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
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact Petitioner, JOHN C. GROSS, a citizen and resident of Edgewater, Florida, owns approximately 114 acres of submerged and semisubmerged land, which at times extends from 3 to 9 feet above the water and which lies in the near vicinity of Ponce de Leon Inlet, New Smyrna Beach. His property is located due southwest of the inlet and west of the Intracoastal Waterway. The Intervenor, FRANCES TURNER PRICE, is the owner of an oceanfront house and lot located at 2113 Ocean Drive, New Smyrna Beach, Florida, which is directly adjacent to and west of a portion of the proposed spoil disposal area referenced herein. The Ponce de Leon Inlet was first dredged by the COE in 1968, pursuant to a 1965 Act of Congress, and has been dredged periodically since that time. No dredging has taken place there since March, 1978. During the past several years, numerous complaints have been received by the COE from users of the waterway concerning the increased clogging of the inlet channel. These users include operators of relatively large boats, such as commercial fishermen and shrimpers, large yacht owners, and the United States Coast Guard, which maintains and operates a station in the area. Based on these complaints, Mr. Aston, COE Navigation Branch, caused an investigation to be made which revealed an extensive and worsening shoaling which, if not corrected, would further reduce the channel opening. This investigation included several hydrographic surveys using Fathometers (accomplished in November, 1952, and subsequently thereto). The channel, which runs basically east and west from the Intracoastal Waterway to the Atlantic Ocean, is currently navigable (but not safely) by larger draft vessels such as are described above. Because of the prevailing winds from the northeast, larger vessels come in from the northeast; have to come around the jetty, which juts into the ocean north of the channel; and then have to stay close to the jetty to avoid the heavy shoaling in the dredged channel originally in the center of the inlet. 1/ This is dangerous because sport fishermen are frequently anchored in the water just south of the jetty, in the way of the boats going in and out. This danger is compounded by the fact that boats going in and out cannot see each other, because of the jetty to the north and the land to the south, until they both are committed to the channel. Therefore, once in and committed, they are in danger of collision because of the narrowness of the passage and the need to avoid the small fishing boats anchored therein. As a result, the original channel, which provides safer passage, needs to be dredged again immediately to prevent more groundings and collisions with resultant loss of life and property damage such as the 50 which have already occurred there within the past 15 months. In the opinion of Mr. Aston, the situation in the Ponce de Leon Inlet, as it pertains to shoaling, is the worst he has seen in any federal channel in 19 years. It is for these reasons that during the 1982-83 time frame, the COE decided to seek permission to proceed with a dredging project. Initially, three different areas were considered for disposal of the 800,000 or so cubic yards of spoil which would result from the dredging. These were: off the beach north of the north jetty; just south of the weir to which the north jetty is attached; and the beach area approximately one mile south of the inlet. For various reasons, Options (a) and (b) were rejected, and Option (c) was the area then intended for the spoil disposal. The initial application, submitted on November 10, 1982, called for the spoil to be transported by pipe over easements down the beach to the disposal area, where it would then be dumped on the beach to fill in the area of beach eroded and eroding. However, because of public objection to that plan, the COE agreed with the local beach advisory board to move the spoil 1,000 feet offshore to an area approximately 800 feet by one mile long, adjacent to the beach approximately one mile south of the inlet. In any event, both the original application and the amendment thereto (to change the location of the spoil disposal area) called for only one procedure--not multiple dredgings and disposals. This proposed permit, which is objected to by Petitioner and Intervenor, indicated permission for more than one procedure. Intervenor protests this even if permission is to be given for the initial dredging. However, Dr. Collins, from DER, indicated that since a determination was made that the action would have no adverse impact on the environment, there was nothing wrong with giving permission for multiple dumpings. In fact, the Notice of Intent to Issue contains Provisions for monitoring the turbidity caused by the operation and also provides for DER modifications to the conditions or other provisions of the permit as necessary, and recognizes COE's assurances that the immediate and long-term effects of the project will not violate state water quality standards. The spoil, which consists almost exclusively of beach quality sand and which is highly valuable, will be laid down in a berm-shaped deposit the top of which will, at low tide, be no less than 6 feet below the surface of the water. In that configuration, it could not be seen from shore and would in no way impede navigation. The decision to dispose of the spoil in this fashion was made partially on the basis that it would tend to put sand back on the eroded beach in the area. Intervenor theorizes that the spoil (sand and water) will not form this neat berm, but will spread out when it comes out of the dredge pipe below the surface of the water. COE indicates that the contractor on this project will use some sort of a buffer to contain the spread upon discharge. It is anticipated that this project will have to be repeated again and again to keen the channel clear. Though the 800,000 cubic yards anticipated for removal on this occasion is great, so much has never been taken out here at one time before. This is because, as was stated previously, the last dredging was in March 1978, and COE estimated that dredging should take place every 16 months or so. If done on that schedule, succeeding dredgings will be of a far less significant amount. Petitioner, whose profession is as a real estate developer, but whose avocation is as a conservationist of marine life, contends he has been involved in environmental research and protection all his life (he is at least 70). He has, he states, developed several environmental concepts which have, he contends, never been disproved. They are not, however, enjoying widespread acceptance, either, though he contends the Rosenstiel School at the University of Miami has said his environmental concepts are sound. This well may be so; however, Mr. Gross neglected to produce any evidence as to what these concepts are or indications of their soundness. Though he admits to having no formal training in any of the sciences or in engineering, and his research consists of bathing and fishing in the area (he uses a device to gather bait which results in his picking up a part of the sea bottom) he has published. The Petitioner's publication introduced into evidence consists of the reward notice reproduced herein. $2,000 REWARD To make the public aware of hypocritical groups who mislead and misinform the public about environmental protection, I will donate $1,000 to the first organization, agency, student or individual who produces evidence to prove beyond reasonable doubt that excessive nutrients consisting of mangrove leaves and pods, algae, slime, scum, silt and bacteria, and decaying bodies of all types of insects and creatures emanating from mangrove swamp area DOES NOT cause destruction of shellfish and all forms of marine plant life when infused in excessive amounts into rivers and estuaries by extremely high tides and heavy rainstorms. $1,000 to the first organization, individual, or student who provides evidence to prove beyond reasonable doubt that recent high tides caused by full moon and heavy rains washing through mangrove swamps DID NOT cause most of the crabs, shrimp, and fish to be destroyed or leave this area when the river became polluted with all types of slime, scum, silt, sludge, and mangreve debris, and droppings of birds and animals and all types of decaying material from the mangrove swamps carried into the river by the tide. John C. Gross PO Box 596 New Smyrna Beach, Fl 32069 Though Petitioner was offered the opportunity by the Hearing Officer to submit additional publications when he indicated he had many and was reminded of this later in the hearing by the Hearing Officer, none were forthcoming. Petitioner professes to be very familiar with the area where the dredging and disposal are to take place, and no doubt he is. He contends the area is in a constant state of change, differing from month to month, and populated by a sea life consisting primarily of shellfish, shrimp, and fish. The beach in the area proposed for disposal, he contends, has already built out some 400 to 500 feet since the jetty was built and has naturally built up dunes which, in his opinion, are due to the COE dredging in the past. This beach buildup is a concern of the Intervenor, as well, who indicated that she can no longer see the ocean from her "oceanfront" house due to the large dunes that have built up between her house and the ocean during the years since the construction of the jetty. She is also fearful that the spoil dumped offshore of her property will come ashore there and add to the already expanded beach. Her concerns and those of her neighbors, including Mrs. Speer, who testified in support of Intervenor's position, include the blocked view already mentioned, the fact that the higher dunes are difficult for older people to climb, the fact that it is further to the water with the new sand, and the concern over who will own the new land built up seaward of the vegetation line. 2/ People are already building closer to the water than she did, blocking her lateral view; and all of this will have, she fears, a negative impact on the value of her property. It is without question that dunes have built up and beach area has accreted since the jetties were put in. This is explained by Dr. Dean as a relatively temporary situation resulting from the movement ashore of a preexisting tidal shoal, formerly located outside the entrance to the Ponce de Leon Inlet, which was destroyed by the interruption of the wave action when the jetty was built. The sand from this shoal came ashore at and around the Intervenor's property, as well as north and south of it, adding to the beach and building the dunes. This accretion has stopped, however, and even reversed, and a beach erosion has begun. In any case, according to Dr. Collins of DER, accretion is not usually a consideration in the decision-making process regarding a permit of this nature. Petitioner indicated his understanding that the spoil was to be deposited 3 feet deep over the bottom in the disposal area and believes this will destroy marine life. As will be seen later, competent expert testimony clearly disproves this one theory. He also does not believe anyone can predict where the spoil will settle, but wherever that is, in his opinion, it will have a devastating effect both on the marine life in the area and on the adjacent beaches. He questions the COE's representation that because of the literal drift's prevailing direction from north to south, the spoil will ultimately settle south of the spoil dumping area. Expert testimony, discussed in detail below, will indicate the correctness of the COE's representations. Petitioner further contends that insufficient surveys have been made of the area. In his opinion, the two or three borings that have been done (in actuality, there were more) are not sufficiently extensive since the area in question is too broad and the bottom is not uniform. Therefore, many more borings are needed, he urges, to accurately determine the makeup of the sea bottom. This bottom makeup has an effect on water quality. Sludge, slime, and silt adversely affect water quality. Clean sand is acceptable. However, Petitioner feels that the dredging proposed may, if the bottom where they dredge is of peer quality, be very bad for the bottom in the deposit area. In that regard, it has been shown that the tests done already indicate that the material to be dredged out of the channel is beach quality sand. Other evidence, in the form of samples of the bottom taken in the disposal area, show it is made up of sand with small shells. In neither location is there any evidence of silt, sludge, or slime. In fact, the expert testimony indicates clearly there would be no damage to water quality in either area. A more comprehensive discussion of this subject will be presented below. Petitioner also fears for the manatees and the sea turtles which sometimes come into the area. The expert testimony to be discussed further below readily shows these fears are groundless. It would appear that there may be some reason for Petitioner's interest in this project other than the stated environmental and