols for value span from 0 for absolute black to 10 for absolute white. "Thus, a value of 5 falls visually midway between absolute white and absolute black." Id. The chroma notation "indicates strength or departure from a neutral of the same lightness." Id. The lower the chroma number and the higher the value, the lighter is the color. Munsell color charts used in this case describe a value of 8 and a chroma of 1 to be "white." Thus sand classified as "5Y 8/1" would be a hue of "yellow" that approaches "white" because of value and chroma. Sand classified as "5y 7/1" or 5Y 7/2" as allowed by the permit would not be called "white" but rather, from what appears in Table 1.1 of the Sand Bleaching Investigation Report a grayish shade of "yellow." See OI Joint Ex. 3F at 2. Allowable Color Table 1 of Attachment G to the Application sets out "Sediment Characteristics" as part of the Draft Sand Quality Control and Quality Assurance Plan [the "Draft Sand QC/QA Plan"] for Eglin AFB/Okaloosa Island Beach Restoration Project." OI Joint Ex. 1G. Allowable Moist Munsell Color proposed by the Draft Sand QC/QA Plan for "Native Beach" is "2.5Y 7/1 or lighter." Id., Table 1. For "Borrow Area Acceptable Material Limits," it is "2.5Y 6/2 or lighter." Id. The values of the borrow area were applied for at "6" or lighter because "70 percent of [OK-A] sand has a Munsell value of 7 or lighter and, roughly, 30 percent has value of 6." OI Tr. 362. The moist Munsell colors the Application proposed to be considered as the color of the native beach and acceptable colors for OK-A Fill were not approved by the Department. The Draft JCP set the two, respectively, at "5Y 7/1 - 5Y 8/1" and "5Y 7/2, 2.5Y 7/2, or lighter." OI Joint Ex. 11, last page (un- numbered). A "5Y 7/2" is darker than "5Y 7/1," which in turn is darker than "5Y 8/1," the lightest color assigned by the Draft JCP to the native beach. A "2.5Y 7/2" shares the same value and chroma as a "5Y 7/2" but its hue is not a true yellow; it is of a hue closer to yellow-red (orange) than is the full yellow hue "5Y." Immediately after being dredged, OK-A Fill is darker than the native beach sand. For the time it has been at the bottom of the Gulf, it has not been exposed to natural forces that Taylor hypothesizes to affect the color of the sand on Okaloosa Island's beaches. Native Okaloosa Island beach sand, subject to sun, winds and waves, on the other hand, in Mr. Trudnak's view, has "been in an environment where it's really cleaned up." OI Tr. 212. The Sand Bleaching Investigation conducted by Taylor Engineering concluded that OK-A Fill lightens up once it is dredged and exposed to the elements. Sand Bleaching Investigation Before Taylor prepared its Sand Source Investigation Report that is contained in the Application, it sought to quantify how long it would take to OK-A Fill to lighten and the degree of lightening, if any, after placement on the beach. Taylor's investigation led to a report (the "Sand Bleaching Investigation" and the "Sand Bleaching Report"). See OI Joint Ex. 3F. Forty samples of OK-A fill were kept on the rooftop of a building in Jacksonville and subjected to natural conditions for at least 99 days. The samples were compared to Munsell colors. See the representation of the color of Munsell Hue 5Y in 24 panes on a chart labeled "Table 1.1 Representation of Munsell Colors Used in this Analysis" in the Sand Bleaching Report, OI Joint Ex. 3F, at 2. Values range from 4 to 8 with half steps between each value (4.5 and 5.5, for example) and chromas of 1, 2 and 3. The difference between "5Y 6/1" and "5Y 8/1" is obvious to the human eye. See OI Joint Ex. 3F at 2. The comparison of a sample of sand to Munsell colors and the grading of the sample leading to the assignment of the three Munsell color dimensions do not constitute objective, scientific measurement. Instead, it is merely a visual comparison by the person conducting the test. "[I]t is a subjective test." OI Tr. 237. The grading of the values in Taylor Sand Bleaching Investigation was determined visually by two Taylor employees. As Ms. Naimaster, one of the two Taylor employees testified, "[w]e held the sand up to the book." Naimaster Deposition at 9. Ms. Naimaster did not have any specialized training in use of the Munsell Color System. She was taught how to use the system by the other Taylor employee involved in the grading of the samples, Mr. Hall. Together, the two graded the samples toward the aim of determining the time it took for them to lighten and the degree of lightening. Mr. Hall and Ms. Naimaster reached the conclusion that the majority of the samples taken in the Sand Bleaching Investigation, when exposed to the elements on a Jacksonville rooftop lightened one value, say, "from a Munsell 7 to a Munsell 8 or a Munsell 6 to a Munsell 7." OI Tr. 214. They agreed on most of the comparisons of the samples pre-exposure to the samples post-exposure. When they disagreed, they worked collaboratively: We held the sample up to the book, and he said what he thought, I said what I thought, and we decided together, who was closer. Naimaster Deposition at 11. Mr. Hall, Ms. Naimaster's trainer, was a 27-year old Taylor staff engineer with a Masters of Engineering from Cambridge University in England at the time of his deposition in July 2010. His sole experience with sand bleaching consisted of the work he did that led to the 2008 Sand Bleaching Report. Prior to that work, he had no experience in sand bleaching. Whether quartz sand grains change color when exposed to sun, wind, and water was unknown to Mr. Hall at the time of his deposition. His description of the grading process during the Sand Bleaching Investigation matched Ms. Naimaster's: they agreed on the color selections for the samples "approximately 80 percent of the time; and then on the ones we disagreed, it was fairly quick to come to a consensus." Jonathan Hall DEPO-10- 2468 at 15. The lightening observed by Mr. Hall and Ms. Naimaster did not occur because of a change in the quartz in the samples. It occurred because of changes in the impurities in or on the quartz. Sand Source Grading and Review While anybody can look at a sample of beach sand and compare it to a Munsell color sheet and come up with a subjective determination of the Munsell color dimensions to be assigned, Taylor Engineering relied on a certified laboratory, Ellis and Associates, to conduct the grading of OK-A Fill during the Sand Source Investigation. See OI Tr. 237. The Sand Source Investigation report was also reviewed by Dr. Jennifer Koch, a coastal geologist with the Department, including "the color tests for each of the individual samples." OI Tr. 663. Her review, when it came to color consisted of cross-checking the color data that was provided. Although based on "data" (the samples and the