The Issue Whether the Sherry Petitioners have standing to initiate the proceeding in Case No. 10-0515? Whether the Oceania Petitioners have standing to initiate the proceeding in Case No. 10-0516? Whether the MACLA Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP, the Variance and the SSL Authorization?
Findings Of Fact Setting and Preliminary Identification of the Parties These consolidated cases are set in Okaloosa County. They concern the Consolidated NOI issued by the Department to the County that indicate the Department's intent to issue state authorizations to allow the restoration of a stretch of beach known as the Western Destin Beach Restoration Project (the "Western Destin Project" or the "Project"). In addition to the Western Destin Project, there are other beach restoration efforts (the "Other Beach Restorations") which concern the Gulf of Mexico coastal system along the shores of the Florida Panhandle and about which the parties presented evidence in this proceeding. The applicants for the authorizations in the Other Beach Restorations efforts are either Okaloosa County or Walton County, the coastal county immediately to the County's east, and concern Okaloosa and Walton County property or are on federal property used by Eglin Air Force Base (the "Eglin Projects" or "A-3" or "A-13"). The Eglin Projects have been completed. The source of the sand use in the Eglin Projects is a borrow area designated by the County and its agent, Taylor Engineering, as "OK-A" ("OK-A" or the "OK-A Borrow Area"). The County intends that the OK-A Borrow Area be the source of sand for the Western Destin Project. West of East Pass, a passage of water which connects Choctawhatchee Bay and the Gulf of Mexico, the OK-A Borrow Area is between 4,000 and 5,000 feet off the shores of Okaloosa Island. Okaloosa Island is not an island. It is an area of the incorporated municipality of Fort Walton Beach that sits on a coastal barrier island, Santa Rosa Island. Except for the part of the final hearing conducted in Tallahassee, the final hearing in this case took place in Okaloosa Island. As Mr. Clark put it (when he testified in that part of the hearing not in Tallahassee), "I am in Okaloosa Island. [At the same time], I am on Santa Rosa Island." Tr. 521 (emphasis added). Petitioners in Case No. 10-0515, David and Rebecca Sherry and John Donovan (the "Sherry Petitioners") live along a stretch of beach that is in Okaloosa Island. They do not live along the stretch of beach that is within the area subject to the Western Destin Project. The Sherry Petitioners' stretch of beach is the subject of another beach restoration effort by the County (the "Okaloosa Island Beach Restoration Project"). The Okaloosa Island Beach Restoration Project, in turn, is the subject of another case at DOAH, Case No. 10-2468. The OK-A Borrow Area is much closer to the Sherry Petitioners' property than to the beach to be restored by the Western Destin Project. The Sherry Petitioners recognize the need for the restoration of at least some of the beaches in the Western Destin Project. The Sherry Petitioners initiated Case No. 10-0515, not to prevent the Western Destin Project from restoring those beaches, but because they are concerned that the beaches subject to the Okaloosa Island Project (including "their" beach) will suffer impacts from the dredging of the OK-A Borrow Area whether the dredging is done to serve the Western Destin Project or the other Projects the OK-A Borrow Area has served or is intended to serve. In contrast to the Sherry Petitioners, the Petitioners in Case No. 10-0516 (the "Oceania Petitioners") do, in fact, live on beaches in a section of the Western Destin Project that was slated for restoration when the Consolidated NOI was issued. The Oceania Petitioners are opposed to the restoration of the beaches subject to the Western Destin Project. They initiated Case No. 10-0516, therefore, because of that opposition. Walton County applied authorizations from the state for the Walton County/East Destin Project (referred-to elsewhere in this order as the "Walton Project"). The Walton Project, like the Eglin Projects, is completed. Unlike the Eglin Projects, and the intent with regard to the Western Destin Project and the Okaloosa Island Project, the Walton Project did not use the OK-A Borrow Area as its source of sand. The Walton Project used a Borrow Area to the east of OK-A (the "Walton Borrow Area"). The Walton Borrow Area is in an area influenced by the ebb tidal shoal formed by the interaction between East Pass and the Gulf of Mexico. The MACLA Intervenors (all of whom own property deeded to the MHWL of the Gulf in the stretch of beach subject to the Western Destin Project) together with the Sherry Petitioners and the Oceania Petitioners, seek findings in this proceeding concerning the impacts of the Walton Borrow Area to the beaches of Okaloosa County. They hope that findings with regard to Walton Borrow Area beach impacts will undermine the assurances the County and the Department offer for a finding that the Western Destin Project will not cause significant adverse impacts to the beaches of Okaloosa County. The Holiday Isle Intervenors support the Project. They are condominium associations or businesses whose properties are within the Project. Like the Eglin Projects, the Walton Project is complete. The Walton Project was the subject of a challenge at DOAH in Case Nos. 04-2960 and 04-3261. The challenge culminated at the administrative level in a Final Order issued by the Department that issued the state authorizations necessary to restore the Walton Project beaches. The Walton Project Final Order was appealed to the First District Court of Appeal where it was reversed. But it was reinstated in a decision by the Florida Supreme Court. The Florida Supreme Court decision was upheld when the United States Supreme Court issued a unanimous 9-0 decision less than two months before the commencement of the final hearing in these consolidates cases: Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl Prot., 130 S. Ct. 2592 (2010). The Court held in Stop the Beach Renourishment that the Walton County Project was not a regulatory taking of property that demanded compensation to affected property owners under the Fifth Amendment to the United States Constitution. Stop the Beach Renourishment was argued before the United States Supreme Court in December of 2009, shortly before filing of the petitions that initiated these consolidated cases. The final hearing in these cases was not set initially until July 2010 in the hope that the Stop the Beach Renourishment case would be decided, a hope that was realized. In the meantime, another event threatened to affect these consolidated cases: the Deepwater Horizon Oil Spill (the "Oil Spill") in the Gulf of Mexico. The spill began with the explosion of the Deepwater Horizon oil platform in April of 2010 and continued until August of 2010 when the Oil Spill was stopped while these cases were in the midst of final hearing. The Joint Coastal Permit issued by the Department was revised to address impacts of the Oil Spill. No impacts, however, were proven in this proceeding by any of the parties. The Parties The Sherry Petitioners and Their Property David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [ a condominium unit] of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . . . of Okaloosa County, Florida."2/ Their address is 554 Coral Court, #511, Fort Walton Beach, FL 32548. The Sherrys entered the lease for their condominium unit in May of 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," tr. 840, the unit became their permanent residence. They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified: Tr. 841. This particular area we chose because of the beach quality. Quite frankly, . . . I was surprised when I first saw the place . . . the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen. Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the sugar white sand." Tr. 936 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry's routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island. Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed, I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.] Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it: I . . . swim. I surf on the skim board, float out in the water . . . I help Dave fish, we crab, . . . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen. * * * I've always run barefoot. That's the reason [we chose the beach next to the Surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . . [cross the beach] barefoot. Tr. 939. I actually think the project will impact me, at least, as much as my husband, David . . . my husband is . . . involved with . . . being board president of the Surf Dweller[.] I spend at least as much time as he does on the beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm . . . extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in . . . I don't miss my morning walk. Tr. 950. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island,3/ Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium,4/ is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority and recorded in the Official Records of the County at Book 121, Pages 233-250. See County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4.5/ Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas."6/ Part F of the Protective Covenants and Restrictions, provides, in part, Beach Protection * * * The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority . . . One hundred fifty feet inland from the mean water line, in front of all B1 and B2 Areas, will be public beaches. The next 150 ft. inland will be private beaches as set out on subdivision plats . . . County Ex. 13, at page marked "BOOK 121 PAGE 242." The Surf Dweller Condominium property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller condominium property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions. John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN . . . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA."7/ The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, FL 32548. Petitioner Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island: I've . . . got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf. * * * I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks. Tr. 973-4. In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as: A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF SANTA ROSA ISLAND A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is located) is also in Zone B-2 set up by the Protective Covenants and Restrictions. Block 8, just as Block 5, is governed by Part F, Beach Protection, of the Protective Covenants and Restrictions that places the beaches, for at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County Ex. 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium lies between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat that is the last page of County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," Exhibit P-7, last page (un-numbered), landward of the Gulf of Mexico, that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions, landward of the public beach designated by the same provision. Neither the Surf Dweller Condominium Property in which the Sherrys reside, nor the El Matador Condominium Property inhabited by Mr. Donovan abuts or is a part of the area subject to the Western Destin Beach Restoration Project. The two properties in Okaloosa Island are to the west of the Project. The Sherrys and Mr. Donovan did not initiate Case No. 10-0515 because they oppose the restoration of the beach subject to the Project. They initiated the proceeding because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island and situated in such a way that once dredged it will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches. The Beach, Post-Hurricane Opal and Other Tropical Storms Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. See his testimony quoted, below. The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its ever-changing nature might have on the width of the beaches declared public and private8/ between the MHWL and the Surf Dweller and El Matador condominium properties, however, there can be no doubt on the state of the record in this proceeding that at the time of hearing there existed a 150 foot-wide stretch of beach water-ward of the two condominiums that the public has the legal right to occupy and use. Indeed, Petitioner David Sherry, when asked about the private beach and public beach governed by the Part F of the Protective Covenants and Restrictions in cross-examination conducted by Mr. Hall on behalf of the County, confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife: Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium? A . . . [N]o, they wouldn't have the right to do that. Q . . . [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium? A In that area, no. In the area south of that [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don't have any problem with that. We let people do it -- Q On [the] public beach[.] A On the public beach they're perfectly free to do that. * * * Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct? A Essentially, from the building to the Gulf of Mexico. * * * Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline? A Correct. Q So, there would be enough room today, based on the language of the restrictive covenants to have . . . 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13] now? A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded], yes. Tr. 891-3, (emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach and its width is at least 150 feet.9/ From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See Tr. 986-87. Mr. Donovan is concerned about the erosion and turbidity impacts the borrow site could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. Turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, a change in the beach and shoreline along the El Matador Condominium property as drastic, in Mr. Donovan's view, as that contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium. The Guidry Petitioners and Their Property Roland Guidry, a retired Colonel in the United States Air Force, is co-trustee of the Guidry Living Trust and the President of the Oceania Owners' Association, a condominium association governed by chapter 718, Florida Statutes. The Guidry Living Trust is the owner of Condominium Unit 605 in the Oceania Condominium, a condominium established under chapter 718, Florida Statutes. The address of the unit is 720 Gulf Shore Drive, Unit 605, Destin, Florida, 32541. In his capacity as co-trustee, Mr. Guidry has the independent power to protect, conserve, sell, lease or encumber, or otherwise to manage and dispose of trust assets, which include Unit 605 in the Oceania Condominium. The Oceania Owners' Association is mandated by the Oceania Declaration of Condominium to "maintain, manage and operate the condominium property." Ex. P-6 at 4. The declaration also declares, "[a]ll unit owners shall automatically become members of the association after completion of closing of the purchase of a unit in Oceania, A Condominium." Id. The Guidry Living Trust, therefore, is a member of Oceania Condominium Association. The powers of the officers and directors of the Oceania Owners' Association are set forth in the Declaration of Condominium that governs Oceania: The officers and directors of the association shall have the powers set forth in this declaration and the association bylaws, and shall, at all times, have a fiduciary relationship to the members of the association and shall operate and manage the association in the best interest of its members. Id. Oceania's Declaration of Condominium, furthermore, prescribes that "[t]he association shall have all powers granted by Chapter[s] 718 and 617, Florida Statutes." Id. at 5. Every member of the Oceania Owners' Association Board of Directors approved the initiation of Case No. 10-0516, according to the testimony of Colonel Guidry, but there was no documentary evidence offered that a vote had been taken of the Board of Directors at a board meeting on the issue of whether to file the petition that initiated Case No. 10-0516 or the outcome of any such vote. As an owner of a unit in Oceania, The Guidry Living Trust owns an undivided share of the Oceania Condominium's common property10/ which "comprise[s] all the real property improvements and facilities to Oceania, A Condominium, including all parts of the building other than the units . . . and . . . [certain] easements . . . ." P-6 at 1, 2. The Oceania Condominium real estate is deeded to the "APPROXIMATE MEAN HIGH WATER LINE OF THE GULF OF MEXICO". P-6, Exhibit "B." The Surveyor's Certificate on the survey of Oceania, A Condominium, attached to the Oceania Declaration of Condominium is dated January 16, 1996. The date is more than two months after Hurricane Opal made landfall and damaged the Okaloosa County coastline in October of 1995. Standing of the Oceania Petitioners Colonel Guidry did not appear at hearing in a personal capacity. He appeared in his capacities as co-trustee of the Guidry Living Trust and President of the Oceania Owners' Association. In contrast to the Sherry Petitioners, therefore, Colonel Guidry did not allege his personal use and enjoyment of the beach as a basis for standing. As to injury and standing of both the Guidry Living Trust and the Oceania Owners' Association, Colonel Guidry asserted a number of interests that he believed will be substantially affected by the Project. They fall into four categories of concern. The first concern is with regard to the action of the sand along the shoreline of the Oceania property after the two reaches of beach to the east and west will have been restored under the revisions to the Draft JCP. After construction activities, sand along the shoreline will equilibrate, that is, the sand will move or be transported so as to stabilize the shoreline. This stabilization or achievement of shoreline equilibrium will tend to move the shoreline along the Oceania property waterward. Colonel Guidry expressed his concern as follows: [The Oceania property] would be sandwiched . . . between two public beaches . . . mother nature will fill in what I call the Oceania Gap. Right now the only line we have on our beach is our southern property line [the MHWL of the Gulf][11] . . . . That's the only line I know of that's on our beach or will be placed on our beach. But if sand fills in, then that creates a cloud of confusion, if the State lays claim to this sand that accumulates in the Oceania Gap, as a result of the construction on both sides of us. Tr. 764, (emphasis added). The second category of concern relates to the location of the property post-construction between "two public beaches." Such a location, in Colonel Guidry's view, would make individual units at the Oceania Condominium less valuable. The third category is that the public would be more likely to trespass on private Oceania property. The fourth concern of Colonel Guidry is that the Project will have undesirable impacts to Oceania property owners' littoral rights to accretion and to touch the water. The first three concerns all stem from a decision made by the Board of County Commissioners after this proceeding was commenced to remove the Oceania property from the Project. Oceania Removed The beach and shore in the southern part of the Oceania condominium property,12/ (the "Oceania Beach Segment of Shoreline" or the "Oceania Gap") were originally subject to the Consolidated NOI for the Western Destin Beach Restoration Project. But on the eve of the date scheduled for the commencement of the final hearing in these cases, the Board of County Commissioners for Okaloosa County voted to remove the Oceania Beach Segment of Shoreline from the application for the Project. Taylor Engineering (the County's Agent) submitted a request to the Department that reads: On behalf of Okaloosa County, Taylor Engineering submits its request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project . . . The applicant has decided to remove the Oceania Condominium Property from the beach fill placement area. The revised project, as described in the enclosed permit drawings, includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R-22.6) and Reach 2 extends from approximately 200 feet east of R-023 (R- 23.2) to R-25.5. The Oceania Property defines the gap between Reach 1 and Reach 1. Additionally, we request the FDEP modify Specific Condition 1 of the Draft Joint Coastal Permit to reflect the modified project area. More specifically, we request that the Mean High Water Line Survey requirement of Specific Condition 1 exclude the Oceania Condominium property. Notice of Filing Request for Modification and Revised, Draft Joint Coastal Permit, Exhibit A. Revisions to the Original Draft JCP In light of the vote and based on the County's request, DEP filed a Revised Notice of Intent on July 26, 2010, which included revision of the Draft JCP (the "First Revised Draft JCP"). The First Revised Draft JCP eliminated the Oceania Beach Segment of Shoreline from the Project and took other action such as requiring the applicant to check for oil in the OK-A Borrow Area prior to construction by both visual inspection and analysis of sand samples because of the ongoing Deepwater Horizon Oil Spill in the Gulf. The revision also included changes to Specific Condition 5 of the Draft JCP.13/ On August 18, 2010, the Department gave notice of another revision of the JCP (the "Second Revised Draft JCP"). The Second Revised Draft JCP changed Specific Condition 1 of the JCP by eliminating the requirement that the County establish a pre-project MHWL prior to undertaking construction activities and instead requires the County to conduct a survey in order to locate an erosion control line ("ECL"). The revisions to the Draft JCP stirred interest in participating in this proceeding among a group of property owners who do not want the beaches along their properties restored: the MACLA Intervenors. The MACLA Intervenors and Their Properties On September 8, 2010, a petition to intervene (the "MACLA Petition to Intervene") was filed by nine putative intervenors: MACLA LTD II, a Limited Partnership ("MACLA"); H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust ("Hughes Trust"); Kershaw Manufacturing Company, Inc. ("Kershaw"); Kayser Properties LLC ("Kayser"); Destin, LLC ("Destin"); Paul Blake Sherrod, Jr., and Cindy M. Sherrod ("Sherrods"); Blossfolly, LLC ("Blossfolly"); 639 Gulfshore, LLC ("639 Gulfshore"); and Laura Dipuma-Nord ("Nord"), (collectively, the "MACLA Intervenors.") All nine of the MACLA Intervenors own real property in the City of Destin within the Project area that fronts the Gulf of Mexico. All nine properties have the MHWL of the Gulf as their southern boundary. MACLA is a Texas Limited Partnership. Louise Brooker is its president. The address of its property is 620 Gulf Shore Drive. The Hughes Trust owns a one-third interest in real property at the address of 612 Gulf Shore Drive. H. Joseph Hughes is a trustee of the Hughes Trust. Kershaw is an Alabama corporation. The address of its property is 634 Gulf Shore Drive. The address of the Kayser property is 606 Gulf Shore Drive. The address of the Destin property is 624 Gulf Shore Drive. The address of the Sherrods' property is 610 Gulf Shore Drive. The address of the 639 Gulfshore property is 6346 Gulf Shore Drive. The address of the Blossfolly property is 626 Gulf Shore Drive. The address of Ms. Dipuma-Nord is 600 Gulf Shore Drive. The properties owned by the MACLA Intervenors are among 18-single family lots located between a rough mid-point of reference markers R-020 and R-021 and a rough mid-point of reference markers R-022 and R-023. See Ex. P-238. These 18 single-family lots are in the approximate middle of the Project. The Oceania property, eliminated from the Project at the time of the filing of MACLA Petition to Intervene, is just to the east of the 18 single family lots in which the properties of the MACLA Intervernors are located. (Reference marker R-023 is set along the shoreline adjacent to the Oceania property.) The MACLA Intevenors' properties and the Oceania property are within the area from R-020.3 to R-023.3 (the "Middle Segment", see discussion of Critically Eroded Shoreline, below). According to an evaluation conducted by the Department on January 7, 2009, the Middle Segment of the beach is one in which "[u]pland development is not currently threatened." Ex. P-238. Timeliness of the MACLA Petition to Intervene The MACLA Petition to Intervene was filed well after the commencement of the hearing. Under rule 28-106.205, because it was filed later than 20 days before the commencement of the hearing, it could only be accepted upon "good cause shown" or if the time for filing were "otherwise provided by law." The MACLA Petition to Intervene was also filed after the Department had entered an order dismissing petitions for administrative hearings filed by three of the MACLA Intervenors14/ to contest the Second Revised JCP. The order of dismissal with prejudice by the Department dated September 7, 2010, was entered on the following bases: First, the Petitioners had a clear point of entry to challenge the proposed permit after it was publicly noticed on January 9, 2010. The Petitioners failed to timely challenge the proposed permit when given the opportunity to do so. Second, it is well settled that any proposed modifications to a proposed permit made during the course of a de novo proceeding to formulate final agency action do not create a new point of entry. Accordingly, the Petition is dismissed without prejudice to amend. Petition to Intervene, filed September 8, 2010, Ex. A, at 2 of 8. The Department was aware that the Western Destin Project "because of its size, potential effect on the environment, potential effect on the public, controversial nature or location, is likely to have a heightened public concern or is likely to result in a request for administrative proceedings." Consolidated NOI, at 13 of 17. The Department therefore took pains to ensure that parties affected by the Western Destin Project would be provided notice of the Project and have an opportunity to timely assert their rights to challenge the permitting and authorization of the Project. The Consolidated NOI required publication within 30 days in the legal ad section of a newspaper of general circulation in the area a public notice of the Consolidated NOI. It also required proof of publication. The County complied on both counts. A notice was published on January 9, 2010, in the Destin Log, in Okaloosa County. The public notice specifically identified the project location as between reference monuments R-16.6 and R-25.5 in Okaloosa County, which includes the segment of the shoreline adjacent to the MACLA Intervenors Property. The Department also provided a detailed statement of the "Rights of Affected Parties," including their right to petition for an administrative hearing pursuant to sections 120.569 and 120.57 within 14 days of receipt of written notice of the Consolidated NOI. The point of entry into the administrative proceedings to challenge the Consolidated NOI, therefore, in the case of affected parties with notice by virtue of the publication on January 9, 2010, expired on January 23, 2010. The section of the Consolidated NOI that governed the rights of affected parties also warned: Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the permit or even a denial of the application. * * * The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S. Consolidated NOI, at 14 of 17. The MACLA Intervenors read the Destin Log at least on occasion and communicated with counsel for the Oceania Petitioners. Some believed they were represented by counsel for the Oceania Petitioners and had contributed to legal fees incurred by the Oceania Petitioners. Despite the foregoing, the MACLA Petition to Intervene was granted (subject to proof of standing) on the basis that the MACLA Intervenors had shown good cause for the filing after the deadline imposed by rule 28-106.205. At the time a point of entry into administrative proceedings was provided by the combination of the Consolidated NOI in December of 2009 and publication in the Destin Log of the notice on January 9, 2010, the Draft JCP called for the applicant to provide a survey of a Pre-project MHWL rather than the establishment of an ECL. Neither notice of the Second Revised Draft JCP, filed on July 26, 2010, nor the Second Revised Draft JCP, itself provided a point of entry into formal administrative proceedings to parties whose substantial interest were at stake. A new substantial interest, however, had been injected into the proceedings by the Second Revised JCP. The Second Draft JCP requires the establishment of an ECL as a condition of the permit in lieu of provision of a survey of Pre-project MHWL. The MACLA Intervenors promptly sought a point of entry to contest what is plainly a drastic change in circumstances with significant consequences to the boundary of their properties toward the shoreline with the Gulf of Mexico. The effect of this change and the difficulty of keeping up with beach restoration activities in Okaloosa County, particularly for affected persons whose permanent residence is elsewhere, was demonstrated by the testimony of Louise Brooker, who lives in Amarillo, Texas. When asked "[w]hy did you wait until September of this year [2010] to file the intervention?," she testified: [O]ur group thought that we were being represented by the Oceania group . . . when I did find out [the JCP had been issued], it was after the 30-day period . . . I hadn't been reading the Destin Log every day because it's very difficult to do, and then it changed. * * * Then it made a huge difference between using the mean high water line * * * And then the ECL being established, which was the ECL that I do not agree with, then that was being put in the permit. So that changed things a great deal. (emphasis added). Tr. 1526-7. Once their petitions for formal administrative proceedings had been dismissed with prejudice by the Department (or in the case of the MACLA parties whose petitions for an administrative had not been dismissed yet but appeared likely to meet the same fate), the MACLA Intervenors promptly sought relief through filing the MACLA Petition to Intervene. When the petition to intervene of the MACLA Intervernors was opposed by the County and the Department, the placement of the substantial interest at stake in the proceeding of a fixed ECL as the southern boundary of their property by the Second Revised JCP and the quick action of the MACLA Intervenors in contesting in contesting it was viewed as good cause for the filing of their petition later than required by rule. The Other Parties Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP, the Variances and the SSL Authorization. The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations. The Holiday Isle Intervenors are businesses and condominium associations, all of whose members own real property or conduct businesses along the segment of the beach to be restored by the Project. Their properties (unlike the Oceania property and the MACLA Intervenors' properties in the Project "gap" between R-22.6 and R-23.2) are along shoreline that has been designated by the state as critically eroded.15/ Critically Eroded Shoreline Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline": "Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects. Fla. Admin. Code R. 62B-36.002(4), (the "Critically Eroded Shoreline Rule"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. Consideration of the Project on this basis leads to the Project being broken into three segments: a segment from R-17 at the west end of the Project to roughly R-20.3 (the "Western Segment"); a segment roughly between R-20.3 and R-23.2 (the "Middle Segment"); and a segment roughly between R-23.2 and R-25.5 (the "Eastern Segment"). Mr. Clark described the impact of a 25-year storm event on the Western and Eastern Segments: [T]hose two areas, based on the evaluation and the projection of the impact of a 25-year storm event, which is a high frequency storm event, showed that there would be erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. Tr. 499. As for the Middle Segment, "the same evaluation did not show that the 25-year storm event would provide that same level of threat." Id. The Middle Segment, however, for the purposes of continuity of the management and design integrity, was also designated as Critically Eroded Shoreline and the entire stretch of shoreline, including all three segments, Western, Middle, and Eastern, was originally included in the Project.16/ The Project With the elimination of the Oceania Gap, the Project calls for the placement of 831,000 cubic yards or so17/ of beach- quality sand along 1.7 miles (less the 600 feet of the Oceania Gap) of shoreline within the City of Destin between reference monuments R-16.6 and R-22.6 and between R-23.2 and R-25.5. The Project is designed to restore the shoreline to conditions that existed before Hurricane Opal in 1995. The useful life of the Project is estimated to be eight years. The Project will restore beach along 32 separate parcels of property, 31 of which are privately owned. The exception is a small area of publicly owned beach at the extreme west end of the Project. The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that work zone, there is a lot of heavy equipment that moves the sand around . . . looking at the Project . . . [from] an aerial view, roughly half the sand will be placed seaward and half the sand . . . landward of . . . [the] Mean High Water Line." Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a back berm and a wide variable berm. The dune has an elevation of 8.5 feet and a crest width of 30 feet. The berm has an elevation of 5.5 feet. The width of the construction varies but averages about 200 feet. Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. "That near shore bar acts as a wave break . . . and dissipates wave energy during storms. So having a good healthy bar out there can definitely provide storm protection." Tr. 140. "Using "two to 250 feet a day,"18/ as a "good approximation for the progress . . . [in] constructing the"19/ Project, construction on any particular individual property should take between one or two days "depending on how . . . wide the property is and how fast the construction progresses." Tr. 141. A property along a lengthier segment of the beach, like the 600 feet at the seaward boundary of the Oceania Property had it remained a part of the Project, therefore, would take "two to three days." Tr. 142. Storm erosion models on the construction berm showed that the Project will provide protection from a fifty-year storm. Selection of the Sand Source: Borrow Area OK-A The engineers of the Project, ("Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore" site. The far-shore site is eight miles offshore and about a mile east of East Pass and is designated "OK-B." The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, it is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately 0.9 miles wide north to south, it covers approximately 700 acres. At its landward-most side, it will be dredged to 10 feet into the existing bottom. Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone.20/ Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf."21/ Tr. 513. It is referred as the near- shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site." The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts. Sand quality is "the number one criteri[on]." Tr. 143. It involves grain size, soil and shell content, and sand color. Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand. If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8 miles distance from shore that it would not impact the shoreline in any way. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely.22/ A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distance. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B. Taylor Engineering (and ultimately the County) selected OK-A as the sand source. The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October of 2009. The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13.23/ The selection of OK-A was not upset by Taylor Engineering's OK-A Borrow Area Impact Analysis. Borrow Area Impact Analysis An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July of 2008. Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion. Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents. The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" Tr. 149. The basis was the 100-year storm data from Hurricane Opal. The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it: Tr. 150. When you use . . . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . . . the propagation of distance of the waves is relatively short. And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . . in applications like [Okaloosa County's for the Western Destin Project], you ignore the effects of bottom friction. The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." Tr. 152. In the case of OK-A, it is intended to serve the Eglin Air Force Base Project, the Okaloosa Island Project and the Western Destin Project. These projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling. With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible. Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." Tr. 152. ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area. Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the borrow area would be negligible whether in normal or "storm" conditions. The Application Coastal Construction Permits and CCCL Permits The Application was processed as one for a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit. Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits. The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053 of the CCCL Statute provides as follows in subsection (9): "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 161.041 [the Shore Protection Statute] " The Department interprets section 161.053(9) to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP. b. The "Written Authorization" Provision Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute. Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1) and (2). Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4). Section (1) of rule 62B-41.008 provides, in pertinent part, as follows: A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department . . . The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" . . . is hereby incorporated by reference . . . . The application shall contain the following specific information: * * * (c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida. * * * (n) Written authorization for any duly- authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application. (emphasis added). Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B-41.008(1)(f), (h), (i), (j), (k), (l), or (m), F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (c) or (n). The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). It did not contain written proof of ownership of any property that will be used in carrying out the Project nor did it contain authorization for such use from the property owner upland of mean high-water, information required by paragraph (c). It did not contain written authorization for any duly-authorized member of the Department staff to enter upon any private property to be used in carrying out the Project for the purpose of evaluating the site conditions prior to final processing of the permit application, information detailed in paragraph (n). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the 31 privately-owned properties within the Project area, including the MACLA intervenors. As part of the Application, however, the County requested a waiver of the requirements related to authorizations. A waiver was requested under number 14 of the Application. It provides: Satisfactory evidence demonstrating that the applicant has sufficient control and interest in the riparian upland property, as described in Section 18-21.004(3)(b), Florida Administrative Code. Governmental entities that qualify for the waiver of deferral outlined in this rule must provide supporting documentation in order to be eligible. If the applicant is not the property owner, then authorization from property owner for such use must be provided. Joint Ex. 1, at 3 of 9. The County, through its agent, Taylor Engineering, responded to number 14 of the Application as follows: Response: The applicants request a waiver of the requested information under Rule 18- 21.004(3)(b), which grants an exception to the upland interest requirement for restoration and enhancement (e.g. nourishment) activities conducted by a government agency. According to Rule 18- 21.004(3)(b), satisfactory evidence of sufficient upland interest is not required for the proposed activity, because the proposed offshore borrow area is not riparian to uplands and the beach fill activities will not unreasonably infringe on riparian rights. Joint Ex. 1, Attachment A, at 3rd un-numbered page. Rule chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004(3)(b) ("the Upland Interest and Riparian Rights Rule") provides as follows: (3) Riparian rights. * * * (b) Satisfactory evidence of sufficient upland interest is required for activities on sovereign submerged land riparian to uplands, unless otherwise specified in this chapter. * * * Satisfactory evidence of sufficient upland interest is not required . . . when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights. (emphasis added). Item number 18 of the Application calls for signatures related to "any proprietary authorizations identified above," such as those identified in item number 14. Consistent with the request for a waiver from providing the requested information with regard to satisfactory evidence demonstrating sufficient control and interest in the riparian upland property, no signatures were provided by the County or its agent. Rule 62B-49.003(3), entitled "Policy" provides: Any application submitted pursuant to this chapter shall not be deemed complete, and the timeframe for approval or denial shall not commence until the Department has received all information required for: a coastal construction permit under Section 161.041, F.S., and Chapter 62B-41, F.A.C.; an environmental resource permit under Part IV of Chapter 373, F.S., and Title 62, F.A.C.; and a proprietary authorization, under Chapter 253, F.S., and Chapters 18-18, 18-20 and 18-21, F.A.C. See the material bound and attached to the Request for Official Recognition filed August 2, 2010, Tab "Chapter 69B-49, F.A.C." The Department deemed the Application complete on December 30, 2009. Amendment of the JCP re: Written Authorizations The petition for formal administrative hearing filed in Case No. 10-0516 challenged the Consolidated NOI on the bases, inter alia, that the Application had failed to "provide 'sufficient evidence of ownership' as defined in rule 62B- 33.008(3)(c), F.A.C., to be a proper applicant for the Permit"24/ and that the County had not "provided satisfactory evidence of sufficient upland interest to be entitled to a letter of consent to use sovereign submerged lands."25/ To support their allegation that the County is not a proper applicant for the JCP, the Oceania Petitioners amended their petition on July 13, 2010, to add the following: The County must provide the Department "[w]ritten evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high-water but not sovereign land of the State of Florida", as required by [paragraph (c) of the JCP Application Specific Information Rule]. The Department must receive "[w]ritten authorization for any duly-authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application", as required by Rule 62B- 41.008)1)(n), F.A.C. The Amendment was made despite the existence in all of the versions of the Draft JCP, the original version and the revised versions, of General Condition Six: This permit does not convey to the Permittee or create in the Permitee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. Joint Ex. III at Tab 9 at 4 of 26. With the filing of the Oceania Petitioners' Second Amended Complaint in Case No. 10-0516, the issues appeared to be fully joined. Before the case proceeded to hearing, however, the County voted to remove the Oceania Property from the Project (see paragraphs 31 and 32, above). The vote led to a formal request from the County to DEP to revise the Project and a revision by the Department of the Project's drawings and the Draft JCP (the "First Revised Draft JCP"), notice of which was filed on July 23, 2010. The revisions to the Draft JCP necessitated by the elimination of the Oceania property from the Project was not the only revision made to the Draft JCP as noticed on July 23, 2010. The Department also revised the Draft JCP's Specific Condition 5. This latter revision prompted the Sherry Petitioners to file a petition for an administrative determination concerning un- adopted rules. DOAH assigned the petition Case No. 10-6205RU. During the final hearing, the Department revised the Draft JCP a second time (the "Second Revised Draft JCP".) The second revision inspired the MACLA Petitioners' petition to intervene. Just as with the Sherry Petitioners, the revision to Specific Condition 5 prompted the MACLA Petitioners to petition for an administrative determination concerning un-adopted rules. DOAH assigned this second un-adopted rule challenge to Specific Condition 5 Case No. 10-8197RU. Case Nos. 10-6205RU and 10-8197RU In general, the revision to the Draft JCP's Specific Condition 5 advised the County that no beach restoration work can be performed on private upland property unless authorization from the owner of the property has been obtained and submitted to the Department ("the Upland Property Authorization Requirement"). The revision also provided an exception to the Upland Property Authorization Requirement: the County could submit an authorization from a court of competent jurisdiction that such an authorization is not required. Case Nos. 10-06205RU and 10-8197RU were heard at the same time as these consolidated cases.26/ A final order was issued with regard to the two cases on November 4, 2010. The final order dismissed the case because the Sherry Petitioners and the MACLA Petitioners had not demonstrated that they would be "substantially affected" by Specific Condition 5 as required by section 120.56(3) for a party to have standing to challenge an agency statement that constitutes a rule which has not been adopted pursuant to the rule-making procedures found in section 120.54(1)(a). Case Nos. 10-6205RU and 10-8197RU were two of three petitions seeking administrative petitions concerning un-adopted rules that were consolidated and heard with the consolidated cases subject to this Recommended Order. The third was a case that had been filed by the Oceania Petitioners earlier in the proceeding: Case No. 10-5384RU. Case No. 10-5384RU Case No. 10-5384RU was filed by the Oceania Petitioners in order to challenge as an un-adopted rule Specific Condition 1 as it appeared in the Original Draft JCP ("Original Specific Condition 1"). Original Specific Condition 1 contained several requirements. In general, it required the County to record a certificate before the commencement of construction associated with the Western Destin Project. The certificate was required to describe all upland properties along the shoreline of the Project. The certificate was also required to be accompanied by a survey of a pre-project mean high water line (the "Pre-project MHWL) along the entire length of the Project's shoreline. The case claimed that the Department had made another statement that constituted an un-adopted rule which violated the rule-making provisions of chapter 120: "that an Erosion Control Line (the 'ECL') is not required to be established pursuant to Section 161.161, Florida Statutes, for a beach restoration project unless 'state funds' are used for the construction (as opposed to just the design) of a beach restoration project." Case No. 10-5384RU, Petition for an Administrative Determination Concerning Unadopted Rules, at 2. During the course of the final hearing, however, the Department filed a notice of a set of revisions to the First Revised Draft JCP. These revisions (the "Second Revised Draft JCP") included a revision of Specific Condition 1. The Second Revised Draft JCP The notice by the Department that alerted the parties to the Second Revised Draft JCP was filed on August 18, 2010. The August 18, 2010, Notice contains two changes to the First Revised Draft JCP. The first change deletes entirely the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5384RU). It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. Thus, the first change noticed by the Department on August 18 deleted the requirement that the County submit a survey of a Pre-project MHWL. It requires, instead, that the county establish an ECL consistent with applicable statutory provisions. The second change was made with respect to Specific Condition 4(c) of the First Revised Draft JCP, which lists items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed (with construction) by the Department. The existing language was deleted in its entirety and the following language was substituted: Id. Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Disposition of Case No. 10-5384RU The same Final Order that disposed of Case Nos. 10- 6205RU and 10-8197RU disposed of Case No. 10-5384RU. The Petitioners in Case No. 10-5384RU were found to lack standing to challenge Original Specific Condition 1 and the petition that initiated the case was dismissed. In addition, the Final Order concluded that had the Petitioners had standing to bring the challenge, the case would still have been decided in favor of the Department. This conclusion was based on the remedy called for by section 120.57(1)(e).27/ That remedy was found to have been achieved when the Department changed Specific Condition 1 to require an ECL rather than a Pre-project MHWL. See Final Order, Case No. 10- 5384RU (DOAH November 4, 2010). In addition to the record made with regard to the three rule challenges during the final hearing on the Sherry and Oceania Petitions, most of the rest of the evidence at the final hearing concerned the application of the regulatory authority of the Department and the Board of Trustees found in the Florida Statutes and the Florida Administrative Code, especially the environmental impacts of the Project as permitted by the Second Revised Draft JCP and as authorized under the Variance and the Sovereign Submerged Lands Use Authorization. Impacts The depth of OK-A should not exceed -49.4 feet, NGVD in an area where the depth of the ocean bottom is roughly -40 feet, NGVD. The excavation of the borrow site is designed in two dredging phases. The first phase, anticipated to provide up to 116 percent of the sand needed by the Project, is designed to a depth of 47.4 feet. "If for some reason, the contractor needs more sand . . ., then he can move into Phase II . . . [at a depth] of minus 47.4 to minus 49.4 feet [NGVD]. . . [,] a two foot deep layer throughout the entire borrow area." Tr. 165. OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area.28/ Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." Tr. 633. Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts. Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally General Wave Dynamics "[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also become involved with diffraction. Shoaling is a growth in height from interaction with the shallow bottom or a shoal. Refraction is a process of alignment of waves with bottom contours. Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features. As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions. Dr. Dally offered the following description of wave changes as they close in on the face of the beach and approach interaction with the shoreline. The description includes the potential impacts of an excavated OK-A on the beaches and shores of Okaloosa Island adjacent to the Surf Dweller and El Matador condominium property: As they pass into the very nearshore . . . they, of course, grow in height. They then break . . . [or] [s]ometimes, as they pass over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation . . . * * * Wave reflection from abrupt bathymetric changes. . . in this case, the landward most . . . notch of the borrow area would be a reflective surface . . . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they will reflect and begin defraction [sic] so that it becomes a . . . complicated wave field . . . . Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport. Sediment Transport "Sand can move along or away from the beach in two ways." Tr. 1141. It can move along the shoreline or it can move offshore. Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, rather than those that break straight onto the beach. The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west. The Sherrys and Mr. Donovan Petitioners own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "[t]hose beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." Tr. 1143. This area of the Okaloosa County's beaches and shores is the area most likely to be affected by an excavated OK- A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site. Borrow Site Impacts Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area. The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," tr. 640, in essence, a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea. The second wave process creates the potential for the waves to become "very, very, complicated." Tr. 640. They could "trip", that is, the notch in the borrow area could break the waves. "[B]rag scattering" (tr. 641) could make the waves deteriorate into shorter period waves. If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport. Just as Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial. The area of shoreline that would be affected by wave impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern . . . increases the size of the shadow zone," tr. 680, to a size much larger "than the actual shadow zone of the . . . borrow area." Id. Along these same lines, if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property. Distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And that's when you can really cause impacts to the beach, both accretive and erosive impacts." Id. (emphasis added). The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that adverse impacts will occur. The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach. In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report. The OK-A Borrow Area Impact Analysis Generally Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report. Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction. The only numerical data analysis specific to the excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report. The Report described its evaluative efforts: [T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes. STWAVE (Steady-State Spectral Wave Model) simulated normal (average) and extreme (100- year (yr) storm) waves propagating over the baseline and post-dredging bathymetries. ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet. County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics. Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data is not measured wave data. Instead, it consists of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data is then placed in a model coded to represent the entire Gulf. The WIS station from which data was collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurement, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurement would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however, If you don't have [field measurement data], then . . . especially over the long-term . . . a year or more [or] if you're analyzing your beach profile data over a 10 year period, you would like to have . . . wave data to accompany that 10 year period. Generally we don’t and that's when we start relying on models to fill in this missing information. Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is . . . limited to [the] deployment period." Tr. 1234. It is not practical to take 10 years' worth of field measurement. As Mr. Trudnak explained: Typically, you would install those gauges for . . . a month or a couple of months . . . you want to use representative conditions . . . you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions. * * * [W]hen you . . . install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you . . . capture representative conditions. Id. (emphasis added). The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data. For its extreme STWAVE modeling, Taylor relied on WIS information generated during Hurricane Opal in 1995. Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County. Criticisms of Taylor's STWAVE Modeling Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction results from its STWAVE models or conduct any sediment transport analysis. Mr. Trudnak offered refutations of the criticisms. For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't . . . feeling the bottom so they're not being affected by the bottom friction." Tr. 1236. The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort. Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling were not sufficient to support an opinion of "no impacts", but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches.29/ See Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models are." Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id. With regard to the modeling used in Taylor's Borrow Area Impact Analysis, Dr. Young summed up: [W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer . . . it's not precisely the right answer, but . . . nobody knows how wrong the answer is. I don't know it, Mr. Trudnak doesn't know and Mr. Clark doesn't know. And that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data. Tr. 1160. In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore Borrow Area Impacts Analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any.30/ Taylor Engineering used STWAVE and not Boussinesq as the model for the Borrow Area Impact Analysis because the Boussinesq Model is typically used where diffraction plays the dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area, making the STWAVE Model, if not more appropriate than the Boussinesq Model, certainly an acceptable model under the Project's circumstances. When asked about the Bousinessq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience (rather than actual testing or modeling the impacts of OK-A as done by Taylor), he was "almost certain," tr. 691, that Bousinessq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion . . . [that is] momentary . . . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial. When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system. Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing. In short, Dr. Dally roundly criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his testimony whether the impacts will be entirely de minimus, see rule 62B-41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County, a system whose ocean bottom, beaches and shores already contain scalloped features. Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project. The Walton Project and Its Borrow Area Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County (East Destin) and western Walton County. Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project. Location and Comparison to the OK-A Borrow Area The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See Ex. P-13. The area between the easternmost point of the OK-A Borrow site and the westernmost point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its easternmost point is roughly one-half mile off-shore. Comparison of the Walton Borrow Area and OK-A shows that OK-A is larger and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water than the Walton Borrow Area. Nonetheless, Petitioners characterize the two borrow sites as similar,31/ mainly because with less than 1.5 miles separating them, they are relatively close to each other. Despite proximity, there are significant differences, however, between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK- A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . . . further offshore . . .[s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." Tr. 306. In addition to distance from shore, the predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . . . and it included the outer flanks of the ebb shoal." Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone. Walton Borrow Area Impact Analysis and Monitoring Taylor Engineering's borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." Tr. 156. The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year. Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach. As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report. Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008. After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend . . . ." Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." Tr. 160. Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier. Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre- construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area. In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area) is having a beneficial impact on the beaches to the west of the project and its borrow area. Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes.32/ In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton Borrow Area which showed erosion early after completion of the Project is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts which are beneficial. Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark. Mr. Clark and The Department's Review of Western Destin Project Borrow Site Impacts Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer. During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water . . . ." Id. He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." Tr. 486. Among his specific duties is the review of "scopes of work and project feasibility studies that are provided . . . by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review of the Western Destin permit application and additional information related to the Project. After review, Mr. Clark reached the conclusion that the "Project is a well designed Beach Restoration Project that's critically needed . . . to restore the beaches of Western Destin to provide needed storm protection, recreational benefits and wildlife habitat." Tr. 488. With regard to his overall conclusion as to the Project's physical impacts, Mr. Clark testified: Id. In my opinion, the placement of 831,000 cubic yards of beach compatible sand fill along Western Destin will provide a positive, beneficial impact to the beach and dune system of Western Destin. The excavation of that material from the proposed borrow area [OK-A], along with the excavation of material for four other fill projects proposed for Santa Rosa Island, three of which have been approved, is not expected to have any adverse impact to the beaches of Santa Rosa Island. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity; extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents. Mr. Clark has reviewed 136 beach restoration projects. Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number" tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas." Id. The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies. Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips. In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project Over his 37 years, Mr. Clark served on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico. Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document" tr. 494, now electronically available to the public on the Department's website. The report prepared by Mr. Clark which led to the designation of the Western Destin Project beach as critically eroded showed that the areas from R-17 to roughly R-20.3 and R- 23.2 to R-25.5 revealed erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. The report is based on evaluation and projection of the impact of a 25-year storm event. The same report did not conclude that a 25-year storm event would provide the same level of threat to the area between R-20.3 and R-23.2 (the shoreline along the MACLA Intervenors' Property and the Oceania Gap) although that stretch of the beach is "potentially threatened by a 50 to a 100-year storm event." Tr. 499. The "R-20.3 to R-23.2" segment was included in the critically eroded designation for design and integrity of the Project and continuity of management of the coastal system. The designation of the Project area as critically eroded was made in 2006 and was updated by the Department at the request of the County in 2008. The 2008 update indicated no need to change the designation. Although not as threatened as the rest of the shoreline in the Project, the shoreline along the Middle Segment, (including the MACLA Intervernors' Property and the Oceania Gap) is erosional. Data obtained as late as October 19, 2009, indicate that there had been more erosion since a Mean High Water Survey located the MHWL in 2008. The data does not show volumetric change, only that "there is a continued trend of erosion" of the shoreline in the Oceania Gap. Tr. 506. With the Oceania Gap eliminated from the Project, elimination of the rest of the property in the Project's Middle Segment (between R-20.3 and R-23.2) would make the remainder of the Project unstable. It would "isolate a 2,000-foot segment between R-23.2 and R-25.5 [the Eastern Segment] . . . and a 2,000-foot fill segment is not long enough to be a stable fill segment." Tr. 507. Although the elimination of all of the Middle Segment would not hurt "the very far west end" of the Project "very much," tr. 508, the elimination of the entire Middle Segment from the Project would also make the very east end of the Western Segment "relatively unstable." Tr. 508. The Middle Segment, therefore, while not critically eroded, would benefit from beach restoration. Restoration will provide protection from the erosion it is experiencing and from 50-year and 100-year storm events should they occur during the life of the restoration. Restoration will include dune work that will provide protection from storm surge and dissipate the wave energy seaward of any structures in the Middle Segment. Recent storm events have been 50-year and 100-year events. In the area of the Project, "Hurricane Opal was comparable to a 100-year storm event." Tr. 509. In Pensacola Beach, Ivan was a 200-year event. In the Destin area, Ivan "probably dropped to just below a 100-year storm event in terms of its magnitude. Hurricane Dennis was probably comparable to a 50-year storm event." Id. The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. The OK-A Borrow Area is an offshore borrow area. Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island. In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area. Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach . . . ." Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." Tr. 520. If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but to the beach to the west of the borrow area the impact would be accretion. Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores of Okaloosa County. For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering. Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island. Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse impact from a borrow area . . . ." Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id. Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young: [W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And . . . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design. * * * We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated. Tr. 1150-1. When asked the question of whether there is a definition of a failed beach restoration project in the literature or that is generally accepted by the coastal engineering community, see tr. 1152, Dr. Young testified, "I have not seen one." Tr. 1152. He added, " I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." Tr. 1152-3. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts. Variance The "Variance" referenced in the Consolidated NOI concerns two related variances: one from rule 62- 4.242(2)(a)2.b., and the other from rule 62-4.244(5)(c). The northern boundary of the proposed borrow area is within Outstanding Florida Waters ("OFW"). That location led the County to seek a variance from the limitation in rule 62- 4.242(2)(a)2.b. that turbidity can exceed background conditions in OFW during permitted construction activity for no more than 30 days. Section (2) of rule 62-4.242 sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows: (a) no Department permit . . . shall be issued for any proposed activity . . . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that: * * * 2. The proposed activity . . . is clearly in the public interest, and . . . * * * b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity . . . , except on a temporary basis during construction for a period not to exceed thirty days . . . . The County also sought a variance from rule 62- 4.244(5)(c) which governs mixing zones in surface waters and reads: In no case shall the boundary of a dredge and fill mixing zone be more than . . . 150 meters in radius in . . . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants. Section 120.54(2) authorizes an agency to grant a variance as follows: Variances . . . shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or violate principles of fairness. Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150 meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150 meter radius, the County "would have had to almost continually be shutting down . . . .[its hopper] dredge," tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150 meter radius. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the variances for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more down time and conditions [could cause] a cutterhead . . . to stop dredging and go into safe harbor into East Pass." Tr. 173. The variance from rule 62-4.244(5)(c), therefore, was needed because the standard size mixing zone would have created a substantial hardship for the County. In addition to outlining the substantial hardship, the County provided two additional bases in its application to justify the variances: (a) no resources in the area, such as hard bottom or sea-grass beds, would be affected by a turbidity plume and an expanded mixing zone; and (b) citation to the Pensacola Naval Air Station ("NAS") project claimed to be similar in that it involved OFW and had received a variance. Upon receipt of the application for the variances, the Department requested additional information to establish whether OK-A, in fact, would be within OFW and more analysis of the comparability with the Pensacola NAS project. The Department's engineering section determined that the comparability of the Pensacola NAS project was not adequately demonstrated because of a lack of detail about the hydrodynamics and mixing zone sizes of the two sites. Nonetheless, the staff responsible for making the final decision on the variances (and ultimately the Department) determined the County's information justifying the variances to be sufficient. In granting the variances, the Department did not rely on the County's comparison of the Project to the Pensacola NAS project. As explained by Dr. Edwards at hearing, "[H]aving the data . . . from an actual project to back up and . . . calibrate a mixing zone is an added bonus, but we just didn't have it in this particular case." Tr. 420. The Department based its decision, in part, however, on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500- meter mixing zone was determined to be appropriate. Independent of the information provided by the County, the decision, therefore, was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that there was a comparable project in the area (not the Pensacola NAS project) that had been allowed a 1500- meter mixing zone. In applying the standard from section 120.54(2) related to the underlying intent of the rules at issue and the statutes, the Department determined that "[t]he Project in the OFW was clearly in the public interests, according to [section] 373.414 and the minimum Water Quality Standards, even within the mixing zone[,] would still be met." Tr. 421-2. There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI. Petitioners presented no evidence to rebut the testimony elicited by the Department and the County that the purpose of the statute underlying the rules from which the variances are sought will be met by other means and that the application of the rules will create a substantial hardship. Changed Site Conditions 267. Rule 62B-49.005(16) provides: If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 9-day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the County's application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico. No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area. The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See tr. 175. Western Destin Erosion Control Line The requirement for an Erosion Control Line is in section 161.161: Once a project is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to . . . locate an erosion control line. * * * In lieu of conducting a survey, the board of trustees may accept and approve a survey as initiated, conducted, and submitted by the appropriate local government if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. § 161.161(3), Fla. Stat. The Draft JCP as originally issued did not require the establishment of an ECL. It required the establishment of a Pre- project Mean High Water Line instead. The Second Revised Draft JCP dispensed with the requirement of a Pre-project MHWL. It requires that an ECL be established for all properties within the 1.7 miles stretch of beach in the Project area subject to beach restoration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order issuing the Joint Coastal Permit, Variance, and Sovereign Submerged Lands Authorization as revised during the course of these proceedings. DONE AND ENTERED this 29th day of June, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2011.
The Issue Whether Permit Number 9330008850 (a building permit for the construction of a single-family residence and swimming pool) issued by Monroe County, Florida, to Fred Snowman is inconsistent with Monroe County's setback requirement pertaining to beach berms that are known turtle nesting areas.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Sections 380.031(18), 380.032, and 380.07, Florida Statutes. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County, Florida. Monroe County issued the development order that is the subject of this appeal. Respondent Fred Snowman is a general contractor and is the owner of real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida. The subject property is a residential lot that measures 100 feet by approximately 225 feet and was acquired by Mr. Snowman in September 1992. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean. Respondent's lot is within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued building permit, Permit Number 9330008850, to Fred Snowman as Owner and General Contractor. This building permit is a development order in an area of critical state concern and is the subject of this proceeding. As reflected by the approved site plans, the permit authorizes the construction of a 2,472 square foot single-family residence with 1,568 square feet of porches, a 1,435 square foot storage enclosure below base flood elevation, and a swimming pool on the property. As permitted, all construction will be setback at least 75 feet from the mean high water line. There is no dispute between the parties as to where the mean high water line is located. Sections 9.5-335 through 9.5-345, Monroe County Code, are land development regulations that contain certain environmental performance standards relating to development. The purpose of these standards is "to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed." See, Section 9.5-335, Monroe County Code. Included in the environmental standards of the land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There is little dispute that Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach that fronts Mr. Snowman's property on Lower Matecumbe Key is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. At the time Mr. Snowman obtained approval of his permit application from Monroe County, the County's endangered species maps omitted an approximately 1.5 mile stretch of Lower Matecumbe Beach, including Mr. Snowman's property, from its map designation of a known nesting habitat. However, since that approval, the map, which is subject to periodic updates, has been updated by the County to reflect that all of Lower Matecumbe Key, including Mr. Snowman's property, is considered by the County to be known turtle nesting habitat. Mr. Snowman did not rely on the designation on the endangered species map in making his decision to purchase the subject property or in designing the improvements he seeks to construct on the property. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, is it generally not possible to determine whether turtles have nested on a particular lot. There was no evidence that turtles actually nest on Mr. Snowman's property. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Snowman's property is properly designated as "Disturbed Lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5- 345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no construction of any structure may be located within fifty (50) feet of any portion the beach- berm complex which is known to serve as an active nesting area of marine turtles. There was a conflict in the evidence as to how much of Mr. Snowman's property should be considered to be a beach-berm habitat. The County has identified the landward extent of the beach-berm to be twenty-five feet from the mean high water line, so that the setback would be to a point at least 75 feet from the mean high water line. The Department has identified the landward extent of the beach berm to be 80 feet from the mean high water line so that the setback would be to a point at least 130 feet from the mean high water line. Section 9.5-4(B-3) contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. There are two distinct ridges located on the Snowman property. Beginning at the mean high water line, there is an area of sandy beach followed by a ridge (the first ridge) that levels off approximately 25 feet from the mean high water line. Behind this first ridge is another ridge that levels off approximately 80 feet landward of the mean high water line. This second ridge contains the highest elevation point on Mr. Snowman's property, with the crest of the second ridge corresponding with the 5.9 foot elevation reflected on Respondent's site plan. There is no vegetation on the beach, which is an area of sandy substrate, until the landward downslope of the first ridge, where vegetation in the form of grasses and sea oats appear. Grasses and sea oats extend approximately 30-40 feet landward into the beginning of the second ridge. Behind the grasses and sea oats is woody vegetation, Bay Cedar, and shrubbery typical of beach front property. Also found on the property and landward of the first ridge are sea grape, wild sage, gray nicker pod, and prickly pear cactus. Monroe County considers this first ridge to be the extent of the beach berm complex on the Snowman property. The County identifies the back of the berm on the subject property as measuring 25 feet landward of mean high water and applied the 50 foot setback requirement from that point. The determination of the extent of the beach berm by the County is consistent with the definition of the term "beach berm" contained in Section 9.5-345(3)f, Monroe County Code, and is supported by the greater weight of the evidence presented at the formal hearing. Consequently, it is found that the beach berm complex on the Snowman property extends 25 feet landward of the mean high water mark so that the setback requirement was properly applied when the development order was issued. The Department asserts that the second ridge should be considered to be part of the beach berm. The Department's determination of the extent of the beach berm is bottomed on a more expansive definition of the term "beach berm" derived from its interpretation of various portions of the Monroe County Comprehensive Code. Inexplicably, the Department's interpretation of what should be considered to be included as part of the "beach berm" ignores the definition contained in Section 9.5-345(3)f, Monroe County Code. The Department interprets the term "beach berm" to include not only the initial increase and decrease in elevation near the shoreline, but also those areas of calcareous substrate that form the second ridge and include the highest elevation on the subject property. The Department considers the beach berm to terminate 80 feet from the mean high water line where the elevation of the second ridge decreases and levels off to a more consistent grade. The Department characterizes the first ridge as a primary dune the second ridge as a secondary dune. In support of its position, the Department cites the discussion of beach berms in the Florida Keys contained in Volume I of the Monroe County Comprehensive Plan. That discussion describes a berm in the Keys as the "higher, mostly vegetated dense-like sand ridges." According to the Comprehensive Plan, the biota characteristics of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane, . . . Beach Grass, . . . Sea Oats, . . . [and] Bay Cedar. On most Keys beaches this association occurs only atthe base of the berm since the beach zone is very narrow. These plants also occupy themost seaward portion of the berm and continuesome distance landward. * * * The next zone, "strand-dune" association,begins with a steep and distinct increase inslope upward from the beach. . . . The bermmay be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of the beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generallyconsidered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. * * * The height and width of berms in the Keys is highly variable. They may range in height from slightly above mean high water to more than seven (7) feet above mean sea level. The width of berms in the Keys varies from tens of feet to more than 200 feet. Despite the support the Department found in the Comprehensive Plan for a more stringent setback requirement, the Department is not at liberty to ignore the definition of the term beach berm contained in the land development regulations. While both ridges that exist on the Snowman property may be considered berms or dunes, only the first should be considered a beach berm. The first ridge is ". . . a bare, sandy shoreline with a mound or ridge of unconsolidated sand" within the meaning of Section 9.5-4(B-3), Monroe County Code. The second ridge is above the vegetation line and is not ". . . a bare, sandy shoreline" within the meaning of the definition of beach berm contained in the Monroe County land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and the conclusions of law contained herein and denies the appeal filed by the Department of Community Affairs as to building permit number 9330008850 issued by Monroe County, Florida. DONE AND ENTERED this 25th day of October, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7165DRI The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 21, 25, 26, 27, 29, 32, and 33 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9 and 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10, 11, 12, 24, 28, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 19 are rejected as being unsubstantiated by the evidence and as a misconstruction of the cited testimony. The proposed findings of fact in paragraphs 20, 22, and 34 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since the setback is from any portion of the "beach berm complex" and not from any area that may be considered to be turtle nesting habitat. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are summaries of testimony that are subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence and contrary to the findings made. The proposed findings of fact in paragraph 7 and 8 are adopted in material part by the Recommended Order. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nicholas W. Mulick, Esquire 88539 Overseas Highway Tavernier, Florida 33070 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Mr. Fred Snowman Post Office Box 771 Islamorada, Florida 33035 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues are whether a beach restoration and dune nourishment project proposed by Respondent Town of Palm Beach, Florida is entitled to a joint coastal permit (coastal construction and environmental resource permits), pursuant to Section 161.055, Florida Statutes, and Florida Administrative Code Rule 62B-49.003; proprietary authorization for activities on sovereign submerged lands, pursuant to Section 253.77(1), Florida Statutes; and variance from water quality standards, as set forth in the rule limiting permissible mixing zone limits, pursuant to Section 403.201(1), Florida Statutes.
Findings Of Fact Introduction Overview Palm Beach, a municipality, has applied for the permits necessary to construct a beach restoration and dune nourishment1 project along a portion of the shoreline of Palm Beach Island known as Reach 8. Specifically, Palm Beach seeks a joint coastal permit (JCP), which consists of an environmental resource permit (ERP) and coastal construction permit (CCP); letter of consent constituting authorization to use state-owned lands; and variance to water-quality standards. Palm Beach seeks approval for the following major activities: excavating Borrow Areas (BA) V and VI, which are about 1500 feet offshore of Reach 8; slurrying the fill from these borrow areas by pipe and placing the slurried fill on the existing beach of Reach 8; except for the southernmost 2764 feet of Reach 8, contouring the fill from the dunes to the intertidal zone to conform with the permitting template; for the southernmost 2764 feet of Reach 8, contouring the fill along the dunes only; covering during (i.e., directly) and after (i.e., indirectly) construction about seven acres of nearshore existing hardbottom immediately adjacent to and downdrift from (south) of the location in which the fill is placed; and creating about eight acres of nearshore mitigation hardbottom north of Reach 8. The ERP is for dredging and filling activities mostly in, but also adjacent to, surface waters and includes upland dune nourishment because the expected, post-construction erosion of the dune will result in fill entering surface waters. The CCP is for activities seaward of the erosion control line. The proprietary authorization is for a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) for the use of state-owned land, which is that seaward of the mean high water line: this authorization would pertain to the borrow areas and the fill area seaward of mean high water. The water-quality variance is for an expanded area, or mixing zone, of elevated turbidity levels--during construction only--in the area at which the hydraulic residue from the slurry runs off the beach and re-enters the ocean. Lake Worth, also a municipality, intervened in this case to oppose Palm Beach's application. Most of Reach 8 is within the jurisdiction of Palm Beach, but, as noted below, a short segment of Reach 8 is within the jurisdiction of Lake Worth. This segment consists of the Lake Worth Municipal Beach, which includes the Lake Worth Pier. Because this segment is within Reach 8, but not within the project area, it is sometimes referred to as the Lake Worth Gap. DEP is the state agency with all relevant permitting or authorization responsibilities--where necessary, by agreement with the South Florida Water Management District (SFWMD) and pursuant to the policy of the Board of Trustees. Reach 8 spans 10,818 feet, or about two miles, of shoreline on Palm Beach Island, according to the latest survey.2 The net project area, though, is 9472 feet, or about 1.8 miles, because of the exclusion of the Lake Worth Gap, which covers 1346 feet of shoreline.3 Locations along the shoreline will be identified by DEP reference monuments, such as "R-137."4 Reach 8 extends from R-125 to R-134 plus 350 feet.5 The following planview of Reach 8 depicts the project area, as described in more detail below. This is Figure 1, Town of Palm Beach Reach 8 Beach Restoration Project Environmental Assessment, prepared by Palm Beach's consultant, Coastal Planning & Engineering, Inc. (CPE) (October 2007). For the purposes of this case, Reach 8 comprises four segments. From north to south, these segments are the North Segment (R-125 to R-127 plus 597 feet), Lake Worth Gap (R-127 plus 597 feet to R-128 plus 954 feet), Center Segment (R-128 plus 954 feet to R-133 plus 500 feet), and South Segment (R-133 plus 500 feet to R-134 plus 350 feet). The Lake Worth Pier is at R-128 plus 50 feet. The land boundaries dividing Lake Worth's upland ownership from adjacent upland, in the immediate vicinity of the Lake Worth Gap, are perpendicular to the shoreline and regular or linear. These four segments largely correspond to DEP designations of Critically Eroded Beaches (CEBs), which are discussed in more detail below. The North Segment, which is 2725 feet, and South Segment, which is 1047 feet, are CEBs. The Center Segment, which is 5700 feet, is not a CEB. The northernmost one-third of the Lake Worth Gap is CEB;6 the remainder of the Lake Worth Gap is not CEB. Thus, only 38 percent of Reach 8 is CEB. Excluding the CEB within the Lake Worth Gap, only 35 percent of the beach within Reach 8 that is proposed for beach restoration or dune nourishment is CEB. The dune-only portion of the project covers the entire South Segment plus the southernmost 1717 feet of the Center Segment. Thus, the only portion of Reach 8 that is both CEB and proposed for beach restoration is the 2725 feet of the North Segment. The Inlets, Jetties, and Reaches of Palm Beach Island As shown in the preceding illustration, Palm Beach Island is in central Palm Beach County along the shore of the Atlantic Ocean, which is Class III waters in this vicinity. Palm Beach Island is a barrier formation with various reported lengths, all between 15 and 16 miles. In 1992, Palm Beach Island varied in width from 250 feet to 3600 feet and in height up to 25 feet. Reach 8 occupies the southern third of Palm Beach Island. Ten miles north of the north end of Reach 8 is the Lake Worth Inlet (also known as the Palm Beach Inlet). Three miles south of the south end of Reach 8 is the South Lake Worth Inlet (also known as the Boynton Inlet). These are two of the eight artificial inlets on the east coast of Florida, which now has 19 inlets.7 The Lake Worth Inlet was cut in 1917, and the South Lake Worth Inlet was cut in 1927. Because sand naturally transports along the shoreline, jetties were constructed at each inlet to slow the rate at which sand filled the dredged channel of each inlet. In general, sand naturally transports north to south, due to the predominant wave direction, although lesser transport to the north takes place during the summer. Thus, for nearly a century, these jettied inlets have interrupted the natural transport of sand along this part of the east coast of Florida. To offset the sand losses caused by both inlets, sand transfer plants were constructed on each inlet's north jetty to pipe some of the detained sand across the inlet. The sand transfer plant for the Lake Worth Inlet was built in 1957, meaning that this jettied inlet interrupted the transport of sand to Palm Beach Island, without inlet-sited compensation, for nearly 40 years.8 At least twice in recent years, the Lake Worth Inlet sand transfer plant was not operational. The longer of these two interruptions was from May 1990 to May 1996, at which time the plant was repaired and upgraded in connection with the 1995 Midtown Project, described below. The sand transfer plant sustained damages during the 2004 hurricane season and was not in operation from November 2004 to March 2005. In 1996, Palm Beach's Shore Protection Board, which is discussed below, divided Palm Beach Island into 11 reaches. The division of shoreline into reaches was based on the extent to which each shoreline segment shared four characteristics: predominant coastal features, including sand movement and erosion rates; reefs and hardbottom; number and condition of shore-protection structures; and existing adjacent land uses. Reach 1 runs from the Lake Worth Inlet to the south, ending at Onondaga Avenue. Extending from R-76 to R-78, Reach 1 is the shortest reach, covering only 2410 feet. The longest reach, at 13,660 feet, Reach 2 runs from Onondaga Avenue to 1080 feet north of Wells Road, or R-78 to R-90 plus 400 feet. Reach 3 runs from 1080 feet north of Wells Road to Via Bethesda, which is at the south end of The Breakers golf course. Reach 3 is 5800 feet long, spanning R-90 plus 400 feet to R-95. Reach 4 runs from Via Bethesda to 270 feet south of Banyon Road; this reach is also known as Midtown, as it includes Royal Palm Way, which connects Palm Beach with the central business district of West Palm Beach. Reach 4 is 8065 feet long and extends from R-95 to R-102 plus 300 feet. The Midtown beach offers public access, but little public parking. Reach 5 extends from 300 feet south of Banyon Road to 170 feet north of Widener's Curve. Reach 5 is 9065 feet long and runs from R-102 plus 300 feet to R-110 plus 100 feet. Reach 6 runs from 170 feet north of Widener's Curve to Sloan's Curve. Reach 6 is 6685 feet long and extends from R-110 plus 100 feet to R-116 plus 500 feet. Reach 7 extends from Sloan's Curve to the Ambassador Hotel. Reach 7 runs 8725 feet, from R-116 plus 500 feet to R-125. Palm Beach's Phipps Ocean Park is located at the north end of this reach and provides the public with beach access and parking. The second longest of the 11 reaches, Reach 8 runs from the Ambassador Hotel to La Bonne Vie. Ten years ago, when the data for the other reaches were collected, Reach 8 extended 10,690 feet.9 Palm Beach County's Kreusler Park is located in the Lake Worth Gap and adjoins the Lake Worth Municipal Beach and Lake Worth Pier. Considerable public parking supports these facilities. Except for some metered parking, there is little public parking and little public access north of the parks located in Reaches 7 and 8. Reach 9 runs from La Bonne Vie to the Lantana Avenue access. Reach 9 runs 3655 feet from R-134 to R-137 plus 400 feet. Reach 10 runs from the Lantana Avenue access to Chillingsworth Curve. Reach 10 runs 8560 feet from R-137 plus 400 feet to R-145 plus 740 feet. Reach 11 runs from Chillingsworth Curve to the South Lake Worth Inlet. Reach 11 runs 5530 feet from R-145 plus 740 feet to R-151 plus 300 feet. Physical Environment and Natural Processes Selected Terms and Concepts The beach extends from mean low water landward to the vegetation line.10 The beach and dune system is that portion of the coastal system where there has been or there is expected to be, over time and as a matter of natural occurrence, cyclical and dynamic emergence, destruction, and reemergence of beaches and dunes.11 Landward to seaward, the sand-sharing system or beach profile comprises the dune, dry berm, beach face, and nearshore bar. The dry berm is the flat part of the beach that is subaerial. The beach face, or wet beach, is the seaward-sloping part of the beach that receives the uprush from wave action. The swash zone is the area that is alternatingly wet and dry from wave action. The surf zone is the area from the seaward extent of the swash zone to the breakers. Sometimes, the nearshore is used synonymously with the surf zone; nearshore designates nothing more than the area immediately seaward of the mean low tide. In either case, the offshore runs seaward from the seaward extent of the nearshore. Longshore is the direction parallel to the shoreline. Cross shore is the direction perpendicular to the shoreline. A plan view (or planview) of the beach is the view from above. A profile view of a beach is from the side. For example, a line running from the left hand side of this page in a downward direction to the right hand side of this page may depict part of the beach profile by tracing, from left to right, the descending elevation, from landward to seaward, of the dune, dry berm, and beach face. The proposed beach restoration template comprises advance fill and design fill. Sacrificial in nature, advance fill is expected to erode during the life span of the nourishment project, leaving the design fill, which is what is intended for the more persistent protection of upland structures. After the contractor contours the fill to conform to the beach-restoration template, which extends seaward of mean low water, the natural processes of waves, currents, and wind move the fill cross-shore and longshore until it reaches a point of equilibrium. Movement by wind is largely irrelevant to this case. In response to the forces of waves and currents, particles of sediment will move by bedload or entrainment into the water column, depending on conditions discussed in more detail below.12 Movement by bedload is movement along the bottom by rolling or sliding, but the particle remains in contact with the bottom and never entrains into suspension in the water column. Stationary grains or grains moving by bedload do not create turbidity or sedimentation. Movement by entrainment into the water column is movement that lifts the particle into the water column where it remains in suspension unless and until energy conditions are reduced sufficiently to allow the particle to settle out of the water column. Suspended particles contribute to turbidity, which is a measure of the loss of the water column to transmit light. Settled particles contribute to sedimentation of objects, such as hardbottom, that has previously been uncovered, although these objects may also be covered by particles moving by bedload. For the most part, the equilibration process involves the movement of the fill based on such factors as the slopes of submerged bottoms, grain sizes of bottom sediments, and expected movement of sediments in response to waves and currents. A calculation of the point of