ecological concerns stated above. By his own testimony, he revealed he had offered to buy this highly valuable 3/ spoil for $400,000. Mr. Aston, of COE, further testified that as late as one week prior to this hearing, Petitioner called him and indicated the matter could be disposed of quite easily if the COE would put the spoil on his property. The Notice of Intent to Issue and the permit to which it relates are not for a one-time dredge. The permit will be for 5 years, but it 15 subject to extension by letter for an additional 5 years. In the analysis of the application, the environmental concerns and the concerns of the public were not taken lightly. The DNR, by letters dated March 9 and June 28, 1983, expressed its lack of objection to the proposal and granted the authority required under Section 253.77, Florida Statutes. The contract is to begin in September, 1984, and be completed by April, 1985. These months were chosen because (a) they take advantage of the northeast winds prevailing then; and (b) there is no sea turtle nesting during this period. Consequently, there would be no risk of harm to the sea turtles. In addition, the risk of harm to the manatees is minimal. They, as a rule, do not frequent these waters, preferring the quiet backwaters of the rivers and bays to the fast moving waters of the channel or the ocean, and they are generally fast enough to avoid both the dredge and the dump. To be doubly safe, however, the contract calls for a "manatee watch" to be conducted and a log kept of all manatees sighted. Another area covered in the contract is water turbidity. Turbidity will be monitored and actions taken to maintain state water quality standards outside the mixing zone--that area inside of which the water temporarily does not meet state standards and outside of which it must. In this case, this zone would extend not more than 150 meters from each point of interest. COE's application contained reasonable assurances that the state's turbidity standards would not be exceeded more than 150 meters from both the dredge and spoil areas. Tests already run on anticipated turbidity show a rapid (4-minute) settlement out due to the fact that the substance being dredged is heavy sand, not light silt. Continuing with an analysis of the impacts of the project which cannot be avoided, on life in both the dredge and the fill areas, it is seen that: Some nonmobile animal life attached to the sea bottom (worms, etc.) in the spoil area which cannot escape being covered by the spoil will be killed. Some sea life sucked up by the dredge and moved will be killed even though they are dumped back into the water in the spill area. However, wherever some death occurs, it will be individuals, not entire populations, and the dump area will be quickly repopulated by sea life from the surrounding area in addition to the live population brought through the pipeline. Full repopulation can be expected within six months. In a more detailed discussion of the disposal site, it is clear that because of the wave action and the hard bottom, one would expect no grass beds, and there are none, nor are there any natural reefs. A survey of the bottom in the disposal area was done by utilizing loran to accurately locate 12 stations throughout the spoil disposal area with three samples to be taken at each site. At seven of the twelve stations, the scientists found the bottom hard and no sample was produced. At only one of the stations, Station 6, some samples were gathered, and what was acquired was very similar to the surf area near the shore. Dr. Atmar admits that the dumping will create some damage to the bottom life and repeated dumping may have a cumulative effect. However, since, as was stated above, complete repopulation can be expected within six months, the damage caused by dredging and dumping every 16 months, even of large amounts of spoil, will be, in his words, "inconceivably insignificant," and that which does occur will be short-lived. Turning then to the question of the impact of the spoil disposal on the beach property adjacent to the disposal area, Dr. Dean explained the prospective results, as well. In conjunction with other experts in sediment transport and based on at least 20 years of accumulated documentation, he developed a model which, when applied to a given situation with variables, can generally permit accurate predictions of what will happen. Applying this model to the dredging area, it is seen that the primary factor which leads to sediment transport here is the wave action which primarily comes from the northeast. This will transport sediment from the north to the south. When the present channel was dug, it interrupted the normal cycle, which, in an attempt to return to the natural flow, fills up the channel. This necessitates new dredging. Applying the model to the disposal area, again the waves play an important part. Based on all available pertinent information, the spoil deposited would generally transport to the south with a very minor amount, + 5 percent going west and another + 5 percent going north. Both the westward and the northward movement would be very slow. The remaining 90 percent of the spoil would move to the south and would reach the shore a mile or two south of the southern boundary of the proposed disposal area. Of this 90 percent, 50 percent would reach the beach within three to four years--the remainder would take longer. The amount of deposited spoil that would go due west to the adjacent beach would be less than would accrete during the normal seasonal accretien. What is more, the proposed disposal activity would have an imperceptible effect on the elevation of the dunes which already exist. The difference between Dr. Dean's estimate of 10 Percent drift to the north and west and COE's estimate of 20 percent sand drift in those two directions is not significant. Both are estimates, and not specifics. As was stated previously, the spoil in question here is a highly valuable beach quality sand with no evidence of muck, slime or silt. If it were to be deposited further out to sea than is proposed here, where the wave action could not get to it, it would be lost to the littoral transport action and would never come to the beach. This would result in the loss of a high quality resource to the beach in an area to the south where the beach is in need of replenishment, and further beach erosion to the south where the existing dunes are eroding due to the effect of the building of the previously mentioned jetty and because of the worldwide rise in the sea level. Admitting he was hired to testify by the COE after the decision was made as to where to deposit the spoil, Dr. Dean contends that had he been asked where to put it before the decision was made, he would have recommended a site closer to shore, but at the same latitude.
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 issues to be determined are whether the U.S. Army Corps of Engineers (“Corps”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to Department of Environmental Protection (“DEP”) Permit Modification No. 0288799-006-JN (“Permit Modification”), as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action (“Proposed Change”) in the nearshore zone east of East Pass; and whether the East Pass Inlet Management Plan (“East Pass IMP”) is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioner, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island1, and fronts the Gulf of Mexico. Petitioner’s property is in the vicinity of Monument R-14, which is roughly 2.3 miles west of DEP Virtual Monument V-611, and 4.3 miles west of the west side of East Pass. Mr. Wilson uses and enjoys the gulf-front beaches between his property in Okaloosa Island and East Pass. Intervenors, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. 1 Okaloosa Island is the name of an unincorporated community that stretches about 2.8 miles along Santa Rosa Island from DEP reference monument R-1 through R-16, and is across Santa Rosa Sound from the mainland community of Ft. Walton Beach. Okaloosa Island is the name of the unincorporated community, while Santa Rosa Island is the name of the much longer island of roughly 40 miles in length, which includes U.S. Air Force/Eglin AFB property that extends from the Okaloosa Island community to East Pass. The Surf Dweller Condominium straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Intervenor, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida, fronting the Gulf of Mexico and in the Okaloosa Island community. The El Matador Condominium is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Petitioners’ residential properties do not abut either the area established as the zone of influence of East Pass or the stretch of beach that is adjacent to the west fill placement site. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass area of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the Permit Modification. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. Respondent, DEP, is an agency of the State of Florida pursuant to section 20.255, Florida Statutes, having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Chapters 62 and 62B, regarding activities in surface waters of the state. DEP has been designated by the legislature as the beach and shore preservation authority for the State of Florida and is authorized to take all necessary initiatives to implement the provisions of chapter 161. See § 161.101, Fla. Stat. DEP is the permitting authority in this proceeding and issued the Permit Modification at issue in this proceeding to the Corps. Respondent, the Corps, is a federal agency responsible for maintenance dredging of East Pass, and is the applicant for the Permit Modification. The Corps and DEP are parties to an Interagency Agreement pursuant to which the Corps has agreed that for joint coastal permits, beach compatible dredged material shall be disposed on Florida’s beaches consistent with chapter 161 and other beneficial use criteria specified by the Department and federal standards. Pursuant to the Interagency Agreement, if DEP determines that a permit modification is required to meet state standards, as was the case here, the Corps agrees to apply for and obtain the modification. Intervenor, Destin, is a municipality in Okaloosa County, Florida, and abuts the east side of East Pass. Intervenor, Okaloosa County, is the local sponsor of the federally authorized East Pass Navigation Project. It has a substantial interest in the safety and navigability of the East Pass Navigation Channel and its protection from effects of tropical storm systems. Okaloosa County also has a substantial interest in preserving its recreational and environmental resources. The Permit Modification was issued on November 14, 2016, without publication, or a notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioner, Mr. Wilson, alleged that he received a copy of the Permit Modification on or after May 22, 2019. There was no evidence to the contrary. He, thereafter, filed a challenge with DEP on June 5, 2019, no more than 14 days from the date on which he received notice. East Pass The issue in dispute in this case, as it was in 19-1844, is the determination of whether beaches adjacent to the East Pass inlet are eroding, stable, or accreting, for purposes of meeting the statutory objective of section 161.142. Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of Destin to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot-long jetty on the west side of the inlet, and a 1,210 foot-long jetty on the east side of the inlet. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand. Although there was a suggestion that recent storms may have opened the channel to some extent, the evidence was not sufficient to alter the findings based on the 19-1844 record that the channel remains hazardous for marine traffic. East Pass Inlet Management Implementation Plan The East Pass IMP was adopted by Final Order of DEP on July 30, 2013. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in permits issued by DEP. Rather, disposal sites are to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. Areas of influence are the beach areas east and west of East Pass affected by tidal forces generated by the inlet. The critical element of the East Pass IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The Permit Modification On October 28, 2009, DEP issued Permit No. 0288799-001-JC to the Corps to perform maintenance dredging of the East Pass Navigation Channel and the Old Pass Lagoon Channel, and to rehabilitate the eastern and western jetties. Materials dredged from the Main Channel south of the U.S. Highway 98 bridge would be primarily bypassed to a portion of the beach on Eglin Air Force Base west of East Pass. As originally issued, the 2009 Permit limited placement of dredged sand to sites west of the inlet, and prohibited placement to the east of the inlet. Contrary to the 2008 amendment to section 161.142 and the 2013 East Pass IMP, the 2009 Permit did not require that sand dredged from the federal navigation channel be placed on the adjacent eroding beach, nor did it extend the life of the proximate West Destin Beach Restoration Project. The Corps requested the Permit Modification in furtherance of an inter-agency agreement between DEP and the Corps, by which the Corps agreed, to the best of its abilities, to act in a manner consistent with state requirements. Pursuant to section 161.142(5), beach compatible sand dredged from federal navigation channels is to be placed on the adjacent eroding beach. On November 14, 2016, DEP issued the Permit Modification to the Corps. The Permit Modification did not change the authorization or requirements for the dredging, but allowed dredged material to be placed on “the Gulf-front beaches on the eastern and western sides of East Pass.” On August 21, 2019, DEP filed the Proposed Change, which amended the Permit Modification to require that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass.” The Permit Modification provides that, for the first maintenance dredging event following issuance of the Permit Modification, dredged material is to be placed at fill sites east of East Pass, the condition that Petitioners’ find objectionable. The Permit Modification then provides that “[f]or all subsequent maintenance dredging events conducted under this permit, disposal locations shall be supported by physical monitoring data of the beaches east and west of East Pass in order to identify the adjacent eroding beaches that will receive the maintenance dredged material, providing consistency with section 161.142, Florida Statutes.” Thus, the placement of dredged material to the east of East Pass authorized by the Permit Modification applies to the next dredging event, and not necessarily to subsequent periodic dredging events authorized by the Permit Modification. Fill Placement Site The eastern fill placement site authorized by the Permit Modification extends from R-17 to R-20.5. The shoreline adjacent to the eastern fill placement site has been designated as critically eroded for more than ten years. The eastern fill placement site is within the Western Destin Beach Restoration Project and designated as “Reach 1.” The fill placement site west of East Pass is located between V-611 and V-622. The shoreline landward of the western fill site has not been designated as critically eroded by the Department. There are no current beach restoration projects in or adjacent to the western fill site. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The evidence in this proceeding, which includes the evidence adduced in 19-1844, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The evidence further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its effect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Competent substantial evidence in the record of this proceeding includes monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017; data from the Holiday Isle Emergency Beach Fill Two-Year Post- construction Report; historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017; the Potential Borrow Area Impact Report, which included data from 1996 through 2012; and recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of data, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate2 bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline, indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the persuasive testimony offered by Mr. Clark, Mr. Trammell, Mr. Garis, and Mr. Trudnak (who testified in 19-1844), collectively establishes, by a preponderance of the evidence, that the beaches east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5, except for the area immediately abutting the eastern jetty, are critically eroded, a condition that is influenced by East Pass and its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. The evidence demonstrates that the shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate 2 “Having an irregularly wavy or serrate outline.” See “crenulate,” Merriam-Webster Dictionary, https://www.merriam-webster.com/ dictionary/crenulate (last visited February 2, 2020). shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall and thickly vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” Mr. Trammel’s photographs offered in 19-1844 were supplemented by a series of photographs taken from several of the same locations after the passage of Tropical Storm Nestor in October 2019. Those photographs are consistent with a finding that the beaches to the east of East Pass are highly eroded and erosional, and that the beaches to the west of East Pass are not. The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establish, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. Petitioners offered testimony of Dr. Douglas and Dr. Young in an effort to shore up weaknesses in the evidence offered in 19-1844. Their testimony and the evidence discussed therein was largely, if not exclusively designed to demonstrate that the direction of lateral sand transport in the vicinity of East Pass was predominantly east to west, which was the prevailing theme of Petitioners’ argument in 19-1844. The evidence adduced from Dr. Douglas was, in many respects, cumulative of that previously offered by Dr. Walton in 19-1844, and considered in the development of the Recommended Order in that case. For example, both Dr. Walton and Dr. Douglas reviewed and assessed information from the Taylor study, the Morang study, and the CP&E report in developing their opinions. Both agreed that sand placed in proximity to the jetties would tend to stay in place. Both ultimately concluded that sand placed to the west of the East Past west jetty would migrate to the west. Dr. Douglas offered new opinion testimony largely based on the Wave Information Study (“WIS”), which is an estimate of wave height and direction from a location two miles off-shore of East Pass. The data is a mathematical estimate, and does not rely on physical measurements from buoys or wave gauges. The wave estimates were then used as inputs in a model developed by the Coastal Engineering Research Center (“CERC”). Dr. Douglas candidly testified that the CERC model, even with normal input data, involves a substantial degree of uncertainty -- up to an order of magnitude. Adding to that uncertainty is that the CERC model assumes bottom contours and offshore volume calculations that were either inapplicable to the area around East Pass, or unavailable. Dr. Douglas was convincing that the CERC model is a tool commonly used by coastal engineers. His testimony, and the evidence on which it was based, was not unreasonable. However, it was not sufficient to outweigh the evidence introduced in support of the Permit Modification. In particular, and in addition to the evidence and testimony introduced in 19-1844, the testimony of Mr. Clark, whose extensive and direct knowledge, observations, and familiarity with the area, and of the data and information collected over periods of years, is found to be more persuasive regarding the processes and conditions in and around East Pass, and supports a finding, by a preponderance of the evidence, that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. Similarly, the evidence adduced from Dr. Young was largely cumulative, a fact that resulted in sustained objections to questions eliciting such information. He did provide testimony regarding time-lapse images from Google Earth Engine, and a critique on how to balance a sediment budget, though without providing a budget. As was the case with Dr. Douglas, Dr. Young’s testimony and the evidence discussed therein, was not sufficient to outweigh the more persuasive evidence introduced in support of the Permit Modification that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not. The evidence is persuasive that placing dredged material at R-17 to R-20.5 in Holiday Isle on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, some -- but certainly not all -- of the dredged material placed on the eroding beaches to the east of East Pass can be introduced into the ebb shoal and move to the west. In that regard, the Google Earth Engine images depict sand moving across the ebb shoal to the western side of the inlet and attaching at various distances from the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, to some degree, accomplish the goals of allowing sand transport to the western beaches, as was the relief sought in the Petition. The evidence was convincing that depositing dredged material onto the eroding beaches east of East Pass, as authorized by the Permit Modification, will not result in significant adverse impacts to areas either east or west of East Pass, nor will it interfere with the use by the public of any area of a beach seaward of the mean high-water line. Furthermore, the evidence introduced in this case and 19-1844 provide reasonable assurance that the Permit Modification is consistent with section 161.142 and will ensure that net long-term erosion or accretion rates on both sides of East Pass remain equal. Ultimate Findings of Fact The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5, are critically eroded, a condition influenced, if not caused, by East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the placement of dredged material on the eastern side of East Pass will extend the life of the proximate West Destin Beach Restoration Project. The greater weight of the competent substantial evidence establishes that the Corps met the standards for the Permit Modification as proposed for issuance by DEP on November 14, 2016, and August 21, 2019, including section 161.142 and rules 62B-41.003 and 62B-41.005. Evidence to the contrary was not persuasive. Thus, the Permit Modification should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the November 14, 2018, Permit Modification No. 0288799-006-JN, as amended by the DEP’s August 21, 2019, Notice of Proposed Changes to Proposed Agency Action, for the maintenance dredging of East Pass, subject to the general and specific conditions set forth therein. DONE AND ENTERED this 20th day of February, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2020. COPIES FURNISHED: Joseph Alexander Brown, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) D. Kent Safriet, Esquire Hopping Green & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 (eServed) Marianna Sarkisyan, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3900 (eServed) Winifred L. Acosta, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 (eServed) Kathryn Drey, Esquire United States Attorney's Office Northern District Florida 21 East Garden Street Pensacola, Florida 32502-5676 Kenneth G. Oertel, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Timothy Joseph Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302 (eServed) Carley J. Schrader, Esquire Nabors Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Elizabeth Desloge Ellis, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue Whether the Notice to Proceed with the work and activities authorized by Amended Permit IR-507 should be issued.
Findings Of Fact On July 24, 1996, Respondent, Town of Indian River Shores (Town), filed an application with Respondent, Department of Environmental Protection (Department), for a permit to construct a beach access ramp seaward of the coastal construction control line. By Final Order dated November 27, 1996, the Department granted Permit Number IR-507. Petitioners, Peter Broom and Jeremy R. Geffen, and Duane Jackson, who is not a party to this proceeding, protested the granting of the permit and requested a formal hearing. A formal administrative hearing was held on November 13- 14, 1997, before Administrative Law Judge Errol H. Powell, who issued a Recommended Order on December 8, 1997, recommending that the Department enter a final order granting Permit Number IR-507 with special conditions as may be required by the Department for the protection of marine turtles. Administrative Law Judge Powell concluded the following in Paragraph 49 of the Recommended Order: 49. The evidence demonstrates that the impact of the proposed beach access ramp is minimal; that the construction or use of the beach access ramp will have no adverse effect on the marine turtle or the turtle nesting; and the beach access ramp will not cause significant adverse impacts or cumulative impacts. On January 13, 1998, the Department entered a Final Order, adopting the Recommended Order of Administrative Law Judge Powell and granting Permit Number IR-507 subject to two additional special conditions recommended by the Department staff during the final hearing pertaining to a survey of turtle nesting areas and restrictions on the use of the Town's ATV vehicle as discussed in Findings of Fact 34 and Conclusion of Law 52 of the Recommended Order, which provided: 34. 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. * * * 52. Additionally, the DEP having considered both emergency and routine patrol access, did not deny the CCCL permit. Only another recommendation to protect marine turtles was made by the DEP, regarding the routine patrol. On June 16, 1998, a Final Order was issued by the Department, issuing Amended Permit Number IR-507. Among the special conditions of the amended permit was that the Town would conduct a marine turtle nesting survey prior to the utilization of the access ramp. A notice to proceed with the activities authorized by Amended Permit Number IR-507 was issued on September 17, 1999. Petitioners requested an administrative hearing, challenging the notice to proceed. Petitioners allege that the notice to proceed had been issued without adequate demonstration of marine life/turtle nursery protection and that the proposed construction would adversely affect marine and turtle life on the beach. At the hearing on the motion to dismiss, Petitioners conceded that Town had fulfilled all special conditions prerequisite to the issuance of the notice to proceed and that the permit did not require that a survey of turtle nesting be done prior to the issuance of the notice to proceed or to the commencement of construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing the Request/Petition for Administrative Hearing. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of January, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Michael R. Dombroski Coastal Technology Corporation 3625 20th Street Vero Beach, Florida 32960 Chester Clem, Esquire Clem, Polackwich & Vocelle 3333 20th Street Vero Beach, Florida 32960-2469