Munsell Color sheets), her review was not conducted using objective standards. It was visual and subjective as she explained: You look at the color information for every individual sample. And then . . . a Vibracore or a portion of borrow area and you kind of look from there. Kind of like creating composites in the same way as you would with sediment data. You look at the overall color and you look at the individual sample color and compare that to what's existing on the beach. OI Tr. 686. Dr. Koch also visited other beach restoration projects to examine OK-A Fill in use. Later, Dr. Koch did her own color testing on samples using the Munsell Color System when she returned to her office. But before she left, Dr. Koch took pictures of the beach restoration in the emergency Holiday Isle project in which OK-A Fill was used. They appear in Department Exhibit 42. The pictures show the fill material to be clearly darker than the native beach sand. Nonetheless, Dr. Koch's assessment of the OK-A Fill used during the Holiday Isle Emergency Project is that "[t]he material was beautiful and it was beach compatible." OI Tr. 703. The Department concluded that the County had provided reasonable assurance that the OK-A Fill material to be used in the Project is beach compatible in every way, including color. The Department's Exhibit 42 establishes that the color of OK-A Fill after placement at Holiday Isle is significantly darker than the native beach. Dr. Young's testimony and other photographs in evidence relate to the color of OK-A Fill more than 100 days after it had been placed on the beach. The testimony and photographs establish that the color of the fill from OK-A is significantly darker than 5Y 8/1, the predominate color of Okaloosa Island native sand, after it has been on the beach for a time long enough to have received the effects of weathering claimed by the Sand Bleaching Investigation Report. The color of the native beach in A-3, one of the Eglin Projects, is rated as 5Y 8/1 or 5Y 7/1, the same as the native beach subject to the Okaloosa Island Project. In Dr. Young's aerials, taken from about 500 feet on June 21, 2010, the line between the restored beach and the native beach is easily seen by their color difference, the fill from OK-A being obviously darker. Sand Source Report Color Conclusions The Sand Source Report states the following: The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y 8/1 (white) and described several others samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations (see Section 2.2). To help establish acceptable borrow material color criteria, the current study evaluated the effects of sun bleaching on sediment color. The color test exposed 40 potential offshore borrow material samples - representing various core borings collected during the detail phase of the investigation (Chapter 5) - to the Florida sun between 12/7/2007 and 3/17/2008 (99 days). Of the 40 samples, 23 began as value 7 and 13 began as value 6. The samples represented various vibracore depths, ranging between 0 ft and 18 ft. The test results, presented in Table 3.5, indicate that all samples with a Munsell value/chroma of 7/1, 7/2, or 7/3 turned white or nearly white (value of 8) due to weathering within 99 days of placement. Approximately 85% of placed sand with a Munsell value/chroma of 6/1, 6/2, or 6/3 lightened in value to at least 7 within that same period. * * * Importantly, the weathering analysis discussed above likely underestimates the level of lightening the beach fill will experience for two reasons. First, the borrow material will undergo a rigorous washing effect through particle abrasion as the sand travels through the dredge pipes during dredge loading and offloading. Second, wind and waves will weather the beach fill. The weathering analysis did not account for such weathering actions. OI Petitioners' Ex. 42, Section 3.3, at 16-17 (emphasis added). The methodology employed in the Sand Source and Sand Bleaching Investigation tests, however, was not scientific. See OI tr. 1424. Explanations The County offered several explanations to minimize the disparity between the quality of sand in OK-A Fill when first placed on the beach and the quality of the sand native to Okaloosa Island. Sand raking is an explanation offered for the low carbonate content of the native sand as determined by Taylor Engineering. "The county has been mechanically cleaning the beaches for close to two decades. Depending upon . . . the season, it's either once every day . . . [or] twice a week . . . [t]hese machines pick up things as small [as] cigarette butts and they've been picking up . . . shells, as well . . . ." OI Tr. 97. The darkness of OK-A Fill used in the Eglin Projects and the darkness of the OK-A Fill in general was attributed by Dr. Stone and Dr. Koch to heavy mineral content. Heavy minerals or iron-bearing minerals occur naturally in Florida Panhandle beach sand and in sand offshore. Dr. Stone's testimony about iron-bearing minerals suggested that OK-A Fill prior to dredging is in an anerobic environment and therefore will lighten when exposed to oxygen in the beach environment was refuted by Dr. Young. As Dr. Young testified, sediments in an anerobic environment are in a reduced form that "tend to look black or gray on the Munsell chart." OI Tr. 1424. Sediments from an anerobic environment are termed "gley," which indicates the presence of reduced iron. The OK-A Fill pumped onto the beach in the Eglin A-3 Project "tend to look more tan or brown, which suggest that the iron in them has . . . been oxidized." OI Tr. 1424-25. Iron imparts much of the color of sediment. If the iron in OK-A Fill has been oxidized prior to excavation, it is not "gleyed." It cannot be expected that it will oxidize and lighten after exposure to air. See tr. 1425 and 1426. As recognized by all parties OK-A Fill at the moment of excavation is darker than the sand native to the beaches of Okaloosa Island. When it is initially placed on the beach, the evidence demonstrates that the rigorous washing effect from particle abrasion as it is piped ashore does not lighten it sufficiently to meet the "whiteness" of the color of the native sand as hoped for by Taylor and the County as the result of their investigations. Aerial photographs of the Eglin A-3 Project taken four weeks after the completion of the project demonstrate "how easily one can . . . delineate the boundaries of the project based entirely on color being assessed at a height of about 400 feet." See OI Petitioners' 8-DDD and 8-GGG. The Eglin A-3 Project was completed at the end of May in 2010. Dr. Young visited the Eglin A-3 site "four or five times," OI tr. 1422, in late June, August and on November 30, 2010. During those visits, including the last visit more than 180 days or six months since completion of the project, he did not observe the OK-A Fill to have "bleached or lightened in color." Id. 3. 