equilibrium is a useful approximation, but the point of equilibrium is only a point of substantial equilibrium, and the equilibration process only substantially concludes. Over time, when subjected to sufficient forces, fill (and pre-project sediments in the area) will continue to move. At the point of equilibrium, the depth of the water at the point farthest offshore is the closure depth. There is no similar term for the location of the fill in the longshore direction at the point of equilibrium.13 The movement of fill during the equilibration process is by bedload, as discussed below, rather than by entrainment into the water column, also as discussed below, except for the transport of fill insignificant distances by entrainment into the water column. The forces of wind, current, and wave, which move sediments on the beach, along the submerged bottom, and into the water column, are strongest when associated with storms, whose intensity is generally described by return intervals. In any given one-year period, a 100-year (or greater) storm has a one percent chance of occurring, a 25-year (or greater) storm has a four percent chance of occurring, and a 10-year (or greater) storm has a ten percent chance of occurring. The record does not suggest a precise relationship between the intensity of these storms and the forces that they produce. For present purposes, it is sufficient to acknowledge that the forces increase in direct relationship to the intensity of a discrete storm. The sediments in this case are predominantly siliciclastic or carbonate in origin. Siliciclastic materials, such as quartz, derive from terrestrial deposits, such as the Appalachian Mountains, from which they are transported by rivers to the Atlantic coast. These siliciclastic materials are then transported southerly along the coast by the prevailing wave direction. These materials resist breakage. Carbonates are biogenic materials consisting mostly of offshore shell and coral fragments. Grains of carbonate materials are much more susceptible to breakage than siliciclastic grains when subjected to increased forces, such as when dredged from relatively tranquil depths and placed in the surf zone. Upon exposure to the higher energy forces of the surf zone, relatively coarse materials are abraded to clay- or silt-sized materials in as little as one week. The resulting turbidity associated with these abraded materials often bears the signature of a milky appearance in the water column. Rigid coastal structures include jetties, groins, breakwaters, seawalls, revetments,14 and geotextile bags.15 A groin is a structure installed, usually in a cross-shore direction, to trap or alter longshore transport of sediment or to retard erosion of coastal system.16 Groins may be constructed of rock, concrete, or geotextile bags. A breakwater is a structure that protects shoreline areas, harbors, inlets, or basins from the forces of currents or waves.17 A revetment is a sloped, seaward-facing structure made of an armoring material, such as large rocks or pieces of concrete, that is designed to protect an embankment or upland structure from erosion from waves or currents.18 Armoring means to install an artificial structure to prevent erosion of upland property or protect structures from waves and currents and includes geotextile tubes or bags, seawalls, revetments, and retaining walls, but not groins, jetties, or other structures whose purpose is to add sand to the coastal system, alter the natural coastal currents, or stabilize the mouths of inlets.19 A geotextile container is a bag or tube, made of "blanket-like" synthetic fibers manufactured in a loose or woven manner, that contains a large mass of sand, so as to form a rigid tubular structure.20 Based on an article that he co-authored five years ago, Dr. Finkl has classified Florida beaches as dissipative, intermediate, or reflective. Beaches in Dade and Broward counties are reflective. Most beaches in Palm Beach County, including Reach 8, are intermediate although closer to reflective. Beaches in northern Palm Beach, Martin, St. Lucie, Brevard, and Volusia counties are dissipative. Reflective beaches have medium- to coarse-grained sand, surging breakers, low wave heights, constant wave reflection, no bars, steep beach profiles, and low sediment transport, mostly as bedload. This means that relatively large forces, in the form of waves and currents, are required to move the larger-grained sediments forming reflective beaches, and, when they move, they roll or tumble along the bottom, rather than enter into suspension and become transported within the water column. Reflective beaches provide more protection to upland structures than dissipative beaches do, although there is an inverse relationship between protection to upland structures and morphodynamic stability in beaches, meaning that dissipative beaches will change in dimensions frequently. Dissipative beaches are flatter and formed by fine- grained particles. These beaches are characterized by large waves, multiple low-relief bars, multiple spilling breakers, and relatively flat berms and beach faces. Dissipative beaches are morphodynamically stable, partly due to the storage role of the bars, but offer little protection of upland structures because their low profiles and low berms facilitate overwash by surge. The flat profiles of dissipative beaches allow high waves to quickly submerge the beach, and the dissipative beaches' fine grains are more readily eroded and entrained into the water column. Intermediate beaches have fine- to medium-grained sand, medium wave heights and periods, one or two bars, and a high degree of shoreline mobility. However, intermediate beaches provide the most protection, evidently due to their protection of upland structures and morphodynamic stability. Geology, Sedimentology, and Coastal Processes Physiographically, subaerial southeast Florida occupies the coastal plain adjacent to the continental shelf. Most of this part of the continental shelf was subaerial as recently as 18,000 years ago, during the last period of expanded glaciation. The present interface has been near its present elevation for the past 5000-6000 years, and the present shoreline has been maintained for about 3000 years, although many believe that sea levels are again on the rise. Although the regulatory timeframe is well short of geologic time, the functions of the ecological resources and systems, such as the nearshore and beach, that are the focus of this case must be understood in terms of the geological and coastal systems, of which these resources and systems are a part. The extent to which proposed activities coordinate or fail to coordinate with these resources and systems assists in determining the extent of any impact of the proposed activities on these resources and systems. In particular, the geology of Reach 8 provides a backdrop against which the offshore reef and nearshore hardrock can be evaluated. The geology of these resources reveals their rarity and the vast periods of time required for their formation and emergence. The geology of Reach 8 also complicates the process of describing and predicting sediment transport. The Anastasia Formation informs the behavior of the entire island in response to storm events and beach erosion and the resulting nearshore sediment transport, especially as it is affected by the occurrence of nearshore hardrock. Much of the present offshore reef structure, which defines the boundary between the continental shelf and the deeper continental slope, was exposed during the last glacial maximum. The exposure of carbonate structure to air resulted in an irregular topography, upon which the modern offshore reef became established. Episodic submergings have contributed to the complexity of this structure, which is now known as the Florida Reef Tract or, simply, offshore reef. The third largest barrier reef chain in the world, the Florida Reef Tract extends from the Florida Keys north to the Bahamas Fracture Zone, which, as depicted in the following figure, crosses Florida's east coast between the Lake Worth Inlet and Reach 8. The Florida Reef Tract is generally continuous, although it contains gaps, including three offshore of Reach 8. The Florida Reef Tract is relatively close to the shoreline along central and south Palm Beach County. The offshore shelf zone tends to be quite narrow from the Bahamas Fracture Zone to the Hillsboro Inlet, which is an inlet in north Broward County that is 26 miles south of the Bahamas Fracture Zone. The offshore shelf zone in this area ranges in width from six miles in north Palm Beach County to 1.25 miles at the Palm Beach/Broward county line. This narrowed offshore shelf zone marks the southernmost extent of a discontinuous field of diabathic channels, which are described below. An abrupt and steep slope seaward of the Florida Reef Tract forms the western edge of the Straits of Florida. For obvious reasons of practicality, the landward edge of the Florida Reef Tract marks the limit of the area from which bottom sediments may be mined for fill to be placed on the beach along Reach 8. Interpreting mapping derived from laser airborne sounding done from 2001 to 2007, Dr. Finkl has mapped the seabed components landward of the offshore reef. Landward of the Florida Reef Tract, these components are, in order, the backreef apron, offshore sand flat, diabathic channel field, nearshore sand flat, and, where present, nearshore rock. The figure below is a map of the seabed prepared by Dr. Finkl; the area is just north of Reach 7, but includes the site (R-106 to R-108) proposed for the mitigation nearshore rock in this case and, according to Dr. Finkl, sufficiently represents the seabed directly offshore of Reach 8. This is Figure 2.b in "Shelf Geomorphology along the Southeast Florida Atlantic Continental Platform: Barrier Coral Reefs, Nearshore Bedrock, and Morphosedimentary Features," Journal of Coastal Research, Vol. 24, No. 4 (2008), by Charles W. Finkl and Jeffrey L. Andrews. The backreef apron contains materials driven by storms off the Florida Reef Tract. Such materials are mostly broken pieces of coral, shell hash, and other carbonates. The grain size of the sediment of the backreef apron thus tends to be large, but subject to breakage when introduced into higher- energy settings. The sand flats were paleolagoons during periods of lower sea level. BA III and IV, which were the borrow areas for the Reach 7 project described below, are located in the sand flats, relatively close to the backreef apron of the offshore reef. This probably explains the deposits of relatively coarser-grained sediments that were excavated, at least from BA III, for the Reach 7 project, also as discussed below. Also known as a hurricane storm bar, a long, discontinuous field of diabathic channels extends from Martin County south to the Hillsboro Inlet. Each diabathic channel, which is oriented perpendicular to the channel field, runs in a cross shore direction and is about 300 meters wide from channel edge to channel edge. Diabathic channels are of particular importance in this case because BA V and BA VI have been sited within such channels, and it does not appear that these channels have previously been excavated, at least intentionally. Previously, as in the cases of BA III and BA IV, sediments have been excavated farther seaward in the sand flats. As Dr. Finkl testified, the mean grain size of offshore sediments is a function of place, but also time in relationship to major storm activity, as sand is constantly in movement in both cross shore and longshore directions. The role of diabathic channels, which are carved into what is essentially a long storm bar, is to store sand removed from the beach after hurricanes until natural forces return the sand back to the beach, although the period required for the sand to be returned to the beach may be quite long. Excavating the diabathic channels, rather than the offshore sand flats, provides greater protection to the offshore reef due to the greater distance between the excavation site and the offshore reef. However, excavating the diabathic channels presents its own risks because deep borrow areas closer to shore raise the risk of altering wave action so as to accelerate beach erosion, especially if the closure depth of the equilibrated beach extends into a borrow area. Also, excavating the diabathic channels, rather than the offshore sand flats, presents a great risk of impact to the nearshore hardbottom, again due to the proximity of the excavation to the resource. In contrast to areas south of Palm Beach Island, where a middle coral reef and inner coral reef may be found landward of the Florida Reef Tract, the area offshore of Palm Beach Island contains sedimentary deposits framed only by nearshore hardbottom and the offshore reef. These sedimentary deposits comprise the above-described sand flats, diabathic channels, and some reef overwash on the landward (or leeward) side of the offshore reef. Based on his interpretation of the laser airborne sounding, Dr. Finkl has estimated that the offshore bottom, from Martin County to Hillsboro Inlet, is about 47 percent hardbottom, which encompasses both reef and rock. However, very little of this hardbottom is found landward of the Florida Reef Tract, which, itself, constitutes only about 1.5 percent of this area. In terms of nearshore bottom coverage, nearshore reef accounts for about 0.4 percent, nearshore patch reef is about 0.1 percent, and nearshore rock is 0.1 percent of the bottom. The nearshore rock expresses the geological control of Reach 8, Palm Beach Island, and much of the east coast of Florida. Palm Beach Island is perched on this bedrock, which, when exposed from beneath the sediments, is the nearshore hardbottom. Shoreline recession facilitates the emergence of this hardbottom, which typically is buried at a relatively shallow depths--two to three meters--for native beach berms in Florida. Although Dr. Finkl's mapping, as shown in the figure immediately above, describes the nearshore structure as "nearshore reef," he testified that "nearshore rock" would better describe this structure. When uncovered, this hardbottom outcropping appears as it does in the following photograph of a portion of Reach 8. This is Photograph 13, Town of Palm Beach Reach 8 Beach Restoration Project Environmental Assessment, prepared by CPE (October 2007). However, when viewed by the Administrative Law Judge during the late afternoon and early evening in early October 2008 (about two hours after low tide), the beach revealed hardly any exposed hardbottom, visible from the beach. As Dr. Finkl has written, geologically controlled barrier islands do not migrate like sandy barrier islands in response to energy inputs and rising sea level. Described aptly by Dr. Young as a rock ridge, Palm Beach Island is thus not prevented from migrating by shoreline armoring and upland development. This geological control along Reach 8, interrupting a relatively uniform sandy bottom, also undermines the ability of models to predict longshore sediment transport, as discussed below. The nearshore reef identified by Dr. Finkl in the illustration is more prevalent north of Reach 8. However, smaller nearshore reefs may occur throughout the nearshore, and any nearshore rock may also host coral-algal formations. The habitat value of relatively these isolated patches of nearshore hardbottom may enhanced by their scarcity. The remainder of the seafloor--slightly greater than half--is sandy bottom or covered by other sedimentary material. This sandy bottom is of obvious interest as a sand source, but, as noted below, the sandy bottom hosts various ecological functions. Nearshore sand flats constitute about 25 percent of the entire area. These flats are composed of mainly sand-sized siliciclastics and carbonates. Offshore sand flats make up about 9 percent of the entire area. Diabathic channels form about 6.6 percent of the entire area and represent about 15 percent of the sand resources of Palm Beach County. Occurring in water depths of 7.5-10 meters, diabathic channels average about 300 meters in length and width. They lie about 400 meters off the shoreline--500-750 meters off Reach 8--and display about one meter in relief. Diabathic channels, which mark a slope change on the shoreface, are probably unrelated to offshore reef gaps, which nonetheless may be important passageways as sand from offshore sand flats, seaward of the Florida Reef Tract, may be transported landward under the right conditions. Characteristics of Sediments by Grain Size and Role of Grain Size on the Performance of a Beach Grain size determines whether a particle is classified as clay, silt, sand, or gravel, in ascending order of size. A grain size less than .0039 mm is clay; a grain size greater than clay, but less than .0625 mm, is silt; and a grain size greater than silt, but less than 2.0 mm, is sand. Coarser grained particles, which are not relevant to this case, are granule, pebble, cobble, and boulder, in ascending order of size, according to the Wentworth classification system. Nothing in this record suggests that these classifications in grain size were developed to correspond in any way to beach function. A curious relationship exists in certain natural settings between siliciclastic grain size and nondimensional sheer stress, at least involving laminar surfaces, such as the unidirectional water current running along the bottom of a river or drainage canal. The lowest value of sheer stress, which may be thought of as velocity, to cause a grain to entrain into suspension occurs when the grain is about 0.2 mm in size--not larger and not smaller. As noted above, this size is within the finer range of sand. It is intuitive that higher velocities are required to suspend larger grains, which first enter into bedload movement before entering suspension. But grains smaller than 0.2 mm also require higher velocities to enter suspension: they do not first enter into bedload movement and resist entering into suspension due to electrical charge and cohesiveness. Using the grain-size classification system set forth above, siliciclastic fine sands at 0.2 mm in size will offer less resistance to entrainment into suspension than will siliciclastic silts, clays and sands finer than 0.2 mm, as well as, of course, siliciclastic sands coarser than 0.2 mm. A graphic display of this phenomenon is called Hjulstrom's Curve. There are three views as to the applicability of Hjulstrom's Curve to this case. In Dr. Wanless's view, it governs in the swash zone, surf zone, and nearshore. However, the bidirectional flow in the swash and surf zones, turbulence introduced by wave action, and absorption of a portion of the wave energy into the porous beach face itself preclude a finding that Hjulstrom's Curve applies to the swash and surf zones. In Mr. Brantley's view, Hjulstrom's Curve is irrelevant. Taking an intermediate view, Mr. Finkl and Dr. Dean agree with Mr. Brantley that the law does not apply in the swash and surf zones. Mr. Finkl believes that Hjulstrom's Curve could be used seaward of the surf zone. Dr. Dean testified that Hjulstrom's Curve may have limited applicability in this case, but not within the swash and surf zones. The intermediate view of Mr. Finkl and Dr. Dean is credited. The consequence of this finding is that, as velocities along the bottom increase seaward of the surf zone, the first sediments to entrain into suspension are not silts or clays, but finer-grained sands, about 0.2 mm in size. The consequence of the distinction between transport by bedload and transport by entrainment into the water column is that, although both will cover hardbottom, only transport by entrainment into the water column causes turbidity also. The transport of sediment by bedload does not contribute to turbidity because the sediment remains in contact with the submerged bottom. However, another size of importance is 0.02 mm, which is within the silt range. After entrainment, particles larger than 0.02 mm tend to settle to the bottom quickly, but particles smaller than 0.02 mm tend to remain suspended in the water much longer. Grain size alone does not determine the susceptibility of a particle to entrain. Carbonate particles of the same size as siliciclastic particles may enter suspension with less energy due to their shape or porosity. Also, larger carbonate particles dredge from deeper waters, when deposited in the swash or surf zone, will abrade into smaller particles. The percentage of carbonates in Florida beaches is as high as 60 percent, at Cocoa Beach, and many beaches containing more than 40 percent carbonates and less than 60 percent siliciclastics. Beaches closer to warm marine waters, which are highly productive, tend to display higher carbonate percentages. Because finer grains will support shallower slopes, the addition of, say, finer-grained sediments to an intermediate beach will push it toward a dissipative beach, with its characteristic low protection of upland structures. Dr. Finkl testified on rebuttal that the mean grain size of 0.23 mm and 0.24 mm in BA VI and BA V, respectively, as compared to a presumed existing mean grain size of 0.30 mm, was not a sufficient reduction in grain size to cause the Reach 8 beach to transform from an intermediate beach to a dissipative beach. But he admitted that 0.20 mm "might" be very close to the boundary between the intermediate and dissipative beach states. However, many factors drive beach state and, as between grain size and energy, energy is ultimately going to determine the beach state more than the size of grains placed by man onto the beach profile. In other words, the forces to which a beach has always been subject will rework the fill placed on the beach and restore the beach to its preexisting state--in the above scenario, back to intermediate from dissipative. The process by which excessively small particles are distributed seaward, until they finder lower-energy locations in deeper water, is called cross-shore sorting. It is not unlikely that the finer the fill, relative to the existing beach sediments, the quicker the forces will work to reestablish the pre-existing beach state, given equal energy inputs. Even an unrestored beach within any of the three classifications is going to experience cross-shore sorting in response to wave and current forces. Where the highest energy is experienced, which is in the intertidal zone, the largest grain sizes will be found. Grain sizes decrease in size as the water deepens because the forces on the bottom sediments decrease in direct relation to increasing depth. As Dr. Dean memorably testified, the finer-grained sediments behave in this respect no differently than dust on one's floor, which works its way to the lowest-energy nooks and crannies of the house. Erosive Factors at Reach 8 By far, the most substantial factor removing sediments from Reach 8, over the long run, is not storms, seawalls, or groins; it is the Lake Worth Inlet and its jetties. Dr. Dean has estimated that 80-85 percent of the erosion on Florida's east coast beaches is caused by jettied inlets, and Dr. Finkl agrees that this remains true today. Dr. Dean has estimated that, from 1918 to 1942, the inlet deprived the beaches to the south of 6.2 million cubic yards of sand. From 1929 to 1986, Dr. Dean estimates that 5.2 million cubic yards were dredged from the inlet and placed at sea, and 1.2 million cubic yards were dredged from the inlet and placed inland. It is difficult to allocate the remaining sand losses between other anthropogenic factors and storms, but clearly the construction of seawalls and groins north of Reach 7 and seawalls along Reach 8 have contributed substantially to any sand deficits that Reach 8 has suffered. Seawalls accelerate beach erosion by reflecting waves, causing increased turbulence and entraining additional particles, and accelerating longshore currents. In 1998, about 1630 feet of Reach 8 was seawalled. Presently, 5260 feet of the 10,985 feet of Reach 8 is seawalled, including all 1300 feet of the Lake Worth Gap. Also, as noted below, the groins north of Reach 7 will require decades before they fill in and effectively stop intercepting sand on its natural journey south along Palm Beach Island, although, given the apparent effect of the cessation of operation of the sand transfer plant on Reach 8, the unfilled groins north of Reach 7 may pass some sand, in certain energy conditions, at least when the sand transfer plant is operating. The long-term impact of storms on Reach 8 is difficult to quantify. Palm Beach County beaches enjoy some protection from the Bahamas Banks, at least from long swells from the east, although prevailing winds from the north or south may generate long swells that can cause considerable beach erosion. Dr. Dean testified that beaches fluctuate in the short-term due to seasonal and storm effects, perhaps implying that long-term fluctuations are not as dependent on seasonal effects and storms. The record would bear out such an implication. From November 1974 to August 1990--a 16-year period-- the shoreline advanced for all of Reach 8, except for the portion south of R-132. The North Segment experienced a 10-30 foot advance. The shoreline of the Center Segment advanced from 60 feet at R-129 to 0 feet at R-132. South of R-132, the shoreline of the Center Segment retreated from 0 feet to 30 feet. The shoreline of the South Segment retreated about 38 feet. During this entire 16-year period, the sand transfer plant piped sand across the Lake Worth Inlet for longshore transport south of the inlet. From August 1990 to September 2000, the shoreline for nearly all of Reach 8 retreated, except for a short length at the extreme north end. From R-125 to R-126, the advance was 20 feet to 0 feet. The rest of the North Segment experienced a retreat from 0 feet to 57 feet. For the Center Segment, the shoreline from R-129 to R-132 retreated from 57 feet to 0 feet. From R-132 to R-134 plus 350, which is the remainder of the Center Segment and all of the South Segment, the shoreline advanced from 0 feet to 30 feet. During the first six years of this 10-year period, the sand transfer plant was not operational. Based on historical data, Dr. Dean has estimated that, over the past 2000 years, 591 hurricanes have passed within 300 nautical miles of Palm Beach County. More recently, though, Palm Beach Island has experienced a marked increase in strong storm activity. The 2004 hurricane season was the most active in Florida since weather records began in 1851, and the 2005 hurricane season broke all records with 27 named storms, of which five hurricanes and two tropical storms impacted Florida. However, Florida experienced a mild tropical season in 2006 and a relatively mild tropical season in 2007, although persistent northeasterly storms in the winter of 2007 eroded a few Atlantic erosion hotspots.21 Major summer storms impacting Palm Beach Island in the past five years are Hurricanes Frances and Jeanne in September 2004, Hurricane Wilma in October 2005, Subtropical Storm Andrea in May 2007, and Tropical Storm Noel in November 2007. The combined effect of Hurricanes Frances and Jeanne, which were only two weeks apart, was the equivalent of a 213-year return storm. In other words, the likelihood of such a storm event, represented by both storms, in any single year is less than one- half of one percent. For Palm Beach Island, Hurricane Wilma was a 27-year storm, and Subtropical Storm Andrea was a 19-year storm. From August 2004 to April 2008, various transects revealed that the shoreline of the North Segment advanced from 81 feet to 35 feet, the shoreline of the Center Segment retreated from 105 feet to two feet, and the shoreline of the South Segment advanced nine feet. More particularly, from August 2004 to August 2006, while the sand transfer plant was again not operational, the beach retreated, but, from May 2007 to April 2008, coinciding with the return to service of the sand transfer plant, the beach regained some of its earlier losses. Even two hurricanes as close together as Frances and Jeanne, which removed sand from the observable beach, may not permanently deprive the beach of this eroded sand. As noted in a study cited in "Rapid Changes in the Nearshore Habitat: Is Resource Burial an Appropriate Measure of Project Impact" by Matthew Lybolt and Sandra Tate, both employed by CPE, the twin hurricanes of 2004 removed from a study area 259,700 cubic meters of sand from the dunes to a depth of -3.7 m, but deposited 251,500 cubic meters from a depth of -3.7 m to -9.1 m. For 2004-05, three transects in the North Segment reflected, from north to south, advances of 97 and 29 feet and a retreat of 16 feet. Five transects in the Center Segment reflected, from north to south, retreats of 42 feet, 33 feet, 35 feet, 45 feet, and nine feet and an advance of 24 feet. One transect in the South Segment reflected an advance of 19 feet. Suggestive of a natural restorative process, for the quieter one-year period from May 2007 to April 2008, the North Segment transects reflected advances of 25 feet, 79 feet, and 88 feet; the Center Segment transects reflected a retreat of 28 feet and advances of 6 feet, 23 feet, 13 feet, and four feet; and the South Segment transect reflected an advance of five feet. The natural process of erosion and accretion varies by season. Winter is normally a time of beach erosion as episodic strong winds produce strong waves with a strong seaward motion after the wave breaks, pulling large amounts of beach sand out to sand bars. Summer is normally a time of beach accretion as the typical waves exhibit greater landward motion than seaward motion, transferring large amounts of sand from the sand bars back to the beach. Beach-Restoration and -Nourishment Projects on Palm Beach Island Reaches 1-6 The record details no beach-engineering projects until the mid-1940s, but the reaches22 probably received fill from the dredging of the Lake Worth Inlet at an early date, even though the record does not identify the source of fill for the early beach projects described immediately below. As part of the federal Palm Beach Harbor Navigation Project, the Lake Worth Inlet is dredged frequently to maintain a depth of 35 feet. In 1984 and 1985, 2.1 million cubic yards of sediment was dredged from the inlet, but it was all dumped offshore. However, from 1975 to 1990, 558,000 cubic yards of sand and other sediments were dredged from the inlet and placed on the beaches of Palm Beach Island. From 1990 to 2001, 1.048 million cubic yards of sand and other sediments were dredged from the inlet and placed on the beaches of Palm Beach Island. In broad terms, one source23 reports over 1 million cubic yards of fill to Reach 2 in 1948, over 1 million cubic yards of fill to Reaches 4 and 5 in 1948, nearly 900,000 cubic yards of fill to Reach 4 in 1977 and 1995, and nearly one-third million cubic yards to Reach 6 from 1949 to 1987. In 1944, 282,000 cubic yards of fill was placed on the beach adjacent to Mediterranean Avenue (Reach 1). In 1948, 225,000 cubic yards of fill was placed "south of Lake Worth Inlet," and 2.3 million cubic yards of fill was placed on the beach adjacent to Eden Road (Reach 2), Tangier Road (south end of Reach 2), and Banyan Road (south end of Reach 3). In 1949, 380,000 cubic yards of fill was placed on the beach adjacent to Mediterranean Avenue, and 100,000 cubic yards of fill was placed south of Sloan's Curve (Reach 7). In 1953, 463,000 cubic yards of fill was placed "south of Lake Worth Inlet." From 1970-1978, 450,000 cubic yards of fill was placed "south of Lake Worth Inlet." In 1976, the beach adjacent to Chilean Avenue (Reach 3) received 86,000 cubic yards of fill, and beach from Sloan's to Widener's Curves (Reach 6) received 100,000 cubic yards of fill. Reach 1 has benefited from the operation of the Lake Worth Inlet sand transfer plant. From 1975 to 1990, the Lake Worth Inlet sand transfer plant pumped 1.6 million cubic yards of sand across the inlet. After upgrades in 1995, in connection with the 1995 Midtown Project, described below, the sand transfer plant transferred 885,300 cubic yards from 1996 to 2001. From 1994-2000, Reach 1, which has wide beaches, received annually an average of 289,000 cubic yards from the sand transfer plant and the placement of spoil from inlet maintenance dredging. From 2000 to 2004, the average annual volume of sediments dredged from the Lake Worth Inlet was slightly in excess of 100,000 cubic yards. Reach 1 has also received nearly all of the dredge spoil from maintenance dredging of the Lake Worth Inlet, at least when such spoil is placed on the beach of Palm Beach Island. This spoil is deposited within 3000 feet of the south jetty, which would span Reach 1 and only the northernmost 600 feet of Reach 2. It is not entirely clear from the source,24 but it appears that all of this spoil was placed on Reach 1 and the northernmost 600 feet of Reach 2. Reach 1 and Reach 2 probably continue to receive annually about 100,000 cubic yards of dredge spoil and, as discussed above with respect to the Lake Worth sand transfer plant, about 200,000 cubic yards of bypassed sand. It is unclear whether Reach 2 has received much sand from the Lake Worth Inlet sand transfer plant, but this reach experienced accretion from 1974-90, while the plant was in operation, and erosion from 1990-97, while the plant was shut down. In any event, Palm Beach plans to upgrade the Lake Worth Inlet sand transfer plant by extending its discharge pipe 2000 feet south to transfer relatively small amounts of sand directly to Reach 2. This activity will also benefit the north end of Reach 3, as pumped sand is expected to be spread across the remainder of Reach 3 and northern part of Reach 4. From 2000 to 2004, the sand transfer plant bypassed annually an average of 202,000 cubic yards of sand--which is its goal since expansion. For the preceding four years, though, the plant averaged only 115,000 cubic yards of bypassed sand. Reach 3 received sand in connection with the 2003 Midtown Project, described below. With Reach 4, Reach 3 has received a Prefabricated Erosion Prevention (PEP) Reef on two occasions in 1987 and 1991. The first installation was found to have little beneficial effect before it was removed, and the second was found to have accelerated erosion, rather than accretion, so it too was removed. By 1988, nearly the entire length of Reach 3 was seawalled and its southern end features several groins, which are at the north end of the Breakers property. Due to a combination of the prevalence of groins along its shoreline and to the south and the distance from the sand transfer plant outfall, Reach 4 probably represents the southernmost beneficiary of sand from the sand transfer plant. Nearly 80 percent seawalled by 1987 and displaying groins nearly its entire length, Reach 4 has been the subject of at least three recent, fairly large beach-engineering projects, so Reach 4 cannot be entirely discounted as a source of sand for Reach 8, although, again, intervening groins would greatly limit the amount of sand that can escape these reaches with numerous unfilled groins. In late 1995, Reach 4 received 880,000 cubic yards of sand through the Midtown Beach Restoration Project, as mitigation for impacts from the Lake Worth Inlet Management Plan. The sand source was an offshore borrow area 2000 feet south of the Lake Worth Inlet, just south of the Lake Worth Inlet ebb shoal. This project added advance fill for a projected duration of eight years; the design fill was for a 25-foot wide beach at 9 feet NGVD.25 The 1995 Midtown Project also involved the replacement of old groins with 11 new, adjustable groins, which were completed in April 1996. Because there were no impacts projected to nearshore hardbottom, no mitigation was required. The 1995 Midtown Beach Restoration Project maintained the beach berm for its eight-year life expectancy, but suffered significant erosion at the north and south ends of the beach fill. At the end of four years, the project retained about 70 percent of its fill, and, at the end of seven years, it retained about 50 percent of its fill. The persistence of this project was likely influenced by the numerous groins along Reach 4. In early 2003, Reaches 3 and 4 received a nourishment/restoration of 1.27 (or 1.29) million cubic yards of sand as part of the 2003 Midtown Project. The source of the fill was an offshore borrow area adjacent to the one used for the 1995 Midtown Project. The fill was placed in two segments to leave a 400-foot gap to avoid impacting The Breakers' "Rock Pile," which is the site of concrete rubble from an old pier. The Rock Pile has since been colonized by wormrock and other benthic species. The permit required quarterly environmental, post-construction monitoring, which reportedly revealed no unanticipated hardbottom impacts a couple of years later. The 2003 Midtown Project was considerably less durable than the 1993 Midtown Project. The 2004 hurricane season removed all of the advance fill and at least part of the design fill of the 2003 Midtown Project, so FEMA funded a nourishment known as the 2006 Midtown Project to nourish Reaches 3 and 4 to restore the design template from the 2003 Midtown Project. This involved the placement of 893,000 cubic yards of fill. The 2006 Midtown Project was constructed from January 24 to February 24, 2006. Featuring numerous groins along their lengths, Reaches 5 and 6 are fairly healthy, and Palm Beach has no plans for these beaches other than to monitor them.26 By 1987, over 80 percent of the Reach 5 shoreline was fronted by seawall or revetment, and groins lined its entire length. By 1987, over 90 percent of the Reach 6 shoreline was fronted by seawall or revetment. However, Sloan's Curve, which is at R-116, received 34,000 cubic yards of sand in 1987 to restore the dunes. Also, in the same year, the Florida Department of Transportation placed a rock revetment north of Sloan's Curve to provide storm protection, and the revetment remains in place. The ability of these extensively groined shorelines along Reaches 5 and 6 to deprive reaches to the south of naturally transported sand is significant, as perhaps suggested by their relative health today. The cumulative impact of the groins and revetments may be partly revealed by the accelerated rate of sand loss in Reach 7 in recent years: the average annual rate of sand loss in Reach 7 from 1990-97 was 3.5 times greater than the rate of sand loss in Reach 7 from 1974-90. The three miles of shoreline north of Sloan's Curve is especially marked by extensive armoring structures, such as revetments, seawalls, and groins--including a "monster" groin at Widener's Curve (near R-110) that has yet to fill in with sand. Final Supplemental Environmental Information Statement for Reach 7 project, p. 64. The statement reports that this groin and others may require "decades" before filling with transported sand and allowing excess sand to continue transporting longshore to the south.27 Reaches 9-11 Due to their proximity to the north jetty of the South Lake Worth Inlet, whose sand transfer plant obviously does not transfer all of the trapped sediment across the inlet, Reaches 9-11 have benefited materially from this interruption in longshore transport of sand, although Palm Beach has received, in the past, a consultant's recommendation to restore or nourish Reaches 9 and 10. Even if any restoration work has taken place on these reaches, it would have almost no impact on Reach 8 given the normal direction of longshore transport of sediments to the south. Reach 8 Until the hurricanes of 2004 and 2005, Palm Beach merely monitored Reach 8, like it monitors Reaches 5 and 6. The proposed project is the first beach-engineering project for Reach 8, except for some relatively minor work that Palm Beach undertook after the recent hurricanes. In 2005, Palm Beach trucked 50,000 cubic yards of sand from upland sources and placed it landward of the mean high water line to form an emergency berm. In 2006, Palm Beach transferred something less than 58,500 cubic yards of sand that had been excavated for Reach 7 and nourished the dunes from R-116 to R-134 plus 100 feet. (Palm Beach had received permission to transfer 58,500 cubic yards, but the start of turtle nesting season brought a halt to the project just before it was completed, so the amount of fill placed in these dunes is less than 58,500 cubic yards.) Reach 7 Reach 7 has undergone a single restoration project. Known as the Phipps Ocean Park Beach Restoration Project or Reach 7 Project, this project used 1.1 million cubic yards of sand from BA III and BA IV to restore 1.4 miles of beach to 9 feet NGVD, although a related project, at about the same time, focused on Reach 7 and 8's dunes. At the time of these projects, DEP had designated all of the beach as CEB. The Reach 7 Project involved the construction of 3.1 acres of mitigation hardbottom to mitigate for adverse impacts to 3.1 acres of ephemerally exposed hardbottom. The contractor constructed the mitigation hardbottom in mid-2004, and constructed the project itself from February 19 to April 17, 2006, so that it began as the 2006 Midtown Project was ending. All of the advance fill from the Reach 7 Project eroded offsite within the first two years, post-construction; based on the anecdotals set forth below, a substantial portion of the erosion process probably took place in the first year. Unfortunately, the record does not reveal the storm events associated with this accelerated erosive process. Compared to 2004 and 2005, 2006 and 2007 were not significant for summer storms, but, as noted above, greater erosion occurs during the winter, when the storms bear no names; in any event, the record does not supply storm information for winters. The hardbottom that was exposed prior to the project, but that was covered directly or indirectly by the project, is again exposed today, two and one-half years post-construction. These aspects of the project performance are important to the present case for three reasons. First, undetermined amounts of fill from Reach 7 transported to Reach 8, probably very shortly after the completion of the Reach 7 project. These sediments may have transported to Reach 8 prior to the collection of sediment-size data by CPE in 2006 and thus biased the data toward smaller values. Second, the turbidity associated with the Reach 7 project was significant. As noted below, evidence of turbidity is anecdotal and derived from persons who, with one exception, are not professional collectors of such data. However, these persons have intimate familiarity with the beach, both before and after construction. Absent professional collection of post- construction turbidity data in connection with normal and storm conditions, the alternative to amateur data collection is no data collection. Palm Beach expert, Craig Kruempel, conducted a post- construction assessment of submerged bottom 36 months after the construction of the Reach 7 mitigation reef. Because this reef was built two years prior to the Reach 7 beach and dune projects, Mr. Kruempel's work took place in 2007--only one year after the completion of the Reach 7 beach and dune projects and emergency Reach 8 dune project. His findings were complicated by the effect of storms, but, in any event, involved sedimentation only. To the extent that he found uncovered hardbottom, it is an indication of the movement of excessive fines by entrainment into suspension with the suspended particles carried relatively far in the water column, as opposed to movement by bedload. His report refers to another sampling event in 2008, prior to the hearing, but this report is not in the record. Third, the Reach 7 project provides useful information in determining mean grain size of the existing beach at Reach 8, suggesting a range of overfill ratios for Reach 8, and describing possible issues with post-construction turbidity or reduction in water clarity. The Reach 7 Final Supplemental Environmental Impact Statement discusses native beach sediments at some length, finding that the mean grain size of 0.34 mm, as reported in 1977, had been supplanted with sediments with larger mean grain sizes, as years of erosion removed the finer-grained particles. After wave action and erosion, mean grain sizes in 1993 ranged from 0.44 mm to 0.57 mm for four locations within Reach 7. Physical sampling six years later suggested 0.43 mm as the most representative value. On the other hand, the mean grain sizes within the Reach 7 borrow areas--BA III and IV--were, respectively, 0.32 mm and 0.22 mm. The mean grain size of BA III is probably misleadingly large because it proved to contain coarser-grained carbonates that quickly abraded when placed in higher-energy zones than those from which they had been dredged. Also, the existing beach lacked any silt, but BA III was 2.9 percent silt, and BA IV was 1.5 percent silt. Although other factors are involved in calculating overfill factors, the mean grain sizes of the sand source and existing beach are important factors. For BA IV, for which the mean grain size was 0.22 mm, and the "existing native beach," for which the mean grain size was 0.43 mm, the overfill factor was 3.0, according to the Reach 7 Supplemental Environmental Impact Statement. This means that three times as much fill was required as would have been required if the mean grain size of the borrow area had been the same as the mean grain size of the beach. Although the Reach 7 Supplemental Environmental Impact Statement does not address the discrepancies in mean grain sizes on the existing beach and in BA III and IV, it warns that turbidity is one of the major limiting factors for coastal water quality in Palm Beach County. The statement notes that background turbidity is highest in the winter, in connection with winter storms, and lowest in the summer. However, the discussion of the proposed project and turbidity is limited to turbidity during construction and the need for a mixing zone and never addresses post-construction turbidity. As is found elsewhere in the literature sponsored into evidence by Palm Beach's witnesses, the Reach 7 Supplemental Environmental Impact Statement dismisses concerns about the impact of turbidity on the nearshore biological communities with the observation that the nearshore organisms occupy an already-turbid environment. As is true of the other literature, the Reach 7 Supplemental Environmental Impact Statement dismisses the impact of turbidity on these communities without attempting to quantify the intensity, persistence, or frequency of turbidity, pre- and post-construction (i.e., before and after placing, in the case of BA IV, sediments whose particle size was half the size of the existing sediments' particle size). Not all of the available anecdotals are relevant. One complaint of piles of coarser-grained fill placed on Reach 7 has no bearing to this case, except to the limited extent that the coarser-grained materials abraded into finer-grained materials. Located farther landward from the backreef apron source of larger carbonate materials, BA V and VI do not likely contain such coarser-grained materials. Second, one or more complaints of extensive post- construction sedimentation off Reach 7 resulted in an investigation by a DEP scientist. He found, as had DEP scientists elsewhere along the east coast, that a muddy grey layer of sediment, associated with a mid-column plume of turbidity, had covered much of the bottom structure. He justifiably attributed the source of these sediments to deeper marine deposits that had been disturbed by recent storms. The presence of the same conditions elsewhere militates strongly against any association with the Reach 7 project. The remaining anecdotals are relevant to this case because they describe the post-construction consequences, in terms of increased turbidity or decreased water clarity, of introducing finer-grained particles, though not necessarily silt-sized, into a beach consisting of considerably coarser- grained particles. Contrary to the approach of DEP to the issue of post- construction turbidity, the point is not that, per se, turbidity increased at all, or that it increased in excess of 29 NTUs above background turbidity. The point is that the turbidity increased sufficiently, regardless by how many NTUs over background, to eliminate all or nearly all of the functional value of a significant area of marine habitat along Reach 7 for a significant period of time, pursuant to a permit that required absolutely no mitigation for these losses except to the extent that they involved some nearshore hardbottom. Kerri Smith, former president or chair of Surfrider's Palm Beach Chapter, described persistent murkiness in the water along Reach 7, post-construction. The excavated sediments deposited on the beach were much siltier than the existing sediments on the beach. Hardbottom was likewise covered by these dredged sediments, although presumably this was hardbottom for which DEP had required mitigation. A surfer, Ms. Smith testified that the murkiness of the water precluded surfing due to the enhanced possibility of a shark, unable to ascertain the shape in front of it, attacking a surfer. The last observations by Ms. Smith, who is herself a beachfront owner south of Reach 8 on Palm Beach Island, were in the fall of 2007. Ms. Connie Gasque, a resident of Palm Beach County for over 30 years, assists the Reef Research Team in collecting in-water data, usually by diving. She also is a member of the board of directors