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
Findings Of Fact The project at issue. Respondent, Department of Transportation (Department), proposes to construct a new four-lane bascule (movable span) bridge, with a vertical clearance in the closed position of 25 feet, to span the Intracoastal Waterway (ICW) between the City of Boynton Beach (Boynton Beach), situated on the mainland, and the Town of Ocean Ridge (Ocean Ridge), situated on the adjacent barrier island. The purpose of the project is to replace the existing two-lane 50 year-old bascule bridge, with a vertical clearance in the closed position of 10 feet, that currently connects Boynton Beach and Ocean Ridge. The existing bridge, which is located approximately 700 feet south of the proposed project, is slated for removal as soon as the new bridge is built. As proposed, the approach structure and bridge spanning the ICW will be approximately 1350 feet long and 87 feet in width, and will intersect a mangrove forest on both sides of the ICW. These forests are among the few remaining mangrove forests of significance in Palm Beach County, are healthy and well flushed, and provide the benefits to the community normally associated with their presence: a source of food and shelter for fish, birds and other wildlife; a buffer from wind and water in time of hurricane and other storm events; a natural filter that maintains or improves water quality; and an ideal area to observe and study the native biota. Construction of the proposed bridge will result in the direct elimination of one acre of the 40-acre mangrove forest on the east side of the ICW, and will further adversely impact that ecosystem by bisecting that forest and thereby preventing the free exchange of waters and wildlife. Further adverse impacts to the forests on both sides of the ICW may be expected from the "shadowing" caused by the bridge structure, and by run-off if not properly contained and treated. Overall, the impacts to the forests by construction of the proposed bridge may be termed significant and adverse. In addition to the bridge, the project will require the construction of an approach road consisting of a continuation of Boynton Beach Boulevard (State Road 804) from its intersection with US1 to the proposed bridge and from the eastern terminus of the bridge to State Road A1A in Ocean Ridge. Overall, the bridge and approach road will require the acquisition of a 110-foot right-of-way for the length of the project, approximately 3200 feet. In Boynton Beach, lying on the west bank of the ICW, the impact suffered by those in the immediate area of construction will be minimal. Currently, the area surrounding the intersection of Boynton Beach Boulevard and US1 is commercially developed, and the only displacement that would occur would be a partial taking of the Boynton Lodge Motel, located at the southeast corner of Second Avenue (the continuation of Boynton Beach Boulevard) and US1. While of minimal impact to Boynton Beach, the proposed project will have substantial impacts to Ocean Ridge and its residents. Ocean Ridge, with a population of approximately 1400 people, is a "bedroom community" composed almost exclusively of single family residences and a few condominiums. Currently, some commercial development does exist in the town (a few motels and one restaurant) but those properties were rezoned some years ago to eliminate such use and within a few years the town will be exclusively residential in character. As proposed, the new bridge and approach road would traverse the mangrove forest on the east side of the ICW, which is within the territorial limits of Ocean Ridge, and continue east, parallel to and north of Coconut Lane, a residential street, until it connected with State Road A1A at the south side of the Ocean Ridge Town Hall. State Road A1A, which runs north and south, is a two-lane "scenic highway," and all relevant land-use plans call for it to remain a two-lane road. Built as proposed, the new four-lane road would end at a "T"- intersection with State Road A1A at the south side of the Ocean Ridge Town Hall, and require signalization. There, new approaches for the proposed road from State Road A1A traveling south would require the taking of property from the front of the town hall. If taken, the sidewalk, lawn and shrubbery that separate the town hall from State Road A1A would be removed and the new roadway would be within 10 feet of the town hall. Further, if queued because of the signalized intersection, traffic traveling south on State Road A1A could block ingress and egress to the town hall from State Road A1A. The Department has, however, proposed an alternate access to the town hall from the new road which would ameliorate the access problems. 1/ In addition to impacting the mangrove forest and town hall, the new road will also impact the residents of Coconut Lane. Coconut Lane is a residential street comprised of single family homes, including that of petitioners, Dr. and Mrs. Augusto Lopez-Torres. Dr. Lopez-Torres is a practicing physician and his wife a sculptress. The Lopez-Torres' home, purchased in approximately 1979, is located on the north side of Coconut Lane and is surrounded on the west and north by mangrove forest. The house, which faces Coconut Lane, is a two-story spanish style home built in 1922. From the back sun room, which is used as a studio by Ms. Lopez-Torres, the home overlooks a swimming pool and the surrounding mangrove forest. 2/ Built as proposed, the right-of-way for the approach structure and road would require the taking of a substantial portion of the Lopez-Torres' property at the rear of their home, including their garage apartment and up to one-half of their swimming pool and would encroach to within 20 feet of the back of their house. Under such circumstances, their interests, as well as the interests of the other residents on the north side of Coconut Lane, would be substantially and adversely affected by the proposed project. 3/ The existing alignment Currently, Boynton Beach and Ocean Ridge are connected by a two-lane bridge at Ocean Avenue, approximately 700 feet south of the proposed project. That bridge, built in 1936, is in poor condition and in need of replacement. 4/ In 1961, anticipating that a four-lane bridge would be built on Ocean Avenue, the Department four-laned Ocean Avenue from State Road A1A to US1, and provided an additional lane on each side for parking. Currently, such road provides a 90-foot right-of-way that does not impact any environmentally sensitive areas. East of the ICW, Ocean Avenue connects with State Road A1A in Ocean Ridge. Along this stretch, Ocean Avenue is currently fronted by single family residences, which are built on deep lots and set well back from the street. West of the ICW, after about 2 blocks, Ocean Avenue connects with US1, a four-lane north-south artery. Development within this area is predominately commercial, as the intersection of Ocean Avenue and US1 was the historic center of the Boynton Beach business district. Located at the north side of the bridge is a restaurant and marina and at its south side is a five-story condominium complex. The remainder of the two-block stretch of Ocean Avenue is occupied by a small regional shopping center and smaller commercial buildings. From Ocean Avenue, access to State Road 804 (Boynton Beach Boulevard), the main east-west artery in the area, can be had by traveling north on US1 to its intersection with State Road 804, a distance of approximately 700 feet. Development through this area is likewise commercial. The Department's initial evaluation. In 1975, the Department commenced its project development/environmental study to evaluate alternatives available upon replacement of the Ocean Avenue bridge. 5/ At that time, a study team, consisting of an environmentalist, noise and air quality expert, land planner and engineer was assembled to prepare preliminary plans and a Draft Negative Declaration. 6/ Pertinent to this case, the Department considered two alternatives for a replacement bridge: a four-lane 25-foot clearance bascule bridge at Ocean Avenue or one at Second Avenue (the continuation of Boynton Beach Boulevard). 7/ Both bridges would have four 12-foot wide traffic lanes and substantially the same "footprint," but the Second Avenue bridge would be somewhat longer with a slower rise; 5 percent as opposed to 6 percent at Ocean Avenue. The bridges would be symmetrical in design, with the Second Avenue bridge having the design characteristics heretofore noted. The Ocean Avenue bridge would be an 80-foot wide structure built within the existing 90-foot right-of-way. On the east side of the waterway, an embankment approach was to be constructed. This would have required the acquisition of additional right-of-way, but at the time these proposals were considered (1977) the impacted lands were vacant. On the west side of the waterway, the structure would continue to grade at a point short of 6th Street. Direct access to Ocean Avenue for the businesses and condominiums lying east of 6th Street would be eliminated, but each would, under the Department's proposal, be accorded assess to Ocean Avenue via 6th Street. Total construction and right-of-way costs for the Ocean Avenue alignment were estimated in 1977 to be $5.5 million, and for the Second Avenue alignment to be $6.8 million. Following the study team's review, the Department submitted a Draft Negative Declaration to the Federal Highway Administration (FHWA) recommending that the bridge be built at the Second Avenue alignment. FHWA approved the Draft Negative Declaration in September 1976. Consistent with existent law, the Department held a public hearing in Boynton Beach on February 9, 1977, to accord the public an opportunity to express its views regarding the proposed project. By far, the majority of public input favored retention of a bridge at its current location. Favoring such retention were Ocean Ridge, residents of Ocean Ridge, and the businesses along Ocean Avenue. Opposing such retention, and favoring the Second Avenue alignment, were Boynton Beach and residents of Ocean Avenue on the Ocean Ridge side of the ICW. In August 1977, the Department issued its Final Negative Declaration, and concluded that a new 25-foot bascule bridge should be built at the Second Avenue alignment and that no significant adverse environmental impact would result from such alignment. The Final Negative Declaration concluded: Alternative Location B, the 25 foot clearance bascule bridge on new location along the line of NE Second Avenue was selected for the following reasons: The old Ocean Avenue bridge could remain in use during the construction period. This was important both for emergency access, especially during a hurricane, and in terms of inconvenience and user cost. Location B avoids the potential damages to the condominium apartments and the restaurant and three other businesses on Ocean Avenue east of 6th Street. Noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the businesses. Conditions would have been even more difficult during the construction period. The following considerations also favored Alternate B, although they were secondary to and b). The Alternate B Location results in the improvement in the traffic flow patterns on the Boynton Beach side of the waterway. This is not of great importance because the traffic projections show that only 25% of the vehicles crossing the bridge intend to proceed across U.S. 1, the others turn onto U.S. 1. The businesses in the general area of downtown Boynton Beach would not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street. It was recognized that Alternate Location B had certain disadvantages (listed below), but these were overridden by the above noted considerations. Alternate B has some environmental impacts on a natural area on the east side of the waterway which contains some wetlands and mangroves. Impacts here may be mitigated by extending the bridge structure to eliminate some approach fill, and by replanting of mangroves. This will be investigated in the design and permitting stage. It was claimed that Alternate B would be the cause of additional traffic