3/4 Inch Material Native sand in the beach subject to the Project has little to no material that would be retained on a 3/4 inch sieve. Photographs of OK-A Fill used in the Emergency Holiday Isle Project and at the Eglin A-3 Project were introduced into evidence. They demonstrate the presence in OK-A Fill of an amount of shell material that would not pass through a 3/4 inch sieve much greater than is present on the beach subject to the Project. After the Emergency Holiday Isle Project, an effort was made to remove shells that were in the OK-A Fill deposited on the beach. How much the shell weighed that was removed or how many days of tilling or screening to remove the shells was not established. Mr. Trefilio, the Coastal Management Coordinator acting on behalf of the County "told our contractor to use his professional judgment to basically remove as many shells as possible." OI Tr. 140. Dr. Young' visit to the Eglin A-3 Project and his personal observation establish that the OK-A Fill used at the A-3 site contains a significant amount of shell material that would not be retained on a 3/4 inch sieve. The fill from OK-A already excavated and used in other projects contains material that would be retained on the 3/4 inch sieve in a percentage significantly greater than the percentage of that material on the beach subject to the Project. It is highly likely that any fill taken from OK-A to be used in the Project would contain unacceptably-sized material at significantly greater percentages than on the native beach. Regulatory Public Interest Section 373.414 requires the County to provide reasonable assurance that the activity authorized by the JCP "will be clearly in the public interest" (as opposed to "not contrary to the public interest") since a portion of the OK-A Borrow Area is in an OFW. The statute provides: In determining whether an activity . . . is clearly in the public interest, . . . the department shall consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. § 373.414(1)(a), Fla. Stat. The Department determined the Project to be clearly in the public interest. In doing so, the Department did not consider the Project's "non-environmental" impacts to the property of others under the authority of Miller v. Dep't of Envtl. Reg., 504 So. 2d 1425 (Fla. 1st DCA 1987). Criterion 1 A distinction is to be drawn between effect on the public health, safety and welfare, on the one hand, and the property of others, on the other hand. The project will not adversely affect the public health, safety or welfare of others. To the contrary it will serve the public health, safety and welfare. The restoration will protect upland structures and property vulnerable to extreme storm events and waves and storm surge should they occur during the life of the Project. The Project will affect the property of the Sherrys and Mr. Donovan by placing sand on the beach waterward of their condominium property that is not beach-compatible fill. The effect is likely to be adverse but to what extent is not established by this record. Criterion 2 The draft permit contains minimization measures during construction to protect endangered and threatened species such as turtles, shorebirds, and mice. The restoration of a critically eroded beach increases the habitat for endangered and threatened species. The environmental assessment developed to address potential impacts to threatened or endangered species, supplemented with literature review of the effects of beach restoration on natural habitat, demonstrates that there will be little to no adverse impacts with the exception of to the benthic infauna communities. Any adverse affects to the benthic infauna communities would be temporary. These communities rebound quickly. The temporary impacts are not considered adverse and they are certainly not significantly adverse. Dr. Robbin Trindell, the Biological Administrator for the State of Florida Management Program, reviewed the Project and concluded that OK-Fill is acceptable for turtle nesting. The conclusion was based on the grain size information submitted by Dr. Stone and from working with the Department's biologists. Criterion 3 The Project will not affect navigation. It is far from inlets and a significant distance from East Pass, which connects Choctawhatchee Bay to the Gulf. The Project may cause erosion, but it may also cause beneficial impacts to the shoreline. Harmful shoaling will not be caused by the Project. Criterion 4 Fishing is not expected to be impacted by the Project. The recreational value of the beach should increase. Marine productivity would not be affected adversely with the exception of the temporary impact to benthic infauna, an impact that would not be adverse in the long term. Criterion 5 The activity will be temporary. Criterion 6 There are no significant historical and archaeological resources in the project area. Criterion 7 The current condition and relative value of functions being performed by the areas affected by the Project will remain the same. It will continue to be a recreational beach adjacent to the Gulf. It will continue to provide habitat to endangered species and wildlife and will provide storm protection. Variance and Conditions The northern boundary of OK-A is within Outstanding Florida Waters ("OFW"). In a letter dated October 14, 2009, Taylor Engineering on behalf of the County requested three variances from rule provisions in chapter 62-4, which governs "Permits," as follows: [W]e request a variance from the provisions of Rule 62-4.244(5)[(c)], F.A.C., to establish a temporary mixing zone greater than 150 meters in an Outstanding Florida Water; a variance from the provisions of Rules 62-4.242(2)(a)2.b., 62-302.700(1), and 62-312.080(3), F.A.C., to establish a maximum allowable turbidity level above background levels for work with an Outstanding Florida Water; and a variance from the thirty-day time period, pursuant to Rule 62-4.242(2)(a)2.b. F.A.C., in which elevated turbidity levels may occur within a mixing zone located in an Outstanding Florida Water. OI Joint Ex. Vol. 3, Ex. 12. Rule 62-4.244(5)(c) which governs "Mixing zones: surface waters" provides: 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. Rule 62-302.700(1) is in the rule chapter that governs "Surface Water Quality Standards." Entitled "Special Protection, Outstanding Florida Waters, Outstanding National Resource Waters," it provides: It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in subsections 62.4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. (emphasis added). Rule 62-312.080(3) is in the rule chapter that governs "Dredge and Fill Activities". It provides: "[n]o permit shall be issued for dredging or filling which . . . is within an outstanding Florida Water unless the applicant complies with Section 403.918(2), F.S. (Supp. 1192), and Rule 62-4.242, F.A.C." (emphasis added). Both rules 62-302.700 (an OFW anti-degradation rule) and 62-312.080(3) (an OFW anti-degradation rule applicable to dredging and filling) allow an exception when the applicant complies with rule 62-4.242. Rule 62-4.242(2) 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 "Thirty-Day Requirement]. The Department referred to the three variances in its Consolidated NOI as the "Variance" (in the singular rather than the plural). The Department reviewed the request for the Variance under section 403.201(1): Upon application, the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons. There is not practicable means known or available for the adequate control of the pollution involved. Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required. To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification. The Department determined that the Variance could be granted to the County for either of the first two reasons, (a) or (b), listed in section 403.201(1). Petitioners do not attack the Variance, however, for failure to meet the requirements of section 403.201(1). Instead, they attack the Variance for failure to satisfy section 120.54(2) [the "APA Variance Statute]: Variances and waivers 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 would violate principles of fairness. The APA Variance Statute requires that two elements be met for a variance to be granted pursuant to it: 1.) the purpose of the underlying statute will be or has been achieved by other means; and 2.) violation of fairness (not at issue) or hardship. Hardship 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," WD tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150-meter radius. The Variance "allows an anti-degradation allowance of . . . 3 NTU's above background rather than zero NTU's above background at the edge of that mixing zone." WD Tr. 438. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the Variance 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." WD 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. Furthermore, the Department had determined that the Project is clearly in the public interest. While the existing ambient water quality within the OFW is likely to be lowered for more than thirty days by the dredging in OK-A, it will not be lowered for more than ninety days, a "temporary" period. It would be a substantial hardship to require the County to meet the mixing zone standards in rule 62-4.244(5((c) and the 30-day requirement in rule 62- 4.242. b. Underlying Statutes: Achievement of Purpose The statutes implemented by the rules covered by the request for the Variance are provisions in either chapter 403 or 373, which control water pollution or protect water resources. No resources in the area, such as hard bottom or sea- grass beds, will be affected by a turbidity plume and an expanded mixing zone. The Department reached the conclusion that the purposes of the underlying statutes would be achieved. The conclusion was based on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," WD 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 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 that had been allowed a 1500-meter mixing zone. 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," WD 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. Deepwater Horizon Oil Spill 346. 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 90 day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the 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 WD tr. 175. Prior to the completion of the Emergency Holiday Isle Project, the County hired E-Tech Environmental Consultants to monitor and inspect OK-A. On August 9, 2010, a team of divers investigated the bottom of the borrow area for evidence of oil constituents. "Nothing out of the ordinary was seen on the bottom at the borrow site." OI Tr. 402. The team of divers collected samples at the same time they conducted their visual observation. The samples were sent to Pace Analytical Services in Ormond Beach, Florida, and were received there on August 12, 2010. The results of the analysis showed the presence of no oil constituents. Furthermore, no oil was found in the OK-A Fill pumped onto the beach during the Emergency Holiday Isle Project. A similar inspection, observation, sampling and testing of samples will be conducted prior to the commencement of operation on the Okaloosa Island Project. The QA/QC Plan and the Sand Rule cover foreign material (including oil). The plan and the rule should be sufficient to protect the beaches from oil contamination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order that denies the application of Okaloosa County for issuance of the Joint Coastal Permit for the Okaloosa Island Beach Restoration Project. Denial of the JCP renders the request for the Variance moot. DONE AND ENTERED this 22nd day of September, 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 22nd day of September, 2011. COPIES FURNISHED: Gregory T. Stewart, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Post Office Box 11008 Tallahassee, Florida 32302 Joseph Alexander Brown, Esquire Hopping Green & Sams 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Harry F. Chiles, Esquire Nabors, Giblin and Nickerson, P.A. Post Office Box 11008 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Edward A. Dion, Esquire Nabors, Giblin, & Nickerson, P.A. 208 Southeast Sixth Street Fort Lauderdale, Florida 33301 Walter C. Thompson, Jr. Barkley and Thompson, LC 1515 Poydras Street, Suite 2350 New Orleans, Louisiana 70112 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On 24 July 1979 the Board of County Commissioners of Palm Beach County adopted Resolution R-79-887 petitioning the TIITF to establish an erosion control line (ECL) extending from South Lake Worth Inlet to the northern city limits of Delray Beach in conjunction with a beach restoration project in the same area. The project as then proposed encompassed extension of the south jetty at the Inlet 170 feet, construction of eight groins at 400-foot intervals commencing just south of the Inlet, and widening the beaches by 500 feet with 150 feet above the mean high water and 350 feet below mean high water, for a distance of approximately 4.8 miles. The restoration project is proposed to be accomplished with sand from a borrow area located approximately one-half mile off shore. The project is designated "Ocean Ridge-Briny Breezes" beach restoration project. SLWID objected to the project and, following conferences between Palm Beach County, SLWID and DNR the County amended its project to exclude property owned by SLWID from the ECL and