of Surfrider's Palm Beach Chapter. Ms. Gasque testified that Reaches 7 and 8 are the only places to which she can drive, park her car (at Phipps Ocean Park in Reach 7 and the Lake Worth Municipal Beach/Kreusler Park in Reach 8), and snorkel in the nearshore waters adjacent to the beach. Public access, especially in the form of parking, precludes these activities along much of Palm Beach Island, north of Reach 9. Due to the prevalence of nearshore hardbottom, Ms. Gasque regularly observed, during these excursions prior to the Reach 7 Project, tarpons, snook, hammerhead sharks, spinner sharks, nursery sharks, green turtles, parrotfish, juvenile grunts, crabs, and other marine life. Although Ms. Gasque's reports of covered hardbottom along Reach 7 must be considered in light of the mitigation required for such impacts, her description of post-construction turbidity identifies a condition for which no mitigation was required. One time, she saw a turbidity plume extending from the northern end of Reach 7 as far as she could see. She got into her car and followed the plume for 12 miles before it finally disappeared at the Lake Worth Inlet. Although Ms. Gasque's reports of coarse-grained materials are irrelevant to the present case for the reasons stated above, she found, post-construction, considerable deposits of finer-grained materials, mud-like in consistency. This material ran from the Lake Worth Pier north a considerable distance. Captain Danny Barrow is a charter guide captain and writer for Outdoor Florida magazine. He has walked the beaches and fished the nearshore waters of Palm Beach Island his entire life. As a charter guide captain, he targets inshore fish, mostly snook and tarpon. Although Captain Barrow catches snook as far out as the offshore reef, he mostly catches them in water from the shoreline to 10 feet of depth. He also catches live bait along the shoreline. These baitfish consist largely of menhaden, cigar minnows, Spanish sardines, and finger mullet, which are plentiful around the Lake Worth Pier. Captain Barrow described the pre- and post- construction scenes along Reach 7 in terms of marine life displaced for extensive periods following construction. Prior to construction, he snorkeled the hardbottom along Reach 7 and found juvenile lobsters, crabs, croaker (favored by snook), juvenile snook, and a small school of three or four tarpon ranging in size from 20 to 40 pounds. After construction was completed in May 2006, the water was so milky that Captain Barrow would not enter it. He tried fishing the area and caught nothing; there was no sign of life. Two or more weeks later, he returned again and found conditions unchanged. Even the sand fleas that normally occupy the wet beach, and are an important food source for pompano and permit, were absent. Over the next several months, the water off Reach 7 began to clear up. By the fall of 2006, the water clarity was much better. But Captain Barrow reports that water clarity remained unduly sensitive to wave energy: as the waves picked up, so did the turbidity, much more than the turbidity had been, during similar wave conditions, prior to construction. In November 2006, Captain Barrow returned to Reach 7 during a storm, and the turbidity was as bad as it had been during active construction. At Phipps Ocean Park, he reported a "nasty milky color" to the water, and Captain Barrow found similar water conditions at the Lake Worth Pier. Captain Barrow reports no fish kills from the post- construction turbidity. Instead, the bait fish and their predators left the nearshore waters of Reach 7 until the waters cleared. Once the natural process of removing the fill from the observable beach was completed, the waters off Reach 7 returned to pre-construction condition, the hardbottom was re-exposed, and bait and predator fish returned to the nearshore waters. As of the time of the hearing, Captain Barrow described the nearshore waters off Reach 8 as "beautiful." However, he testified that the Reach 7 nearshore waters remain uncharacteristically susceptible to clouding in response to storms, at which point the fishing again suffers. Selected Local and State Actions to Preserve Beaches Palm Beach In addition to its participation in various beach- engineering projects, in 1996, Palm Beach formed a Shore Protection Board to advise the Town Council on beach management issues. As noted above, this board divided Palm Beach Island into 11 reaches in 1996. In a preliminary report, the Shore Protection Board stated 12 conclusions, including that the Lake Worth Inlet is the primary cause of Palm Beach's erosion, Palm Beach projects should be combined in a plan with other municipalities to achieve an "inlet to inlet" concept in place of "crisis management" or "spot projects," and all beach projects must include ongoing monitoring because "[l]ack of solid historical data is one of the Town's biggest problems and has crippled its ability to determine which programs have been successful " In discussing proposed projects, the Shore Protection Board specified an intent to obtain beach protection against a 15-year storm. The fill would thus be sufficient to absorb the erosion between nourishment events, which the board assumed would be eight years, and the occurrence of one 15-year storm. Based on his modeling, in 1992, Dr. Dean calculated that the beach profile containing Reach 8 would experience an 8.6-foot total storm tide from a 30-year storm, an 8.3-foot total storm tide from a 25-year storm, a 7.7-foot total storm tide from a 20-year storm, a 6.5-foot total storm tide from a 15-year storm, and a 5.6-foot total storm tide from a 10-year storm. As noted below, the design elevation of the beach berm in this case is 9.0 feet, so that it appears designed to protect from the 30-year storm. The Shore Protection Board noted that the few failures of nourishment projects in Florida have been due to inadequate quantities of sand, fine grain size, short project length, or extraordinary circumstance. Dr. Dean explained the importance of project length: essentially, the longer the beach nourishment project, the longer the nourished beach will last. The general rule, according to Dr. Dean, is that doubling the length of a project quadruples its longevity. Dr. Dean testified that a beach nourishment project of less than one mile is "not effective." As Dr. Dean explained, a project loses sand in the longshore and cross shore directions, but the supply of fill at the ends is less than the supply of sand along the template's much longer seaward face. DEP DEP is the state agency with primary responsibility over Florida's 825 miles of unsheltered beaches, including 389 miles on the Atlantic Coast. Palm Beach County contains 45 miles of unsheltered beaches, which equals the total of such beaches in Broward and Dade counties. In May 2008, DEP updated its Strategic Beach Management Plan for the state of Florida. The Strategic Beach Management Plan begins with the following statement: Beaches are dynamic land forms at the edge of the ocean or Gulf of Mexico subject to both natural and man-induced erosion. Sand moves along the shore due to wind driven currents and tides, and storms can cause dramatic changes to the beach. The majority of man-induced erosion is due to the creation and maintenance of inlets, where the sand has historically been removed from the coastal system, and the natural drift of sand along the shore is blocked by jetties, trapped in channels, or moved into ebb and flood shoals. Development and the placement of infrastructure too near the shore has also contributed to coastal erosion by limiting the amount of sand stored in dunes and hardening the shore in order to protect upland property.28 The Strategic Beach Management Plan identifies repair and maintenance strategies to carry out the state responsibilities of a comprehensive, long-range, statewide program of beach erosion control, beach preservation, restoration and nourishment, and storm and hurricane protection by adhering to the following principles: Maximize the infusion of beach-quality sand into the coastal system; Implement those projects that contribute most significantly to addressing the state’s beach erosion problems; Promote inlet sand bypassing to replicate the natural flow of sand interrupted by improved, modified or altered inlets and ports; Extend the life of beach restoration projects and reduce the frequency of nourishment; Encourage regional approaches to ensure the geographic coordination and sequencing of projects; and Reduce equipment mobilization and demobilization costs.[29] The Strategic Beach Management Plan warns that projects included in the plan must still obtain all necessary state and federal permits. Among the various permitting considerations are "an assessment of the compatibility of sand proposed to be utilized with the existing beach; project dimensions that may adversely affect nearshore hardbottom . . .; [and] turbidity levels at the borrow site and placement site[.]"30 DEP's Strategic Beach Management Plan for the Southeast Atlantic Coast Region, issued in May 2008, identifies 20.7 miles of beaches as the Palm Beaches subregion, which includes Palm Beach Island. This subregion contains 14.9 miles of CEBs, of which 6.1 miles have been restored or maintained. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region divides the Palm Beaches subregion into three smaller areas: Northern Palm Beaches, Palm Beaches, and Southern Palm Beaches. Palm Beaches includes all of Palm Beach Island plus short segments of beach north and south of the two inlets defining the island. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region states that Northern Palm Beaches includes 13.3 miles of beach, of which 8.4 miles are CEB, including 3.6 miles of beach that has already been restored and maintained; Palm Beaches includes 20.7 miles of beach, 14.9 miles are CEB, including 6.1 miles of beach that has already been restored and maintained; and Southern Palm Beaches includes 11.8 miles of beach, of which 7.9 miles are CEB, including 6.7 miles of beach that has already been restored and maintained. Palm Beaches contains only two segments of nonCEB. The northerly of these is Reach 8's Center Segment. This means that DEP has designed as CEB a continuous stretch of beach from the Lake Worth Inlet almost to the Lake Worth Pier. This span of CEB encompasses Reaches 1-7 in their entirety and, as noted above, the northernmost 3117 feet of Reach 8: the North Segment and the northernmost 392 feet of the Lake Worth Gap. The CEB designation that attaches to the South Segment continues past the end of Reach 8 at R-134 plus 350 feet to R-137.4.31 The remainder of Palm Beach Island from R-136.7 to the South Lake Worth Inlet is nonCEB. This means that Reaches 10 and 11, and the southernmost 300-400 feet of Reach 9 are all nonCEB, which confirms the range of influence of the north jetty of the South Lake Worth Inlet. The Strategic Beach Management Plan for the Southeast Atlantic Coast Region discusses potential beach-management strategies and the availability of offshore sand sources for each of the three subsubregions. For Palm Beaches, the plan notes that Palm Beach has agreed with the U.S. Army Corps of Engineers (COE) for the latter to deposit on Midtown spoil from the maintenance dredging of the Lake Worth Inlet, and it acknowledges the subject Reach 8 Project, including as to the nonCEB. Also, the plan recommends that Palm Beach implement a "regional beach, inlet, and offshore data collection and processing program [for] their monitoring programs."32 As for potential sand sources, the Strategic Beach Management Plan for the Southeast Atlantic Coast Region warns that DEP and COE had found sufficient offshore sand for restoration, but not "long- term nourishment." Nor is much offshore sand available to the north and south. For Northern Palm Beaches, the Strategic Beach Management Plan for the Southeast Atlantic Coast Region reports that DEP and COE have conducted an extensive offshore sand search and found sufficient sand for restoration, but not maintenance, of these CEBs. The situation is only a little better for Southern Palm Beaches. The plan states that transferring sand from the ebb tidal shoal at the Boca Raton Inlet may be sufficient for a project known as the South Boca Raton Project, but it is not yet clear whether sufficient offshore sand has been found for the "long-term project needs" of the Delray Beach, Boca Raton (North), and Boca Raton (Central) projects. Due the widespread acknowledgement of the limited availability of offshore beach compatible sand, DEP has not previously approved a beach restoration or nourishment project, using offshore sand, for a nonCEB until this case. As noted above, DEP is proposing the use of this limited resource for a beach that, by far, is mostly nonCEB. DEP attempts to work in cooperation with federal and local authorities in managing Florida's beaches. From 1964 through 2006, Florida has expended over $582 million in beach nourishment and hurricane recovery, under the Strategic Beach Management Plan, pursuant to Chapter 161, Florida Statutes. These cooperative efforts and expenditures are crucial in Florida. Of the state's 825 miles of beaches, 485 miles are experiencing erosion; 387 miles have experienced "critical erosion," which, as noted below in the discussion of CEBs, indicates a level of erosion that threatens substantial development, recreational, cultural, or environmental interests; and 192 miles have been restored. From 1989 to 2003, the miles of CEBs increased from 218 to 333, and, in 2003, 62 percent of the shoreline in southeast Florida was designed CEB. In the 1998-99 fiscal year, Florida transitioned from its previous beach management policy of focusing on local, short-term needs and began assisting local governments in the preparation of Long Range Beach Management Plans, which emphasize a regional approach to beach management. Biological Functions and Potential Post-Construction Impacts Communities of the Nearshore and Beach A robust food chain exists in the beach and nearshore. Waves bring onshore phytoplankton to create a nutrient-rich zone in the nearshore waters. The base of the food chain, phytoplankton requires light to grow. Nothing in the record provides guidance as to the effect, if any, of ongoing, elevated turbidity and the resulting attenuation of light in the water column on the abundance of phytoplankton in the nearshore water column. The smaller organisms feed on the phytoplankton. In turn, macroinvertebrates, such as coquina clams (Donax) and mole crabs or sand fleas (Emerita talpoida), nourish bottom-feeding surf fish, such as pompano and flounder, and shore birds. Small fish in the nearshore environment are food for these fish and birds, as well as mackerel, jack, and blues. Wind and waves limit the number of species that occupy the high-energy beach habitats. Intertidal beaches host relatively few species, although in relatively great abundance. The upper portion of the beach is dominated by various talitrid amphipods and the ghost crab (Ocypode quadrata). In the midlittoral zone, polychaetes (a class of worms), isopods (e.g., sea mites or pill bugs), and haustoriid amphipods (shrimp-like crustaceans) dominate. In the swash and surf zones, coquina clams and mole crabs are found. Shallow subtidal habitats, which are in up to three feet of water, are occupied by polychaetes, gastropods (snails), portunid crabs, and burrowing shrimp. In water 3-10 feet deep, polychaetes, haustoid and other amphipod groups, and bivalves such as coquina clams prevail. Fish favoring the softbottom surf zone are relatively few. In order of prevalence in Palm Beach County (most common to least common), they are Atlantic threadfin herring, blue runner, spotfin mojarra, southern stingray, greater barracuda, yellow jack, and ocean triggerfish, none of which has any commercial value. The individuals in this nearshore area tend to be small or juvenile, although larger individuals will visit the nearshore to find prey. The offshore soft bottom provides habitat to a greater variety of species than the nearshore soft bottom because the offshore areas are less subject to wave distress. Offshore soft bottom is dominated by polychaetes with seasonal, extensive growth of macroalgaes. Larger invertebrate macrofauna in the offshore soft bottom between the second and third reef lines include the queen helmet, king helmet, Florida fighting conch, milk conch, Florida spiny jewel box, and calico clam. The only commercially valuable species is the Florida lobster, which crosses this area as it migrates from offshore to nearshore areas. The habitat of greatest value in the nearshore is hardbottom. As noted above, it is relatively scarce. But the value of hardbottom is in its physical characteristics, as compared to the more prevalent soft bottom. Hardbottom, or "beach rock," presents habitat in the nearshore areas in the form of coquina shells, sand, and calcareous limestone--i.e., the Anastasia outcropping described in detail above. The intermittent outcrops of hardbottom represent the highest elevations of a contiguous formation, which, where exposed, exhibits the spur and groove characteristics of reefs exposed to wave action. Hardbottom outcrops are often found in 0-10 feet of water and are stressed physically by waves, sediment transport, turbulence, and lack of water clarity. The width and vertical profile of the hardbottom outcrop determines its significance as a biological resource and natural wave break. Larger outcrops display greater habitat heterogeneity, which generate increased biomass, biodiversity, and abundance. The suitability of a specific hardbottom outcrop as habitat is a function of its permanence and rugosity. The larger outcrops tend to be persistent; the smaller outcrops tend to be ephemeral because they are more likely to be buried by sand and more likely to be buried longer by sand. Hardbottom outcrops serve as habitat for epibenthic species that are able to attach to the hard substrate. The considerable fluctuations in the physical environment permit colonization of hardbottom mostly by encrusting and boring organisms. Different algal species will occupy the outcrop, depending on whether it is low profile, smooth, subtidal, or intertidal (algal mat communities); exposed and intertidal (green algae Ulva lactuca and barnacle Tetraclita squamosa); subtidal; or high profile. Various macroinvertebrates--encrusting and nonencrusting--are found along the nearshore hardbottom in Palm Beach County. Among the most prevalent species are star coral (Siderastria radians), various species of wine glass hydroids, several species of tube-type sponges, the boring sponge (Clinoa celata), the wormrock-building polychaete (Phragmatopoma lapidosa), and the fire coral hydroid (Millipora alcicornis). The wormrock-building polychaetes live in tubes that they build around themselves by cementing sand grains together and, in suitable areas, build large, biologically significant wormrock reefs. Wormrock structure added to hardbottom provides habitat of significant complexity and, thus, value. The list is long of species that favor wormrock reefs and hardbottom in general. Toward the top of the food chain, bull and tiger sharks, as well as coastal pelagic species, such as Spanish mackerel, jacks, mullet, and bluefish, visit the nearshore hardbottom primary to find smaller fish for food. Of these, Spanish mackerel and mullet have commercial value. Surf zone fish typically seen around the hardbottom include the Atlantic croaker, pompano, snook, jacks, anchovies, and herrings, of which only the snook and pompano have commercial value. Reef fish also use the hardbottom outcrop when traveling from the offshore reef. These species include snapper, grouper, grunt, and wrasses, as well as some damselfish, blennies, gobies, angelfish, and parrot fish, of which the snapper and grouper have commercial value. Smaller mobile species such as the Florida lobster, sea urchins, and brachyuran and xanthid crabs also use the nearshore hardbottom, mostly the holes and crevices. In general, due to the complexity of the habitat providing both sanctuary and food, nearshore hardbottom provides nursery habitat for 34 species of fish. Early-life individuals constitute over 80 percent of the individuals at nearshore hardbottom sites. Nearshore hardbottom is critical habitat for juveniles of another species, green turtles, and, to a lesser extent, hawksbill and loggerhead turtles. After spending 3-5 years in the open ocean, juvenile green turtles move into coastal waters during the "many years" required for them to reach sexual maturity. "Home Range and Habitat Use of Juvenile Atlantic Green Turtles on Shallow Reef Habitats in Palm Beach County, Florida," November 2005, by Christopher Makowski, et al. (including Michael Salmon), p. 1167. While in the coastal waters, nearshore hardbottom provides juvenile green turtles with critical foraging and resting habitat. The diet of juvenile green turtles is primarily algae and sponges that colonize the nearshore hardbottom, although they will feed on sandy bottom with seagrass or patches of algae. Id. at p. 1174; "A Survey of Juvenile Green Turtles and Their Resting and Foraging Habitats Off Broward County, Florida 03/01/86 - 12/31/87," January 1988, by Robert Wershoven and Jeanne Wershoven, p. 8. Among the favorite food sources of the green turtle, which is the only herbivorous sea turtle,33 according to Rare and Endangered Biota of Florida, Volume III, edited by Paul E. Moler, is a red algae (hypnea musciformis) that grows on hardbottom along Palm Beach Island. The loggerhead also favors algae and sponges. The juvenile green turtle's algal food sources are vulnerable to the increases in turbidity associated with beach- restoration or -nourishment projects. Wershovens, pp. 13-14. As the water loses its ability to transmit light, the algae decline, just as they do when they are covered by sediment. It is not merely that the algae cannot grow; in response to the heavy forage of juvenile green turtles, the algae must re-grow repeatedly in order to supply the turtles with nourishment. Makowski, p. 1174. The juvenile green turtle displays considerable site fidelity, both for foraging and resting. Resting and foraging in the same hardbottom provides security, especially from sharks. Makowski, p. 1177. At night, each of four turtles tracked by Makowski returned to each of four identical resting sites. Two turtles maintained two separate resting sites at opposite ends of their relatively limited home ranges. Makowski concluded that site fidelity for foraging and feeding is probably linked to the need for hiding spots and escape routes in the face of the constant threat of predation. Id. at p. 1173. Engaging in a longterm capture-and-release study of juvenile green turtles, whose range of carapace length was from about 11 inches to 26 inches, Wershovens at p. 9, Robert and Jeanne Wershoven reported that nocturnal recapture locations of 19 juvenile green sea turtles and two hawksbill varied by an average of 0.5 km. Wershovens at p. 8. Two green turtles were recaptured under the identical ledge where they were originally captured--one after 18 months had elapsed since the preceding capture. The same hawksbill was recaptured seven times. The Wershovens described the hardbottom ledge habitat--the most valuable hardbottom habitat for juvenile green turtles--as a "time share" arrangement because the turtles shared, at different times, the limited, higher-relief hardbottom in the study area. Id. at p. 8. Of course, the other habitat of importance in this case is the dry beach. Palm Beach Island provides especially favored habitat for the reproduction of sea turtles because they lay their eggs in the sandy sediments of the island's beaches, including Reach 8. Florida is the second largest nesting site for loggerheads in the world, and Palm Beach County is second only to Brevard County among Florida counties for loggerhead nesting activity. Palm Beach County is also second only to Brevard County for numbers of green turtle nests in Florida. Actual and Potential Impacts to Biological Processes from Reach 8 Project Actual and Potential Impacts to Dry Beach as Nesting Habitat The impact of beach-nourishment projects on nesting sea turtles has received considerable attention from the scientific and regulatory communities, likely due to the relative accessibility of the dry beach habitat and the widespread popularity of beach-climbing and burrowing sea turtles, as distinguished from, say, the furtive wanderings of bug-like isopods or the distribution in the nearshore water column of multitudinous, typically imperceptible phytoplankton. Nearly all of the relevant risks have long been addressed by the sponsors of beach-nourishment projects, their consultants, and DEP. If the fill is too coarse, the turtle will be unable to excavate a burrow because the sides will fall in. If it is too fine, oxygen will not pass through the sand to the eggs. A variance in color between the fill and existing beach may alter the ability of the sand to transmit heat to the eggs, which can alter the gender of the hatchlings. Pre- and post-construction variations in beach compaction, beach slopes, escarpment formation, and possibly salinity levels may impede nesting, including by producing more false crawls in which the sea turtle crawls out of the surf and onto the beach seeking to dig a burrow and deposit her eggs, but returns to the sea without completing these tasks. Experts do not seem to dispute with much conviction that the nourished or restored beach is of reduced value for nesting for the first year, post-construction, or that sea turtles successfully nest on the beach the following year. The potential impact in subsequent years is at issue in this case. The problems in the first year include a variety of disturbances. Recent research suggests, for instance, that excessive total dissolved solids in the fill may deter females from using the post-construction beach for the first year. During the first year, rain and stormwater rinse these total dissolved solids out of the fill, which can then return to a salinity level approximating what existed prior to the construction. Regardless of design and implementation of a particular beach project, rain will eliminate this problem by the end of the first year, so the quality of the beach project does not especially affect the duration of the loss of nesting habitat for sea turtles. Conceivably, the contractor could rinse the fill artificially at the time of construction and restore post-construction salinity levels immediately, but no one has attempted this, and its practicability is not yet established, especially because other factors may still discourage first-year utilization. In contrast to the possible problem with total dissolved solids, scientists have long recognized that first- year problems with beach slopes, escarpments, and compaction discourage nesting on the newly restored or nourished beach. It is unclear as to whether, or to what extent, a beach filled with excessive fines is likely to succumb repeatedly to these conditions, at least until the coastal system removes the excessive fines from the dry beach. But as discussed in some detail immediately below, the removal process in this case is unlikely to take more than one year. Potentially more serious is the presence of excessive coarse materials because, to the extent they are siliciclastic and will not abrade in their new, high-energy setting, these particles will resist erosion by wind and surf. However, this issue is irrelevant to the proposed project, as there is no evidence whatsoever that BA V and VI may contain excessive coarse materials. Also potentially more serious is the presence of different colored sediments in the fill, as compared to the existing beach. The proposed fill is greyish, as compared to the tanner existing beach, but the difference appears to be small and some lightening can be expected once the sediment is exposed to the elements. Surfrider's expert, Dr. Michael Salmon, testified that, although the nourished beach is unsuitable nesting habitat the first year after construction, it is typically suitable nesting habitat the second year. In this regard, Dr. Salmon and Palm Beach's main witness on this issue, Dr. Kirt Rusenko, are in agreement. They part company, however, when Dr. Salmon opines that ongoing erosion deterred sea turtles from nesting on the nourished beaches in the third and following years. Clearly, Dr. Salmon's testimony identifies a potential long-term risk to nesting habitat, but it does not apply in this case. Dr. Salmon's testimony partly relies on other testimony suggesting that the beach, once nourished, will always require nourishment, implicitly due to accelerated erosion. Nothing in the record explains this process. In particular, the Administrative Law Judge has examined the record to find some suggestion that nourishment or restoration increases pre-construction erosion processes or reduces pre- construction accretion processes, but he has found nothing to this effect. Theoretically, a beach project could alter nearshore bottom so as to alter wave and tidal forces--a possibility that Surfrider's witness tried, without success, to establish in this case with respect to the quality of waves for surfing. More likely, an alteration might change erosion patterns at a nearby beach, but this record is undeveloped as to when and under what conditions such a process takes place. Based on the present record, any suggestion that the excavation of BA V and VI and placement of sandy sediments in the nearshore bottom can alter the long-term erosion or accretion experienced by a beach, after cross-shore sorting of the fines in the fill has been completed, remains a hypothesis to be tested. Rejecting this part of Dr. Salmon's testimony raises one of the central factual issues of the case: how long, post- construction, will the cross-shore sorting process generate incidents of substantially reduced water clarity as the excessive fines are transported to deeper waters? As noted below, CPE has materially understated the mean grain size and overstated the silt content of the existing beach. CPE's understatement of mean grain size of the existing beach relieved it of the necessity of dealing with a much larger overfill factor than the 1.68 factor stated by CPE, which uncovers one of the conundrums of this case: would the contractor place fill in conformity with the template of advance and design fill, as expressed in the post-construction beach profiles, or in conformity with the Permit provision of 724,200 cubic yards of fill? The contractor cannot comply with both specifications due to the understatement in the overfill ratio. It seems less likely that the contractor will attempt to calculate volumes while the dredge is slurrying sediments onto the beach than that the contractor will try to place fill within the design templates provided it by CPR. This means that substantially more than 724,200 cubic yards of fill would be placed on Reach 8. The potential impact to sea turtle nesting after year 2 is thus inapplicable to this case due to the evident reliance by Dr. Salmon on elevated or even ongoing erosion of the restored or nourished beach during those years. Based largely on the Reach 7 experience and the role of grain size in coastal processes, the excessive fines proposed for Reach 8 would undergo cross-shore sorting much more quickly than projected by Dr. Dean, who testified that the advance fill on Reach 8 would last six years. Findings of a shortened fill-erosion process should be consistent with Dr. Dean's pioneering work on overfill ratios, as well as his testimony that doubling project length quadruples project life and that Reach 8 has become a fairly short project. But, regardless whether consistent with Dr. Dean's views on these matters, the finding is that CPE's attempt to push Reach 8, an intermediate beach tending toward reflective, to a dissipative state promises a quick push back by the natural forces that produced, in the first place, an intermediate beach tending toward reflective. A process that might take six years, if the consultant were to maintain beach states with identical sand in terms of mean grain size, silt content, and sustainable slopes, will take substantially less time given present circumstances. Because of the likelihood of a relatively quick fill- erosion process, Dr. Salmon's testimony concerning loss of nesting habitat after year 2 for Reach 8 is rejected. Although Dr. Salmon described in detail one beach in which sea turtle nesting suffered in years three and following, he did not provide the relevant details of the restoration or nourishment project, so he failed to demonstrate that the performance of that beach is relevant to the performance of Reach 8, post- construction. Perhaps the fill-erosion process took longer in that case, and erosion after the second year was especially disturbing to nesting sea turtles. On the other hand, Dr. Salmon's testimony concerning the relative abundance of suitable nesting habitat along Florida's coast for sea turtles is credited. In particular, given the accretion patterns for Reach 8 discussed above, Dr. Salmon's testimony is credited over the contrary testimony of Palm Beach's experts, who suggested that the no-action alternative would leave harm sea turtles because of the loss of Reach 8 beach for nesting. Relying in part on Dr. Salmon's testimony concerning ample nesting habitat for sea turtles, it is also found, as Palm Beach's experts testified, that, for the year that the female sea turtles find the post-construction beach unsuitable for depositing eggs, they can move up or down the beach a relatively short distance and finding suitable nesting habitat. For these reasons, the potential for nesting disturbances after year one is irrelevant in this case. Even compaction is not an issue, although excessive fines lend themselves to compaction. Permit conditions require anti- compaction procedures, which will become unnecessary after one year due to the removal of most of the fill by then. 2. Potential Impacts to Hardbottom Habitat and Water Column For the same reason that impacts to nesting after year two are not likely in this case--i.e., accelerated erosion of excessive fines placed on an intermediate beach tending toward reflective--the proposed project is likely to cause impacts to hardbottom habitat in the form of burial of more than 6.9 acres and to the water column in the form of reduced clarity for at least one year. This is developed in more detail below. The burial of hardbottom destroys the algae, sponges, and coral that support the bottom of the food chain. The burial of the hardbottom deprives multiple species of this valuable habitat for foraging and resting. Prominent among such species is the juvenile green turtle. The National Marine Fisheries Service (NMFS) determined that the burial of 6.9 acres of hardbottom, as allowed by the Permit, would result in the death of some juvenile green turtle, according to NMFS. This finding by NMFS is credited. In a letter dated March 13, 2008, the National Marine Fisheries Service stated that, at the rate of five juvenile green turtles per acre of hardbottom, 35 juvenile sea turtles would be displaced by the burial of 6.95 acres of hardbottom. NMFS declined to find that all 35 individuals would be injured or killed from this impact. Instead, the NMFS reasoned that, based on typical rates of infection with fibropapillomatosis, which is a benign tumor disease to which green sea turtles are particularly susceptible, 19 of these 35 individuals are infected. NMFS then assumed that the stress from the loss of habitat would be enough to kill already- infected individuals, so the take, in the form of death, is 19 juvenile green turtles. The NMFS opinion concludes that this loss would not jeopardize the endangered species, which evidently is the criterion for a letter permitting this incidental take. In his written report, Dr. Rusenko correctly challenges the NMFS calculation as unduly pessimistic in one respect: juvenile green turtles in nonlagoon settings experience a much lower infection rate, about 14.8 percent. The resulting take would be 5, not 19, turtles. Although Dr. Rusenko does not accept that even five turtles would die from the loss of 6.9 acres of habitat, this finding of NMFS is credited. The potential exists for even more mortality among uninfected juvenile green turtles. Given the unusual degree of site fidelity exhibited by juvenile green turtles, it is possible that some of the 30 fibropapillomatosis-free individuals will suffer fatal predation due to their increased vulnerability caused by the confusion, disorientation, and even malnutrition following their loss of their familiar habitat. However, the record permits no finding as to the likelihood of this taking place or how many uninfected juvenile green turtles would also likely suffer mortality from the loss of habitat, so the take, in the form of death, will be found to be five per 6.9 (actually 7, as approximated by NMFS) acres of impacted hardbottom. While allowing the incidental take of 19 juvenile green turtles, NMFS added a conservation recommendation to its incidental take statement. The recommendation implies concern that CPE's projections of indirect hardbottom coverage are unduly optimistic. NMFS recommended that Palm Beach limit the fill to no more than 260,000 cubic yards, based on 40 cubic yards per linear foot, which NMFS believed is sufficient to protect against the 25-year storm. NMFS also recommended that COE prepare an environmental impact statement for the cumulative effects of beach nourishment projects on nearshore hardbottom to determine the impacts on listed species using such habitat. Palm Beach presented considerable evidence that elevations in turbidity and sedimentation would not affect or would not materially affect at least certain organisms in the beach or nearshore waters. In general, this evidence is credited for the proposed project, but only after about one year. As seen below, even the scholarly articles on which Palm Beach relies anticipate displacement of certain biological communities for different periods of up to one year. One of the recurring problems with Palm Beach's no- impact evidence is its failure to account for a nourishment project specifying fill with excessive fines and the resulting reduction in water clarity and increase in sedimentation that will ensue as that fill is redistributed in the nearshore environment. For instance, in "Guidelines for Beach Restoration Projects, Part I: Biological," July 1985, at pages 35-36, Walter G. Nelson attempts to support the assertion that large- scale storms produce impacts to the beach and nearshore similar to those impacts from beach nourishment projects--thus, nearshore fauna could survive post-construction turbidity. Nelson cites several studies that generally found little or no disturbance to various macroinvertebrates following strong storms. However, Nelson makes no effort to determine the intensity, frequency, or duration of turbidity following comparable storm events--one impacting an unnourished beach, for which little, if any, cross-shore sorting is taking place, and one impacting a beach nourished by excessive fines, where cross- shore sorting is ongoing. Nelson completely ignores the relationship between energy input and sediment particle size, instead implying that the impact to water clarity is the same following equal forces of waves and currents striking beaches with already-sorted native sediments versus beaches with excessive fines, which are awaiting these forces to redistribute these fines to lower-energy sites in deeper water. For the most part, the witnesses called by CPE, Palm Beach, and DEP implicitly accepted the idea that organisms would not use the filled beaches and nearshore for a short time after construction. The real dispute between the parties was how long would these habitats be deprived of their habitat functions. One of Surfrider's expert witnesses, Dr. Pete Peterson, testified for a longer-term loss of habitat value, post- construction, but admitted that the conditions of his primary experience were materially different from the conditions that would be produced by the proposed project. His experience was with excessive coarse-grained materials, which present entirely different problems from projects with excessive fine-grained materials. The findings below rely heavily on evidence presented by Palm Beach concerning the duration of species abandonment due to habitat impacts, but blends this evidence with the anecdotal evidence presented by the witnesses called by Surfrider. The critical period for the elimination of functional habitat, even including the burial of nearshore hardbottom, seems to be about one year. Precluding the use of habitat for one year corresponds with how long it took the coastal system at Reach 7 to move a substantial fraction of the excessive fines from the beach and nearshore to deeper waters. The proposed fill for Reach 8 is also excessively fine, although by a slightly smaller amount, so one year is probably a reasonable estimate of how long it would take the coastal system to move a substantial fraction of the fines from the beach and nearshore to deeper waters. Nelson himself seems to adhere to this general time frame when he suggested post-construction biological sampling at weekly intervals for one month after nourishment and monthly for nine to twelve months, although characteristically he made no effort to link the sampling with storm events. Nelson, p. 49. Extending somewhat the duration of species abandonment from the values suggested by Palm Beach's evidence is supported on several grounds. First, the authors of the articles offered by Palm Beach and admitted into evidence failed to address the re-entrainment of excessive fines into the water column more often, in greater intensity, and for longer periods of time than occurred at the same beach, pre-construction, due to the greater resistance of coarser-grained materials to enter into suspension or, given Hjulstrom's Curve seaward of the surf zone, the lesser resistance of particles almost exactly the size of those proposed for fill in this case to entrain into the water column. Second, nothing in the record addresses the impact of subsequent turbidity events on the phytoplankton, algae, and sponges, on which the nearshore hardbottom habitat relies for its foraging value. In addition to the processes that are based on grain sizes, as described above, the most persuasive facts are the dead zone that Surfrider's witnesses reported in the nearshore waters along Reach 7 for up to one year after the project was completed, and the ongoing, uncharacteristic susceptibility of this coastal system to display abnormally high turbidity following storms that previously had not produced turbidity of this intensity or duration. Palm Beach and DEP have not accounted for the impacts of post-construction elevations of turbidity, focusing instead on post-construction sedimentation of hardbottom. But in the face of what these concerned citizens saw and what is known about the performance of beaches based on comparative mean grain sizes, likely impacts from the Reach 8 project would include biologically significant impacts not only to hardbottom, but also to water clarity for a period of approximately one year after construction. Upon placement of the fill, the beach and nearshore will experience the loss of nearly all life through death by burial or movement away from the disturbance. After construction, the filled area will be devoid of common macroinvertebrates, such as mole crabs and coquina clams, but also the algae and sponges that are covered by fill. The record does not permit a finding as to the post-construction presence of phytoplankton in the nearshore waters. However, there will clearly be a major disturbance of the bottom of the nearshore food chain. With a better match of existing grain size with fill grain size, the beach and nearshore habitats, except for hardbottom projected for burial, would recover most functions within six months and nearly all of the remaining functions within one year after construction. The role of sediment size in resource recovery is not a new concept. As noted by works cited in "Deposition and Long-Shore Transport of Dredge Spoils to Nourish Beaches: Impacts on Benthic Infauna of an Ebb-Tide Delta," by Melanie J. Bishop, et al. (including Dr. Pete Peterson), p. 531: "The degree of concordance between native and introduced sediments is considered the most important factor determining the rate of recovery of populations of beach invertebrates following nourishment." When the fill contains excessive fines, it is not, as suggested by one of Palm Beach's witnesses, merely a matter of the availability of new individuals, who may be readily recruited34 to the impacted beach and nearshore by waves and currents. When the fill contains excessive fines, it is also a matter of whether these newly recruited individuals find, upon their arrival at the filled site, sufficient functional habitat in terms of such important items as food supply and, in some cases, water clarity. Nelson noted that mole crabs, which occupy the swash zone, will typically recolonize a nourished beach within six months after the construction. Mole crabs are more susceptible to mortality from burial in coarser sediments than finer sediments, but demonstrate survival in finer sediments only in burial depths of about four inches--considerably less than what is proposed in this case. Nelson at p. 37. Given the last sentence in this paragraph, it is not unlikely that Nelson was studying projects with excessive fines in the fill, so his finding of six months' disturbance is entitled to some weight. However, even after six months, Nelson concedes that only the numbers of individuals are the same; because of disproportionately high numbers of juveniles, the biomass available as food was still "greatly reduced" at six months, post-construction. Id. at p. 15. Interestingly, Nelson cites a study that suggests that the adults were lost during the preceding winter due to increased, post-construction turbidity. Id. Occupying the intertidal zone, coquina clams also begin to repopulate a nourished beach about six months after the construction. Due to limited mobility, coquina clams suffer mortality from burial by sediment and are especially sensitive to burial in finer sediments. Id. at pp. 18 and 37. Intertidal-dwelling haustoriid amphipods are slow to return to nourished beaches, probably because they are not strong swimmers and, residing where the effects of filling are the greatest, suffer high mortality rates during construction. Id. at p. 24. Residing higher up on the beach, ghost crabs may be reduced by 50 percent during the summer after nourishment, which is often about six months, post-construction. Although the fill is largely placed seaward of the portion of the beach that they occupy and they are able to burrow through the overburden, the reduced population is probably due to the loss of food source for the ghost crab. Id. at p. 30. Nelson noted that nearshore fish may suffer from relatively high (but unidentified) turbidity values because the gill cavities of the fish will fill with fine sediments and the fish will suffocate. Pelagic, filtering fish are more susceptible to this than benthic feeding fishes. Also, juvenile fish, which, with small adults, tend to predominate in the nearshore, also tend to be more affected by particles in the water. And sublethal concentrations may still produce serious stress levels in the fish. Nelson, p. 28. Nelson cited a study that reported that fish returned to nourished beaches within four months after construction, but notes that the author cited no data to support his assertion. Nelson reported that this author suspected that the destruction of nearshore habitat may be a bigger factor on fish presence than turbidity because nearshore fish tolerate high turbidities, but, as is typical, neither author attempted to measure the turbidities following a beach-nourishment project with the turbidities associated with the same beach, pre-construction. Nelson, pp. 28-29. Where the other author stated that the populations of jawfish, a cardinalfish, and a blenny had been negatively affected seven years after construction, though, Nelson faulted the author for failing to consider alternative explanations. Nelson, p. 29. Without comment, Nelson cited another study that finds an increase of fish immediately post- construction. However, the absence of specifics in that study precludes reliance upon it. Turbidity or reduction in water clarity works in at least four ways to reduce the function of the nearshore habitat. First, by reducing the ability of the water to transmit light, elevations of turbidity limit the abundance of algae and sponges, which are important food sources for, among other things, juvenile green turtles. Second, by reducing the transparency of the water, elevations of turbidity disturb the balance between predator and prey in which pre-construction kill rates reduce substantially because sight-feeding predators, such as permit and pompano, can no longer find their prey. Third, elevations of turbidity may result in sedimentation as the particles settle out; like fill, sedimentation will kill algae, sponges, and coral. Fourth, as noted above, elevations of