into the Town of Ocean Ridge because it would make travel from I-95 via NE Second Avenue more convenient. The Department of Transportation does not feel that an improvement of this type will materially influence a driver in his choice of destination. It was claimed that Alternate B would cause additional pressures for development in Ocean Ridge. The Department of Transportation will consider the use of a limited access right-of-way in Ocean Ridge to avoid this possibility. It was claimed that the relocation of the bridge from Ocean Avenue would damage the businesses on Ocean Avenue by removing the traffic from their street. The construction and right-of-way acquisition costs of Alternate Location B are greater. The Department's avowed rationale for selecting the Second Avenue alignment over the Ocean Avenue alignment, as set forth in its Final Negative Declaration, lacks substance. The fact that the Ocean Avenue bridge could remain in use during construction of the new bridge is of little import since there are numerous bridges that connect the barrier island with the mainland, the closest of which is at 15th Avenue in Boynton Beach, one mile south of Ocean Avenue. Considering the available access and the limited population of the barrier island, the need for continued maintenance of the bridge during the replacement period for emergency access, as well as inconvenience and user cost, is de minimis. The Department's conclusion that noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the restaurant and three other businesses on Ocean Avenue east of 6th Street does not bear scrutiny. First, while the Final Negative Declaration does conclude that if the new bridge is built with a steel grid floor having noise characteristics similar to the existing bridge, which was built in 1936, that adverse noise impacts will occur, it also concludes: During the detailed design phase, an investigation could have been made to determine if steel gird flooring with lower noise characteristics is available, or if it is feasible to substitute a smooth steel plate deck with an asphaltic overlay... Why the Department would defer until the design phase this consideration is not explained of record. It is, however, apparent that the Department made no investigation during the site selection process to ascertain whether or at what cost alternative materials or designs were available that would have obviated any noise impact to the condominium. Loss of view to the condominium is, at best, minimal since its view is predominately east, across the ICW, to the Atlantic Ocean. While loss of access to Ocean Avenue may have impacted the subject businesses, the Department's plan for the Ocean Avenue alignment included the acquisition of an alternate accessway that would have provided them access to Ocean Avenue at 6th Street. More importantly, the removal of the Ocean Avenue bridge would have had a lasting adverse impact to those same businesses, as well as all others fronting Ocean Avenue. The "improvement in the traffic flow patterns on the Boynton Beach side of the waterway" (the elimination of the "jog" between Ocean Avenue and State Road 804) is, by the Department's own admission and the proof at hearing, of no significant import. The Department's final basis for selecting the new alignment, that: ... business in the general area of downtown Boynton Beach will not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street... is likewise unpersuasive. The Department undertook no study that would demonstrate what businesses existed in the "general area" of downtown Boynton Beach or how, if at all, they would be affected by the closure of the Ocean Avenue alignment during construction. While the businesses along Ocean Avenue would be affected if the bridge was closed during construction, the permanent removal of that structure is by far more significant to their enterprises than its temporary closure. In selecting the Second Avenue alignment, the Department did note "certain disadvantages," but felt they were "overridden by the above noted considerations." Among those disadvantages was the adverse impact to one acre of the mangrove forest. The Department undertook, however, no meaningful evaluation of the impacts its project would have on the environment, and failed to address the impact of "shading" and other adverse impacts that could occur from construction of the bridge. Rather, the Department deferred all considerations to the design stage to see if impacts could be mitigated. Such approach does not comport with the Department's obligation to assess the environmental impacts of its project during site selection, and leaves its analysis wanting. In all, the Department's decision in 1977 to relocate the bridge to the Second Avenue alignment did not include a balanced consideration of the factors it was charged by law with evaluating. The Department's second evaluation. Following the Department's issuance of it Final Negative Declaration in 1977, nothing was done on the project until 1980 due to a lack of funding. Following that time, the Department employed a consultant to prepare the construction and right-of-way maps. These plans were completed in June 1982. In August 1983, the Department's right-of-way acquisition agents performed a routine review of the project in order to activate the right-of-way acquisition phase. They reported that the updated right-of-way costs had substantially increased on the Second Avenue alignment, that future average daily traffic did not justify the need for a major improvement, and that a reassessment of the project was justified since a number of years had elapsed since the previous impact was assessed. 8/ Notably, in the intervening years since the Department's Final Negative Declaration, Coconut Lane had changed from a street with one vacant house on its north side to a street that was substantially built-out. Ocean Avenue, east of the waterway, had likewise built-out, and some of the lots the Department had proposed in 1977 to acquire for an embankment approach, if the Ocean Avenue alignment had been selected, were then occupied by houses. In the intervening years, Ocean Ridge had also adopted a comprehensive plan which, pertinent to this case, sought to preserve the mangrove forests, "scenic" A1A, and the bridge at its existent location. Considering the significant changes that had occurred between 1977 and 1984, a reassessment of the project was justified. The Department, following the report of its right-of-way acquisition agents, did not, however, reassess the project or address the comprehensive plan of Ocean Ridge. Rather, it relied on its Final Negative Declaration of 1977 as having adequately assessed the propriety of its choice between the two alignments. For the reasons heretofore discussed, such reliance was misplaced. Instead of reevaluating the project, the Department directed its Bureau of Value Engineering to simply undertake a study of the feasibility of replacing the bridge and providing improvements on the existing alignment within existing right-of-way, without new takings, to minimize impact. That bureau's report, issued in March 1984, concluded that while it was possible to build a four-lane bridge on the existing alignment, without new takings, that the apparent savings of $5.3 million envisioned by such an option over the Second Avenue alignment was offset by the accumulation of performance and design compromises that needed to be made. 9/ The bureau, as a consequence of Governor Graham's Executive Order No. 81-105, issued September 4, 1981, also considered whether two or four lanes were needed for the bridge over the waterway. It concluded that, if the Department's traditional practice of assessing need for a road or bridge based on average daily traffic (ADT) were utilized, the "future road network, population, growth, attraction, travel patterns and forecasts of the Palm Beach County Metropolitan Planning Organization [MPO]" do not justify widening to four lanes. The bureau suggested, however, that the four-lane alignment at Second Avenue should be retained because peak hour traffic is much heavier than ADT. Its report did not, however, quantify peak hour traffic, and, as discussed infra, such traffic does not justify widening to four lanes. By memorandum of March 16, 1984, the Department's Secretary proposed "to go with the Boynton Beach Boulevard plans," and concluded: It is my professional opinion that realignment to Boynton Beach Boulevard will better serve the transportation and economic needs of the citizens and merchants with the City of Boynton Beach.... No mention was made of the needs of the citizens of Ocean Ridge or the region. On March 26, 1984, Lopez-Torres filed a petition for a section 120.57(1) hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings. Subsequently, petitions to intervene were granted on behalf of Ocean Ridge, Boynton Beach and the Audubon Society of the Everglades. The Audubon Society of the Everglades is a Florida nonprofit corporation whose purpose is to protect environmental resources and to promote the use, enjoyment and public awareness of environmental resources. Its membership uses, enjoys and frequents the mangroves forest and adjoining waters that would be affected by the proposed project. Adequacy of the Department's evaluation. While the proof at hearing demonstrated that the existent Ocean Avenue bridge needed to be replaced, it also demonstrated that the Department's evaluation of the four-lane alignment was deficient, as heretofore discussed, and that the need for four lane improvements on either the Second Avenue alignment or Ocean Avenue alignment could not be justified by average daily traffic or peak-hour traffic. Rather, a two-lane configuration would be adequate to handle traffic within the Department's 25-year planning horizon or within any other reasonably reliable horizon. Further, it is not necessary to eliminate the 700-foot "jog" on US1. Rather, a simple extension in the length of the turn lanes can cure any existing or foreseeable traffic engineering problems at that location. In evaluating alternatives upon replacement of the existing structure, the Department overlooked or failed to seriously address a two-lane configuration. At hearing, conceding that a two-lane structure would provide adequate capacity, the Department sought to buttress its decision to utilize a four-lane structure by alluding to other factors that could lead one to elect such configuration over a two-lane configuration, such as: the existence of four-lane approach roads and "Q" build up. Such proof is not, however, compelling in this case because the record demonstrates that the Department did not address the design of a two-lane structure and, therefore, never evaluated or attempted to conform such structure to the existent site. Other testimony offered by the Department, that the "footprint" of a two-lane structure would not substantially vary from that of a four-lane structure is likewise not persuasive. Rather, the two-lane structure would require less right-of-way than a four-lane structure, and its construction costs would be less. 10/ In evaluating the replacement of the bridge, the Department has established a 25-foot clearance ostensibly because it is mandated by the Coast Guard or Corps of Engineers, and because it will reduce the bridge openings experienced by the current 10-foot clearance bridge by two thirds. While such clearance will reduce bridge openings, and thereby increase the life of bridge machinery and reduce inconveniences to motorists, it is not mandated by the Coast Guard or the Corps of Engineers. Since the movable bascule bridge provides unlimited clearance in the open position, those agencies do not normally mandate the closed vertical clearance; however, they do seek to obtain as much clearance as possible during their permitting process. Such agencies have recently permitted 21-foot clearances. Considering the fact that the height of the replacement structure may reasonably bear some relationship to the adverse impacts to the area on Ocean Avenue east of 6th Street, the Department erred in failing to consider alternative elevations for the replacement structure. While relocation of the bridge to Second Avenue is consistent with the MPO and the comprehensive plans of Palm Beach County and Boynton Beach, it is contrary to the comprehensive plan of Ocean Ridge and the Department made no attempt to harmonize such plans. Conclusion Based on the findings heretofore set forth, it is concluded that in electing to site the subject bridge at Second Avenue the Department abused its discretion because it failed to appropriately take into account future as well as present needs, all pertinent local government comprehensive plans, and the total environment of the community and region, including land use, entrepreneurial decisions, population, travel patterns, traffic control features, ecology, stormwater management plans, pollution effects, aesthetics, safety, or social and community values.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which vacates the Department's decision to relocate the bridge between Ocean Ridge and Boynton Beach. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989.