beach restoration projects with the restoration of the beach to commence 300 feet south of the Inlet and continue for 2.6 miles to the town of Briny Breezes. Extension of the jetty and installation of groins were deleted. Palm Beach County's proposed beach restoration project was authorized by the U.S. Congress and the U.S. Army Corps of Engineers in House Document 164 (Exhibit 5). The proposed "Ocean Ridge-Briny Breezes" beach restoration project was designed in accordance with the criteria set forth in Exhibit 5. The project is designed to restore the severe beach erosion that has occurred in the 2.6-mile project area and to provide the affected uplands protection against the ten-year design storm event. The ten-year design storm event implies a 3.8-foot storm surge with up to eight-foot waves superimposed thereon. The proposed ECL has been surveyed by Palm Beach County along the mean high water line in the proposed area. Over 60 percent of the ocean front property owners have approved the establishment of the ECL in conjunction with a beach restoration project by executing letters of consent. Following notice by DNR a public hearing was held on February 13, 1980, to receive evidence relative to the necessity and propriety of the proposed beach restoration project and the proposed location of the ECL. The Hearing Officer's report (Exhibit 28) concluded that there is a definite need to restore the proposed area where severe beach erosion has occurred and the establishment of the ECL would accomplish the purpose stated in Section 161.161, Florida Statutes. Approval of the project was recommended. The staff of DNR approved the project and prepared the agenda item for the next meeting of the TIITF in which this project was to be considered for final approval. Prior to this meeting of the TIITF, SLWID filed its initial Request for Formal Proceeding and the item was removed from the TIITF agenda and referred to the Division of Administrative Hearings. The beach erosion in the project area has been documented by Palm Beach County, DNR and the U.S. Army Corps of Engineers. Much of the erosion in the northernmost mile of the project has involved the beach above high water, as well as the offshore beach, while the erosion in the southern 1.6 files of the project has predominantly been offshore. During the period 1955-1981 approximately 1.6 million cubic yards of sand has been lost in the project area. Beach erosion determinations are made by calculating both onshore and offshore changes in the beach profile. Significant offshore erosion will lead to onshore beach recession by storm-generated waves. A gradually sloping beach is a natural absorber of wade energy and the most effective. Since maximum wave height is a function of the depth of the water, waves rapidly dissipate when they reach shoal water. With offshore erosion and the resulting deeper water near the shore, incoming waves can be higher and will impact on the upland area with greater force than would occur with a gradually sloping beach. There is a net annual littoral drift of 200,000 cubic yards of sand southward in the project area. Prior to the construction of the Inlet this drift replaced sand lost during storms, thus creating a dynamic beach which receded and was augmented from time to time. The installation of the jetties disrupted this littoral flow and caused the sand to build up on the beach north of the jetty while starving the beach south of the jetty. This problem was partly corrected by the erection of a sand transfer plant on the north jetty which pumped some of this sand across the Inlet to the beach south of the Inlet. The sand transfer plant was not operated during WWII due to the fuel shortage and severe erosion occurred in the project area. Following WWII the sand transfer plant was replaced in operation, sand was dredged from the Inlet and deposited on the beach south of the Inlet and the beach in the project area was largely restored. In 1967 the north jetty at the Inlet was extended and the sand transfer plant was moved eastward some 130 feet. This plant is a fixed plant consisting of a suction line on a boom which dredges sand to be pumped south of the Inlet only from the area that can be reached by the boom. Although capacity of the plant is adequate to pump the sand needed to replace in the project area that sand intercepted by the jetty, due to the limitation of the plant to reach a larger area there is insufficient sand available for the plant to pump to capacity. As a result, even if the plant operated all the time and there was sand available to pump, there would still be a net loss of sand in the project area (Exhibit 21). During recent winter storms property-threatening beach erosion has occurred to beach property in the project area. Some of the property owners have erected bulkheads and seawalls and others are proceeding with plans to do so. In some places in the north portion of the project area there is no exposed beach at high water. In the southern portion of the project area the offshore erosion will, if left to continue, result in severe damage and loss of upland beach if impacted with seas commensurate with a ten-year design storm event. This erosion, both on and offshore, will, if uncorrected, result in a calculated total of 134 feet of beach recession for the ten-year design storm event. This could result in the inundation of S.R. A1A, which runs near the beach in the northern portion of the project area. S.R. A1A is the primary north-south highway east of the Intracoastal Waterway and the evacuation route to the bridges to the mainland in the event evacuation of the beach is necessary in a hurricane situation. The proposed beach restoration project is designed to replace sand lost offshore and onshore erosion in the the project area and provide a sloping beach to absorb wave impact. It will not accelerate erosion. The proposed restoration of the beach will protect property and structures in the project area against the forces associated with a ten-year design storm event. Addition of the 1.5 million cubic yards of sand in the project area will result in some sand infiltration of the Inlet. This was calculated at 8,000 cubic yards the first year, 6,000 cubic yards the second year and 4,000 cubic yards per year thereafter. This will result in insignificant shoaling in the Inlet but will require infrequent maintenance dredging. It will not adversely impact the tidal prism in the Inlet or materially increase the maintenance of the Inlet. Heavy storms result in immediate loss of sand from the upland beach. Most of this sand is deposited in the offshore beach and is returned to the upland beach by the normal action of waves and tides. Approximately ten percent of the sand so removed from the upland beach is not returned but is lost.