turbidity may damage the gills of certain fish. Recreational Opportunities on Reach 8 Based on the testimony of Brett Fitzgerald, who lives near Reach 8 and regularly takes his wife and two young children to the Lake Worth Municipal Beach, the nearshore hardbottom at the beach is in the swash zone, so he and his children, since they were three years old, are easily able to snorkel the area and see tropical fish that they could not see elsewhere. The water is so shallow that one can easily stand up and walk out of the water. The mitigation reef proposed for Reach 8 would be near Sloan's Curve, which is about one mile north of Phipps Ocean Park. The ease with which Mr. Fitzgerald and his wife can pack the children and beach accessories into the car, drive to the Lake Worth Municipal Beach, lay out their things, and enter the water would be lost at the mitigation reef. The one-mile haul with the children and beach accessories would prevent them from swimming with the children on the mitigation reef. With their children, they could effectively access the reef only with a boat, but do not have one. The loss of water clarity, post-construction, also raises fears of shark attacks. Frequenting the pier are various sharks, including bull, tiger, hammerhead, blacktip, and spinner. The risk of attack increases with turbidity. Reduced clarity, presumably well short of increases of 29 NTUs over background, raises the risk that the shark will confuse humans in the water for preferred prey and mistakenly bite the humans. In addition to a favorite swimming beach, largely due to plentiful public parking relative to elsewhere along Palm Beach Island other than Phipps Ocean Park, the Lake Worth Municipal Beach and Lake Worth Pier are the focus of considerable surfing. Wave conditions and accessibility attract surfers from all of southeast Florida and even the entire east coast of the United States. Surfers are attracted by the break in the water that produces good waves for surfing. The waves at the pier feature an open shoulder that permits surfers to practice maneuvers and improve their skills, so they can go on to national and international competition. Eight-time world champion and Florida native Kelly Slater has surfed the Lake Worth Pier. Three others who started surfing at the Lake Worth Pier have become professional surfers. Surfrider uses the Lake Worth Pier to sponsor annual events to introduce children to the sport of surfing. The Lake Worth Pier is also Captain Barrow's favorite place to find bait, such as menhaden, cigar minnows, and Spanish sardines. Every October, the mullet run along the shoreline, and they draw their predators, such as snook, in large numbers. In the spring, as the water warms, redfish and tarpon begin to visit the beach in larger numbers. The Lake Worth Pier is a popular spot for shore fishing all year, as fishers without boats, or fishers looking to get out of their boats and save fuel, take advantage of the good fishing on either side of the Lake Worth Pier. At sunrise in October, as many as 30 persons may be surf fishing along the beach around the pier. Many of the fishers are retirees, so the pier area may be used for fishing throughout the day. Sunset and evening are also popular times for fishing. However, Captain Barrow reports that the fines that have spread from Reach 7 have caused the nearshore waters along the Lake Worth Municipal Beach to cloud up considerably whenever wave action increases--far more often and cloudier than the same wave action produced before the Reach 7 project. No one disputes that the placement of fill on the North Segment would quickly spread onto the submerged bottom of the Lake Worth Gap. Due to the excessive fines in the fill, the Lake Worth Municipal Beach would experience substantial turbidity increases and sedimentation for a period of at least one year. During this year, fishing at the Lake Worth Municipal Beach would cease because of the disruption of the food chain and absence of fish. Swimming would probably cease, as the turbid waters would discourage nearly all persons from entering them on grounds of aesthetics and safety, not just from shark attacks, but also from collision with any unseen underwater hardbottom incompletely covered by the spreading fill from the North Segment. It is impossible to determine the impact on waves of this spreading fill, but the increasingly turbid waters, without regard to any loss of wave break, would discourage surfing, as well. Even the visual attraction of the beach would be diminished by the unappealing presence of cloudy waters washing up onto the beach face. Except for persons seeking to lie on the warm sand and tan, typical beach users would likely cease using the beach, even though they would not have any nearby alternatives offering the same combination of recreational opportunities and accessibility. The loss of a year or possibly two of use would be especially hard on retirees and young children, for whom the window of recreational opportunity or, in the case of the children, recreation-induced personal development is more limited. Application and Responses to Requests for Additional Information Activity Prior to Filing Application In meetings with DEP prior to filing the application described immediately below, Palm Beach proposed placing one million cubic yards of fill on Reach 8 from R-125 to R-134. DEP warned that the hardbottom impacts at the south end of the project would be too great and suggested shortening the southern end of the project. Application: June 2005 In June 2005, Palm Beach filed with DEP the Town of Palm Beach Reach 8 Beach Restoration Project Joint Coastal Permit Application (Application). The Application, which was submitted CPE, combines requests for a JCP and proprietary authorization from DEP and a dredge and fill permit from the COE. The COE has simultaneously processed the Application and is awaiting state water-quality certification, which takes the form of final agency action from DEP issuing the JCP. The summary of the contents of the Application and each response to a request for additional information omits material information, if a subsequent submittal were to change the information, unless the earlier statement of this information is useful to an understanding of the facts of this case. The Application states that the intent of Palm Beach was to obtain COE and DEP approval for Reach 8 construction in the fall of 2005 or winter of 2006, so the Reach 8 project could be conducted at the same time as the 2006 Midtown Project and Reach 7 Project. The Application states that the north end of Reach 8 is a continuation of the Reach 7 Project. However, the Reach 7 Project was too far along for the Reach 8 Project to catch up. In the Application, Palm Beach shortened the project by about 3600 feet to 6990 feet (1.3 miles) by proposing fill from R-125 to R-131, instead of R-134, as originally proposed, and reducing the volume of fill to 506,000 cubic yards of "compatible beach quality sand." The proposed fill is in the shape of a trapezoid. The two shortest sides, which are approximately equal in length, are on the northern and southern ends of the project. The longest side is the landward, shoreline-parallel side. Thus, the proposed fill tapers off as it extends into the water. The two ends taper between R-126 and R-125 and R-130 and R-131. The planform diagrams disclose three bands of fill from landward to seaward. The characteristics of these bands is revealed by the profile diagrams. From the planview, the project is depicted in the following illustration, in which the yellow depicts the construction berm crest and the more seaward line, with lines extended from the yellow in a cross-shore direction, depicts the construction toe of fill where the slope is 1:15: The profiles, which are not uniform from north to south, depict the current and equilibrium beach profiles, as well as a design profile for the beach project. Each profile reveals, from landward to seaward, a design berm elevation of 9 feet, a slope of 1:50 to an elevation of 7 feet (i.e., for 100 feet), followed by a slope of 1:10 to the seaward toe of the fill. Characteristic of beach nourishment or restoration projects, the proposed project involves the placement of considerable fill in the water so as to effectively extend the shoreline seaward. Characteristic of beach nourishment or restoration projects, the proposed project anticipates the loss of a considerable amount of this fill, as well as fill added at higher elevations, as the nourished beach seeks equilibrium after the completion of the project. At R-130, for instance, the fill would extend the mean high water line about 150 feet seaward of its present location, although, at equilibrium, the mean high water line would only be about 50 feet seaward of its present location. Fill would be added about 200 feet seaward of the present mean high water line. Also, the nearshore bottom at equilibrium would be a little higher (i.e., the water would be shallower) 300-500 feet seaward from the present mean high water line, and the bottom would equilibrate about 1400 feet seaward of the present mean high water line, which is about -22 feet: this is the closure depth. Addressing BA III and BA IV, which were originally proposed as sand sources for Reach 8, the Application notes that, respectively, the composite mean grain sizes are 0.32 mm and 0.22 mm, and the average silt content is 2.3 percent and 1.7 percent. The Application states that each of the berm widths described above averages about 143 feet, and the fill template will provide about 72 cubic yards of fill per linear foot of beach. The slope and fill per linear foot of beach are partly driven by the mean grain size: the smaller the grain, the shallower the slope. The Application addresses CEBs. Noting that DEP had already designed the North and South segments as CEBs, the Application, citing the 2004 hurricanes, requests reconsideration of the Lake Worth Gap and the Center Segment, so all of Reach 8 would be CEB. This request is in the form of a letter dated February 7, 2005. In support of the request, Attachment 7, Table 1, shows, for R-128 to R-133, an average shoreline loss of 5.9 feet from 1990 to August 2004 and an average shoreline loss of 30.9 feet from August 2004 to November 2004. A series of beach profiles revealed that the second hurricane in quick succession had a relatively greater effect on the beach above NGVD 0 (or mean sea level), that the effect of Hurricane Frances had been to transfer sand to a higher-than-prestorm elevation seaward to a depth of about -8 feet NGVD (roughly 150-250 feet seaward of the point at which NGVD 0 intersected the beach, post-Hurricane Jeanne), and that CPE did not survey to this depth or distance, post-Hurricane Jeanne. DEP has declined at all times to designated these segments as CEB. Attachment 23 identifies existing shoreline structures. Some of the armoring of Reach 8, at the south end, is close to the surf zone and may interrupt longshore sand transport. The most seaward-located seawall is about 700 feet north of R-134. More landward-located seawalls are near R-127, R-129, and R-130. A wall extends 1300 feet along the Lake Worth Gap, which represents all, or nearly all, of the Lake Worth Gap. The Lake Worth Pier extends seaward 950 feet from the vegetation line, but the pilings of the pier do not affect coastal processes nearly as much as would an impermeable groin. Also, at the time of the submittal of the Application, the effect of the pier was further reduced by its partial destruction during the recent hurricanes. Attachment 27 calls for construction to start as early as November 1, 2005. The first 10-14 days of construction would be for the mobilization of the dredge, dredging and filling would continue for 30 days, and demobilization would take another 10 days. Any necessary beach tilling would be completed before May 1, 2006. Attachment 29 describes the three major resource areas affected by the project: 1) beach, dune system, and uplands; 2) nearshore ocean habitats; and 3) offshore ocean habitats. The most prominent resource is the beach nesting habitat provided for three of the five sea turtles found in the area: green turtle, leatherback turtle, and loggerhead turtle. U.S. Fish and Wildlife Service (FWS) has listed the first two as endangered and the third as threatened. Noting that the beach width is generally less than 100 feet in Reach 8, Attachment 29 states that the beach may provide resting and foraging habitat for shore and wading birds, such as pelicans, herons, egrets, terns, plovers and sandpipers. Also inhabiting the beach zone are infaunal invertebrates, such as amphipods, isopods, coquina clams, polychaetes worms, and various crabs, such as mole crabs and ghost crabs. The dune system found at Reach 8 is dominated by sea grape. Also present are sea oats, inkberry, bitter panicum grass, bay cedar, and seashore elder. The nearshore provides habitat in two zones: intertidal and subtidal. The intertidal zone is inhabited by the following invertebrates: polychaetes worms, isopods, sand dollars, amphipods, mole crabs, and coquina clams. Invertebrates occupying the subtidal zone include annelid worms, crustaceans, gastropod mollusks, sponges, and various species of crabs and shrimps. Fish using these nearshore waters include snook, jack, seatrout, grouper, snapper, redfish, and grunt. Algae found in the nearshore environment include Caulerpa taxifolia, and stony coral are also found in this setting. In February 2005, CPE investigated the nearshore hardbottom from R-125 to R-134 plus 100 feet. Along this 2.05 miles of coastline, which is only 250 feet short of the ultimate project area (less the Lake Worth Gap), CPE observed nine areas of hardbottom and documented the associated biota. Hardbottom occurred frequently in the intertidal zone south of the Lake Worth Pier. In March 2005, CPE investigated the hardbottom south of R-132. The landward edge of this hardbottom occurs about 300-325 feet offshore of the dry beach. CPE set three cross- shore transects covering the area of this hardbottom. The results were findings of mostly low relief hardbottom (under one foot) in water depths of 6-13 feet. Average percentages in excess of 0.7 percent of coverage were as follows: sediment--41.8 percent, turf algae--21 percent, bare hard substrate--14.9 percent, and macroalgae--12.7 percent. Attachment 29 notes that the project area includes Essential Fish Habitat, as designated generically by the South Atlantic Fisheries Management Council. However, for each fish or shellfish likely to use such area, it is capable of escape upon encountering the adverse conditions of construction. Nothing in Attachment 29 addresses the impact of post- construction water clarity on this Essential Fish Habitat. Attachment 30 addresses endangered and threatened species. The threatened loggerhead sea turtle nests on coastal islands of the United States from North Carolina to Florida. It is the most common sea turtle in Palm Beach County. Its nesting and hatching season in Palm Beach County takes place from March 15 to November 30. The loggerhead female nests from one to seven times per season with a mean of four nests. The mean clutch size is 100-126 eggs in the southeastern United States. Eighty percent of the nests in the southeastern United States are found in Brevard, Indian River, St. Lucie, Martin, Palm Beach, and Broward counties. Over 10,000 females nested in south Florida in 2004, and Palm Beach County was the location of 13,413 nests in 2003. The green sea turtle breeding populations in Florida and the Pacific coast of Mexico are endangered; otherwise, the species is threatened. Large numbers of nests are in the same six counties listed above for the loggerhead sea turtles. Some nests have been found along Florida's Gulf coast. Green sea turtle nesting and hatching season takes place from May 1 to November 30 in Palm Beach County. The green sea turtle nests one to nine times per season with an average of 3.3 nests. The average clutch size is 136 eggs. Sometimes, females will produce clutches in successive years. FWS estimates that 150 to 2750 females nest each year along the coasts of the continental United States. Palm Beach County was the location of 763 green sea turtle nests in 2003 and 968 green sea turtle nests in 2004. According to Attachment 30, the wide-ranging, but endangered, leatherback sea turtle can be found from Canada to Argentina. They nest in small numbers along the southeast coast of Florida from mid-February through mid-November. Palm Beach County was the location of 306 leatherback turtle nests in 2003 and 166 leatherback turtle nests in 2004. The endangered Hawksbill sea turtle is found in the tropical and subtropical waters of the Atlantic, Pacific, and Indian oceans. Its nesting and hatching season in Palm Beach County would extend from February 15 to November 15, but only a few nests occur from the Florida Keys to Cape Canaveral. No Hawksbill nest has ever been found in Palm Beach County, although the Hawksbill can be found in the offshore waters adjacent to the county. According to Attachment 30, the endangered Kemp's Ridley sea turtle has never been known to nest in Palm Beach County and is seen only rarely in the offshore waters adjacent to the county. Only one nest of the Kemp's Ridley turtle has been found in Florida since 1988 and that was in 1989 in Madeira Beach. Attachment 30 reports that West Indian manatees and numerous types of whale, including the Finback, Humpback, Sperm, and highly endangered Right whale, but no impacts to whales was anticipated. Manatees are addressed in the Permit. Attachment 33 itemizes the project's effects on the coastal system. In general, Attachment 33 states that the net effects are positive. For the dune system, Attachment 33 states that the project area includes a "large natural dune system that supports a variety of plants and animals." Attachment 33 identifies these dunes within Reach 8 as a "relatively unique resource" due to the loss of most dunes in south Florida to development or erosion. Attachment 33 concedes that about 50 feet of these dunes will need to be removed to allow the contractor's equipment access to the beach, but the "project specifications" will require the restoration of this vegetation, post- construction. Also, the restoration of the foredune will protect the dune from wave attack. Attachment 33 states that sea turtle nesting will be enhanced by the project due to the replacement of material lost to erosion. Attachment 33 advises that a monitoring and nest- relocation program will be implemented if fill placement occurs during nesting season. Attachment 33 addresses hardbottom communities in terms of susceptibility to coverage by fill spreading cross- shore and longshore. As to cross-shore spreading, Attachment 33 notes that the closure depths of the Manalapan and Ocean Ridge projects were -22 feet, which is the closure depth projected for the Reach 8 project. Assuming even a larger amount of cross- shore spreading, Attachment 33 nonetheless states that no offshore hardbottom coverage will ensue from the project and the movement of the fill during the equilibration process. As to longshore spreading, Attachment 33 notes the nearshore hardbottom extending from R-132 to R-134 plus 500 feet, which, at the time of the original Application, was outside the project area. Attachment 33 states that impacts to this hardbottom were reduced or eliminated by shortening the project area and reducing the fill volume, as noted above. Relying on GENESIS, a longshore sand-transport model that is discussed in detail below, Attachment 33 assures that no more hardbottom would be covered by the reduced project than would have been covered if the project did not take place. As to turbidity, Attachment 33 states that increases will occur in the nearshore mixing zone as a direct result of fill placement. The contractor will monitor water clarity to ensure that turbidity does not increase by more than 29 NTUs outside of the permitted mixing zone. Excavation of fill from the borrow areas may result in the temporary loss of benthic infauna and the temporary generation of localized, increased turbidity, and beach infauna may be lost by the placement of fill. Also, the borrow areas may not return to their pre- dredging composition, depending on changes in sediment grain size composition. Nothing in Attachment 33, the Application, or subsequent responses to requests for additional information discusses post-construction turbidity. Attachment 33a is the description of the use of the GENESIS shoreline model. GENESIS, which stands for Generalized Model for Simulating Shoreline Change, is a numerical model for predicting wave-driven longshore transport of sediment. The model is used in planning a beach nourishment or restoration project and predicting the transport of the fill, post- construction. For this project, CPE linked GENESIS with STWAVE, which is a model for wave height and angle. Outputs from STWAVE were wave heights at the projected closure depth of -22 feet. Using these outputs as inputs, GENESIS could then predict longshore sediment transport, once it has been suitable calibrated and verified. CPE calibrated GENESIS using shoreline data from 1990-2000 for shoreline from R-105 to R-150. Attachment 33a, Table 33-2, reveals considerable shoreline retreat in Reach 8 during this ten-year period. The initial calibration run of GENESIS did a fairly good job of predicting the direction and amplitude of change for Reach 8; the final calibration run did a better job. After calibrating GENESIS to the conditions at Reach 8, CPE verified the model by running it for the same shoreline during an earlier period, 1974-1990. The purpose of this process is to run a calibrated model in a setting for which real-world data are available--and to see how well the calibrated model does in "predicting" these natural processes. This verification effort was an irredeemable failure. But CPE proceeded with the calibrated model as though the verification process had been successfully completed. The most likely explanation was that Palm Beach wanted to commence construction within five months of filing the Application, and there was not time to fix the model verification or find a new model and run it. Attachment 33a, Table 33-3, reveals that the calibrated model was useless for "predicting" shoreline retreat or advance during this period. In reality, Reach 8 experienced shoreline advances of 20 feet at the north and south ends of Reach 8 and 80 feet in the center. As calibrated, GENESIS predicted almost the exact opposite: no change at the north end and a retreat of 20 feet at the south end and a retreat of 70 feet in the center. The verification run produced the same result for Reach 7 and for much of the remainder of the shoreline modeled. For the majority of the shoreline modeled, GENESIS, as calibrated by CPE, produced a rough mirror image of what actually took place in terms of shoreline advance or retreat. In Attachment 33a, CPE gamely described the verification run as follows: "Over the majority of the study area, the model overestimated the amount of erosion." For areas of accretion, this statement is misleading. CPE tried to explain the anomalies by stating: "These discrepancies occurred due to the fact that erosion prior to 1990 occurred in different locations than it did after 1990." This statement implies that GENESIS is of no value if the erosion or accretion moves from one area to another within Reach 8 during the period modeled and that GENESIS cannot identify such shifts. CPE attempted to justify continued reliance on its calibration of GENESIS by noting: "Overall, the verification indicates that near the Reach 8 project area, the calibrated model is a conservative shoreline model." It is difficult to understand the use of "conservative" in this statement, as CPE concludes that, within Reaches 7 and 8, the calibrated model can "overestimate" the amount of erosion. Again, this statement is misleading. Again, "overestimating" erosion meant "predicting" erosion of a certain magnitude when accretion of the identical magnitude actually took place. These problems with CPE's use of GENESIS for the Reach 8 project did not go unnoticed, as CPE had evidently hoped. In its response to the Application, which is described below, DEP essentially rejected the GENESIS data and the analysis based on such data. DEP's expert witness, Bob Brantly, testified that he did not rely on the GENESIS model output in considering whether to issue the Permit. Petitioner's expert witness, Dr. Robert Young testified that the GENESIS output, in this case, was unreliable. Dr. Young reasoned that the geological control characteristic of this area undermines conventional expectations concerning the movement of sand in response to wave action. Lacking a thick envelope of sand, the beach profile of a geologically controlled area responds differently, such as in finding equilibrium after nourishment, than does the beach profile of a beach with a thick envelope of sand. Also, Dr. Young explained how a beach subject to geological control, which can be extremely variable over a short distance, does not behave as predictably as other beach systems. This testimony of Dr. Young is credited. Relying on GENESIS, CPE projected the longshore transport that would take place, post-construction. At this point, CPE's reliance on GENESIS was an embarrassment, and its predicted limits of longshore transport were worthless. Frankly, the main effect of GENESIS in this case is to cast doubt on CPE's other assurances concerning the performance of this project and, specifically, belated new findings of a finer mean grain size on the existing beach, as discussed below. The first discussion of the mean grain size of the existing beach is in Attachment 33c, which considers the compatibility of the fill material with the "native" sediment. The native sediments are derived from samples collected by Palm Beach in 1993 at R-127 and R-130; the only fill added since 1993 was a relatively small amount of trucked fill after Hurricane Jeanne. Attachment 33c, Table 33c-1, states that the mean grain size of the native sediment at R-127 and R-130 is 0.35 mm with no silt, 44 percent carbonate, and a dry Munsell color of 10YR-6/2. Table 33c-1 explains that the dry Munsell color information covers hue, value, and chroma. Hue indicates the combination of red, yellow, green, blue, and purple colors. Sands with higher color scores are at the blue/purple end of the spectrum. Value, the most important of these three characteristics, refers to the lightness of the sand color with a higher number indicative of a lighter sand sample. Grey sand equals 5 or 6, light grey sand is a 7, and very light grey to light brown sand is at 10. The native sand at R-127 and R-130 is brownish grey. Chroma refers to the intensity of color with the higher number being more intense. Attachment 33c, Table 33c-1, reports for BA III and IV, respectively, mean grain sizes of 0.32 mm and 0.22 mm, silt of 2.66 percent and 1.71 percent, and dry Munsell color of 5Y- 6/1 (for both sources). Attachment 37 claims that no mitigation is required due to the information obtained from the GENESIS modeling, which showed no difference between the project and the no-action alternative in terms of hardbottom impacts. This later changed. Attachment 38 considers project alternatives. Alternative A is the no-action alternative, for which CPE predicts continued erosion and shoreline recession--claims unsupported by the record, as noted above. Alternative B is the continuous beach fill alternative through the entire Reach 8. This option would result in hardbottom impacts offshore of R-132 to R-134. Alternative C is the reduced-impact fill alternative, in which the project area is reduced, evidently as presented in the Application. Although the benefits in terms of beach recreation and sea turtle nesting habitat are reduced, the Application states that, with this alternative, Palm Beach would be most likely able to place fill in the fall of 2005. Alternative D is the discontinuous beach fill alternative, in which restoration activities would be limited to CEBs. According to CPE, the potential hardbottom impacts are the same as in Alternative B, but the disadvantage of this alternative is that Palm Beach would not be able to restore the beach at the Lake Worth Gap, which was still in the project area at the time of the Application. Alternative E is dune enhancement only, which would provide "modestly increased storm protection to a portion of Reach 8," which Attachment 33d does not identify, but would provide little protection to the rest of Reach 8. Response to First Request for Additional Information: June 2006 By letter dated July 13, 2005, DEP provided CPE with the First Request for Additional Information (RAI 1). One of DEP's concerns was the discrepancy between, on the one hand, the estimated loss of 105,000 cubic yards of sand between R-128 and R-133 and the relatively low background erosion rate and, on the other hand, the proposal to fill this segment of Reach 8 with 506,000 cubic yards of material. DEP questioned the need for this fill, reasoning that it had declined to designate this segment of Reach 8 as a CEB because "the existing dune and beach provide a measure of protection against damage from high- frequency (minor) storm events." DEP also asked for the post- Jeanne profile to be extended as far seaward as the pre-Frances and post-Frances profiles extended, as noted above. DEP questioned CPE's closure depth of -22 feet and, in particular, its reliance on the Ocean Ridge beach project, where few of the profiles extended beyond the -20 foot contour. On a related point, DEP noted that the GENESIS verification run provided no reasonable assurance for the predicted results. DEP requested the use of an analytical solution of longshore spreading of fill. DEP questioned the absence of mitigation for impacts to the nearshore hardbottom. Citing a 2002 report by Applied Technology and Management, Inc., which had done most of the Reach 7 design work, DEP noted that this low-relief, algae- covered rock had persisted in the intertidal zone since at least 2001 and thus had not emerged due to the recent hurricanes. DEP requested mitigation for the hardbottom directly covered by the fill and for the hardbottom indirectly covered by the fill as it drifted offsite to the south, past R-136. On June 28, 2006, CPE filed its response to RAI 1 (RRAI 1). In the cover letter, CPE advised that it had lengthened the project by extending it to R-134 plus 250 feet and increasing the volume to 900,700 cubic yards, although the revised project now excluded the Lake Worth Gap. RRAI 1 identifies BA III and BA IV as the sand sources. In addressing the need for the Reach 8 project, RRAI 1 asks DEP to reconsider its decision not to designate the Center Segment as CEB. RRAI 1 adds that the project will cover nearshore hardbottom, and Palm Beach will construct an artificial reef as mitigation for the loss of this hardbottom. In addressing the request to survey post-Jeanne profiles as far seaward as the post- and pre-Frances profiles extended, RRAI 1 states that surveys had been conducted that extend these beach profiles past the predicted closure depth. In the narrative, RRAI 1 notes that 486,300 cubic yards of sand eroded from Hurricanes Frances and Jeanne, including 98,200 cubic yards from the dry beach. Following Hurricane Frances, the submerged profile partially recovered, but, even after a trucked-fill operation in January 2005, the post-Jeanne dry beach had 53,900 cubic yards less than it had pre-Frances. RRAI 1, Table 7-2, depicts volume changes since Hurricane Frances to May 2005 to the North Segment and the north half of the Center Segment, but not to the rest of the project area. At closure depth, for the North Segment, the profile along the transect from R-125 lost 59.5 cubic yards per linear foot, the profile along the transect from R-126 gained 4.4 cubic yards per linear foot, and the profile along the transect from R-127 lost 20.6 cubic yards per linear foot. At closure depth, for the north half of the Center Segment, the R-129 profile lost 0.4 cubic yards per linear foot, the R-130 profile gained 51.3 cubic yards per linear foot, and the R-131 profile lost 18.2 cubic yards per linear foot. At 0 feet NGVD, for the North Segment, the R-125 profile lost 20.1 cubic yards per linear foot, the R-126 profile lost 6.7 cubic yards per linear foot, and the R-127 profile lost 13.4 cubic yards per linear foot. At 0 feet NGVD, for the north half of the Center Segment, the R-129 profile lost 3.6 cubic yards per linear foot, the R-130 profile lost 0.6 cubic yards per linear foot, and the R-131 profile lost 10.2 cubic yards per linear foot. RRAI 1 states that, following Hurricane Wilma in 2005, Palm Beach constructed a dune nourishment project from April 5 to May 4, 2006, using stockpiled fill from the Reach 7 project. RRAI 1, Table 7-3, depicts shoreline changes from Hurricane Frances to May 2005 for all of Reach 8. The shoreline reportedly advanced 26 feet at R-133 and 15 feet at R-134, retreated about eight feet at R-126 and five feet at R-132, and retreated from 20-46 feet at all other monuments within Reach 8. The average retreat for all of Reach 8 was 23.4 feet. RRAI 1 states that more losses resulted from Hurricane Wilma in 2005 and explains that, between April 5, 2006, and May 4, 2006, Palm Beach stockpiled some fill during the Reach 7 project and, upon completion of that project, trucked the fill to Reach 8 and placed it along the dune line as a temporary protective measure. In response to a DEP comment noting that the equilibrium toe-of-fill was based on anticipated cross-shore spreading only and asking for an equilibrium toe-of-fill based on anticipated cross-shore and longshore spreading, the RRAI 1 states: "An equilibrium toe-of-fill evaluation that includes longshore spreading cannot be predicted accurately from models." The RRAI 1 adds that RRAI 1, Attachment 25, provides an equilibrium toe-of-fill based on cross-shore spreading. In response to a DEP comment about the details of construction, the RRAI 1 states that a hydraulic cutter head dredge "may" be used to excavate BA III and BA IV: at the hearing, Palm Beach committed to the use of a hydraulic cutter head dredge. RRAI 1 states that the contractor will place the submerged pipeline to avoid contact with the hardbottom. Bulldozers will construct dikes on the beach to contain the material deposited there and reduce turbidity. Construction will require 60-75 days to complete. RRAI 1, Figure 1, discloses that BA III and BA IV are in an area of inter-reefal sand, just seaward of the diabathic channels. RRAI 1 states that inter-reefal sands have been the source of fill for beach nourishment since the early 1960s. The deposits in these sediments, which accumulate between the reefs, are relatively uniform in composition--i.e., siliciclastics with small carbonate fractions--and grain size--i.e., sand sized. But there are finer and coarser facies. According to RRAI 1, the shallower inter-reefal sand deposits often have sediments resembling the active beach landward. Deeper inter-reefal sand deposits have beach sands mixed with reworked marine sediments and reef fragments. Thus, inter-reefal sediments are finer in the center, but coarser seaward and landward. RRAI 1 offers detailed analysis of the sediments in BA IV in response to a DEP comment that the sediments in this area were only "marginally acceptable." Covering about 95 acres in 30-45 feet of water, BA IV extends from R-132 to R-134 and is about 0.6 to 0.7 miles offshore. The mean grain size for BA IV is 0.21 mm with silt content averaging 1.79 percent. RRAI 1 concludes that BA IV sand, which was used for Reach 7, was within the sediment quality limits for Reach 7 and should be suitable for Reach 8. Given Reach 7's performance, this assertion inspires little confidence in CPE's ability or willingness to identify comparable sediments, in terms of mean grain size, between sand sources and the existing beach. RRAI 1, Table 33a-1, responds to DEP comments concerning closure depths. The closure depths for Reach 8 from August 1990 to May 2005 averaged -22 feet, with only one value as shallow as -19 feet and no value deeper than -23 feet. Responding to DEP comments about the calibration and verification of the GENESIS model, RRAI 1 again explains how erosional areas moved with time, so that calibrations based on one period of time may not yield satisfactory results in another period of time. RRAI 1 states: "Such undulational erosion patterns make the accurate calibration and verification of plan- view shoreline change models such as GENESIS, DNRBS (Dan and Grant, 1988), or the Walton and Chiu (1979) analytical models difficult." RRAI 1, p. 27. This is an interesting comment, given CPE's choice later to use the Walton and Chiu to confirm its work with the GENESIS numerical model in projecting longshore spreading. Responding to DEP concerns that the native beach sand composite mean grain size, based on 1993 data, may have been affected by a fill project done after Hurricane Jeanne, RRAI 1 acknowledges that about 50,000 cubic yards of beach and dune fill were placed above mean high water in January 2005 from R-117 (Sloan's Curve) to R-134 plus 136 feet. Not surprisingly, given the history of data collection in connection with beach projects, no one took samples of the fill material, so CPE was unable to determine how the beach composition may have been altered due to fill placement. RRAI 1 states that the impacts to infaunal organisms at the borrow areas are significant, and the recovery time for abundance and diversity recovery may be 1-2 years. However, impacts to benthic organisms on the dry beach and in the intertidal zone are reported to be generally less significant, partly due to the likelihood that organisms adapted to the high- energy intertidal zone can adapt better to the impact of filling, so that recovery of these organisms takes 2-7 months. This claim has been discredited above. The impact on shorebirds and fish feeding on such infauna is reportedly minor, given the ability of the shorebirds and fish to move to nearby foraging habitat. RRAI 1 notes that Florida previously required infaunal community sampling at borrow and fill sites among the monitoring requirements imposed on sponsors of beach nourishment projects, but discontinued this requirement in the mid-1990s due to reportedly rapid recolonization of these sites by natural recruitment of infauna. As noted above, the Reach 7 experience rebuts this assertion. RRAI 1 identifies only three project alternatives. Under the no-action alternative, the beaches "may" continue to degrade. Again, CPE's claims of erosion for Reach 8 are seriously overstated. Under the alternative of continuous beach fill, fill would be placed for the entire length of Reach 8 and would provide the greatest storm protection. Under the alternative of discontinuous beach fill, fill would be placed for all of Reach 8, except the Lake Worth Gap. CPE identifies this alternative as feasible. RRAI 1, Attachment 7, contains beach profiles as of August 2004 (pre-Frances), November 2004 (post-Jeanne), and May 2005. A typical transect in the North Segment, R-127, shows retreat of the shoreline above mean high water from August 2004 to present (with no accretion from November 2004 to May 2005), and the loss of elevation in the surf zone (with no accretion from November 2004 to May 2005, but considerable recovery since November 2004 at a depth of about 10 feet, which is roughly 200 feet offshore. Two transects in the Center Segment, R-130 and R-132, show that the shoreline above mean high water has regained much of its loss from August to November 2004. For R-130, the profile shows sediment at a higher elevation in May 2005 than in August 2004 out about 150 feet, in four feet of water. This improvement continues out to about 500 feet, in about six feet of water, where, for a short distance, the May 2005 bottom elevation is several feet lower than the August 2004 bottom elevation, but eventually the May 2005 bottom elevation is at least a couple of feet higher than the August 2004 bottom elevation for 700 feet. The situation is roughly the same for the R-132 transect, except the differences are smaller. The only transect in the South Segment, R-134, shows that the shoreline above mean high water has advanced from where it was in November 2004 (and even August 2004) and generally has improved upon the conditions in August 2004, except for about 300 feet starting about 500 feet out, in about eight feet of water. RRAI 1, Attachment 24c, is water quality monitoring results for the dredging and filling areas in the Reach 7 project over three days in February 2006. Turbidity sampling took place at the borrow areas, fill site, and hardbottom site. On only one occasion did an increase of over 29 NTUs take place and that was at the fill site when the dredge hit bottom; a few minutes later, another set of samples revealed no turbidity violation. This is a measure of the unlikelihood that post- construction turbidity would exceed 29 NTUs over background. RRAI 1, Attachment 28c, is the Sand Quality Control/Quality Assurance Plan (SQCQA Plan) for Reach 8. Stating that it is required by Florida Administrative Code Rule 62B-41.008(1)(k)4.b, the SQCQA Plan is to ensure that the sediment from the borrow areas will meet the Permit standards. The SQCQA Plan allocates responsibilities among the engineer, Palm Beach, the contractor, and the state of Florida. As for the engineer, the SQCQA Plan states that it has relied on "limited" remote sensing techniques and a "limited" number of vibracores to design the borrow areas. The engineer has the personnel and testing facilities to sample and test sediment that has been placed on the beach. Palm Beach has the authority to modify the project within the constraints of the Permit, if non-beach compatible sediments are placed on the beach. The contractor will rely on the engineer's findings and may assume that all sediment from the authorized dredge cuts is beach compatible, but will have onsite personnel to identify "obvious changes" in sediment quality at the pipeline discharge. The contractor has or can acquire the equipment and personnel necessary to remediate the beach, if directed to do so by Palm Beach. The state of Florida acknowledges that "unsuitable" sediments may exist in the permitted borrow areas. The SQCQA Plan requires the contractor to operate the dredge at all times with electronic positioning equipment to monitor the precise position of the dredge and its depth. The horizontal accuracy must be within three feet, and the vertical accuracy must be within 0.1 feet. The contractor must record this information. If the contractor encounters "unacceptable" material during dredging, it shall cease dredging, relocate the dredge cutter head into acceptable material, and notify the engineer. The contractor must visually monitor the fill placed on the beach and must notify the engineer or Palm Beach if it observes any non-beach compatible sediment. The SQCQA Plan requires Palm Beach and the engineer "to seek to enforce" the Permit and construction contract related to sediment quantity. During active construction, construction observation and contract administration shall be performed seven days per week, 12 hours per day, with the possibility of random nighttime observations. The engineer shall provide onsite observation by an individual with relevant training or experience, and the project manager shall supervise the observer. The engineer will review the contractor's daily reports of the nature of the sediments and the dredge positions. The engineer will collect a representative subsurface sediment sample from each 100-foot long section of constructed beach to visually assess fine gravel content, coarse gravel content, wet Munsell color, shell hash content, and silt content. If the engineer determines that the content of any of these items fails to comply with the quality requirements of the SQCQA Plan for a continuous area greater than 10,000 square feet, the engineer will notify the contractor and Palm Beach, and the material will be removed and replaced or otherwise remediated. In the event of such a noncompliance, DEP must be notified. Remediation includes excavating the noncompliant material and mixing with specification material to achieve a sand mixture that complies with sediment criteria; excavating the noncompliant material, transferring it to an upland location, and replacing it with compliant material; or excavating the noncompliant material, transferring it to a submerged portion of the profile, and replacing the it with compliant material. The state of Florida is encouraged to visit the beach during construction to observe sand quality. Table 1 of the SQCQA Plan specifies the limits of the parameters mentioned above. For wet Munsell value, it is 5 or lighter. For shell hash content, it is 0-20 percent, based on a visual estimate. For maximum fine gravel, it is 12 percent. For maximum coarse gravel, it is 1 percent. For maximum silt, which is any material passing a #230 sieve, it is 5 percent. A #230 sieve will allow to pass any particle smaller than 0.06 mm. It is impracticable to expect a contractor to differentiate between grain sizes of 0.2 mm and 0.3 mm in real time as slurry is deposited on the beach or the fill is moved into the water. Response to Second Request for Additional Information: March 2007 On July 28, 2006, DEP issued RAI 2, in which it again declined to designate the Center Segment and the undesignated portion of the Lake Worth Gap as CEBs. RAI 2 asks for an analysis of the remaining sediment in BA III and IV in terms of quantity and mean grain size, as well as other characteristics. For longshore spreading projections, RAI 2 asks for analytical support of the numerical output of GENESIS, whose "verification . . . does not match the observed data and does not give reasonable assurance for the model predicted results." RAI 2 questions the equilibrium profile shape of the fill, in its cross-shore dimension, based on the particle size expected to be excavated. RAI 2 states that DEP engineering staff rejected CPE's method of calculating this shape because "the grain size distribution of the proposed beach fill material (0.22 mm) is significantly finer than the existing beach sediments (0.35 mm). RAI 2, p. 7. RAI 2 also questions the proposed slope of 1:10, which the contractor had been unable to maintain in other projects. RAI 2 warns that the relationship between hardbottom impacts and the steepness of the slope (i.e., the steeper the slope, the more fill placed on the beach) may result in a Permit condition prohibiting overfilling, which would mean that the contractor could not achieve the anticipated beach width if the contractor were unable to maintain a 1:10 slope. RAI 2 asks for the analysis of the storm protection afforded by the proposed beach restoration project. DEP advises that storm protection will be "critical" in justifying the impacts. On March 26, 2007, Palm Beach filed its RRAI 2. RRAI 2 notes that, assuming that construction of Reach 8 would take place in 2007 or 2008, Palm Beach decided to extend the project and increase the fill to 900,700 cubic yards. However, after the issuance of RAI 2, Palm Beach had decided, in an effort to expedite permitting, to terminate the project at R-132 and limit the fill to 505,700 cubic yards, plus periodic dune maintenance fill. RRAI 2 again asks DEP to reconsider its refusal to designate the remainder of Reach 8 as CEB. RRAI 2 again promises an erosion control line survey. As it had previously, DEP reminded CPE that it had to obtain an erosion control line survey, prior to obtaining a letter of consent, so that the landward limit of sovereign land could be determined prior to construction; otherwise, this line of demarcation would shift seaward with the mean high water line as a result of the addition of the fill. RRAI 2 mentions that CPE is considering alternatives to BA III and IV in the form of additional borrow areas. RRAI 2 notes that BA III has some rock and BA IV has "includes somewhat finer sand" and has the potential for rock. Thus, CPE would probably be proposing two additional borrow areas. RRAI 2 notes that the Reach 7 fill samples, which were not so numerous as to permit statistical analyses, revealed that the mean grain size of sediments placed from R-119 to R-124 was 0.25 mm with average silt of 1.01 percent, and the mean grain size of sediments placed at R-125 was 0.45 mm with average silt of 1.92 percent. RRAI 2 adds revised longshore spreading projections based on the analytical method of Walton and Chiu. RRAI 2 changes the construction slope from 1:10 to 1:15 to avoid scarping. RRAI 2, Attachment 33, reports that the mean grain size of BA III is 0.32 mm and the silt value is 2.66 percent, and the mean grain size of the native beach is 0.35 mm and the silt value is 0. In response to DEP's concern about CPE's methodology to predict cross-shore adjustment of the fill, given the fact that the mean grain size of the fill, at 0.22 mm, is "significantly finer" than the mean grain size of the existing beach sediment, at 0.35 mm, RRAI 2 states that CPE is finding new borrow areas and reanalyzing the existing sediment on the beach. As seen below, unable to find sand sources with significantly larger mean grain sizes, CPE eventually tried to reduce the mean