Findings Of Fact Sarasota County and MPS both filed extensive exceptions to the Recommended Order. I have grouped these exceptions according to the following issues: Manatee Protection, Turtle Nesting impacts, Fisheries impacts, Seagrass impacts, Wetlands Impacted, Water Quality Improvement, Public interest Balancing Test, Miscellaneous Exceptions, Requests For Additional Findings of Fact, and Conclusions of Law. I shall discuss and rule on each exception by the above groupings. 1. Manatee Protection Sarasota County Exception Number 1 and MPS Exception Numbers 6 and 8 are directed to the issue of adverse affects on the West Indian Manatee. Sarasota County and MPS take exception to Finding of Fact ("FOF") No. 24, claiming that there is no competent substantial evidence in the record to support the finding that it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. MPS additionally takes exception to the finding in FOF No. 29 that maintenance dredging will entail a danger to manatees similar to that during the construction phase. At the outset, I note that where a Hearing Officer's finding of fact is supported in the record by any competent, substantial evidence I am not permitted to reweigh the evidence and reject the finding of fact. See, e.g., Florida Debt. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Section 120.57(1)(b)1O., Florida Statutes. In this case the record does contain competent substantial evidence supporting FOF Nos. 24 and 29. The Hearing Officer's finding that increased motorboat traffic is an expected result of opening of the pass is not disputed. FOF No. 34. The area is designated as a critical habitat for the West Indian Manatee. FOF No. 22. The prefiled testimony of Ms. Kimberly A. Dryden states that "[a]n increase in boat/manate collisions associated with increased boat presence in the pass may occur." Dryden, PF-11. Ms. Dryden was admitted as an expert in wildlife biology including expertise in manatees, and her prefiled testimony was accepted into evidence. TR-756-760. Finally, the fact that Sarasota County itself proposed a manatee protection plan involving, among other things, that all project vessels operate at "no wake" speeds, supports the finding that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. Sarasota County and MPS point to the public notice of the U.S Army Corps of Engineers (Hearing Exhibit 26) and a U.S. Fish and Wildlife Service letter (Hearing Exhibit 27) as overwhelming evidence that no adverse effect on the manatee is expected. In essence, Sarasota County and MPS are asking me to reweigh the competent, substantial evidence. As noted above, I may not lawfully do that. The parties do not dispute the Hearing Officer's finding that maintenance dredging is expected to be needed as long as the inlet remains open. FOF No. 21. For the reasons set forth above, the Hearing Officer's finding that maintenance dredging will present a danger to manatees similar to the construction is supported in the record by competent substantial evidence. Sarasota County and MPS also assert that FOF No. 24 must be rejected because it is contrary to a stipulation of fact by the parties. Indeed, the record shows that a prehearing stipulation was filed and accepted into the record without objection at the hearing. TR-8. Stipulation of Fact No. 24 states: With the implementation of recommendations of the U.S. Fish and Wildlife Service, it is not expected that the project will have a significant adverse impact on the manatee or its habitat. Steven Sauers, Director of the Coastal Zone Division for Sarasota County, testified that he believed the County "could adhere to these [U.S. Fish & Wildlife Service] recommendations under a condition of authorization." TR-94-98. I note that when the prefiled testimony of Ms. Dryden was accepted into evidence at the hearing, neither Sarasota County nor MPS objected to those portions dealing with manatee impacts as being contrary to Stipulation of Fact No. 24. I must therefore consider whether the failure to object constitutes a waiver of the stipulation, and whether the Hearing Officer, as the ultimate finder of the facts, is bound by a stipulation of fact when the record contains competent, substantial evidence which conflicts with the stipulation. It has long been the eablished rule of law that stipulations of fact properly entered into are binding on both the parties and the court. See, e.g., Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (where case is tried on stipulation, no further or different facts will be presumed to exist). Where a party seeks to be relieved from a stipulation, he or she generally must file a timely motion, with notice to opposing parties, showing good cause and no prejudice to opposing parties. U.S. Fire insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989); Lopez v. Dublin Co., 489 So.2d 805, 807 n.3 (Fla. 3d DCA 1986); Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), cert. den., 344 So.2d 325 (Fla. 1977); Villa v. Mumac Construction Corp., 334 So.2d 274 (Fla. 3d DCA 1976); Curr v. Helene TransportatIon, 287 So.2d 695 (Fla. 3d DCA 1974). Good cause requires showing of fraud, overreaching, misrepresentation, withholding of facts by the adversary party, or such other element as would render the agreement void. Spitzer v. Bartlett Brothers Roof in, 437 So.2d 758 (Fla. 1st DCA 1983); Citv of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). In this case, neither the Department nor the Respondent Intervenors sought to be relieved from the stipulation, and there is no contention that any basis for good cause exits to be relieved from the stipulation. However, it is also a long established rule of law that failure to contemporaneously object to the admission of contested evidence is a waiver of the right to object. See, e.g., Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980), rev. den., 389 So.2d 1108 (Fla. 1980); Ehrhardt, Florida Evidence, Section 104.1 (2d Ed 1984); Section 90.104, Florida Statutes. in this case the testimony which conflicts with the stipulation was pre-filed before the hearing and the opposing parties had ample opportunity to review it before the hearing. Yet, although Sarasota County did raise objections to certain portions of Ms. Dryden's pre- filed testimony, no objection was raised to the portion relevant to impacts on manatees. TR-754-760. There is also authority for the proposition that when evidence contrary to a stipulation is introduced at trial without objection, the finder of fact is not bound by the stipulation. Special Disability Trust Fund v. Myers, 492 So.2d 788 (Fla. 1st DCA 1986), cause dism'd, 491 So.2d 280 (Fla. 1986); Espada Enterprises Inc. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986); Woods v. Greater Naples Care Center, 406 So.2d 1172, 1173 (Fla. 1st DCA 1981), rev. den., 413 So.2d 876 (Fla. 1982). In consideration of the above authorities and circumstances, I conclude that the Hearing Officer was not bound by the stipulation and could properly consider the relevant portion of Ms. Dryden's pre-filed testimony. Therefore the record contains competent, substantial evidence in support of the above findings of fact. Accordingly, the above noted exceptions of Sarasota County and MPS are denied. Turtle Nesting Impacts Sarasota County Exception No. 2 and MPS Exception No. 7 dispute FOF No. 26, which states that: "Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting." Sarasota County and MPS argue that although a portion of the beach will be removed to create the inlet, the loss of beach will not significantly impact on turtle nesting. Sarasota County and MPS contend that the "overwhelming weight" of the evidence is contrary to FOF No. 26. They are in essence asking me to reweigh the evidence. For the reasons stated above, I cannot do so. If the finding of fact is supported in the record by any competent, substantial evidence, then I am not at liberty to reject it. Florida Department of Corrections, supra; Section 120.57(1) (b)10., Florida Statutes. Ms. Belinda Perry, Projects Coordinator in the Coastal Zone Division of Natural Resources of the Sarasota County Natural Resources Department, testified that she had maintained records of sea turtle nests in the vicinity of Midnight Pass. She testified that on the average over the last eight years there have been four nests per year in the area that the new inlet at Midnight Pass will be located. Perry, TR-537-538; Perry PF-2, 5, 8. This is competent, substantial evidence of an adverse impact on the nesting habitat of sea turtles. Sarasota County and MPS argue that this impact is not "Significant." If I were to consider the "significance" of the loss of 4 nests per year for the purpose of accepting or rejecting FOF No. - 26, I would in effect be weighing that evidence. This I may not do. If the finding of fact is supported in the record by any competent, substantial evidence I may not reject it. Although not articulated, Sarasota County and MPS may be arguing that when evidence which supports a finding of an adverse impact on an endangered or threatened species is "not significant," then such evidence or finding of fact cannot be considered when weighing the seven factors set forth in the public interest balancing test of Section 403.918(2) (a), Florida Statutes. I reject any such argument as contrary to the law. Neither the statute nor any authority requires a minimum threshold weight for any of the factors. The statute merely requires the Department to "consider and balance" the seven criteria. For the foregoing reasons, Sarasota County's Exception No. 2 and MPS's Exception No. 7 are rejected. Fisheries Impacts Sarasota County Exception No. 4 and MPS Exception No. 10 challenge that part of FOF No.-3- that states "the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB." (emphasis added) Sarasota County and MPS contend that this finding is unsupported by any competent substantial evidence in the record. I disagree. Robert L. Stetler, Environmental Administrator, Wetlands Resource Management for the Department's Southwest District testified as follows: Q. What impact on fisheries does the present, i.e., closed condition of the Midnight Pass area have? A. Current conditions in the backwater area of Midnicht Pass as mentioned Before, as quiescent in nature. This influences the fisheries utilization to the competitive advantage of the smaller species and of the early life stages of many of the larger pelagic fish species. The additional cover afforded by seagrass communities and the very shallow water nature of large portions of the site tend to limit successful predation on the smaller specimens. The periphyton communities associated with shallow water areas and seagrass beds also provide large quantities of food to the smaller or younger fish. The conditions now found at Midnight Pass enable it to be classified as a nursery area because they perform the functions of feeding and protecting the early life stages of numerous fish species. Nursery areas like the pass region have been identified as essential to the maintenance of healthy, well balanced fish populations. Q. Does a quiescent estuarine zone provide any particilar benefit to commercially important fish species? A. Under the estuarine conditions, water quality also contributes to the success and/or failure of certain fish species. Many of the estuarine dependent fish species have life histories that include spawning in or near the marine environment and the mitigation [sic] of the larval forms into areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. These harsh conditions are tolerable to a early life stages of several commercially important fish species and further protects them from predation by adult piscivorous (fish eating) fish that cannot tolerate these conditions. Some of the important commercial species exhibiting this life cycle are the Tarpon, Spotted Seatrout, Redfish, Mangrove snapper, Sheepshead and Mullet. Q. What, in your opinion, would be the overall impact to fisheries resources from the opening of Midnight Pass? A. The overall impact of the project to fisheries would be significant. Reactivating an inlet would produce conditions conducive and reintroducing larger, motile, pelagic fishes into the area. increased flushing would likely occur resulting in increased salinities, higher energy conditions from waye and tidal action. The recreational fishery would probably produce more larger fish utilizing the pass as a migratory, spawning and feeding site. However, the direct impact of the project would also result in the loss of significant portions of the nursery habitat previously described. Q. in your opinion, would opening Midnight Pass be in the public interest from a fisheries standpoint? A. No. Q. Why not? A. The expected physical damages associated with reopening the pass -- increased water depths, destabilization of the substrate by tide and wave energy and destruction of existing shallow water habitat will eliminate or significantly change the habitat characteristics and water guality conditions essential to the early life stages of many fish species. Loss of nursery habitat has been a long-term trend to Tampa and Sarasota Bay due to past dredge and fill activities and increased development. This long-term loss results in a need to classify remaining nursery areas, like Midnight Pass, as critical habitat warranting special protection. (emphasis added) Stetler PF-11-13. This prefiled testimony was accepted into evidence. TR-836, 839. When read in its entirely it clearly provides competent, substantial evidence to support the above finding of fact. Mr. Stetler testified that the existing nature of LSB provides a nursery for certain fishes that in the early stages of their life take advantage of areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. Such harsh conditions protect them from predation by adult fish that cannot tolerate such conditions. He further testified that reopening Midnight