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of April, 2007.
The Issue The issue is whether Respondent, Department of Environmental Protection ("DEP"), should grant the applicant, Pelican Resort Developments, Inc., a coastal construction control line ("CCCL") permit. The applicant seeks to construct a condominium project in Destin, Florida. Portions of the project are seaward of the CCCL for Okaloosa County.
Findings Of Fact On March 28, 1994, DAG Architects and Pelican Resort Developments, Inc., as agents for Major Development Ltd., filed an application pursuant to Section 161.053, Florida Statutes with DEP for a coastal construction control line ("CCCL") permit in order to construct a condominium project, portions of which would be seaward of the coastal construction control for Okaloosa County, Florida. The application was assigned DEP number OK-115. The condominium project to be developed pursuant to Permit OK-115 is known as Pelican Beach Resort, and is being developed by Pelican Resort Developments, Inc., The Pelican Beach Resort project includes a 19-story building with 340 condominium units, two swimming pools, 595 parking spaces, and boardwalks to the beach. On August 13, 1993, Pelican Resort Developments, Inc., entered into a contract with Major Development, Ltd., to purchase from Major Development, Ltd., the property on which the Pelican Beach Resort condominium project is to be constructed. On September 8, 1994, DEP determined to grant the March 8, 1994, CCCL application for permit OK-115 subject to 10 special permit conditions. Issuance of that "Final Order" constituted intended final agency action by DEP. Special Permit Condition 3 required the permittee to provide DEP with written evidence that a public notice regarding DEP's approval of permit application number OK-115 was published in a newspaper. Before publication, a draft of the notice was to be provided to DEP for review and approval. The permittee provided DEP with a draft public notice. DEP approved the draft and the notice was published in the Northwest Florida Daily News, which is published daily. DEP was provided with proof of publication of the notice by the permittee. The public notice advised substantially affected persons of their right to request an administrative hearing in accordance with the provisions of Section 120.57, Florida Statutes, by filing such a request with the DEP Office of General Counsel. During the processing of application number OK-115, DEP received approximately 100 letters from neighboring property owners within the Regency Towers condominium, located adjacent to the project site, objecting to the CCCL permit for the Pelican Beach Resort condominium project. Adjacent property owners were well aware of the proposed Pelican Beach Resort condominium project as the CCCL application for it was processed by DEP. On September 21, 1994, Petitioner, Regency Towers Condominium Owners Association, Inc., filed a Request for Formal Administrative Hearing with DEP requesting that DEP withdraw its issuance of permit OK-115 for the Pelican Beach Resort condominium project. The members of the Regency Towers Condominium Owners Association, Inc., are the record owners of apartments within the Regency Towers condominium. The owners of the condominium apartments own their apartments plus an undivided interest in the common property. Regency Towers Condominium Owners Association, Inc., does not own any real property within the Regency Towers condominium. When the CCCL application was filed on March 28, 1994, Major Development, Ltd., was the owner of the property where the proposed condominium project is expected to be developed. That entity continued to own the property until October 13, 1994. On October 13, 1994, Pelican Resort Developments, Inc., which served as an agent for permit application OK-115, purchased from Major Development, Ltd., 10.9 acres of the property on which the Pelican Beach Resort condominium project is to be constructed. The land purchased by Pelican Resort Developments, Inc., includes all land seaward of the CCCL which is at issue in this proceeding and permit OK-115. Pelican Resort Developments, Inc., received a warranty deed for the property from Major Development, Ltd., and obtained title insurance from First American Title Insurance Company for the property. On November 8, 1994, Pelican Resort Developments, Inc., as the new owner of the property seaward of the CCCL subject to permit OK-115, filed a Permit Transfer Agreement with DEP, and as evidence of its ownership of the property, it provided DEP with a recorded copy of its warranty deed to the property along with the Permit Transfer Agreement. On November 8, 1994, DEP approved Pelican Resort Developments, Inc.'s request to transfer permit OK-115 from Major Development, Ltd., to Pelican Resort Developments, Inc. DEP's rules authorize the transfer of CCCL permits to new property owners. Rule 16B-33.016(1), Florida Administrative Code. Such transfers are not uncommon. CCCL PERMIT APPROVAL CRITERIA The CCCL The CCCL is a jurisdictional line, it is not a line of prohibition. DEP routinely authorizes the construction of structures seaward of the CCCL, and issues approximately 1,500 to 1,600 permits per year authorizing such construction. Evidence of Local Approval The Pelican Beach Resort project subject to permit OK the City of Destin. Therefore, written evidence provided by the City of Destin was given to DEP by the applicant for permit OK-115 showing that the proposed Pelican Beach Resort condominium project does not contravene local setback requirements, or zoning, or building codes. Evidence of Ownership During the processing of application OK-115, the applicant provided DEP with sufficient evidence that Major Development, Ltd., owned the property for which permit OK-115 was requested. From the time application OK-115 was filed with DEP on March 8, 1994, until October 13, 1994, Major Development, Ltd., was the owner of the property for which permit OK-115 was requested. On October 13, 1994, Pelican Resort Developments, Inc., purchased from Major Development, Ltd., the property for which permit OK-115 was requested. Pelican Resort Developments, Inc., has provided DEP with sufficient evidence of its ownership of the property for which permit OK-115 is requested. First American Title Insurance Company has insured Pelican Resort Developments, Inc.'s interest in that property as fee simple ownership. It is this property for which permit OK-115 was requested and which will be developed pursuant to permit OK-115. Public Access Construction of the Pelican Beach Resort condominium project pursuant to permit OK-115 will not interfere with public access along the beach. The portion of the beach used for public recreation is seaward of the primary dune and is of substantial width. The structures constituting the Pelican Beach Resort condominium project are substantially landward of the primary dune. By stipulation of the parties, the Pelican Beach Resort condominium project will not interfere