grain size of the existing beach. Prior to 2006, when excavation took place for Reach 7, the mean grain size of BA III was 0.32 mm, and the mean grain size of BA IV was 0.22 mm. Noting that most of the dredging took place in BA IV, CPE implied that BA III would be more likely the source of fill for Reach 8, provided the rock issue could be solved. The methodology used by CPE was reportedly valid if the difference in mean grain size was 0.32 mm in the fill and 0.35 mm in the existing beach. Attachment 33 to RRAI 2 states that the design berm width is 25 feet. At construction, including the advanced fill, the berm width will range from 110-223 feet. At equilibrium, excluding the effects of erosion and spreading, the berm width will be 68-92 feet. And at six years, the end of the useful life of the project, the berm width will be 25-34 feet. Again, the berm elevation is specified at nine feet NGVD. At construction, fill will be placed at depths ranging from -3.2 feet to -5.9 feet NGVD, and, at equilibrium, the fill will reach a closure depth of -22 feet NGVD. The mean grain size of the fill and the mean grain size of the native beach are assumed to be 0.32 mm and 0.33 mm, respectively. Attachment 33 states that the area of hardbottom to be covered is 4.48 acres. The 9507-foot long dune project will receive 25,000 to 50,000 cubic yards of fill to an elevation of 14-16 feet NGVD. The life expectancy of the dune project will be six years, assuming two feet of erosion per year. Attachment 33 indicates that, from 1974-1990, when the sand transfer plant at the Lake Worth Inlet was in continuous operation, Reach 7 gained 1.4 feet per year, and Reach 8 gained 2.6 feet per year. From 1990-2004, which was marked by a six-year cessation of operation of the sand transfer plant, Reach 7 lost 1.9 feet per year, and Reach 8 was unchanged. The 2004 data are prior to Hurricane Frances. Attachment 33 states that Hurricanes Frances and Jeanne struck Martin County and caused shoreline retreat of 40 feet along Reach 8. A year later, Hurricane Wilma caused shoreline retreat of 23 feet in the same area. Although the beach fill area had regained some of its losses, post-Wilma, the dry beach and dunes had not, and the gains along Reach 8 were likely due to the longshore transport of the fill placed in Reach 7 in early 2006. With these data, Attachment 33 explains the need of the project, noting that a storm of at least tropical storm strength passes within 50 miles of Reach 8 every 2.5 years, on average. One of the unadopted alternatives discussed in Attachment 33 is groins. Using a T-headed rock groin field with individual groins spaced 240 feet apart, similar to the Ocean Ridge project already in place, would require 31 such groins, all filled with beach compatible sand. The total cost of this project would be $31 million, plus the cost of the sand to fill the groins. Geotextile groins in this array would cost only $6.2 to $9.3 million, but would last only 5-10 years, as compared to 20-50 years for rock groins. Another alternative discussed in Attachment 33 is periodic dune maintenance. Noting that Palm Beach had nourished the dunes in January 2005, as described above, and added 25,000 cubic yards to Reach 8's dunes in early 2006, Attachment 33 describes dune nourishment as only a temporary solution. One problem is the most eroded beaches offer the narrowest area within which to nourish dunes. Attachment 33 described CPE's use of the Walton and Chiu analytical model to project longshore spreading of the fill. The model operator must input a closure depth. Cross- shore spreading is then estimated using a translated beach profile from 9 feet to -22 feet. The translated beach profile is a key component in this exercise. Attachment 33 explains that CPE chose the translated beach profile over the Dean equilibrium profile "because the grain sizes of the native material and fill material are assumed to be similar at this time." RRAI 2, Attachment 33, p. 22. Attachment 33 adds that the mean grain size of the of the native beach is 0.35 mm, and the mean grain size of BA III is 0.32 mm. Noting the mean grain size of 0.22 mm in BA IV, Attachment 33 cautions as to the unsuitability of such a fine grain size: "given the fine grain size [of BA IV] and that potentially new borrow areas are being developed [BA V and VI--which CPE did not yet know would produce sediments with about the same mean grain size as those produced in BA IV], only a small portion, or none of [BA] IV will be used to construct the Reach 8 project." RRAI 2, Attachment 33, p. 23. In discussing fill-volume alternatives, CPE selected a background erosion rate of 2 feet per year, explaining that that was the rate for Reach 7 from 1990-2004. Attachment 33, p. 24. This is of course true, but the background erosion rate for Reach 8, which is receiving the fill, was zero during the same period, so the first assumption of CPE produced overfill. Attachment 33 then analyzes alternatives with 313,400 cubic yards of fill, 389,300 cubic yards of fill, 488,900 cubic yards of fill, and 505,700 cubic yards of fill. The selected alternative is the last, which will terminate beach fill at R-131. This alternative includes a 25-foot design berm fronted by six years of advance fill. Choosing the project with the most fill because it will produce the most beach and upland protection, CPE asserts that the fill will not spread past R-133 plus 540 feet or cover, directly and indirectly, more than 4.48 acres of hardbottom, on average over time. Attachment 33 acknowledges the need for a shallower construction template of 1:15, rather than 1:10, to avoid escarpment. The equilibrium cross-sections assume a translated beach profile due to the similarity of the existing and borrow sediments in terms of mean grain size. Attachment 33 notes that, if the borrow sediments prove larger than the existing beach sediments, the fill volume for the selected alternative will provide a longer life expectancy for the project. But if the borrow sediments prove smaller than the existing beach sediments, Palm Beach will either have to settle with the approved fill volume, which would mean a shorter life expectancy for the project, or add more fill to the project to compensate for the smaller-sized borrow sediments. It is consistently assumed in the RRAI materials that the solution will be more fill, not a shorter life expectancy for the project. The design beach profile template governs over estimates of approximate volumes of fill for the overall project. Attachment 33 notes that sand collected in 2006 was "currently being analyzed to support borrow area investigations." CPE never explains why the existing-beach data collected in 2006 would not yield a mean grain size and silt value for over one year after the collection of the data--that is, until CPE had ascertained the mean grain sizes and silt values for the new borrow areas. Thus, Attachment 33 continues to report that the mean grain size of the existing beach is 0.35 mm and the existing beach contains no silt, as compared to BA III, whose mean grain size is 0.32 mm and silt value is 2.66 percent. CPE reasoned that, because the BA III sediments were below 5 percent silt, the "DEP limit," the silt content of BA III is "acceptable as beach quality material." RRAI 2, Attachment 33, p. 31. However, CPE promised to reevaluate the silt content of the existing beach and new borrow areas as part of its ongoing geotechnical work. Noting that grain size compatibility is quantified by the overfill factor, RRAI 2, Attachment 33, explains that a factor of 1.0 means that no extra fill is required because of no difference in mean grain sizes between the sand source and the existing beach. An overfill factor of 1.28 means that 28 percent more fill is required to achieve the same performance as that which would have ensued if the sand source mean grain size had equaled the mean grain size of the existing beach. Raising the overfill factor does not extend the life of the project. The overfill factor ensures that the beach profile template will be filled and, in the case of smaller grains from the sand source, compensates for the particle size difference by increasing the volume, so the same effect is achieved as would have been achieved if the fill grain size had perfectly matched the existing beach grain size. If the project life remains the same, more fill must be eroded, over the same period of time, to result in the beach profile template that applies at the end of the project's life expectancy. This means that, the higher the overfill factor, the faster the rate of erosion. Attachment 33 identifies two methods of calculating overfill factors: COE's Shore Protection Manual and Dean's Overfill Ratio, which tends to result in smaller overfill factors than those produced by the Shore Protection Manual. For BA III and the native beach, the Shore Protection Manual overfill factor is 1.25, and Dean's Overfill Ratio is 1.05. Attachment 33 states that the relatively low ratios indicate compatibility between the sand in BA III and on the existing beach and "justify" the "use of the translated beach profile to estimate volume requirements and cross-shore spreading." RRAI 2, Attachment 33, p. 32. Attachment 33 explains that, based on recent experience, specifying the location of the dune fill is impractical, as the needs and desires of upland property owners and project sponsors required numerous adjustments to dune alignment in the field. Based on these previous projects, though, it was likely that the dune nourishment would be to 14-16 feet NGVD with side slopes of 1:3 with 25,000 to 50,000 cubic yards of fill required. Third Response to Request for Additional Information: July 2007 On April 26, 2007, DEP issued RAI 3. This response indicates that DEP is considering Palm Beach's request to designate the Center Segment as CEB. This response also challenges Palm Beach's elevated shoreline change value of two feet per year of erosion for Reach 8 from 1990 to 2004. This response questions the trade-off of environmental impacts for a beach project that would offer protection against a one-year storm, as described by Palm Beach. With respect to the failure to specify an alignment for the dune nourishment, DEP noted that escarpments had formed along the dunes added to the north end of Reach 8 at the time of Reach 7 construction, and the dune fill had encroached into the active beach profile. RAI 3 addresses sand sources and questions CPE's post-project spreading analysis. First, DEP notes that it cannot accept BA III as a sand source for the Reach 8 project. Second, DEP states that Palm Beach needs to identify grain-size distribution in BA IV, so that cross-shore spreading and closure depths could be projected. Third, for longshore spreading, Palm Beach needs to explain its withdrawal of the GENESIS model and substitution of the Dean method with a simplified assumption of incident wave direction. Also, DEP questioned the assumption of two feet per year of shoreline erosion on Reach 8, given its long term stability. On July 7, 2007, CPE issued the RRAI 3, which describes another change in the project size. Beach restoration and dune nourishment will take place from R-125 to R-132, and dune nourishment only will take place from R-132 to R-134 plus 350 feet, for a total of 724,200 cubic yards of fill. RRAI 3 identifies BA V and BA VI as new potential sources of fill, although Palm Beach was still seeking permission to use all four borrow areas to ensure that it could excavate sufficient fill for the project. RRAI 3 states that CPE reran GENESIS for the new proposal of 724,200 cubic yards of fill to confirm spreading projections from the Walton and Chiu model. Addressing the ongoing effort to obtain DEP designation of CEB for the portion of Reach 8 not already so designated, RRAI 3 states that, in response to Tropical Storm Andrea in May 2007, the Reach 8 shoreline retreated an average of 35 feet and that much of the dune fill placed in 2006 was lost. In response to the objection concerning the use of a shoreline erosion rate of two feet per year from 1990 to 2004, RRAI 3 states that CPE will break down the shoreline change rate into three rates during this period of time and add a fourth period, August 2004 to February 2006. In response to a related comment concerning CPE's assumption of erosion throughout Reaches 7 and 8 and admission of difficulty in extrapolating from a wave-like pattern of erosion, RRAI 3 notes that CPE's erosion analysis treats Reaches 7 and 8 as a single beach-fill project, as the erosion wave extends from Sloan's Curve at R-116.5 (the northern end of Reach 7) to Lantana Public Beach at R-138. In RRAI 3, CPE finally discloses the information obtained from samples taken of the existing beach the prior year. The mean grain size of the existing beach is now 0.30 mm, and the silt value is 1.21 percent. RRAI 3 also reports the values for BA V and VI, which are, respectively: 0.24 mm and 1.49 percent and 0.23 mm and 1.50 percent. RRAI 3 restates these values for BA III and IV, which are, respectively: 0.33 mm and 1.46 percent and 0.26 mm and 0.78 percent. Using these values, the Shore Protection Manual overfill factors are 1.47 and 1.68 for BAs V and VI, respectively, and the Dean Overfill Ratios are 1.18 and 1.25. The following fill volumes and cross-shore estimates assume the highest overfill ratio, 1.68. These new values for the existing beach are derived from 2006 sampling, but RRAI 3 does not provide support for these new values. The December 2005 Environmental Assessment for Reach 8 reports the mean grain size for the existing beach as 0.35 mm and no silt, and the October 2007 Environmental Assessment for Reach 8 reports these values as 0.30 mm and 1.21 percent--with no discussion of the reason for the changes. Neither RRAI 3 nor the October 2007 Environmental Assessment discloses the proximity in time of the Reach 7 project in early 2006 and the sampling, also in 2006, as the relatively quick erosion of finer materials from Reach 7 could have influenced the sediments sizes found along Reach 8. Of particular assistance would have been a discussion of the differences between the 2006 sampling and the 1993 data, on which CPE had been relying up to this point. Likewise, there is no analysis of the new data on mean grain size and silt for BA IV. However, as the new sand sources did not yield larger sediment sizes, CPE reduced the sediment size of the existing beach. RRAI 3 discusses the use of the Walton and Chiu model in a passage almost identical to that contained in RRAI 2. However, this time, after explaining that cross-shore spreading is estimated using a translated beach profile, there is no justification of this method based on the assumed similarity of mean grain sizes of the sand sources and existing beach. Before, CPE justified the translated beach profile on the basis of the similarity of the particle sizes; now that the particle sizes are not similar, CPE merely uses the translated beach profile. RRAI 3 selects the same alternative as that selected in RRAI 2: the 25-foot design berm with six years of advance fill. Comparing RRAI 3, Attachment 33, Table 19, with RRAI 2, Attachment 33, Table 11, the effect of the dissimilarity in mean grain sizes is apparent. Both RRAIs describe the same length of beach restoration. RRAI 2 calls for 505,700 cubic yards of fill, and RRAI 3 calls for 639,500 cubic yards of fill--both for beach restoration only without any dune nourishment. Even crediting, for the sake of discussion, CPE's newer value of 0.30 mm mean grain size for the existing beach, the incompatibility in sediments necessitates that CPE add another 135,000 cubic yards of fill to the beach--which additional 135,000 cubic yards of fill will wash out with the remainder of the advance fill, if not also portions of the design fill, within six years following construction, according to CPE, but much sooner, based on the experience at Reach 7. Interestingly, RRAI 3, Attachment 33, reports that, at year 3, longshore spreading will not extend past R-133 plus 560 feet, which is only 20 feet farther south than the extent of longshore spreading at year 3 projected in RRAI 3. Even if this projection were reliable, and it is not due to discrepancies in mean grain sizes, it understates the longshore spreading because CPE has understated the mean grain size of the existing beach and has thus distorted the application and output of the Walton and Chiu model. RRAI 3 projects that total hardbottom impacts will now be 6.4 acres. Regarding the use of GENESIS, RRAI 3 reports that CPE reran the model for the new project length, now to confirm the projections of the Walton and Chiu model. Attachment 33, which is the Revised Engineering Report dated July 2007, discusses the results obtained from both models. The Walton and Chiu model projects little or no erosion of the design fill during the six- year life of the project and no spreading south of R-133 plus 560 feet, for total hardbottom coverage would be 6.4 acres. The new run of the GENESIS model predicts some erosion into the design fill by year three, but no spreading south of R-132 plus 1154 feet, for total hardbottom coverage of 5.8 acres. Appendix F of Attachment 33 of RRAI 3 reveals a new effort at validating the GENESIS model. After calibration, CPE ran the model to "predict" shoreline change from May 1986 to August 1990. Prudently shortening the validation period from 16 years in the earlier, failed attempt to four years in this attempt, CPE was able to avoid the mirror-image effect of the earlier validation run, in which GENESIS correctly projected the magnitude of change, but unfortunately predicted erosion when accretion actually occurred. Even shortening the projection period by 75 percent, CPE was evidently compelled to satisfy itself as to the validation process by accepting that GENESIS would continue to "predict" erosion when accretion actually took place. Reducing the prediction period to only four years, though, permitted CPE to obtain a model output that reduced by half the amount of erosion when compared to the amount of erosion predicted by the first run of GENESIS. However, GENESIS still does not produce reliable output in this case. This time, though, CPE seems to concede as much. CPE's explanation of the obvious deficiencies of GENESIS in this application reveals the inaptness of the model for this project. Appendix F to Attachment 33 to RRAI 3 concedes that GENESIS is "not well suited to projecting the future erosion rates." Appendix F, p. F-4. CPE observed that the problem with the GENESIS model was that Reaches 7 and 8 exhibit no erosion hot spots, but instead, as noted above, experience erosion as a wave, evidently from south of Sloan's Curve. The discussion offers GENESIS as a tool in comparing longshore spreading, if the project is built with longshore spreading under the no-build alternative, but the relationship between erosion, such as in projected closure depths, and longshore spreading suggests very limited use for the model, even in this modest undertaking. RRAI 3, Attachment 33, discusses depth of closure for Reach 8. Data for the 2006 Midtown Project suggest a depth of closure of -18 feet, but data for Reach 8, Manalapan, and Ocean Ridge suggest a range of -22 to -25 feet. Attachment 33 explains that CPE focused on data from three different periods for Reach 8, which suggested a range of -18 feet to -27 feet, for a median of -23 feet. This estimate approximates the -22 feet closure depth for Manalapan, so CPE chose to use this figure. This analysis is generally reasonable except for the fact that it does not analyze differences between mean grain sizes and silt values for the sand source(s) and existing beach at Manalapan. RRAI 3 acknowledges the impact of mean grain size on closure depth and longshore spreading. Using 0.30 mm for the existing beach and 0.23 mm for the sand source with the smallest mean grain size (BA VI), RRAI 3 estimates an overfill factor of 1.68 at the fill site to compensate for this difference. RRAI 3, pp. 14-15. Given the actual mean grain size for the existing beach, the overfill factor is probably closer to 2.00. Essentially, the smaller grain size in the fill, as compared to the beach, requires more overfilling to fill the beach profile template, and this makes more sediment available for post-construction transport. Of course, at least landward of the breakers, the sediment is more available for transport before of its smaller grain size. RRAI 3, Attachment 33, implicitly acknowledges the critical role of similarity in sand size between the source and the fill sites. At page 36, RRAI 3, Attachment 33, completes the same discussion of the Walton and Chiu model as took place in RRAI 2, Attachment 33. However, RRAI 2, Attachment 33, justifies the use of a translated beach profile from 9 feet to -22 feet "because the grain sizes of the native material and fill material are assumed to be similar at this time [i.e., 0.35 mm for the native beach and 0.32 mm for BA III]." RRAI 2, Attachment 33, p. 22. This quote is omitted from the otherwise nearly identical discussion in RRAI 3, Attachment 33, of the use of the Walton and Chiu model. RRAI 3, Attachment 33, p. 36. And CPE offers no explanation. The evolving statements of discrepancy between the mean grain sizes of the sand sources and the existing beach spell trouble for the use of the Walton and Chiu analytical model in this case. As noted below, the 1993 data, which are credited, supply an even higher value for the existing beach than 0.35 mm. When compared to sand sources with mean grain sizes barely over 0.20 mm, this large of a discrepancy no longer justified CPE's use of the Walton and Chiu analytical model for predicting longshore spreading. This left CPE with no model support for its projection of the limits of longshore spreading. RRAI 3, Attachment 33, considers various alternatives. The selected alternative provides six years of advance fill by the construction of a 25-foot-wide beach berm seaward of the design fill line. With the dune fill, this alternative offers protection from the 19-year storm and, without the fill, this alternative offers protection from the 12-year storm. For six years of protection from the 19-year storm (actually, during the first three years, the project would protect against at least the 24-year storm), the selected alternative requires 639,500 cubic yards of fill on the beach and 84,700 cubic yards of fill on the dunes, for a total of 724,200 cubic yards of fill. With the correct overfill factor, the total fill would be considerably more than 724,200 cubic yards. Further analysis of the selected alternative includes graphs showing that, at the third year, post-construction, the longshore spreading of fill would extend roughly midway between R-133 plus 560 feet; this would cover, directly and indirectly, 6.4 acres of hardbottom (including 2.8 acres covered directly by construction). At year six, which represents the maximum limit of spreading projected by CPE, the longshore spreading would extend to R-134 plus roughly 300 feet, but the analysis does not project the area of hardbottom to be covered directly and indirectly. RRAI 3, Attachment 33, notes that the spreading analysis for each of the alternatives used the Walton and Chiu analytical model and GENESIS model. As previously noted, use of these models are problematic for the present project. Exacerbating the problem, the Design Summary in RRAI 3, Attachment 33, at page 64, implies that CPE used mean grain sizes for the sand sources of 0.23 mm to 0.33 mm--even though BA III, which was 0.33 mm, would soon be withdrawn, and the remaining three borrow areas were around 0.24 mm. Fourth Response to Request for Additional Information: October 9, 2007 On August 7, 2007, DEP issued RAI 4, which is the final request for additional information. As with the three preceding requests, this one also addressed considerable biological information. One comment notes that DEP staff believe that hardbottom impacts will occur south of R-133.5 to about R-137. This is a reasonable response to the problems set forth in the preceding section. As for sands, RAI 4 requests more analysis of comparative grains on the beach and in the borrow areas. RAI 4 notes that the beach sand is tanner, and the sand from the borrow areas is greyer. RAI 4 states that DEP expects to be able to approve BA V and VI, but not BA III due to an excessive incidence of rock in the fill excavated from this area during the Reach 7 project. RAI 4 requests an alternative analysis of longshore spreading based on a closure depth of -15.9 feet. RAI 4 asks why, if additional longshore spreading takes place between years 3 and 6 of the project, CPE did not project additional coverage of hardbottom. On October 9, 2007, CPE filed RRAI 4. Concerning the possibility of additional coverage of hardbottom, the RRAI 4 states that CPE has already conducted extensive numerical and analytical modeling of longshore and cross-shore spreading, and the "modeling results provide a consensus that the hardbottom seaward of the sandbar south of R-134 will not be impacted by the project." RRAI 4, p. 9. According to RRAI 4, DEP offered no basis for its opinion, as contrasted to the "extensive analytical and numerical modeling of potential longshore and cross-shore spreading." RRAI 4, p. 10. The consensus of the two models, according to RRAI 4, is that the longshore coverage will not extend past about R-133.5. In an abundance of caution, CPE has extended projected impacts to R-134, and Palm Beach will agree to monitor, post-construction, hardbottom farther south, but this is the final word from CPE and Palm Beach on the critical issue of how far longshore spreading will extend, post- construction. Given the bad inputs concerning mean grain size of the existing beach and probably the sand sources (by including BA III's large value), the ensuing problems with the Walton and Chiu model, and the ongoing problems with GENESIS, CPE picked a bad moment to dig in and, relying on its modeling, disagree with DEP's analysis that hardbottom impacts would extend to R-137. In response to a request for a map showing where CPE collected the samples for analysis of mean grain size for the existing beach, RRAI 4 references a map at Attachment 33b-1. The map shows where CPE collected samples in March 2007 and August 2007, not 2006 as previously indicated. Attachment 33b-1 shows collection sites at R-125, R-128, and R-131 extending from the dune to points evidently seaward of the surf zone; these are for March 2007. Attachment 33b-1 also shows collections in August 2007 at R-127, R-133, and R-138 at or possibly landward of the dune line, but not seaward of the dune line. However, nothing else in RRAI 4 addresses the collection of these samples, the methodology used, or the analysis of the information obtained. Clearly, by 2007, finer fill from Reach 7 was in Reach 8. However, RRAI 4, Attachment 33b-3, is a compatibility analysis of the fill sediments with the existing beach sediments. The existing beach data is from samples collected in 2006, but, again, nothing is revealed about the circumstances of this collection event. The values for BA IV, V, and VI, as well as for the existing beach, are as reported in RRAI 3. The analysis states that the fill materials are grey, and the existing beach is greyish brown. After another summary of the COE and Dean overfill ratios, Attachment 33b-3 concludes with the assurance that any extra fill required due to differences in mean grain sizes "will be accounted for in the cross-shore spreading analysis and the total fill volume estimates," Attachment 33b-3, unnumbered p. 4. Not only was CPE unjustifiably sticking to its earlier projections of spreading--cross shore and longshore--in terms of hardbottom impacts, this statement indicates that the design beach template will govern over projections of fill volume when it came to the contractor's filling of the beach. It is unclear if 724,200 really assumes a 1.68 overfill volume, but, even if it did, the actual volume of fill, if the overfill volume is 2.00, may be in the area of 850,000 cubic yards. Addressing DEP's request to run a longshore spreading analysis with a shallower closure depth, RRAI 4 states that CPE did so, using one closure depth of -15.9 feet and another of -30 feet, which is the maximum observed closure depth observed in the area. At year 3, the farthest reaches of longshore spreading at -15.9 feet, -22 feet, and -30 feet closure depths are R-133 plus 1022 feet, R-133 plus 560 feet, and R-133 plus 136 feet, respectively. RRAI 4 concludes that the Walton and Chiu model used to project longshore spreading is not highly sensitive to the input of a closure depth. Concerning the failure to indicate covered hardbottom at year 6, RRAI 4 explains that CPE used the Walton and Chiu year-3 projection due to its agreement with the GENESIS model results through year 6. Proposed JCP, Proprietary Authorization, and Water-Quality Variance Intent to Issue On February 29, 2008, DEP issued a Consolidated Intent to Issue Joint Coastal Permit, Variance, and Authorization to Use Sovereign Submerged Lands dated February 29, 2008 (Intent to Issue). The JCP constitutes a certification of compliance with Florida water quality standards, so the COE may proceed with its permitting. The JCP also constitutes a finding of consistency with Florida's Coastal Zone Management Program. The Intent to Issue states that Palm Beach will excavate "beach-quality sand" from BA V and BA VI and restore the beach and nourish the dune from DEP reference monument R-125 to R-134 plus 350 feet. The Intent to Issue excludes activities at the Lake Worth Gap and allows dune restoration only from R-132 to R-134 plus 350 feet. Subject to this exclusion and limitation, Reach 8 extends from R-125 to R-134 plus 350 feet. The Intent to Issue identifies the North Segment, Lake Worth Gap, Center Segment, and South Segment. The Intent to Issue states that the berm elevation will be about 9.0 feet NGVD with a seaward slope of 1:15 (vertical to horizontal). The Intent to Issue states that the dune elevation will be about 16.0 feet NGVD with a slope of 1:3. The Intent to Issue states that DEP designated the North Segment as CEB due to continuity of management with Reach 7. The Intent to Issue states that the Strategic Beach Management Plan for the North Segment is beach restoration and periodic beach nourishment. The Intent to Issue states that DEP did not designate the Center Segment as CEB because it has been historically stable. The Intent to Issue states that DEP designated the South Segment as CEB due to historic beach recession that threatens upland development. The Intent to Issue states that the Strategic Beach Management Plan for the South Segment is dune restoration. The Intent to Issue identifies four other major components of this project: two borrow areas (BA V and BA VI), an artificial reef to be created as mitigation, a mixing zone, and a monitoring area. According to the Intent to Issue, BA V and BA VI, which will provide 724,200 cubic yards of sand to nourish the beach and restore the dunes, are about 1500 feet seaward of the fill area. BA V extends from R-129 to R-136 in depths of 22-30 feet. To the north of BA V, BA VI extends from R-122 to R-127 in depths of 23-33 feet. BA III and BA IV, which served the Reach 7 project, are 3500 feet offshore. BA V abuts the landward side of BA IV, and BA III is generally in the gap between BA V and BA VI, although, as noted, it is about 2000 feet farther offshore. According to the Intent to Issue, Palm Beach will be required to construct an eight-acre artificial reef to offset the anticipated destruction of seven acres of nearshore hardbottom. The artificial reef will be located about 300 feet offshore, in about 10 feet of water, between R-106 and R-108, which is north of the Reach 8 project alongside Reach 5. The Intent to Issue states that, if additional hardbottom is impacted south of R-132, Palm Beach will have to increase the mitigation. According to the Intent to Issue, the Variance will allow an expanded mixing zone of 300 meters offshore and 1000 meters downcurrent from the point at which water returns into the ocean following the hydraulic discharge of sand onto the beach undergoing nourishment. According to the Intent to Issue, Palm Beach shall be required to monitor the hardbottom from R-132 to R-137 to check for unanticipated hardbottom impacts. The area to be monitored will include the hardbottom seaward of the sandbar between R-134 and R-134 plus 250 feet. After the 2004 and 2005 hurricane seasons, according to the Intent to Issue, dune fill was placed along parts of the project area to stabilize the beach. In January 2005, Palm Beach placed about 50,000 cubic yards of sand landward of mean high water within Reach 8 under an emergency permit to replenish the dune system using an upland source. In 2006, dune construction was undertaken within part of the Reach 7 project-- specifically between R-116 plus 450 feet to R-134 plus 100 feet--but this work has not dispensed with the perceived need for this project. The 2006 dune project within Reach 8, according to the Notice of Intent, was a major modification of the Reach 7 Project. The Reach 7 Project authorized 1.1 million cubic yards of sand to be dredged from BA III and BA IV. Only 24,000 cubic yards of the 58,500 cubic yards were placed in the dune area south of R-126 because of time constraints due to the start of the 2006 sea turtle nesting season. According to the Intent to Issue, the scope of the Reach 8 project has changed based on negotiations between Palm Beach and DEP. Initially, Palm Beach proposed beach restoration from R-125 to R-134, using one million cubic yards of dredged sand. Concerned with hardbottom impacts south of R-132, DEP induced Palm Beach to shorten the southern limit of the project by 3600 feet, to R-131, and reduce the required fill volume to 506,000 cubic yards. After submitting its application with this southern limit, Palm Beach revised its proposal to extend the southern limit to R-134 plus 250 feet, thus increasing the required fill to 900,700 cubic yards. Concerned about the increased fill and potential impacts to downdrift hardbottom, DEP induced Palm Beach to accept a southern terminus of R-132 with a fill volume of 505,700 cubic yards. However, Palm Beach again revised the project to its current southern termini: beach nourishment to R-132 and dune restoration only to R-134 plus 350 feet. The first "resource of concern" analyzed in the Intent to Issue is the hardbottom communities. The Intent to Issue states that these communities comprise three types: intertidal, nearshore hardbottom; shallow, subtidal, nearshore hardbottom in depths of less than three meters; and deeper, subtidal hardbottom located about 105-120 meters offshore, seaward of the shore-parallel sand bar, in depths of 2.5-3.5 meters. According to the Intent to Issue, the hardbottom is different north and south of the Lake Worth Gap. North of the Lake Worth Gap, the intertidal and shallow subtidal hardbottom is more susceptible to sand cover due to lower vertical relief and shallower water. According to the Intent to Issue, south of the Lake Worth Gap, most of the hardbottom is only partly covered by sand, and the subtidal hardbottom is continuous past the southern terminus of the project. The higher relief of the hardbottom south of the Lake Worth Pier--up to one meter vertical relief--protects the benthos from migrating sediments and enhances survival of certain organisms. The growth of colonies of S. siderea, a coral, as large as 10 centimeters in diameter suggests that this hardbottom community is exposed persistently for long periods of time--i.e., 5-10 years--and that periods of sand burial are relatively brief. The Intent to Issue states that these nearshore hardbottom areas are important foraging, shelter, and nursery habitat for several species of migrating fauna, including juvenile sea turtles and larval/post- larval fish. The Intent to Issue states that intertidal hardbottom habitat typically displays low cover and diversity of macroalgae. The community is dominated by microalgae and blue- green algae. Common benthic fauna include barnacles, limpets, and periwinkles. Some crab and fish species may occupy small pools in the intertidal hardbottom. The Intent to Issue states that subtidal nearshore hardbottom communities are characterized by an increased number of macroalgal species and fauna. These communities are adapted to a dynamic environment, even to the point of sand cover or scour, and the habitat would not considered to be degraded unless the natural cycle were altered. The Intent to Issue states that, although the deeper subtidal hardbottom, which is south of the shore-parallel sand bar and in water depths of 2.5-3.5 meters, is fragmented parallel to the South Segment, it resumes its continuity south of the southern terminus of the project. Coverage and diversity of macroalgal and sessile fauna, such as corals, increases in the deeper nearshore community. Also, sediment coverage, in terms of thickness and areal extent, is less, so this habitat is used by a higher diversity of open-water fish species. The Intent to Issue determines that each of the three hardbottom communities supports different communities and provides different habitat functions, and each is "vital to this ecosystem." Thus, to mitigate for the loss of these habitats, the mitigation proposal must include all functions provided by these three hardbottom types. The second "resource of concern" covered in the Intent to Issue is sea turtles. The loggerhead turtle, green turtle, leatherback turtle, hawksbill turtle, and Kemp's Ridley turtle--all endangered or threatened--are present offshore of Palm Beach County, according to the Intent to Issue. The sea turtle nesting season in this area generally extends from March 1 through November 30, with the main portion running from May 1 to October 31. During the 2006 season, 12,755 sea turtle nests were recorded in Palm Beach County. The Intent to Issue states that the Florida Fish and Wildlife Conservation Commission's (FWC's) Imperiled Species Management Section reviewed the project and recommended permit conditions to help construction avoid and minimize impacts to sea turtles. The Intent to Issue notes that the impacts to sea turtles will likely result in a take, so the FWS and NMFS must grant "Incidental Take" permits or statements in their "Biological Opinions." The Intent to Issue states that FWS has issued a Biological Opinion for the loss of nesting habitat, and this document includes various conditions, which DEP has incorporated into the Draft Permit. The Intent to Issue states that NMFS is preparing a Biological Opinion with conditions that will, if deemed necessary, be included in a modification of the Permit, but, if NMFS fails to allow an Incidental Take, Palm Beach may not commence construction. The third "resource of concern" is manatees. The Intent to Issue notes that the FWC's Imperiled Species Management Section has recommended specific Permit conditions. The Intent to Issue notes that, pursuant to Section 161.088, Florida Statutes, beach restoration projects for CEBs are in the public interest and eligible for state funding. Because the Center Segment is not designated as a CEB, the Intent to Issue states that Palm Beach must provide reasonable assurance that the proposed activity is not contrary to the public interest, pursuant to Section 373.414, Florida Statutes. The Intent to Issue acknowledges that Palm Beach is required to submit alternatives to the proposed project that would minimize adverse impacts to the coastal system, such as burial of the exposed hardbottom and temporary reduction in marine turtle nesting. Because the hardbottom within the boundaries of the fill area is in the surf zone immediately offshore of the beach, even a significantly reduced volume of fill will bury this existing exposed hardbottom, according to the Intent to Issue. DEP thus recommended dune restoration only in the area proposed for beach restoration, but Palm Beach contended that a project limited to dune restoration would not protect upland buildings from storm erosion cause by the direct impact of a major hurricane. Thus, Palm Beach offered mitigation for the loss of hardbottom that will be covered by fill. The Intent to Issue notes that, pursuant to Section 161.144, Florida Statutes, beach-quality sand for nourishment is an exhaustible resource that must be carefully managed. Noting that such sand would be used in this project on beaches that are and are not designated as CEBs, the Intent to Issue warns that, while DEP did not determine that this use made the project contrary to the public interest, "the supply of beach quality sand in the region may become a consideration for future nourishment events, depending on the status of the sand source and the competing needs of critically eroded beaches." The Intent to Issue defines beach restoration as the placement of beach compatible sand onto an eroded beach for the primary purpose of providing storm erosion protection for upland structures. The beach fill template comprises the design berm, which protects from storms and is designed to remain intact between periodic beach nourishment events, and "advance beach nourishment," which is seaward of the design berm and is designed to erode from normal wave and tidal conditions, but undergoes replenishment with periodic beach nourishment. The Intent to Issue identifies the principle design objective as protection from storm erosion. The design storm is the 25-year storm event. The Reach 8 project will create a 25-foot wide design berm. Palm Beach's engineer has estimated that the design berm will provide storm protection to upland development from the impacts of a 19-year storm event. However, DEP considers this a conservative projection; DEP projects that the design berm will protect upland structures from the 25-year storm event. According to the Intent to Issue, the addition of the Reach 8 beach fill will "likely" increase the storm erosion protection for upland structures to greater than a 50-year storm event. The Intent to Issue notes that the other primary design component is the volume of fill needed for the beach nourishment project. The specified volume of fill is derived from the historical erosion rate plus additional material to account for spreading losses due to the effect of waves and tides acting on the bulge left in the shoreline by the placement of beach fill and the dissimilarity of sediment grain size between the existing beach sand and the fill material from the borrow areas. The design objective is to maximize the longevity of the beach nourishment with the minimal amount of fill necessary to preserve the design berm between renourishments. The Intent to Issue notes that, due to construction constraints associated with the placement of fill below the water line, the seaward slope of the beach fill template during construction is steeper than the equilibrium slope after exposure to wave forces. The profile adjustment can adjust rapidly during the first year and give the appearance of significant erosion losses. Thus, a wider beach berm width is designed in the knowledge that it will recede as the slope adjusts through the cross-shore spreading of fill material to the submerged part of the beach profile. The Intent to Issue states that Palm Beach's engineer demonstrated adequate design analyses to provide reasonable assurance that the cross-shore profile adjustment and alongshore spreading of fill under normal wave and tide conditions will not impact adjacent environmental resources, but the demonstration "does not eliminate the potential for unexpected spreading losses." Thus, DEP required Palm Beach to implement a monitoring program. The engineer has used a background erosion rate of two feet per year in the design of the beach nourishment. Although historical shoreline data do not support this rate, the Intent to Issue states that the additional fill volume is not significant compared to the volume needed to offset spreading losses. The Intent to Issue states that Palm Beach's engineer submitted numerical modeling and analysis of ocean wave and coastal littoral processes that provide reasonable assurance of the expected effects of the excavation of the borrow areas on the coastal littoral system. The analysis shows that the excavation of the borrow areas will "change nearshore conditions under a limited range of weather conditions, but will not have the potential to interfere with the natural functioning of the coastal system or cause changes in the patterns of erosion and accretion of the beach" distinguishable from natural fluctuations in the shoreline position. The Intent to Issue states that, pursuant to Florida Administrative Code Rule 62B-41.007(2)(j) (Sand Rule), only beach compatible fill may be placed on a beach or dune system. Palm Beach provided DEP with the results of geotechnical and geophysical investigations of the offshore borrow areas. The resulting vibracores yielded samples of BA V and BA VI that had a carbonate content of 48 percent, as compared to the composite carbonate content of 47 percent at the beach. According to the Intent to Issue, BA V has about 899,500 cubic yards of fill material, and BA VI has about 974,800 cubic yards of fill material, which, together, are more than double the volume required for the project. According to the Intent to Issue, the fill material in both borrow areas is similar to the native beach sediment in grain size, color, sorting, silt content, shell content, and carbonate content. The Intent to Issue states that the artificial reefs would be constructed in water depths similar to the natural hardbottom and would have similar vertical relief. Thus, DEP expects the artificial reefs to provide very similar habitat functions as those provided by the natural hardbottom habitat. Applying the Uniform Mitigation Assessment Method (UMAM), DEP assumed a time lag of two years for the artificial reefs to provide similar habitat functions as provided by the natural nearshore hardbottom, and DEP also anticipated the frequency and duration of exposure and characterized the hardbottom communities in the two borrow areas. Based on its UMAM analysis, DEP required eight acres of mitigation. According to the Intent to Issue, the artificial reef will be in a location where about two feet of sand covers the underlying limestone formation. If the artificial reef is constructed at the same time as the beach fill is placed, a two- year time lag is expected for the mitigation functions to become similar to natural hardbottom functions. If construction of the artificial reef is completed after placement of the beach fill, the mitigation area will be increased by 0.3 acres per year. The artificial reef will be located in an area with sediment thickness of less than one meter. Hardbottom communities have been identified in the vicinity of the mitigation area, so a 50-foot buffer must be maintained around the natural hardbottom. The Intent to Issue states that the artificial reef will be constructed of clean, dense limestone boulders with an average diameter of 1.1 meters and average weight of 1.9 tons. Vertically, the boulders placed on the bottom may not exceed 1.2 meters. The Intent to Issue states that the dune fill material will extend seaward to the mean high water line, so it will be affected by wave run-up almost immediately after placement. About 1.5 to 1.7 acres of nearshore intertidal and subtidal hardbottom habitat exist immediately seaward of the dune-only segment (between R-132 and R-134 plus 350 feet). The Intent to Issue reports that DEP expressed concern that impacts to more than the anticipated seven acres of hardbottom might occur due to the combined downdrift and cross-shore spreading of the dune and downdrift spreading of beach fill. Likewise, the expanded mixing zone could deposit sediments on hardbottom outside of the seven acres anticipated to be buried. Thus, in accordance with Florida Administrative Code Rule 62B-49.005(13), DEP determined that "additional reasonable assurance" is needed to ensure compliance with applicable rules and statutes, so DEP required submittal of such by a special condition. The Permit contains conditions for physical and biological monitoring of the performance of the beach fill, the associated effects on downdrift nearshore hardbottom, and a Contingency Mitigation Plan. The Intent to Issue states that the Contingency Mitigation Plan will be triggered by identified indicators of an unacceptable adverse impact to downdrift hardbottom communities. The Contingency Mitigation Plan shall demonstrate that adverse impacts will be adequately offset. The plan shall address the "mitigation type, design, location, funding, and ratio (pursuant to Rule 62-345, F.A.C.)