Pass would result in increased flushing, increased salinity, and the loss of significant portions of the above characteristics with a consequent loss of significant portions of the nursery habitat. This testimony is competent, substantial evidence supporting FOF No. 32. Therefore, i may not disturb this finding of fact. Accordingly, the above noted exceptions are rejected. Seagrass Impacts Loss of Seagrass Sarasota County Exception No. 5 and MPS Exceptions Nos. 10 and 11 take exception to the Hearing Officer's finding that the submerged areas of LSB in the vicinity of the inlet are vegetated with seagrasses (including shoalgrass, turtle grass, manatee grass, and halophila), and that a significant portion of these grasses will be dredged if the proposed project is implemented. FOF No. 33. The Hearing Officer also found that the dredged seagrass areas will no longer serve as a nursery to young fishes. FOF No. 34. Sarasota County and MPS contend that only 10 acres of seagrasses will be dredged, and that the evidence shows that reopening Midnight Pass will cause more dense growth of seagrasses in those areas not dredged. Sarasota County and MPS also contend that the Hearing Officer erred in concluding that all four of the above noted types of seagrasses would be lost. The gist of Sarasota County's and MPS's argument is that the loss of ten acres of seagrss is less than 10% of the total seagrass acreage in the project area, and therefore is not significant. Sarasota County and MPS further argue that even if the loss of 10 acres of seagrass was significant, it would only be a temporary loss because the opening of Midnight Pass would result in greater seagrass growth, density, and diversity in those areas not dredged. Neither Sarasota County nor MPS take exception to the finding that l0 acres of seagrasses will be dredged, and that, due to the depth of the channel to be dredged, seagrasses would not be expected to reseed or colonize in the deep channel cuts. FOF No. 34; Prehearing Stipulation of Fact No. 22. The record contains competent, substantial evidence that in the vicinity of the project there are 108 acres of seagrasses. Lewis, PF-6 (accepted into evidence TR-425-436). A loss of ten acres of seagrasses would be a loss of more than 9% of the total acreage in the vicinity of the project. A loss of seagrass can have an adverse impact on a fish nursery. Leiby TR-507, 509-510. I reject any suggestion that such a loss is not significant. MPS and Sarasota County contend that there will be no net loss of seagrass because the loss of the ten acres will be offset by increased growth, density, and diversity of seagrasses in the areas not dredged. in asking me to reject the above noted findings, Sarata County and MPS are in effect asking me to weigh the evidence of the impact of the loss of ten acres against the evidence that increased growth, density, and diversity of the seagrasses elsewhere will soon offset any reduction in nursery value to young fishes. When I rule on exceptions to findings of fact I cannot reweigh the evidence. If the record contains any competent, substantial evidence to support the finding, I must accept it. Finally, as to issue of the types of seagrasses present, the record contains competent, substantial evidence that all four of the species mentioned in the finding of fact are found in the project area to be dredged. Stetler PF- 6, TR-843-845; Wilber PF-33, TR-908-915; Dryden PF-5-7; Prehearing Stipulation of Fact No. 21. For all of the reasons set forth above, i reject the exceptions of Sarasota County and MPS. Propeller Dredging of Seagrass Sarasota County Exception No. 6 and MPS Exception No. 12 take exception to the Hearing Officer's finding that "increase motorboat traffic which is an expected result of the pass reopening, would also limit grasses from re- establishing in shallower areas due to damage caused by propellers." FOF No. 34. Sarasota County and MPS do not dispute that opening - Midnight Pass will increase motoboat traffic in LSB. Dr. Wilber testified that the "foreseeable increased boat utilization, especially by large boats will increase seagrass bed damage through prop dredging . . . ." Wilber PF-31. There being competent, substantial evidence in the record supporting the above finding, the exceptions of Sarasota County and MPS are denied. Wading Bird Habitat Impacts Sarasota County Exception No. 5 takes exception to the Hearing Officer's finding that "the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass." FOF No. 33. Ms. Dryden testified that wading birds now use the shallow tidal flats and mud flats which are proposed to be removed. Dryden PF-4-8, 10-11. Mr. G. Jeffery Churchill testified that, as a result of the project, approximately 9 acres of wading bird feeding habitat would be lost. Churchill PF-16-17, TR- 485-487. The record contains competent, substantial evidence supporting the above finding. Therefore, Sarasota County's exception is denied. Wetlands Impacted Sarasota County Exception No. 6 and MPS Exceptions Nos. 5 and 12 take exception to the finding that the dredging proposed by the County would eliminate at least 50 acres of wetlands. FOF Nos. 17 and 34. Sarasota County and MPS contend that only 1.1 - 1.3 acres of vegetated wetlands will be lost. This contention appears to be based on the assertion that submerged lands are not "wetlands" within the meaning of Sections 403.91 - .929, Florida Statutes. I reject Sarasota County's and MPS's narrow construction of the meaning of jurisdictional wetlands. Section 403.912(1) sets forth the powers and duties of the Department in permitting activities in wetlands, including activities "in waters to their landward extent . . ." (emphasis added). The term "waters" includes "rivers, lakes, streams, springs, impoundments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." Section 403.031(12), Florida Statutes. the term "wetlands" therefore is inclusive of surface bodies of waters up to and including the limit of the Department's jurisdiction as established by Section 403.817, Florida Statutes and Rule 17-301, F.A.C. Dr. Wilber testified that the project would dredge 43.8 acres for the two access channels, 3.6 acres for the sediment basin, and 7.5 acres of jurisdictional wetlands for the inlet channel. Wilber PF-5-6. Dr. Wilber further testified that habitat within the proposed channels consisted of valuable biological communities of a natural character that would be severely disrupted or eliminated if the project were permitted. Wilber PF-9. The record contains competent, substantial evidence to support the above finding. The exceptions of Sarasota County and MPS are rejected. Water Quality Improvement Sarasota County Exception No. 7 and MPS Exception No. 14 take exception to the Hearing Officer's finding that "the water quality within LSB will not be significantly improved as a result of the reopening of the inlet. "FOF No. 38. it is contended that this finding is immaterial and irrelevant. These exceptions also challenge as irrelevant the Hearing Officer's finding that "it is impossible to conclude that marine environments serve a more useful purpose than estuarine systems." FOF No. 38. I agree that it is not required that the proposed project improve the water quality in LSB in order to be permittable. Permitting of a dredge and fill project in an Outstanding Florida Water requires that the applicant show that the project is clearly in the public interest, and that reasonable assurance has been provided that the project will not cause or contribute to violations of water quality standards, including a showing that the existing ambient water quality within the OFW will not be lowered as a result of the proposed activity. Section 403.918(1),(2), Florida Statutes; Rules 17-4.242(2) (a), 17-302.300, F.A.C. The applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards, and that the project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989). if the applicant is unable to satisfy the applicable public interest test, the applicant may propose or accept measures to mitigate the adverse effects caused by the project. Section 403.918(2)(b), Florida Statutes. 4/ On the other hand, throughout these proceedings Sarasota County has attemptd to justify the project and show that it is clearly in the public interest by asserting the project will improve water quality in LSB. For example, at page 7 of Sarasota County's Proposed Recommended Order it states: Sarasota County has convincingly demonstrated that it meets the statutory criteria for approval of this project in this Outstanding Florida Water. The project will not degrade ambient water quality, and it will cause an improvement in water guality, not only in the immediate vicinity of the Pass but throughout Little Sarasota Bay. This improved water guality will in turn reap substantial benefits to the degraded marine habitat, the flora and fauna, commercial and recreational fishing and the public's general enjoyment and ability to use Little Sarasota Bay. (emphasis added) Similarly, Sarasota County stated in its opening argument at the hearing that: TR-14. We think that there has been a decline in water quality and it will continue to decline and it will continue to get worse. By reopening the pass, we think we can stop that decline. We think that there will be such considerable improvements to the bay to be clearly in the public interest. The Hearing Officer's finding is clearly relevant to Sarasota County's assertion that the claimed improvement in water quality will make or help make the project to be clearly in the public interest. Similarly, since the reopening of the pass will cause the reversion of LSB from an estuarine to a marine ecosystem, the Hearing Officer's finding on the failure to show that a marine ecosystem has a more useful environmental purpose is also, at least arguably, relevant to the public interest test. 5/ The record contains competent, substantial evidence which supports this finding. Nearhoof PF-8-12, TR-891-895; Wilber PF-17-18, TR-920-921. There being competent, substantial evidence to support the finding, I shall not reject it. The exceptions are there denied. Public Interest Balancing Test Sarasota County Exceptions Nos. 8 and 12, and MPS Exceptions Nos. 15 and 17, take exception to the Hearing Officer's finding that "the beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging." FOF No. 39. Exception is also taken to FOF No. 43, which states that it was not established that the project is clearly in the public interest. The gist of these exceptions is that the balancing test is a conclusion of law rather than a finding of fact. Even if that were so, the error in mislabeling would be harmless. Even though I agree that the ultimate determination of the public interest balancing test is a conclusion of law, I do not agree that predicate findings of ultimate facts are not appropriate. Florida Audubon Society v. Cullen, ER FALR 91:018 (DER, Sept. 27, 1990). The Hearing Officer's FOF Nos. 34 and 43 are predicate findings of ultimate facts sufficiently supported in other findings of fact for each of the seven criteria in the public interest balancing test of Section 403.918(2)(a), Florida Statutes. See for example: Department's Response To Request For Admission No. 17, and R.O. at 21 and 23, accepting MPS's proposed finding of fact- No. 74, and Sarasota County's proposed finding of fact No. 50 (project will not adversely affect public health, safety or welfare); (b) FOF Nos. 17, 22, 24-26, 29, and 32-35 (regarding conservation of fish and wildlife, etc.); FOF No. 36 and R.O. at 23, accepting MPS's proposed finding of fact Nos. 134 and 135 (regarding navigation, flow of water, erosion or shoaling); FOF Nos. 32 and 33 (regarding fishing recreational values or marine productivity); FOF No. 21, 29 and 37 (regarding temporary or permanent nature of project); FOF No. 28 (regarding historical and archaeological rsources); and FOF Nos. 30 and 38 (regarding current condition and relative value of functions being performed by areas affected by project). The exceptions are therefore rejected. Miscellaneous Exceptions Sarasota County Exception No. 9 Sarasota County Exception No. 9 contends that there is no competent, substantial evidence for the finding that the Department has not permitted the destruction of a habitat of this size without requiring extensive mitigation. FOF No. 40. Mr. Randall L. Armstrong, then Director of the Division of Water Management of the Florida Department of Environmental Regulation, testified that he had worked at the Department since 1972, and that "[i]n my experience with the Department in issuing permits under those statutes (Sections 403.918-.919] the Department has never permitted the destruction of such a large area of viable habitat without requiring extensive mitigation." Armstrong PF-9, TR-1017. Sarasota County's reliance on the testimony of Mr. Lewis about lack of mitigation in a Key Biscayne project is misplaced since that project occurred before the enactment of the Henderson Wetlands Act in 1984. Lewis TR at 482. in any event, FOF No. 40 is supported in the record by competent, substantial evidence. The exception is denied. Sarasota County Exception No. 11 and MPS Exception No. 16 Sarasota County Exception No. 11 and MPS Exception No. 16 complain about FOF No. 42, yet do not dispute its correctness. The finding is a irrefutable finding that no mitigation is proposed for 10 acres of seagrasses which will be dredged. The exceptions are merely an assertion that mitigation is not necessary for the loss of seagrasses because additional seagrass will grow elsewhere. This contention was addressed above under the heading of Seagrass impacts. Furthermore, the Department has the ultimate authority to determine whether mitigation is required and, if so, whether the proposed mitigation is adequate. 