with public access along the beach. Sea Turtles As admitted by the parties, reasonable assurance has been provided in relation to the Pelican Resort Developments, Inc., condominium project that nesting sea turtles and hatchlings will be protected. Further, permit OK-115 contains adequate conditions to provide protection to nesting sea turtles and hatchlings and their habitat. The parties have also stipulated that the project will not have an adverse impact on sea turtles, hatchlings, or their habitat. Structural Requirements The parties have stipulated that the proposed structures within the Pelican Beach Resort project comply with all applicable structural requirements, which includes those in Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. Compliance with Siting Criteria An accreting shoreline The shoreline adjacent to the proposed Pelican Beach Resort condominium project is stable and in an accretional mode. The shoreline is propagating seaward over time, and the beach is accreting. Between 1985 and 1990, the beach adjacent to the proposed Pelican Beach Resort condominium project accreted at a rate of ten feet per year. The shoreline for a distance of 13,000 feet to the east of East Pass is accreting. The proposed Pelican Beach Resort condominium project is approximately 10,000 feet east of East Pass. Seasonal high water line The elevation of the seasonal high water line ("SHWL") for the site of the proposed Pelican Beach Resort condominium project is approximately 3.3 feet. All major structures within the proposed Pelican Beach Resort condominium project are several hundred feet landward of the seasonal high water line. Since the shoreline is accreting, it can be anticipated that the SHWL 30-years hence will be seaward of its current location. Despite the fact that the shoreline adjacent to the site of the proposed Pelican Beach Resort condominium project is accreting, DEP has assigned an erosion rate of one foot per year for the shoreline. Using the DEP erosion rate of minus one foot per year, the SHWL in 30- years will only be 30 feet more landward than where it currently is. All the major structures within the proposed Pelican Beach Resort condominium project will be at least 230 feet landward of the SHWL in 30-years. However, since the shoreline in the area of the site is accreting, the SHWL will actually move seaward of where it is today. The proposed Pelican Beach Resort condominium structure and all structures within the project except for minor structures will be landward of the seasonal high water line within thirty years of November, 1994. Vegetation Structures constituting the proposed Pelican Beach Resort condominium project are substantially landward of the vegetation line at the site, and DEP typically approves construction projects that are closer to the vegetation line than Pelican Beach Resort. Pelican Resort Developments, Inc., as the permittee, is required by special permit condition number 4 to implement a detailed dune restoration plan. Dune restoration will include the construction of a coastal barrier dune with a minimum crest elevation of + 15 feet NGVD, the planting of vegetation -- sea oats, railroad vine, cordgrass and Golden Aster -- on the dune in staggered rows 18" apart, and the long term maintenance of the dune and vegetation. The restored dune shall be a preservation area where no construction is allowed except for pedestrian dune crossovers. The dune/vegetation restoration plan will enhance the area. Dune line Structures constituting the proposed Pelican Beach Resort condominium project are approximately 150 feet landward of the primary dune system on the site. It is typical for DEP to approve major structures, such as those proposed for the Pelican Beach Resort condominium project, that are closer to the dune system than those proposed in permit OK-115. Beach/Dune Impacts The Pelican Beach Resort condominium project has been designed to have a minimum adverse impact on the beach-dune system, because the proposed structures are landward of the active beach; substantially landward of the primary dune; and the beach is accreting. The Pelican Beach Resort condominium project is located a sufficient distance landward to preserve dune stability, and to allow natural recovery following storm-induced erosion. Moreover, the shoreline is accretional; the beach stable and the structures within the Pelican Beach Resort condominium project are sited well landward of the dynamic portion of the beach to allow for recovery. Impacts on Adjacent Properties The Pelican Beach Resort condominium project will not have any adverse impact on the beach/dune system of adjacent properties. Structures within the project are too far landward of the dynamic portion of the beach to adversely affect adjacent properties. The unique dune/vegetation restoration and enhancement plan that will be implemented as part of the project will actually enhance the dune system in the area. Line of Construction The condominium building for the Pelican Beach Resort project is 40 to 55 feet landward of the adjacent Regency Towers condominium building. To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted. The line of construction represents the seaward limit of the encroachment of structures along the beach, not the landward alignment of such structures. There are a sufficient number of structures within the immediate area of the proposed Pelican Beach Resort condominium project to establish a continuous line of construction. The line of construction for the Pelican Beach Resort site corresponds closely to the 1978 CCCL. The line of construction for the Pelican Beach Resort site is accurately depicted by Respondents Map Exhibit 32. All of the major structures within the Pelican Beach Resort project are, at a minimum, 40 to 55 feet landward of the established line of construction for the site. The Regency Towers condominium building immediately to the west of the Pelican Beach Resort site is the most identifiable line of construction to the west. Within 1,000 feet of the Pelican Beach Resort site, there are a number of structures that are located much more seaward of the 1978 CCCL and establish a line of continuous construction that is even more seaward of the 1978 CCCL. The Holiday Beach Resort project immediately to the east of the Pelican Beach Resort site does not establish the line of construction because it is landward of the CCCL, is an anomaly, and is also landward of the seaward line of construction established by other existing high rise structures in the immediate area that are similar to the proposed Pelican Beach Resort project. The current CCCL does not establish the line of construction. The Pelican Beach Resort project complies with DEP's setback requirements and its line of construction requirements. Clear Justification Considering the potential impact of the Pelican Beach Resort project on the beach/dune system, issuance of a CCCL permit for the project is clearly justified. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code. AGR-OK-003 DEP and Federal Deposit Insurance Company ("FDIC") entered into an agreement regarding the property to be developed by Pelican Resort Developments, Inc., pursuant to permit OK-115. The agreement was entered into under Section 161.053, Florida Statutes. Such agreements are entered into by property owners and DEP when the CCCL is being reestablished to give the property owner reasonable assurance of how it can develop its property after the CCCL is reestablished. The benefit of such agreements to DEP is that they lessen the chance that property owners will begin poorly designed hasty construction which adversely affects the beach/dune system in order to be grandfathered from DEP permit requirements. A property owner who enters into such an agreement must still obtain a CCCL permit from DEP before constructing on the property seaward of the CCCL. Special Permit Condition 2 of permit OK-115 requires that the permittee, Pelican Resort Developments, Inc., terminate the agreement before DEP will allow the permittee to proceed with construction. The permittee, Pelican Resort Developments, Inc., is committed to terminating the agreement pursuant to Special Permit Condition 2. DEP's intent to issue permit OK-115 was issued pursuant to Section 161.053 Florida Statutes, and DEP's rules, not the FDIC/DEP agreement. In order to approve a project where an agreement is involved, DEP looks for consistency with the overall intent of the agreement. However, when the project is finally permitted, it has to comply with DEP's rules. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Permit Number OK-115, subject to the special permit conditions set forth in DEP's September 8, 1994, order. DONE and ENTERED in Tallahassee, Florida, this 22nd day of December, 1994. DON W. DAVIS 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 22nd day of December, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Accepted, not verbatim. Rejected, legal conclusion. 3.-6. Accepted, not verbatim. 7. Rejected, public notice was provided. 8.-12. Rejected, relevance. Rejected, weight of the evidence. Rejected, relevance. Rejected, subordinate to HO findings. 16.-23. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-23. Accepted, not verbatim. 24. Rejected, legal conclusion. 25.-26. Accepted. 27. Rejected, legal conclusion, relevance. 28.-72. Accepted. 73. Rejected, redundant. 74.-76. Accepted. 77.-78. Rejected, relevance. 79.-80. Accepted. 81.-84. Rejected, redundant. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dana M. Wiehle Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 John O. Williams James Alexander Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 James E. Alexander Attorney at Law No. 323, Stanford Pointe 2401 Stanford Road Panama City, Florida 32405 Thomas G. Tomasello Attorney At Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Ste. C Post Office Box 6507 Tallahassee, Florida 32314-6507
The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 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 9th day of January, 2003.
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
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 granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
Findings Of Fact South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows: Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive; 41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida. EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways: LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the North Quarter Corner of said Section 21; run thence along said Quarter Section Line S 1 degree 54' 34" E, 90.02 feet; thence N 89 degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres; LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West 55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres; LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section 28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres; LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres; LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida, con- taining 9.2135 acres. Containing a net acreage of 816.1290 acres. The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section 29, Township 46, South, Range 42 East, (less 30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28. The "Snow" Property is described as follows: The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through 64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida. At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows: Tracts 65 through 70, 91 through 102, and 123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range 42 East, Palm Beach County, Florida. [This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.] The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.] In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.] Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.] While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]
Findings Of Fact The subject property Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes. The first application In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/ On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed: . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore, future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit. The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/ The pending application On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows: The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire. The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . . The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed . . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing." The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows: The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system. * * * 8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff." By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home." Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/ The merits of the pending application As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides: . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (Emphasis supplied) The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/ As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system." Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides: Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required: (a) for the protection of the beach-dune system; * * * (c) for the protection of adjacent properties. And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides: The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion . . . . All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/ As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event." Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides: An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application to construct seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1993.
The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