." DEP must approve the draft Contingency Mitigation Plan prior to the issuance of a Notice to Proceed. The Intent to Issue states that the "complexity of coastal dynamics and bottom communities in this area make it difficult to predict the direct and secondary impacts of the beach restoration project," including the extent of offshore and longshore spreading of fill and the increased sedimentation from the adjusting fill. These direct and secondary impacts to nearshore hardbottom communities from the beach and dune fill are "primary concerns." Thus, DEP will require a Biological Monitoring Plan. As used in the Intent to Issue, "secondary" impacts means incidental impacts, especially as erosion and wave forces spread the fill beyond where it was originally intended. The Intent to Issue provides that monitoring of nearshore hardbottom will include assessments of hardbottom flora, sessile fauna, and fish populations. Monitoring will determine the condition and dynamics of nearshore hardbottom communities, movement of sand, effects of sedimentation and turbidity, the extent of burial from the seaward and downdrift adjustments of fill placed for beach and dune construction, the actual extent of equilibrating sand as compared to the predicted Equilibrium Toe of Fill (ETOF), secondary (i.e., indirect) impacts seaward and downdrift of the ETOF, impacts from the pipeline placement, and effects on marine turtle foraging habitat use. Biological monitoring and habitat assessments of the artificial reef shall assess the efficacy of the artificial structure to mitigate for the effects of burial of the shallow nearshore hardbottom habitat in the area of the project. The Intent to Issue does not require detailed biological monitoring of the borrow areas because of the distance between each borrow area and the adjacent nearshore hardbottom and adjacent offshore hardbottom. According to the Intent to Issue, these buffers provide reasonable assurance that the potential for impacts to hardbottom communities adjacent to the borrow areas is minimal. The Intent to Issue requires physical monitoring of the project through aerial photography and topographic/bathymetric surveys of the beach, offshore, and borrow areas. The objective is to measure the performance of the project, any adverse effects, and the need for any adjustments, modifications, or mitigation. These data will also facilitate the design of followup projects and reducing the impact on the environment. The Intent to Issue states that direct impacts to water quality from dredging material from the borrow areas is expected to be minimal. The hydrodynamic processes at the beach discharge point may cause turbidity to exceed 29 NTUs above background levels downdrift of the beach placement location within the maximum allowable mixing zone of 150 meters. Palm Beach has asked for a variance to extend the mixing zone 300 meters offshore and 1000 meters downdrift from the point of sand discharge at the beach disposal site. Palm Beach's analysis shows that turbidity should not exceed 29 NTUs above background levels outside of a 1000 meter shore-parallel mixing zone downdrift from the point of discharge and 300 meters offshore. Palm Beach shall maintain a shore-parallel sand dike to prevent water from the dredged discharge from running directly back into the ocean. By forcing most of the return water to flow over sand for a sufficient distance down the beach, most of the suspended sediment will settle out, according to the Intent to Issue. The Intent to Issue states that there are no practicable means to further minimize the potential for elevated turbidity using the selected borrow material and the hydrodynamic processes involved in the construction process. Pumping will cease if the turbidity plume exceeds 29 NTUs above background outside the approved mixing zone or causes excessive sedimentation on hardbottom. The Permit will not be valid until and unless DEP issues the Variance. Draft Permit The Permit, in is present form, did not exist at the start of the hearing. During the second week of the hearing, the Administrative Law Judge accepted a stipulation from DEP and Palm Beach that the method of dredging would by the cutterhead, which operates by suction on the sediments and water. At the conclusion of the second week of the hearing, on September 6, DEP provided the parties and Administrative Law Judge with copies of the "Final Mitigative Artificial Reef and Biological Monitoring Plan" dated September 5, 2008. The parties had been awaiting final DEP approval of the form of this plan. DEP also provided the parties with a marked Permit, showing changes from the version challenged by Petitioners. Lastly, on September 18, 2008, DEP issued a final draft permit. This document contained substantive amendments to the draft permit that DEP had previously proposed to issue. These amendments are noted separately in the discussion below. The Permit is a five-year permit issued under the authority of Chapters 161 and 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 62 and operating agreements between DEP and the water management districts. The Permit authorizes Palm Beach "to construct a beach restoration and dune nourishment project using beach- quality sand" from BA V and BA VI, which are about 1500 feet seaward of the fill area. The Permit states that sand for beach restoration will be placed from T-125 to R-132, except for the Lake Worth Gap at R-127 plus 597 feet to R-128 plus 954 feet, and the dunes-only component will extend from approximately to R-134 plus 350 feet. The berm elevation will be about 9 feet NGVD with a seaward slope of 1:15, and the dune height will be at about plus 16 feet NGVD with a slope of 1:3. The Permit requires eight acres of mitigation in the form of an artificial reef about 300 feet seaward of the shoreline, to offset the expected burial of about seven acres of nearshore hardbottom. The Permit warns that delays in the construction of the mitigation will require additional mitigation because of the increased time lag and that "additional, unanticipated adverse impacts will also require additional mitigation." The Permit requires that the mitigation reef be located offshore of the shoreline segment that lies between R-106 and R-108, in about 10 feet of water. In anticipate of future nourishment events, perhaps for the same shoreline, the Permit states: Assuming that the mitigation is successful and remains intact and ephemerally exposed when these impacts are repeated for subsequent nourishment events, this shall be the only mitigation required for the anticipated events. The Permit expressly constitutes a finding of consistency with Florida's Coastal Management Program, as required by Section 307 of the Coastal Zone Management Act. The Permit also constitutes certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act. Also, the Permit states that DEP has determined that the facility is located so it will not adversely impact Outstanding Florida Waters or Class II waters. The Permit does not disclose whether the adjacent Class III waters have been approved for shellfish harvesting. The Permit states that the activity qualifies for proprietary authorization to use sovereign submerged lands, and the Permit grants a Letter of Consent for the activity. The Permit contains 11 General Conditions, including one that requires the immediate cessation of all activities in the immediate area of any historic or archaeological artifacts uncovered anywhere on the project site. Another General Condition requires, within 30 days after the completion of construction or a subsequent maintenance event, Palm Beach shall provide DEP a written statement of completion and certification by a professional engineer, which shall verify all locations and elevations specified by the Permit and confirm that all authorized activities have been performed in compliance with the plans and specifications approved by the Permit, or describe any deviations. Specific Conditions 1-8 address general matters, Specific Conditions 9-16 address mitigation, Specific Conditions 17-19 address dredging, Specific Conditions 20-21 address biological monitoring, Specific Conditions 22-27 address manatees, Specific Conditions 28-45 address sea turtles, Specific Conditions 46-51 address shorebirds, Specific Condition 52 addresses water quality monitoring, Specific Conditions 53-54 address pipeline monitoring, and Specific Conditions 55-59 address physical monitoring. Specific Condition 2 provides that, prior to construction, the Board of Trustees must establish the line of mean high water for any affected area that does not already have an erosion control line, so as to distinguish between sovereign lands and upland properties. Specific Condition 3 prohibits any work until and unless DEP issues the Variance, which will relieve Palm Beach from the obligation to comply with Florida Administrative Code Rule 62-4.244(5)(c) and will authorize it to establish an expanded mixing zone for the project. As stated in the last revision of the Permit, Specific Condition 5 states that DEP may require additional monitoring of the mitigation reef and the nearshore hardbottom area between R-134 and R-138, consistent with Special Conditions 14, 15, 20, and 21 and the Final Mitigative Reef and Biological Monitoring Plan, "beyond the expiration date of this permit but before the time in which the beach and dune restoration project performance is complete, if a determination is made that the mitigation is not successful pursuant to [Specific Condition] 14 or that additional impacts to hardbottom have occurred pursuant to [Specific Conditions] 15 and 21." Specific Condition 6 prohibits any work until Palm Beach has received a Notice to Proceed from DEP. DEP will not issue the Notice to Proceed until it has received the Physical Monitoring Plan described in Specific Condition 56, documentation of an executed and recorded Erosion Control Line, final construction plans and specifications, and the turbidity monitoring qualifications described in Specific Condition 7. The last revision of the Permit removed some conditions that were vague. Specific Condition 7 requires that an independent, qualified consultant monitor the construction "to ensure that turbidity levels do not exceed the compliance standards" set in the Permit. Additionally, an individual familiar with beach construction techniques and turbidity monitoring must be present at all times when fill is discharged onto the beach, and this individual must have authority to alter construction techniques or shut down dredging or beach construction if turbidity levels exceed the compliance standards. Specific Condition 9 states that the "unavoidable" burial of about seven acres of nearshore hardbottom from the placement and spreading of beach fill shall be mitigated by the creation of "a minimum of 8.0 acres of hardbottom substrate." If the construction of the artificial hardbottom will be completed prior to or concurrent with the construction of beach fill, the mitigation area will be eight acres; otherwise, the mitigation area shall be increased by an area of 0.3 acres per year that the mitigation follows the construction. The last revision of the Permit requires the completion of the mitigation reef no later than two years after completion of beach construction. Specific Condition 10 provides that the mitigation reef shall be located in about 2.4 to 3.6 meters (8 to 12 feet) of water and placed on sandy bottom that has a sediment thickness over rock substrate of less than one meter (three feet), but generally at least 15 cm, and that does not contain any signs of hardbottom benthic community growing through the sand cover. After subsidence of the boulders onto the stable platform, the vertical relief of the artificial reef shall be generally between one and three feet above the sand substrate, although portions of the constructed mitigation reef, like the natural hardbottom impacted in the project area, may at times be completely covered by sand. Specific Condition 11 states that Palm Beach shall maintain a 50-foot buffer around any natural hardbottom to provide adequate protection during boulder placement. The greatest dimension of each boulder shall be placed parallel to the bottom, and a controlled method of placement shall be used with each boulder to place it on the sandy ocean bottom. Specific Condition 12 requires that boulders be placed side-by-side without stacking. Optimal spacing is for adjacent boulders to touch each other, but maximum spacing shall not exceed two feet (0.6 meter) between boulders. Specific Condition 13 requires the inspection and washing of boulders prior to placement to ensure that they are within the specific limits of size and free of cracks, soft seams, and other structural defects. Cleaning shall remove all debris and sources of pollution, prior to placement. The reef construction materials may not include reinforcing steel bar, steel, or other protruding materials. Specific Condition 14 specifies mitigation success criteria. Specific Condition 14.a states that, after the artificial reef boulders have subsided to their terminal elevation, each portion of the eight-acre artificial reef (or more, if required by Specific Condition 9 or 15) must be periodically exposed during natural seasonal fluctuations. The average area of mitigation reef exposed during the three post- construction monitoring events shall be at least 50 percent. If the three monitoring events reveal a trend toward permanent coverage, DEP may require additional monitoring to ensure that permanent coverage has not occurred prior to determining that this condition has been met. Specific Condition 14.b requires that 75 percent of all species or genera of macroalgae and attached invertebrates that were recorded on the natural hardbottom must be present in the artificial reef. Specific Condition 14.c requires evidence that the artificial reef is providing the same functions that were lost when the natural nearshore hardbottom was buried. Evidence shall include: documentation that juvenile green sea turtles are observed utilizing, or that the success of the colonization on the mitigation reef boulders enables the species to utilize the artificial reef as feeding habitat and shelter, and post-larval fish are using the artificial reef as shelter as specified in this permit and the Final Mitigative Artificial Reef and Biological Monitoring Plan. Specific Condition 15 states that Palm Beach shall be required to construct additional mitigation if, "after 3 years of post-construction biological monitoring," pursuant to Specific Condition 21, additional hardbottom impacts have occurred; if, within three years of construction of the mitigation reef, the original mitigation has not achieved success, pursuant to Specific Condition 14; or if construction of the original eight acres of mitigation is not complete prior to the completion of the beach construction, pursuant to Specific Condition 9. The additional mitigation shall conform to the requirements of the Contingency Mitigation Plan within the Mitigative Artificial Reef and Biological Monitoring Plan and Specific Conditions 10-14. Palm Beach shall "implement" the additional mitigation within 12 months of a new letter of consent for the additional mitigation. Specific Condition 15 concludes: Prior to any subsequent nourishment events, the physical success of the mitigation shall be evaluated using the same survey methodology as specified in the Mitigative Artificial Reef and Biological Monitoring Plan . . .. If the mitigation is not determined to be fully intact and ephemerally exposed as defined by success criterion 14.a, additional mitigation shall be required. Specific Condition 16 requires Palm Beach, after construction of the artificial reef, to complete a Materials Placement Report and submit it to FWC and DEP. Specific Condition 17 requires the contractor to push its equipment into the project area, rather than tow it, when within 1.5 miles of the shoreline to avoid cable drags and inadvertent impacts to offshore hardbottom resources. During all dredging operations, the contractor shall have electronic positioning equipment continuously measuring the vertical and horizontal location of the cutterhead at all times. The horizontal positioning equipment shall be interfaced with a depth-monitoring device. The position of the equipment shall be recorded, and the record shall be submitted as part of the final project report. Specific Condition 18 requires Palm Beach to notify DEP within 24 hours of anytime that the dredge operates beyond the borrow area boundaries or exceeds the authorized dredge depth. Specific Condition 19 states that, if the dredge operates outside the approved borrow areas, DEP shall be notified within 24 hours or the next business day, if the unauthorized dredge operation occurs during a weekend or holiday. If any damage is found, DEP may conduct a site inspection or require a field survey by qualified biologists to assess the potential for damage to adjacent hardbottom. Within seven days of the discovery of any damage, Palm Beach shall submit to DEP a detailed description of the damage, including an estimate of the area damaged, photographs, and a plan to prevent further damage. If significant irreparable damage remains, Palm Beach shall submit a Contingency Mitigation Plan, pursuant to Specific Condition 15. DEP reserves the right to take enforcement action as a result of the damage. Specific Condition 20 requires biological monitoring of the mitigation artificial reef immediately after its construction and during the next three summers for at least three years, using the same methodology as that specified for the natural hardbottom communities in Specific Condition 21. The biological monitoring shall coincide with the monitoring of the natural nearshore hardbottom. Monitoring shall include the degree of boulder subsidence until equilibrium is achieved; areal extent, location, and depth of burial or sedimentation on the artificial reef, which shall be compared to the results of the other monitoring events to determine the duration of burial; annual quantitative assessments of percent cover by algal species or genera, algal height, and biomass of different algal species or general (using the lowest taxonomic level possible); and a qualitative assessment of post-larval and juvenile fish utilization. The results of this monitoring shall be included in the monitoring reports required by Specific Condition 21. Specific Condition 21 requires monitoring of the nearshore hardbottom between R-134 and R-138 to detect adverse impacts from the project from burial or sedimentation. The monitoring shall quantify the degree and extent of any adverse impacts and compare changes over time. Specific requirements of the monitoring are set forth in several subparagraphs. The last revision to the Permit reduced the number of permanent compliance transects for the monitoring of hardbottom communities from "at least ten" to four. Specific Condition 21.a requires biological monitoring of intertidal-subtidal nearshore hardbottom communities by using permanent, cross-shore transects covering the entire width of exposed hardbottom. Specific Condition 21.a requires the establishment of at least 10 permanent compliance transects in the area directly south of the project in the intertidal-upper subtidal hardbottom between R-134 and R-138. At least five permanent control stations shall be established between R-139 and R-142. At least five permanent compliance transects shall be established in deeper subtidal hardbottom areas east of the nearshore sandbar between R-133 plus 300 feet and R-135 plus 200 feet. At least three permanent control transects shall be set between R-139 and R-142 along the same depth contours as the compliance transects. Each transect shall be run from the shoreward edge to the seaward edge of the hardbottom. Palm Beach shall conduct these monitoring events pre-construction, immediately post-construction in the summer following project construction, and again for three subsequent years (June through September) for a total of five monitoring events. Palm Beach shall establish appropriate control transects outside of the area of potential project influence and shall concurrently monitor them. DEP may require additional surveys beyond the three-year post-construction monitoring event, if impacts attributable to the project are evident at the conclusion at the end of the three-year monitoring. Specific Condition 21.b states that hardbottom monitoring shall include macroalgal surveys, which shall include annual quantitative assessments of percent cover by species or genera, algal height per quadrat and per species or general, and amount of sediment with the quadrat. The assessments shall also include the biomass of different algal taxa that are present. Long-term monitoring shall be done in replicate quadrats, as specified in the Mitigative Artificial Reef and Biological Monitoring Plan. Algal biomass shall be measured and the taxa identified in additional plots measuring about 10 centimeters by 10 centimeters. To determine whether the lost functions have been offset, Specific Condition 21.c requires the qualitative assessment and comparison of summer use of nearshore hardbottom impact sites and post-construction mitigation sites by post- larval and juvenile fish, and Specific Condition 21.d requires the quantification and comparison of summer use of nearshore hardbottom impact sites and post-construction mitigation sites by juvenile marine turtles. Specific Condition 21.e requires aerial photography to obtain additional and comparative information on hardbottom distribution and beach/dune fill development. Palm Beach shall survey beach and nearshore areas between R-125 to R-137 immediately prior to construction, immediately following construction, and annually during the summer (June through September) for the three-year period following construction (five mapping events). Specific Condition 21.f requires Palm Beach to provide annual reports within 120 days of the completion of the hardbottom-related survey, but no later than December 1st of each year. The final report of the biological monitoring program shall be submitted to DEP within 120 days after completing the last survey. Specific Condition 21.g requires Palm Beach or its consultant to submit monthly progress reports from the time of commencement of each annual survey to the time of the submission of the associated report. The reports shall consist of a brief narrative describing the work progress during the month and the predicted schedule for the next month. Specific Condition 22 requires instruction of all personnel associated with the project regarding manatees, smalltooth sawfish, and sea turtles (in the water); speed zones; and the need to avoid collisions with and injury to manatees. Specific Condition 23 imposes an idle speed/no wake limit on all vessels associated with the construction project, when such vessels are in the immediate area and in water with less than a four-foot clearance from the bottom due to the draft of the vessel. Specific Condition 24 requires that any siltation or turbidity barriers be constructed of material that cannot entangle manatees, smalltooth sawfish, and sea turtles and shall be properly secured and regularly monitored to prevent entanglement of these listed species. Any such barriers may not impede movement of these species. Specific Condition 25 requires all onsite project personnel to observe water-related activities for the presence of manatees, smalltooth sawfish, or sea turtles. If one of these species approaches within 50 feet of the operation, all in-water operations, including vessels, must be shut down until the animal moves beyond a 50-foot radius of the project operation or until 30 minutes have elapsed since the animal last appeared. Animals may not be harassed into leaving the area. Specific Condition 28 requires that beach restoration start after October 31 and be completed before May 1. From May 1 to October 31, no construction equipment or pipe may be placed or stored on the beach. Specific Condition 29 provides that, if sand is placed from March 1 through May 1, early morning surveys for sea turtle nests must be conducted daily from March 1 through the end of nesting season. If the beach restoration project takes place from November 1 through November 30, early morning sea turtle nesting surveys must be conducted 65 days prior to project initiation and continue through September 30. Specific Condition 29.a requires that only experienced and trained personnel, with a valid FWC permit, may conduct the surveys and relocate eggs. Nesting surveys must take place daily from sunrise to 9:00 a.m. Construction may not take place until the surveyor notifies the contractor that the survey has been completed. Specific Condition 29.b states that, although nourishment may take place 24 hours per day, no new construction activities "should" proceed after 9 p.m. and before the morning sea turtle survey, unless a nighttime nesting survey has been conducted to ensure that no nesting turtles or unmarked nests are present. Specific Condition 29.c provides that only those nests that may be affected by construction will be relocated, and they must be moved no later than 9:00 a.m. on the morning after deposition. The eggs must be removed to a nearby self- release beach site in a secure setting where artificial lighting will not interfere with hatchling orientation. Relocated nests must be randomly staggered along the length and width of the beach in settings not expected to experience daily inundation by high tides or routine severe erosion or egg loss. Relocation may take place only to the extent that construction threatens nests. Specific Condition 29.d requires that nests deposited in areas where construction activities have ceased or will not occur for 65 days must be marked and left in place, unless other factors threaten the success of the nest. A marker must be placed in the beach wherever a nest has been relocated. A 10-foot radius must be staked around the nest, and nest sites must be inspected daily. Specific Condition 30 requires that Palm Beach submit reports of all nesting activity and marine turtle protection measures taken during construction for the initial nesting season after the completion of construction and for at least two additional nesting seasons. Specific Condition 31 provides that, if beach restoration will occur from March 1 through April 30, Palm Beach must conduct daytime surveys for leatherback sea turtle nests beginning March 1, and nighttime surveys for leatherback turtles shall begin when the first leatherback crawl is documented in the project area and through April 30 or, if earlier, completion of the project. Nesting surveys must be conducted nightly from 9:00 p.m. until 6:00 a.m. Specific Condition 32 limits direct lighting of the beach and nearshore waters from March 1 through April 30 and November 1 through November 30 to the immediate construction area. Lighting on offshore or onshore equipment must be minimized through reduction, shielding, lowering, and appropriate placement to avoid excessive illumination of the water surface and nesting beach. Shields must be attached to the light house to block light from all lamps from being transmitted outside the construction area. Specific Condition 33 requires that, during April, staging areas for construction equipment shall be located off the beach. Nighttime storage of construction equipment not in use shall be off the beach to minimize disturbance to sea turtle nesting and hatching activities. Specific Condition 34 requires that, from March 1 through April 30 and November 1 through November 30, staging areas for construction equipment must be located off the beach to the maximum extent practicable. Specific Condition 35 states that, immediately after completion of the placement of beach fill and prior to March 1, for three subsequent years, if placed sand remains on the beach, Palm Beach shall till the beach or obtain a waiver of this requirement. Tilling shall be to a depth of 36 inches and must be completed by March 1. If compaction surveys are conducted pursuant to Specific Condition 36, Palm Beach shall annually submit them to FWC. If the project is completed just before nesting season, tilling shall not occur in areas where nests have been left in place or relocated unless authorized by FWS in Incidental Take Statement. DEP may modify this condition if sand compaction problems are identified. Specific Condition 36 describes the process by which Palm Beach may obtain a waiver of the tilling requirement. The condition specifies a methodology for sampling at 500-foot intervals to check for sand compaction. Specific Condition 36.d requires tilling prior to April 15 if the average value for any depth sampled exceeds 500 pounds per square inch for two or more adjacent sampling sites. Specific Condition 37 requires visual surveys for escarpments along the fill area immediately following completion of the project and prior to March 1 for the following three years, if placed sand remains on the beach. All scarps shall be leveled or the beach profile shall be reconfigured to minimize scarp formation. Also, weekly surveys must be conducted during the two nesting seasons after completion of fill placement. Specific Condition 37.b requires, prior to March 1, leveling of escarpments that interfere with sea turtle nesting or greater than 18 inches for a distance of 100 feet, provided Palm Beach has obtained authorization from FWS for Incidental Take during scarp removal. If weekly surveys during marine turtle nesting season document subsequent formation of escarpment greater than 18 inches for at least 100 feet, Palm Beach shall contact FWC to determine appropriate action. Specific Condition 38 requires Palm Beach or a local sponsor to manage artificial beachfront lighting in the beach restoration area. Specific Condition 40 requires Palm Beach to submit reports on all nesting activity for the initial nesting season and for at least three additional nesting seasons. Palm Beach must monitor nesting activity in the seasons after construction by daily surveys and additional methods authorized by FWC. Palm Beach shall report the following data for the restored areas and adjacent areas, of equal length, of beach outside the project area: all nesting activity, nesting success rates, hatching success of all relocated nests, hatching success of a representative sampling of nests left in place (if any), and dates of construction. Specific Condition 41 states, upon the excavation of a sea turtle nest, all work shall cease, and an egg-relocation person must be notified so that the eggs can be moved to a suitable relocation site. Specific Condition 42 states that Palm Beach must notify FWC upon finding a dead, injured, or sick sea turtle that is listed as endangered or threatened. Specific Condition 44 requires Palm Beach to provide reports on the distribution and abundance of marine turtles near the nearshore hardbottom in the project area, including hydraulic fill locations and dune restoration locations and adjacent, undisturbed control sites. These reports shall be provided prior to any beach fill activity and for at least two additional years. Palm Beach shall monitor in-water sea turtle distributions by annual surveys in accordance with the Mitigative Artificial Reef and Biological Monitoring Plan. Surveys for marine turtles shall be conducted within the locations of hydraulic fill placement, dune restoration, the hardbottom comparison areas (from R-125 to R-136), the mitigative reef, and adjacent undisturbed control sites. Survey transects shall run immediately adjacent to the shoreline, at or slightly deeper than 30 meters from the shoreline, 300 meters from the shoreline, and 600 meters from the shoreline--all for the impact site and mitigation reef site. Specific Condition 45 details the requirements of marine turtle monitoring activities. Data must be collected for the restored beach and an equal length of unrestored beach and must include the number of nests lost to erosion or wash out. Data must be reported by number and type of false crawls, in which the turtle crawls onto the beach but fails to produce a nest, lighting impacts, nests lost to inundation, erosion, vandalism, or lost markers, and emergence and hatching success. Specific Condition 46 requires Palm Beach to conduct shorebird surveys by qualified persons. Surveys of nesting season, which runs generally from April 1 to September 1 (although some nesting may occur through September), shall begin on April 1 or ten days prior to project commencement, if later, and shall be conducted through August or construction, which is earlier. Weekly surveys shall continue through August or fledgling or loss of identified nests or hatchlings, whichever is later. Surveys for detecting new nesting activity shall be done daily prior to moving equipment, operating vehicles, or performing other activities that could potentially disrupt nesting behavior or harass the birds, their eggs, or their young. The bird monitor must notify FWC within 24 hours once breeding is confirmed. Specific Condition 47 requires a 300-foot buffer around any location were shorebirds have been engaged in nesting behavior, including territory defense. All construction activities, including the operation of vehicles, shall be prohibited in the buffer zone. The width of the zone shall be increased if the birds appear agitated or disturbed by construction or other activities in adjacent areas. However, reasonable and traditional pedestrian traffic must be maintained where nesting birds will tolerate such traffic, generally including lateral movement of beach goers parallel to the shoreline at or below the highest tide line. Palm Beach must post designated buffer zones around the pedestrian access, and no construction activity, including the movement of vehicles or stockpiling of equipment, make take place within this buffer. Specific Condition 48 requires Palm Beach to obtain FWC approval for travel corridors outside the buffer areas. If adjacent to nesting sites, equipment, vehicles, and pedestrians may move past the nests, but may not stop or turn. These travel corridors must avoid critical areas for shorebirds, such as known nesting sites, wintering grounds, FWC-designated Critical Wildlife Areas, and FWS-designated critical piping plover habitat, as much as possible. To the extent possible, Palm Beach shall maintain some activity in these corridors daily. Specific Condition 49 requires the posting of shorebird nesting sites in the construction area. Specific Condition 50 suggests that Palm Beach "should" till and remove escarpment outside the shorebird nesting season, and contractors should avoid tilling and removing scarp in areas where nesting birds are present. Specific Condition 50.b requires that the contractor approximate the natural slope between the mean high water line and mean low water line. Specific Condition 51 prohibits the placement of pipes or sand seaward of a known shorebird nesting site during the shorebird nesting season. Specific Condition 52 directs Palm Beach to sample and analyze for turbidity at least three times daily, about four hours apart, during all dredging and filling operations. Background samples shall be collected at surface, mid-depth, and, if depths are greater than six meters, two meters from the bottom, all outside the influence of any artificially generated turbidity plume. Background samples shall also be taken about 150 meters from the dredge site in the opposite direction of the prevailing current flow and about 500 meters upcurrent of the point where the dredge discharge reenters the ocean, at the same distance offshore as the associated compliance sample, and outside of any turbid plume associated with the project. Compliance samples shall be collected at the surface, mid-depth, and, if depths are greater than six meters, two meters from the bottom, in the densest part of any visible turbidity plume generated by the project. Compliance samples shall be taken 150 meters downcurrent from the dredge head in the densest part of any visible turbidity plume and no more than 300 meters offshore and 1000 meters downcurrent from the point where the dredge discharge reenters the ocean within the densest part of any visible turbidity plume. Specific Condition 52 provides that the compliance locations are the limits of the temporary mixing zone for turbidity allowed during construction. If analysis reveals turbidity at any compliance site is more than 29 NTUs above the associated background levels, construction activities shall cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. Construction shall also cease immediately if sedimentation is observed on hardbottoms located in the mixing zone, but outside the area of predicted burial, and this sedimentation is greater than that concurrently observed in the control areas. The latest revision to the Permit adds turbidity monitoring obligations following construction. This post- construction monitoring shall take place twice monthly for one year after the end of construction or, if turbidity levels exceed 29 NTUs above background, then for an additional year, for a total of two years. The samples shall be taken "immediately offshore" of R-127 plus 597 feet, R-132, and R-134 plus 350 feet. These locations mark, respectively, the north end of the Lake Worth Gap, the north end of the dune-only project, and the south end of Reach 8. The samples are to be taken from the densest portion of any turbidity plume seaward of the surf zone. Samples are to be taken at either one meter or mid-depth, "whichever depth provides more indicative results." For background turbidity values, samples shall be taken at one meter depth offshore of R-116 and R-142. These samples must be taken immediately after the obtaining of the compliance samples and at the same distance offshore. The lower turbidity value shall be used for comparison with the compliance samples. Specific Condition 52 requires Palm Beach to submit to DEP all monitoring data, during construction, within two weeks of analysis and, after construction, within one week of analysis or two weeks of collection. Monitoring reports shall also include water temperature, time of day taken, depth of water body, depth of sample, antecedent weather, tide and direction of flow, and wind direction and velocity. Specific Condition 53 requires that a diver observe the entire length of the submerged pipeline from the western edge of the borrow area to the surf zone within one week of pipeline installation. If no hardbottom resources are observed or if to-be-impacted hardbottom is present, weekly vessel-based surface observations will be sufficient to monitor the submerged pipeline for leaks. These surface-based observations shall be conducted during periods of dredge operation. If a leak is detected, within 24 hours (weather permitting), a diver shall check for the presence or absence of a leak, and the contractor shall take any corrective measures necessary. Specific Condition 54 states that, if previously unidentified hardbottom resources are found within the pipeline corridor, weekly diver observations of the area within 400 feet of these resources shall take place. These observations are to detect leaks. All dredge and fill operations shall cease if substantial leaks are found; these are leaks resulting in turbidity in excess of state water quality standards. Operations may resume after appropriate repairs. Specific Condition 55 requires, pursuant to Florida Administrative Code Rule 62B-41.005(16), physical monitoring of the project to acquire project-specific data, including at least topographic and bathymetric surveys of the beach, offshore, and borrow site areas, aerial photography, and engineering analysis. The monitoring data will allow Palm Beach and DEP to observe and assess, with quantitative measurements, the performance of any project, any adverse effects that have taken place, and the need for any adjustments, modifications, or mitigative responses. This scientific monitoring also supplies Palm Beach and DEP the information necessary to plan, design, and optimize followup projects. Specific Condition 56 requires that, prior to the issuance of the Notice to Proceed, Palm Beach provide DEP with a detailed Physical Monitoring Plan, which shall indicate the project's predicted design life. The Physical Monitoring Plan shall consolidate data collection, analysis, and reporting of the information collected from the monitoring of Reach 7 and Reach 8. The engineering report shall include findings on the effects of the projects on each other. Approval of this Physical Monitoring Plan shall supersede the physical monitoring set forth in the Reach 7 permit. At the request of Palm Beach, DEP may revise the approved Physical Monitoring Plan. Specific Condition 57.a requires the Physical Monitoring Plan to include topographic and bathymetric profile surveys of the beach and offshore conducted within 90 days prior to commencement of construction, and within 60 days after the completion of the construction of the project. Monitoring surveys shall then be conducted annually for three years and then biennially until the expiration of the project design life. Monitoring surveys shall be performed during a spring or summer month and repeated as close as practicable during that same month of subsequent years. Palm Beach may request a postponement of the first annual survey to the following spring/summer, if it would otherwise take place less than six months after the immediate post-construction survey. Palm Beach may submit a prior design survey of the beach and offshore for the pre-construction survey, if consistent with other requirements of this Specific Condition. Specific Condition 57.a adds that the monitoring area shall include profile surveys at each of the DEP reference monuments along at least 5000 feet of the adjacent shoreline on both sides of the beach fill area (5000 feet south of R-134 and 5000 feet north of R-125). All work activities and deliverables shall be conducted in accordance with DEP's Monitoring Standards for Beach Erosion Control Projects, Sections 01000 and 01100. Because of the potential for impacts to nearshore hardbottom south of the beach fill area, additional physical monitoring data shall be required in the form of surveys conducted along the intermediate profiles spaced 250 feet apart in the southern part of the project, from R-132 to R-137. Beach and offshore profile surveys shall be conducted along each reference monument profile and intermediate profile about mid-point between reference monuments. The offshore survey shall extend seaward to a minimum of 3000 feet or -30 feet NAVD88, whichever is reached first. Additional intermediate beach profiles, between each of the above-described profiles, shall be conducted only to wading depth. All beach profile surveys shall be conducted to a minimum wading depth of -4 feet NAVD. Specific Condition 57.b requires bathymetric surveys of the borrow areas within 90 days prior to commencement of construction and within 60 days after completion of construction, concurrent with the beach and offshore surveys required above. A prior design survey may be submitted for the pre-construction survey if consistent with the other requirements of this Specific Condition. Survey grid lines shall be spaced not more than 500 feet and shall extend a minimum of 500 feet beyond the boundaries of the borrow area. Work activities and deliverables shall be consistent with DEP's Monitoring Standards for Beach Erosion Control Projects, Section 01200. Specific Condition 57.c requires aerial photography of the beach taken concurrently with the post-construction survey and each annual and biennial monitoring survey required above, as close to the date of the beach profile surveys as possible. The limits of the photography shall include the surveyed monitoring area described above. All work activities and deliverables shall be consistent with DEP's Monitoring Standards for Beach Erosion Control Projects, Section 02000, with a different protocol if nearshore hardbottom is present within the project area. Specific Condition 57.d requires Palm Beach to submit an engineering report and monitoring data to DEP within 90 days after completion of the post-construction survey and each annual or biennial monitoring survey. Specific Condition 57.e requires Palm Beach to submit monitoring reports and data to DEP and warns that a failure to timely submit these reports is a ground for revocation of the Permit. Section 1.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan states that the purpose of the plan is to address concerns of DEP and the COE about "intertidal and nearshore hardbottom impacts" from the placement of "beach compatible sand" on Reach 8. The Final Mitigative Artificial Reef and Biological Monitoring Plan notes that the dune fill will make up 84,700 cubic yards of the 724,200 cubic yards intended for the entire project. Fill for the dune project thus accounts for only 11.7 percent of the entire fill to be placed on Reach 8. Section 1.2 of the Final Mitigative Artificial Reef and Biological Monitoring Plan acknowledges that intertidal and nearshore hardbottom is present along portions of Reach 8. The plan states: "live/hardbottom habitat consists of a solid substrate to which an epibiotic community attaches, and around which mobile fauna is attracted." The epibenthic communities include macroalgae, sponges, octocorals, stony corals, bryozoans, and tunicates. The Final Mitigative Artificial Reef and Biological Monitoring Plan notes that Anastasia Formation outcrops exposed in the surf zone are smoothed by wave and current action. In Palm Beach County, these outcrops are found along Palm Beach Island. In Reach 8, exposed intertidal hardbottom outcrops are found from R-129 to R-132, which is the approximate range of the entire beach project south of the Lake Worth Gap. Intertidal hardbottom is also prevalent from R-132 to R-137, which may not be the southern terminus of this area of prevalent intertidal hardbottom because the data collection and analysis ended at this point. The Final Mitigative Artificial Reef and Biological Monitoring Plan reports that the intertidal hardbottom outcrops are typically ephemeral, as they are buried and exposed by seasonal fluctuations and high-energy events, such as tropical storms and hurricanes. The Final Mitigative Artificial Reef and Biological Monitoring Plan states that, for about three years after construction, as the fill is transported longshore until it reaches equilibration, the exposed hardbottom from R-132 to plus 560 feet (the approximate southern limit of the Center Segment) will suffer indirect impacts (i.e., be buried). In an abundance of caution, according to the plan, Palm Beach calculated mitigation based on direct and indirect impacts to hardbottom to R-134. The Final Mitigative Artificial Reef and Biological Monitoring Plan assures that Palm Beach will construct the mitigation prior to the completion of the beach restoration project. If construction of the beach restoration project precedes the construction of the mitigation, an additional 0.3 acres of mitigation shall be added for each year's delay. For hardbottom located between R-134 to R-137, the plan reports that Palm Beach will monitor for impacts from burial or sedimentation attributable to the beach restoration project. Any observed impacts are addressed in Section 7 of the Final Mitigative Artificial Reef and Biological Monitoring Plan, as discussed below. Section 1.3 of the Final Mitigative Artificial Reef and Biological Monitoring Plan states that the mitigation reef will be constructed offshore of R-106 to R-108 in 8-12 feet of water where less than three feet of sand overlies the bedrock formation. A specification of seven acres for the mitigation reef was deleted from Section 1.3, but this specification remains in Specific Condition 9 of the Permit. Section 3.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan identifies the goal of the monitoring is to assess, quantitatively and qualitatively, habitat and fish populations at the impacted and mitigated sites. In particular, the plan will allow Palm Beach to implement a mitigation relief that will meet specified acreage and physical relief, the biological criteria (over time) of the impacted natural hardbottom resources within and adjacent to the project area, and the overall ecosystem function (i.e., reproduction, recruitment, and support of the food chain) similar to the impacted natural hardbottom. To achieve these objectives, Palm Beach will conduct biological monitoring of the mitigation reef to confirm that it provides ecological functions similar to those provided by the impacted natural hardbottoms, provide statistically rigorous testing for reporting purposes, conduct physical and biological monitoring to determine if impacts due to burial or sedimentation have resulted from the project in excess of the seven acres projected to be directly and indirectly impacted, and conduct reasonable biological monitoring and analysis. Section 3.