1800 Atlantic Developers v. Department of Environmental Regulation, 522 So.2d. 946 (Fla. 1st DCA 1989). The exceptions are rejected. Sarasota County Exception No. 3 Sarasota County's Exception No. 3 claims to take exception to FOF No. 29 but does not dispute any of the facts stated therein. The exception is rejected. MPS Exception No. 1 This exception quibbles over an immaterial issue of semantics in FOF No. 2, i.e., whether the project is to "dredge an inlet" or to "restore" the past inlet. The exception is rejected. MPS Exception No.2 MPS takes exception to FOF No. 4 which states that LSB was designated an Outstanding Florida Water. The gist of MPS's exception is that the Environmental Regulation Commission excluded Midnight Pass when LSB was designated as an OFW. Since "Midnight Pass" no longer existed as a body of water when LSB was designated an OFW on April 29, 1986, the exception is rejected as immaterial and irrelevant. MPS Exceptions No. 3 and 13 MPS takes exception to the Hearing Officer's finding in FOF No. 7 that prior to the closing of Midnight Pass the "beach along the northern stretch of Casey Key eroded badly." MPS also excepts to the finding that without beach renourishment the restoration will cause "harmful erosion" along Casey Key. FOF No. 37. MPS does not dispute the erosion; rather, MPS complains about the choice of words describing the degree of erosion. The choice of words is not material to the underlying validity of the finding. The exceptions are without merit and are rejected as immaterial. MPS Exception No. 9 MPS takes exception to FOF No. 30, contending that there is no support in the record for a finding that, as a result of the evolution of LSB from a marine to an estuarine system, LSB has a longer freshwater residence time. MPS is misreading FOF No. 30. It is clear that FOF No. 30, when properly read, states that as a result of the closure of the pass LSB has evolved from a marine to an estuarine system, and that this evolution is a consequence of the longer freshwater residence time which was caused by the closing of the inlet. This is supported in the record by competent, substantial evidence. Echernacht TR-707. MPS also takes exception to the finding that levels of dissolved oxygen and salinity within LSB are fairly typical for a healthy estuarine system. FOF No. 30. The record contains competent, substantial evidence to support this finding. Wilber PF-32. The exceptions are rejected. Requests For Additional Findings of Fact Sarasota -County Exceptions Nos. 3, 10, and 13 through 16, and MPS Exceptions Nos. 4 and 18 are in essence asking me to make additional findings of fact, or to accept proposed findings of fact which were rejected by the Hearing Officer. I may not lawfully make an independent determination of a disputed fact. Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3rd DCA 1985). Accord, Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987). See also Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Inverness Convalescent Center v. Department of Health and Rehabilitative Services, 512 So.2d 1011 (Fla. 1st DCA 1987); Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). As to Sarasota County Exception No. 14, which requests a finding of fact that the project will not adversely affect the pubic health, safety and welfare, I note that the Hearing Officer accepted this finding of fact which was proposed in both paragraph 74 of MPS's proposed recommended order and in paragraph 50 of Sarasota .County's proposed recommended order. See R.O. at 21 and 23. Therefore, I consider the requested finding of fact to have already been made by the Hearing Officer. No additional finding is required of me. Sarasota County Exception No. 15 asks me to make specific additional findings of fact in relation to effects of the project on marine productivity. Sarasota County orrectly points out that a finding regarding whether the project will adversely affect marine productivity is needed to conduct the public interest balancing test of Section 403.918(2), Florida Statutes. However, I note that the Hearing Officer's FOF Nos. 32 and 33 are sufficient predicate findings for her to consider and weigh this criteria in the balancing test. Furthermore, the Hearing Officer has considered and ruled on Sarasota County's proposed findings related to marine productivity as set forth in Sarasota County's proposed recommended order paras. 105-108 and 110 (accepted) and para. 111 (rejected as vague). See R.O. at 22. Sarasota County Exception No. 15 is essentially a reiteration of proposed findings of fact which had been asserted before the Hearing Officer. Where the Hearing Officer clearly and specifically addressed and ruled on the proposed finding in the recommended order, I am not required to provide further reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds sub nom., Dept. of Professional Regulation v. Bernal, 531 So.2d 967 (Fla. 1988). I concur with and adopt the Hearing Officer's rulings as being based on competent, substantial evidence, and therefore reject the exception. Sarasota County Exception No. 16 asks me to make specific findings with regard to cumulative impacts. The matter ofwhether the proposed project will have any significant adverse secondary or cumulative impacts was a disputed issue at the hearing. See Prehearing Stipulation at 24, Stipulated Disputed issue VI(A)9. Section 403. 919, Florida Statutes, requires consideration of the cumulative impacts of the project in conjunction with other existing or future projects where there is a "reasonable likelihood" of similar project applications in the same geographic location in the future. Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Reasonable expectation of future projects is the polestar of cumulative impact analysis. Chipola Basin Protective Group v. Department of Environmental Regulation, 11 F.A.L.R. 467, 477 (D.E.R. December 29, 1988). Testimony at the hearing showed that the Department conducted an evaluation of the project for cumulative impacts and was unable to identify any such impacts. Wilber PF-30, TR-949-950; Armstrong TR-1021-1022. A finding that the Department conducted a cumulative impact analysis and concluded that it was unable to identify any cumulative impact was proposed by Sarasota County in its Proposed Recommended Order, paras. 118 and 119. - These findings were accepted by the Hearing Officer (R.O. at 22). Therefore, the requested findings of fact have already been made by the Hearing Officer, and no additional finding is required of me. The exception is therefore rejected. MPS Exception No. 18 asks me to adopt numerous proposed findings of fact which the Hearing Officer expressly rejected. The Hearing Officer expressly ruled on each of these proposed findings of fact. (Recommended Order at 23-24) Where exceptions merely reiterate proposed findings of fact which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, supra. I concur with and adopt the Hearing Officer's rulings on these proposed findings of fact. I therefore reject the above exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Public Interest Test Sarasota County's Exception To Conclusion of Law No. 2, and MPS Exception No. 20 take exception to the Hearing Officer's conclusion of law that "the County has failed to establish that the proposed project is clearly in the public interest." Conclusion of Law No. 6, R.O. at 15-16. As I noted in my earlier discussion on findings of fact, in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. Failure of the applicant to make that showing makes the project not permittable. In order to determine whether the project is clearly in the public interest, the Department must consider and balance the following seven factors set forth in Section 403.918(2)(a): Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to consider and balance these factors it is necessary, of course, to make sufficient findings of fact as to each factor. As I discussed above, the Hearing Officer had accepted or expressly made findings of fact relevant to each of the above factors. in Conclusion of Law No. 6, she considered and balanced those factors in reaching her determination that it was not shown that the project is clearly in the public interest. I am, of course, not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 16 FLW D458 (Fla. 2d DCA, Feb. 20, 1991); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Section 120.57(1) (b)lO., Florida Statutes. I have considered and balanced each of the seven criteria set forth in Section 403.918(2) (a) in the light of the findings of fact discussed above. I concur in the Hearing Officer's conclusion that it has not been demonstrated that the project is clearly in the public interest. In reaching my conclusion I am aware of the holding in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) that no net public benefit need be shown. I conclude that Findings of Fact Nos. 17, 22, 24-26, 29 and 32-35 on balance establish that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Findings of Fact 32 and 33 on balance show that the project will adversely affect the fishing or recreational values or marine productivity in LSB. Findings 30 and 38 on balance sfrthat the current conditiofr of LSB makes it a valuable estuarine ecosystem which will be lost if the project is permitted. Finding of Fact 36 and MPS proposed findings of fact Nos. 134 and 135, which were accepted by the Hearing Officer, on balance show a net benefit to navigation. And, the Hearing Officer's acceptance of Sarasota County's proposed finding of fact No. 50, and MPS's proposed finding of fact No. 74, allow me to conclude that the project will not adversely affect the public health, welfare or safety. I note that there is abundant proof that the project is permanent in nature and that there will be no adverse affect on historical or archaeological resources. When I consider and balance all of these factors and their relevant facts, I conclude that the adverse impacts outweigh any benefits, and therefore donclude that there has been no showing that the project is clearly in the public interest. Since I have determined that it has not been shown that the project is clearly in the public interest, I must also consider any mitigation which Sarasota County has proposed. Sarasota County and MPS contend that no mitigation is needed for the loss of ten acres of seagrasses because reopening the pass will result in recolonization of new areas of seagrass, greater density of growth in existing areas, and greater diversity of seagrass species. Even when I assume that Sarasota County's and MPS cotentions are true, I still conclude that the adverse effects of the loss of ten acres of seagrass will not be mitigated by the proposed project. 6/ Accordingly, I reject the exceptions. Water Quality Improvement Sarasota County Exception To Conclusion of Law No. 1, and MPS Exception No. 19, challenge the Hearing Officer's Conclusion of Law No. 4. Specifically, the exceptions challenge the statement that "[t]he County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging." Conclusion of Law No. 1, R.O. at 14. To the extent that the Hearing Officer may have thought that a showing of improvement in water quality was a requirement for obtaining a permit, she erred. However, for the reasons set forth in my previous discussion of water quality in relation to findings of fact, Sarasota County and MPS had made improvement in water quality an issue in determining whether the project was clearly in the public interest. Rather than erroneously imposing a requirement of improvement of water quality, it appears that the Hearing Officer was merely making a predicite observation prior to conducting the public interest balancing test. Regardless of how one interprets the above matter, it is clear that the issue does not affect the outcome of this case because both the Hearing Officer and I have concluded that there has been no showing that the project is clearly in the public interest. I therefore reject the exception on the basis that the conclusion of law is not erroneous, or if error, then it is harmless error. Having ruled on all of the exceptions it is ORDERED: Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference. Sarasota County's Permit Application No. 581473069 is DENIED. NOTICE OF RIGHTS Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department. DONE AND ORDERED this 4 day of April, 1991, in Tallahassee, Florida. State of Florida Department of Environmental Regulation CAROL BROWNER Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL. 32399-2400
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the permit requested by Sarasota County. DONE and ENTERED this 19 day of February, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of February, 1991. APPENDIX TO CASE NO. 90-3533 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 19 are accepted. Paragraphs 20 through 24 are rejected as irrelevant, speculative or immaterial to the issues of this case. Paragraphs 25 and 26 are accepted. Paragraphs 27 through 29 are rejected as irrelevant. Paragraph 30 is accepted. Paragraph 31 is accepted with the deletion of the quotation marks around the word monitor and with the deletion of the last phrase following the words "survival rate" which is rejected as argumentative or irrelevant or not supported by the record. Paragraphs 32 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 40 are accepted. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraphs 42 through 44 are accepted. Paragraph 45 is rejected as irrelevant or unnecessary to the resolution of the issues of this case. Paragraphs 46 through 48 are accepted. Paragraphs 49 through 53 are rejected as irrelevant, unnecessary to the resolution of the issues, comment, repetitive, or argumentative. Paragraphs 54 through 62 are accepted. Paragraph 63 is rejected as repetitive. Paragraph 64 is rejected as irrelevant. Paragraphs 65 and 66 are accepted. Paragraph 67 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 68 through 73 are accepted.