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan describes an elaborate benthic sampling methodology, developed by CPE, of sediment, macroalgae, turf algae, sponge, hydroid, octocoral, stony coral, tunicate, bare hard substrate, seagrass, anemone, zonanthid, Millepora, sessile worm, bivalve, bryozoan, and sessile anthropod. For sediment, the data are broken down into sand, shell-hash, and mud, and, for turf algae, the data are broken down into green, red, and brown. All assessment is noninvasive. Section 3.4 of the Final Mitigative Artificial Reef and Biological Monitoring Plan identifies four natural hardbottom sites--two north of Reach 7 and two south of Reach 8--for the production of data to compare with the data collected at the mitigation reef. Five monitoring events shall take place: one preconstruction, one in the summer following construction, and one in the summer of the first through third years following construction. Section 3.5 states that DEP may use these data to determine if hardbottom south of R-134 suffered sedimentation or if there are changes in the hardbottom community, by the end of three years after construction, so as to require additional mitigation. Section 3.8 states that sedimentation will be measured against the baseline condition and control sites and will be considered an unauthorized impact only if it exceeds such other sedimentation "by a statistically significant amount," although this section seems to provide that any burial of hardbottom constitutes an unauthorized impact. Sections 3.9 and 3.10 of the Final Mitigative Artificial Reef and Biological Monitoring Plan describe the methods of sampling fish and benthic invertebrates. Section 3.11 identifies the method of sampling macroalgae biomass. Section 3.13 identifies statistical inferences that Palm Beach will draw, in connection with these sampling efforts, so as to compensate for the possibility that intermittent community usage of a habitat may take place, but not during the monitoring event. Section 3.14 provides for aerial photography to monitor for hardbottom impacts. Section 4.1 of the Final Mitigative Artificial Reef and Biological Monitoring Plan acknowledges that the monitoring of intertidal and nearshore hardbottom may assist in determining if the project impacts exceed the expected limits within three years after project completion. The transects to be established for this monitoring include five permanent transects seaward of the nearshore sandbar between R-133 plus 300 feet to R-135 plus 200 feet. Control transects will be set at R-139 and R-142. Section 4.1.3 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires preconstruction macroalgae biomass sampling at the two control sites north of Reach 8 and two control sites south of Reach 8. During the preconstruction monitoring event, two sampling sites will be placed along exposed hardbottom in the southern portion of Reach 8. Macroalgae biomass sampling will then take place at these locations, as well as the mitigation reef, immediately after the mitigation reef's construction and annually for the three following summers. The assessment method and statistic inferences will be as described above. Likewise, sediment monitoring and aerial photography will take place as described above. The final revision of the Final Mitigative Artificial Reef and Biological Monitoring Plan deletes various provisions for the monitoring of the offshore reef. These provisions were originally applicable only if Palm Beach excavated fill from BA IV, but, after Palm Beach dropped BA IV from its plans, the provisions bore no purpose. Section 4.3.5 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires Palm Beach to conduct turbidity monitoring at the fill and borrow sites by means of an independent contractor not associated with the dredging contractor. Section 5.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan contains the schedule of monitoring activities. The occasions of monitoring are immediately prior to construction, during construction, immediately after construction, one year after construction, two years after construction, and three years after construction. The only activity specified to be performed on all six of these occasions is sea turtle nesting; on each of these occasions, Palm Beach must submit monitoring reports also. Four activities must be performed on all of these occasions except during construction: nearshore/intertidal hardbottom biological monitoring, sea turtle inventory in the water, aerial photography and hardbottom mapping, and mitigative reef biological monitoring. Monitoring of the restored beach for escarpment formations and compaction takes place on the four occasions commencing with immediately after construction. Although the matrix states that water quality monitoring is required on only one occasion, during construction, Section 5.2.2 of the Final Mitigative Artificial Reef and Biological Monitoring Plan requires Palm Beach to conduct water quality monitoring at the fill and control sites after construction every two weeks for one year and, if exceedances are detected, for an additional year. However, the lone regulatory consequence for an exceedance (other than extended the monitoring for one year) is that DEP will "consider. . ." them in evaluating future project proposals. The final revision to the Final Mitigative Artificial Reef and Biological Monitoring Plan contains a new section devoted to contingency mitigation. (This is the Contingency Mitigation Plan referenced in the Permit.) Section 7.0 restates the requirement that if completion of the mitigation reef occurs after completion of the project, Palm Beach must add 0.3 acre to the mitigation reef for every year of delay. Section 7.0 of the Final Mitigative Artificial Reef and Biological Monitoring Plan largely tracks Permit Specific Conditions 14 and 15, although the requirements to be imposed upon Palm Beach if the project buried additional hardbottom, as promised in Specific Condition 15, are expressed in Section 7.0 as merely that DEP and Palm Beach "will conduct a cooperative effort to estimate compensatory mitigation" using the monitoring data and UMAM. Ultimate Findings Preliminary Matters The existing mean grain size on Reach 8 is at least 0.38 mm, not 0.30 mm. And the existing sediments contain less than 0.55 percent silt, not 1.21 percent silt. Until CPE identified BA V and VI as its sand sources, it did not revise its earlier values for the existing sediments: 0.35 mm and no silt. By the time that CPE collected new samples, the excessive fines from the quickly eroding Reach 7 project had reached Reach 8. The erosion process at Reach 7 had produced increasingly larger sediment sizes: from 0.34 mm in 1977 to 0.43 mm in 1993. There is no reason to believe that, after the short-term erosion process following the hurricanes of 2004 and 2005, the sediment size at Reach 8 had decreased from 0.38 mm in 1993 to 0.30 mm in 2006 and silt had increased-- unless, of course, Reach 7's excessive fines had already contaminated Reach 8. Other evidence supports a value of at least 0.38 mm for the existing beach. As summarized by Dr. Finkl in his report, "Reach 8 Beach-Sediments: Historical and Contemporary Comparisons of Grain Size," dated September 29, 2008, other presumably relevant values are: Manalapan--0.34 mm in 1961; southern Palm Beach County--0.34 mm and 3 percent silt in 1987; Sloan's Curve (R-115) to 2100 feet south of Manalapan (R-141)-- 0.38 mm and 0.44 percent silt; and Midtown--0.42 mm in 1999. A value of 0.38 mm fits with these data better than a value of 0.30 mm, at least when no explanation accompanies the claim of a 0.30 mm value. DEP's expert, Bob Brantly, seemed to display some reluctance over CPE's new figures for the existing sediments. Testifying at the hearing, Mr. Brantly spoke of a mean grain size of 0.30 to 0.35 mm and silt of zero to 1.2 percent. The 1993 data on which CPE originally relied in claiming 0.35 mm does not specify 0.35 mm as the mean grain size for the transects for which data was collected. In the Environmental Assessment of Coastal Resources in Palm Beach, Lake Worth, South Palm Beach, Lantana, and Manalapan, Palm Beach County, Florida, by the Palm Beach County Department of Environmental Resources Management and dated May 18, 1993 (DERM EA), the mean grain size for R-124 (Reach 8 starts at R-125) is 0.44 mm, R-127 is 0.39 mm, R-130 is 0.41 mm, and R-133 is 0.43 mm for an average of about 0.42 mm (with R-124) or 0.41 mm (without R-124). Id. at pp. 37-39. As it happens, Reach 8's mean grain size is typical of the mean grain size for the entire area, which ran from R-115 to R-142: 0.42 mm. Id. at p. 41. Although, perhaps due to a final weighting process, the text of the DERM EA states that the mean grain size for the entire area is 0.38 mm. Id. at p. 43. On the other hand, the values for BA V and VI, in terms of mean grain sizes and silt percentages, are reasonable. Dr. Finkl's sand search took place in conformity with appropriate methodological standards and produced reliable data. These values fit with the values of other offshore sand sources. The significance of a difference of mean grain sizes of, say, 0.22 mm and 0.38 mm is addressed in the DERM EA, which warns that the mean grain size of 0.38 mm is "substantially coarser" than the offshore sand samples, for which the mean grain size was 0.22 mm. Id. The DERM EA elaborates: Material of this quality [0.22 mm] may create a number of adverse effects if used in a beach/dune nourishment project. These include: greater coverage of nearshore hardbottom due to a high overfill ratio and mild slope of the equilibrium toe of fill and an increased probability of compaction and effects on sea turtle reproductive success. Id. at p. 43. Elsewhere, the DERM EA notes the distinction between the existing beach's mean grain size of 0.38 mm and less than 0.55 percent silt and the sand source's values of 0.22 mm and 0.42 percent silt. The DERM EA adds: If better material cannot be located, there will be a number of effects associated with this type of material. These include: a great overfill ratio . . .; short (and possibly long) term impacts on ambient water clarity, nearshore hardbottom and offshore reefs[; and increased sand compaction affecting sea turtles' reproductive success]. Id. at p. 70. The DERM EA warnings are credited: fill sediment with a mean grain size of 0.22 mm is incompatible with an existing beach with a mean grain size of 0.38 mm. It is impossible to reconcile these warnings with the assertions of witnesses called by Palm Beach and DEP who assure that the proposed sand is "high quality sand" or "beach compatible sand." These assurances are unfounded. Until the fill is transported out into deeper water where it will lie undisturbed, the excessive fines in the fill promise considerably more incidents of turbidity of greater intensity and persistence in response to energy inputs when compared to the turbidity that resulted, pre- construction, to the same energy inputs. In its proposed recommended order, DEP asserts that turbidity is a "natural and important part of the nearshore ecosystem." Id. at p. 25. No one can dispute this assertion. But if the unstated implication is that elevated turbidity values are irrelevant until 29 NTUs over background is reached, DEP ignores the fact that the functions of a balanced marine ecosystem may be impacted by elevations of turbidity of less than 29 NTUs, especially when the causes of elevated turbidity are anthropogenic in origin. It is unknown, but unnecessary to determine, whether the placement of nearly one million cubic yards of dredged sediment whose mean grain size is a little more than half of the mean grain size of the existing sediment will raise turbidity by 29 NTUs or more; based on the intra- construction readings near the excavation site on Reach 7, it may be assumed that post-construction erosion of these fines will not approach 29 NTUs over background. However, it is likely that the post-construction erosion of these fines will harm the beach, nearshore, and hardbottom habitats and the organisms using these habitats for a period of probably one year, and these turbidity-based impacts are entirely unmitigated. DEP has failed to distinguish water quality violations due to excessive turbidity with impacts to the water resources of the district from an activity that has caused increased turbidity more frequently for longer periods of time. An increase of one NTU over background is probably harmless to the water resources of the district, and water-quality antidegradation standards are inapplicable to this case because the subject waters are merely Class III waters with no special designation. But an increase of turbidity of less than less than 29 NTUs over background can harm the beach, nearshore, and hardbottom habitat and the species that rely on these habitats. DEP's suggestion that the Sediment Quality Control/Quality Assurance Plan can "account for any unforeseen anomalies in the fill material" (Id.) ignores the facts that: 1) the discrepancies between mean grain size of the fill and existing beach are already known to characterize the two sand bodies in their entirety and cannot be regarded as mere anomalies; 2) even a trained professional cannot, in real time, collect and analyze the fill as it is deposited on the beach and in the surf zone; 3) accounting for hundreds of thousands of cubic yards of excessive fines dumped on a beach is easier said than done, as it is unclear what the contractor would do with these fines once they are slurried out of the borrow area; and 4) as explained in the Conclusions of Law, the assessment of impacts and identification of mitigation must take place prior to, not after, permitting. From a functional perspective, the impact of discrepancy in mean grain sizes and silt values in this case is significant. No one calculated an overfill factor based on these numbers, but the excessive fines will probably require the contractor to place 170 to 200 percent of the fill that it would have been required to place to fill the beach profile templates, if the sand source had contained identical mean grain sizes. For the reasons stated above, the contractor will likely pump as much fill as is needed to fill these templates, without regard to estimates of volume of fill. The additional silt is also significant. The existing beach is probably midway between zero silt and 0.5 percent silt. BA V and VI contain about 1.5 percent silt. Assuming an increase of one percent of the presence silt in the sediments, this means that, if the project resulted in only 724,200 cubic yards of fill, over 7000 cubic yards of additional silt, beyond the pre-existing silt mix on Reach 8, would be added to the beach. The characteristics of sediments by grain size and the effect of discrepancies between sand sources and existing beaches of the magnitude proposed in this case provide a context for understanding the meaning of the post-construction observations of Reach 7 reported by the citizens in the anecdotals collected above. Obviously, the credibility of these reporters is of paramount importance. These witnesses reported honestly what they saw. When the waters were fouled, they said so. When the waters cleared, they also said so. They did not bend their testimony to achieve a desired result. Doubtlessly, it would have been preferable to have comprehensive, detailed, post-construction data collection, linked to storm events, which themselves would be classified by wind, current, and wave forces; duration; and frequency. Palm Beach has long been on notice of the need to collect such data in order to be able to provide the reasonable assurances required by law. The Permit contains important provisions designed to require Palm Beach to do so on this project, but such an undertaking would aid future projects, not this one. The need to obtain comprehensive beach-performance data has long been highlighted in the professional literature, as well as by local officials, such as the Palm Beach DERM and the Palm Beach Shore Protection Board. Palm Beach cannot complain when the only source of such data is concerned citizens. The situation concerning post-construction hardbottom coverage is different from the situation concerning post- construction water clarity or turbidity levels: federal and state agencies focused closely on post-construction hardbottom coverage. And both NMFS and DEP expressed justifiable reservations about CPE's assurances about hardbottom coverage. By its conservation recommendation, NMFS implied either that a take of 19 juvenile green turtles was excessive, even though it expressly allowed the take of this number, or, more likely, that the actual coverage of hardbottom would exceed the 6.9 acres, so that the fill should be reduced to avoid additional impacts to hardbottom. DEP's concerns are more explicit. Consistent with its concerns during the permitting process, DEP required contingent mitigation to offset what it viewed as the possibility of more than 6.9 acres of hardbottom being covered. As already noted, the models on which CPE relied in projecting longshore spreading do not support CPE's conclusion as to the extent of coverage. The problems with the use of GENESIS in this case have been amply described. The problem with the use of the Walton and Chiu model is due to CPE's failure to acknowledge the actual discrepancy in mean grain size between the sand sources and the existing beach. The actual discrepancy and resulting overfill factor, both being much larger than CPE has acknowledged or considered in its modeling, promise that an undetermined amount of additional hardbottom will be covered, for an undetermined period of time, as the excessive fines in the fill transport beyond the limits projected by CPE before eventually undergoing cross-shore sorting into deeper, lower-energy waters. The area potentially affected by additional longshore spreading, though, is rich in hardbottom habitat. For instance, the DERM EA, which studied R-115 to R-141, notes that R-117 to R-124 contains an inner nearshore band of hardbottom of less than 100 feet wide with scattered nearshore bands of hardbottom of less than 40 feet wide near the Lake Worth Pier. The hardbottom became more extensive south of the Lake Worth Municipal Beach and consisted of two bands: an inner nearshore band 60-150 feet wide from just south of the Lake Worth Municipal Beach to south of R-141 and an outer nearshore band 100-250 feet wide from R-132 to south of R-141. Additional spreading to the south would cover more hardbottom. It is possible, on this record, to determine that additional hardbottom that would be covered by the spreading fill, but not the area of this additional hardbottom. Consequently, Palm Beach has failed to provide reasonable assurance that only 6.9 acres of hardbottom would be buried, directly or indirectly. As noted above, the hardbottom provides irreplaceable foraging and resting habitat for juveniles of various species, including the green turtle. The temporary loss--permanent, if ongoing nourishment events are assumed--of 6.9 acres of hardbottom habitat--although not the attendant loss of species, especially the five green turtles--is appropriately mitigated here. Palm Beach has underestimated the area of hardbottom impact and thus, among other things, underestimated the deaths of juvenile green turtles, which will die at the rate of five multiplied by the additional area in acres multiplied by 14.8 percent (the Rusenko fibropapillomatosis-infection rate). In the final revision of the Permit, Palm Beach and DEP removed the monitoring requirements for the offshore reef. The uniqueness of this resource has been detailed above. Because of the rare confluence of conditions required for its creation, the Florida Reef Tract cannot be replaced in any timeframe short of geologic time, so its protection, even from remote risks, must be a matter of exceptional regulatory concern. The turbidity resulting from the excavation seems short-lived. The relatively deep waters of BA V and VI are not subject to energy events sufficient to resuspend these particles, so once the dredge moves on, they quickly resettle to the bottom. Also, BA V and VI are relatively great distances from the Florida Reef Tract. It is not the excavation sites that pose even a potential threat to the offshore reef. Again, though, the performance of the beach, filled with excessive fines, poses a potential threat to the offshore reef. Storm-driven plumes of unnatural turbidity can carry these particles from Reach 8 to the offshore reef, where they may settle on the coral, obviously harming or killing this critical resource. It is impossible to find, on this record, that the likelihood of this event is such that it represents a probable impact to this resource, but, given the paramount importance of the Florida Reef Tract, the requirement of monitoring was not only a prudent, but necessary, provision as part of the reasonable assurance to be provided by Palm Beach concerning the water resources of the district. CRP Criteria Palm Beach has failed to provide adequate engineering data concerning shoreline stability and performance, post- construction, and the potential impacts of the project upon the beach-dune system of Reach 8. Palm Beach has failed to provide sufficient mitigation to assure the performance of the Permit with respect to the covering of hardbottom. Palm Beach has failed to provide reasonable assurance that the direct and indirect coverage of hardbottom will be limited to 6.9 acres, so it has failed to provide adequate mitigation. Palm Beach has failed to provide any mitigation whatsoever for the expected deaths of five juvenile green turtles from the loss of 6.9 acres of hardbottom and additional juvenile sea turtles from the loss of additional hardbottom. Palm Beach has failed to provide any mitigation for the turbidity that would result from the project and deprive a wide range of species from the use of these beach and nearshore habitats, other than the mitigated hardbottom, for a period of about one year. Palm Beach has failed to justify the scope of this project, given the large overfill factor that results from the relatively large discrepancy between the mean grain size of the sand source and the existing beach. Palm Beach has failed to establish that Reach 8 is eroding, especially the majority of it that is not designated CEB. Palm Beach has failed to justify the use of a limited resource--offshore sand--to restore considerable lengths of nonCEB, especially where they may be other, dissipative beaches that are CEBs and that feature mean grain sizes closer to the mean grain size of BA V and VI, so that the ratio of upland protection and environmental impact would be improved compared to the poor ratio offered by the present project. Palm Beach has failed to show that the proposed project would produce a net positive benefit to the coastal system. To the contrary, the project would produce a net negative impact to the coastal system, again due to the use of excessive fines in the fill. The impacts from turbidity are unmitigated; the impacts from hardbottom coverage are only partly mitigated. Palm Beach has failed to undertake a monitoring program to assure that the project does not have an adverse impact on the Florida Reef Tract. Palm Beach has failed to protect all of the environmental functions of Florida's beaches by proposing to fill Reach 8 with fill whose mean grain size is little more than half the mean grain size of the existing beach and will not maintain the general character and functionality of the beach, dune, and coastal system of Reach 8. ERP Criteria Palm Beach has failed to provide reasonable assurance that the project protects the water resources of the district from harm. Palm Beach has failed to provide reasonable assurance that the project is not contrary to the public interest. If, as DEP Director of Division of Water Resource Management Janet Llewellyn testified, the legislative declaration of public interest as to the relatively short North and South Segments is a consideration, but not determinative, in applying the public interest test, Palm Beach's showing in this regard would still be insufficient. Palm Beach failed to show that the project would satisfy any one of the public-interest criteria except the criterion concerning archaeological and historical resources; even for the criterion of temporary versus permanent, the recurring nature of beach nourishments, on a cycle of probably two or three years, lends to the project a certain permanency. The project would affect the property of others in essentially closing the Lake Worth Municipal Beach and Lake Worth Pier for about one year. The project would interfere with public safety by elevating the turbidity of the local waters, so as to raise the risk of shark attacks and collisions between swimmers and partly concealed hardbottom. The project will adversely affect the conservation of fish and wildlife, including endangered species, and their habitats. The project will likely result in the death of five juvenile green turtles plus an unknown number of additional juvenile green turtles based on the destruction of hardbottom in addition to 6.9 (or 7) acres. For about one year, the project will remove a wide swathes of habitats favored by species, many of whom are juvenile and many of whom display marked levels of habitat fidelity, and will remove from this area the species that use these habitats. For about one year, the beach and nearshore waters in the vicinity of Reach 8 will be largely devoid of marine life, and the beach will be unsuitable for sea turtle nesting. The project will remove longer-term (and permanently, if routine nourishments followed the restoration) 6.9 acres of mitigated hardbottom and an unknown additional area of unmitigated hardbottom. The project will cause harmful erosion of the filled beach. The project will adversely affect the fishing, recreational values, and marine productivity of the waters adjacent to Reach 8 for about one year. The project is of a temporary nature, although Palm Beach intends to renourish the beach, as needed, so the temporary impacts would recur, unless Palm Beach found a more suitable source of fill. Dr. Dean predicts a six-year life expectancy for the project, but the renourishments would be needed at more frequent intervals if Palm Beach continued to use excessive fines in the fill. The project will not affect historical or archaeological resources. The current condition and relative value of the functions performed by the hardbottom and beach are high at present. From an environmental perspective, the beach is not as impaired as Palm Beach claims. In due time, from the perspective of, say, sea turtles and their nesting needs, the beach is recovering from sand losses from unusual storm years. It is less clear whether, in due time, from the perspective of upland landowners, the beach is recovering from sand losses from these unusual storm years, although one witness called by Surfrider was an oceanfront owner who opposed the project, except possibly for dunes-only nourishment. The mitigation offered by Palm Beach is inadequate. It fails to mitigate for the impacts, for about one year, to the beach and nearshore, including hardbottom, except for 6.9 acres of hardbottom. It fails to mitigate for the loss of five endangered green turtles plus an additional number of green turtles based on impacted hardbottom in addition to 6.9 (or 7) acres. The project would also cause cumulative impacts. Palm Beach offers mitigation in the same drainage basin, which DEP reasonably construes to be the area between the two inlets. But the mitigation does not offset all of the adverse impacts, so cumulative impacts must be considered. The cumulative impacts of poor beach management practices in the past include failing to maintain the sand transfer plant at the Lake Worth Inlet, managing Palm Beach Island by segments instead of as a single resource, allowing the installation of extensive armoring along Reach 8 (in one case at the south end of Reach 8, well seaward of what the coastal system can tolerate) and extensive groins north of Reach 8, and placing excessive fines on the beaches in the form of dredge spoil and unsuitable borrow area fill without monitoring project-related turbidity and its impacts on the water resources of the district. In terms of the project as the construction of a surface water management system, it would not cause adverse water quantity impacts, adverse flooding, adverse impacts to existing surface water storage and conveyance capabilities or adversely affect the quality of receiving waters such that it would cause a violation of any water quality standards (including turbidity). The project generally meets the other requirements, except that the project would adversely impact the value of functions provided to fish and wildlife by surface waters. Most of the BOR provisions are addressed above. In terms of project design alterations to eliminate and reduce impacts, Palm Beach has reduced (and enlarged) the project, as described above. Some of the alterations reflect the ability to pick up dropped segments in later projects for adjacent reaches. However, the broad exception for public safety enables Palm Beach to show compliance with this requirement. Public safety would be enhanced, however marginally, by placing, on the beach and dunes of Reach 8, as much excessive fines as they could hold; the public safety exception to the requirement to eliminate and reduce impacts does not require consideration of the impact on the water resources of the district. The project obviously involves significant secondary impacts on surface water functions as the fill erodes into the nearshore and generates turbidity in the water column and burial of resources on the submerged bottom. Proprietary Authorization Criteria As detailed above, Palm Beach has failed to show that the project is not contrary to the public interest. Given the projected performance of the project in terms of damaging turbidity for one year, the relatively quick loss of the excessive fines from where they would be placed on the beach, the impact on the Lake Worth Municipal Beach and Lake Worth Pier, and the need for nourishment programs in quick succession to replace the lost sediments, the social, economic, and environmental costs in this case outweigh the social, economic, and environmental benefits. There are reasonable alternatives, even to allowing the natural coastal system to continue to build beach along most of Reach 8, such as maintaining the sand transfer plant with greater vigilance and possibly installing groins to capture sand of more appropriate mean grain size. And, as noted above, Palm Beach has failed to mitigate important impacts to the natural resources. Additionally, Palm Beach has failed to prove that its use of excessive fines in the fill and the consequent turbidity with its impact on the water resources would not unreasonably deprive Lake Worth of its riparian rights, as described below. Variance Criteria If the project were otherwise permittable, it would meet the criteria for a variance. Dune-Only Project Several of the witnesses who otherwise opposed the project testified that they would not oppose a dune-only project. Based on the evidence, especially the vastly lower volumes of fill required, Palm Beach has provided the required assurances so that it would be entitled to a JCP, letter of consent, and variance for such a limited project, even without any mitigation.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the request for a JCP, letter of consent, and variance (as it is now moot); provided, however, due to the vastly lower volumes of fill involved, the final order may authorize the nourishment of the Reach 8 dunes, apart from those in the Lake Worth Gap (unless Lake Worth joins in the request), in accordance with the dune template approved in the Permit, without any mitigation. DONE AND ENTERED this 2nd day of March, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2009.
The Issue Whether the permit application of Clifford S. and Maria Ray (the "Rays") meets the statutory and rule requirements for the Department of Environmental Protection ("DEP" or the "Department") to issue to the Rays a permit to construct a multi- family dwelling and related structures seaward of the coastal construction control line ("CCCL") on their property in Brevard County?
Findings Of Fact Legislative Intent re: Beaches and Coastal Barrier Dunes The Legislature has declared that the beaches and the coastal barrier dunes in this state, subject by their nature to severe fluctuations, represent one of the most valuable resources of Florida. See § 161.053(1)(a), Fla. Stat. The Legislature has further declared that it is in the public interest to preserve and protect the beaches and dunes from imprudent construction because it can "jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access." Id. The Legislature has therefore directed the Department of Environmental Protection "on a county basis along the sand beaches of the state fronting the Atlantic Ocean [and other salt water bodies]" to "establish coastal construction control lines." Id. The "Coastal Construction Control Line" A line of jurisdiction, rather than a line of prohibition, the Coastal Construction Control Line (the "CCCL or the "Control Line") is defined in Chapter 62B-331 of the Florida Administrative Code. The Control Line is: the line established pursuant to provisions of Section 161.053, F.S., and recorded in the official records of the county, which defines that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions. Fla. Admin. Code. R. 62B-33.002(12). The Department's Office of Beaches and Coastal Systems has regulatory authority to permit or deny construction seaward of the Control Line pursuant to statutory and rule criteria. This proceeding concerns the exercise of that authority in the form of issuance of a permit for activity seaward of the Control Line in Brevard County. Brevard County's Control Line The Control Line in Brevard County was established by the Department of Natural Resources, an agency of the state and a predecessor of DEP, in 1981 (the "1981 CCCL"). A second Control Line in Brevard County was established in 1986, again by the Department of Natural Resources. It is approximately 150 feet landward of the 1981 CCCL. It will be referred to in this order as "the CCCL" or "the Control Line." The line established in 1981 will be referred to as the "1981 CCCL," to distinguish it from the Control Line established in 1986, the Coastal Construction Control Line applicable to this proceeding. The Parties Mrs. Pope Petitioner, Carole C. Pope, owns with her husband James M. Pope, oceanfront property located at Wilson Avenue, Brevard County, Florida, where the Popes reside part time. The Popes' property has a Cocoa Beach mailing address, but is not within the city limits of Cocoa Beach. Littoral to the Atlantic Ocean, the Popes' property was identified in the pre-hearing stipulation in the Rule-related Cases (discussed in this Order's Preliminary Statement) as "Lot 11, Block 101, Avon by the Sea as described in Plat Book 3, page 7 [presumably the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." See Final Order, Pope v. Department of Environmental Protection et al., Case No. 03-3860RX, paragraph 7, page 9. The Popes have two duplex units on their property. Built in the 1950's, they consist of concrete foundations, block walls, and 10-foot-high flat roofs. Mrs. Pope and her husband have retained the native, salt-tolerant vegetation that surrounds the duplexes. Protective of the property because it serves to enhance and stabilize the primary/frontal dune, it also adds to Mrs. Pope's enjoyment and use of her property. She enjoys the native flora, an integral part of the habitat of native fauna (gopher tortoises and indigo snakes, for example) that she enjoys watching. She particularly enjoys feeding and interacting with the sociable scrub jay. The Department and its Office of Beaches and Coastal Systems The Department is responsible for the administration of Parts I and II of Chapter 161, Florida Statutes, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053 (21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), Florida Statutes, the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." The Office is in the Department. Fla. Admin. Code R. 62B-33.002(11). Permits for construction or other activities seaward of the construction control line, such as the permit in this case, are issued pursuant to Section 161.053, Florida Statutes, by the Program Administrator of the Bureau of Beaches and Wetland Resources on behalf of the Department. See Respondents 1, Vol. 2, Tab 22. The Department has not delegated Chapter 161 permitting authority to Brevard County. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083, preliminarily issued by the Department in its final order of September 19, 2003. The property consists of four 50-foot-wide lots, Lots 12, 13, 14 and 15 in Avon by the Sea. Lot 12 is immediately adjacent to Mrs. Pope's property. Some of the native vegetation on the property has been disturbed by the planting of sod and installation of an irrigation system seaward of the Brevard County coastal setback line and the Control Line. The activity is the subject of administrative enforcement actions by the County and DEP. Although government claims of violations had not been resolved finally as of the date of hearing, the Rays have not resisted the claims. The Permit was issued to the Rays under the authority of Section 161.053, Florida Statutes. It authorizes activities on the Ray property seaward of the CCCL. This activity includes the construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry wall and an exfiltration trench, as described in more detail in the section of the Permit entitled "PROJECT DESCRIPTION." Respondents Ex. 1, Vol. 2, Tab 22, Permit No. BE- 1083, p. 2-3. The Department was not aware of the claims of violations made against the Rays referred-to above at the time that Mr. Tammisetti, the engineer assigned to review the permit file initially, recommended that the permit be issued. Had Mr. Tammisetti been aware of the claims he still would have recommended issuance of the permit. Coastal Systems and Fixed Coastal Cells The term "Coastal System" is defined by the Department in its rules: "Coastal System" is the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and structures. Fla. Admin. Code R. 62B-33.002(13). Within the coastal system are "fixed coastal cells," also defined by Department rule: "Fixed Coastal Cell" is a geomorphological component of the coastal system which is closely linked internally by active physical processes and is bounded by physical features which exercise a major control on refraction patterns or which compartmentalize or severely limit longshore sediment such as headlands or inlets. Fla. Admin. Code R. 62B-33.002(24). Within and adjacent to a fixed coastal cell of Florida's coastal system lie sea, shore, beach, dune system, vegetation, uplands and structures with which this proceeding is concerned. The Beach and Dune System within the Fixed Coastal Cell The Ray property and the Pope property are located in a fixed coastal cell that extends from Canaveral Inlet (north of R014, one of a series of coastal monuments installed by the state) southward to Monument R050. The community in which the property is situated is a "Coastal Uplands: Beach Dune" community characterized by a beach and dune system. There is one primary/frontal dune with a height at the top of the bank of about 13.4 feet NGVD seaward of the proposed project. The portion of property on which the project is sited is between 7.3 and 10.7 feet NGVD. The most recent DEP design wave height elevation for R015 is 14.2 feet NGVD, higher than the existing dune elevation at the Ray property. Much of the Ray property behind the dune is lower in elevation than the elevation of contiguous properties, the likely result of persistent cutting of native vegetation that acts to intercept wind-blown sand as it moves along the shoreline. Beach and Dune Data in DEP File BE-1083 In the application review process, Mr. Tammisetti submitted a memorandum dated May 24, 2001, to Mr. McNeal. The memorandum appears to have been a form with blanks into which information was inserted or handwritten close to the appropriate blank. For example, under Section I., of the form "PROPOSED PROJECT" is "A. Project Location:", followed by a description with blanks left for number of feet, direction (north, south, east, west) reference monument number, county and project address. Handwriting close to the blanks leads one to understand or gather that it intends to communicate the following statements: The location of this project is approximately 100 feet N to 103 feet S of the Department of Environmental Protection's Reference Monument R-15, in Brevard County. Project Address: Harding Ave, Cape Canaveral. This is within the local jurisdiction of Brevard County. Respondents 1, Vol. 2, Tab 13. The form also contains Section II., "CHARACTERIZATION OF BEACH/DUNE SYSTEM". The section calls for three categories of characterization: A., a general description; B., beach topography in terms of shoreline alignment, berm width in feet, berm elevation in feet (NGVD), direction of net littoral transport, volume of net littoral transport in cubic yards per year, and general conditions; and C., Primary Dune/Bluff Topography with dune width in feet. None of the information called for by this section has been filled in on the form. At hearing, Mr. Tammisetti testified2 that berm width was 220 feet and the berm elevation ranged from 3 to 10 feet NGVD. He testified that the direction of littoral transport was north to south but he did not know the volume of net littoral transport. He stated that the "general site condition" was an eroding shoreline. He estimated the dune width at between 30 to 40 feet. These facts and figures exist under an overarching consideration. The beach near R015 that fronts the Pope and Ray property is critically eroding.3 Vegetation on the Ray Property There is a sea grape cluster and numerous palm trees on the Ray property. The seaward most continuous line of native salt-resistant vegetation or the "vegetation line" is near the line at the toe of the slope of the dune bank depicted on the topographic survey drawing submitted as part of the application. Nanette Church, at the time an employee of Brevard County, visited the site on July 1, 2003. She documented the presence of fresh sod and a new irrigation system installed seaward of the County's coastal setback line, a line parallel to and 25-feet landward of the 1981 CCCL. Two days later, DEP Inspector Gene Verano conducted a site inspection and documented the placement of sod and the installation of an extensive irrigation system. On July 31, 2003, the Department under the signature of Jim Martinello, an Environmental Manager in the Bureau of Beaches and Wetland Resources, issued a warning letter to Mr. Ray with regard to "POSSIBLE UNAUTHORIZED ACTIVITIES SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE." The letter reads, in part, Pope 3. [I]t appears that you have again been engaged in unauthorized activities on your property located approximately 100 feet north to 100 feet south of the Department of Environmental Protection's reference monument R-15, in Cocoa Beach, in Brevard County, Florida. The possible violation consists of the destruction/removal of native vegetation and placement of sod and an irrigation system seaward of the coastal construction control line without benefit of a permit from the [department.] The sod seaward of the CCCL has a negative effect on the stability of the dune system. A weakened dune system allows for storm surge and overwash to breach the dune and cause washout on the landward side of the dunes. Brevard County has not yet issued a land clearing or landscape permit to the Rays. A "Brevard County Land Development Site-Plan Approval" with an approval date of December 30, 2003, warned, "[i]t is the responsibility of the Owner/Engineer of Record to contact Office Natural Resources for a Land Clearing/Landscaping Permit." Respondents' 1, Vol. 1, Tab 12. The Rays are not contesting County or DEP enforcement actions relative to the land clearing, sod placement, and irrigation system installation. Project Description The project proposed by the Rays is to be located on their property in the unincorporated area of Brevard County known as "Avon-by-the-Sea," in the vicinity of Department monument R-015. The project is known by Brevard County as the Ray Condos and also as the Michelina Condominium. The location of the multi-family dwelling relative to the Control Line is "[a] maximum of 105.56 feet seaward." Id. Its exterior dimensions are "209.67 feet in the shore normal direction by 84 feet in the shore-parallel direction." Id. The type of foundation is "Pile." Id. There is no mention in the Permit of the height of the building. The swimming pool is described in the Permit in detail with regard to its dimensions and location (a maximum of 101.49 feet seaward of the control line), the type of construction and its maximum depth: six feet. Excavation/Fill for the project is described in terms of volume of excavation, its location, volume of fill as replacement, and location of fill. The Excavation/Fill description is subject to Special Permit Condition 6. Among other provisions of the condition, the fill is to be "from a source landward of the control line and shall consist of sand which is similar to that already on the site in both grain size and coloration." Id., p. 4. Other permitted structures and activities are listed and described in the Permit with reference to special permit conditions: A wooden beach/dune walkway structure of dimensions 174 feet shore-normal by 4 feet shore-parallel is to be located seaward of the control line. See Special Condition 7. A 4-foot to 14-foot swimming pool deck attached to the periphery of the swimming pool is to be located a maximum of 105.96 [feet] seaward of the control line. See Special Permit Condition 2.1. Paver-block parking area on the south side of the proposed dwelling. Masonry walls along the north and south property lines to extend a maximum of 105 feet seaward of the control line. See Special Permit Condition 2.2. An exfiltration system trench on the south side of the proposed dwelling. Among nine special conditions in the Permit are that no work can be conducted until a DEP "notice to proceed" has been received by the Rays. Another is that prior to the issuance of such a notice "two copies of detailed final site and grading plans and specifications" shall be submitted including two sets of landscape drawings. Id., p. 3, Special Permit Condition 2. See id., 2.3. The landscape plan must be submitted to Brevard County for approval under the Permit's special conditions. Given Brevard County's requirement that the Rays secure a Land Clearing/Landscaping Permit, there will be an ongoing process that poses the potential to ensure that the Rays' project will be designed to minimize the impact on native vegetation. The process also may require a restoration plan, as well, for the impact to native vegetation caused by the sod and the irrigation system. The Rays have submitted such a plan to the County. Relationship of the Proposed Project to the Pope Property The proposed multi-family dwelling is sited 10 feet south of the northern property line (the line that serves as the southern boundary of the Pope property). Ten feet is the minimum setback from adjacent property allowed by the county. The duplexes on the Pope property are situated in a range from 3.5 to 4.5 feet from the property line (the border with the Ray property.) The project, therefore, is proposed to be as close as 13.5 feet of the Pope duplexes. If built, running the length of the duplexes, it would create a relatively narrow space between the proposed structure and the Popes' duplexes that ranges from 13.5 feet to 14.5 in width. The Application The Rays submitted their CCCL permit application to the Department through their agent, Joyce Gumpher. On January 24, 2003, Ms. Gumpher executed a certification "that all information submitted with this application is true and complete to the best of [her] knowledge." Respondents Ex. 6, APPLICATION FOR A PERMIT FOR CONSTRUCTION SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OR FIFTY-FOOT SETBACK. The application was received by DEP on January 27, 2003. Additional information was requested by the Department. On April 21, 2003, the Department deemed the application complete. During the application process, several plan sheets were revised. Revised plan sheets were submitted after the application was deemed complete (see Respondents' Ex. 6, July 29, 2003 plans and September 5, 2003 plans) and once prior to DEP's determination of its completeness. (see id., April 7, 2003 plans). Review of the Application On August 26, 2003, Mr. Tammisetti submitted a memorandum to Mr. McNeal that recommended approval of the application with special permit conditions. The memorandum, similar in form to the memorandum submitted on May 24, 2001, except for the lack of Part II., is entitled "Description of Beach and Dune System Fronting the Subject Property and an Analysis of Impacts to be Expected From the Proposed Construction." Respondents 1, Vol. 2, Tab 20. It describes the proposed project but, lacking Part II., it neither characterizes nor describes the beach/dune system. Nor does it analyze the impacts of the proposed project other than to provide the "final comment" that "[t]he proposed project is landward of line of construction and 30-year erosion project. Impactive shore- parallel coverage is approximately 72%." Id., p. 3. Under its rules, after reviewing all information required, the Department is mandated to: Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effect of the construction on the coastal system and marine turtles. * * * Require siting and design criteria that minimize adverse impacts and mitigation of adverse or other impacts. Fla. Admin. Code R. 62B-33.005(3). As found earlier, the file in BE-1083 does not contain any documentation that the Department conducted the impact assessments required by the rule. Nonetheless, the Department based its evaluation on the portion of the fixed coastal cell from just north of R013 to approximately 400 feet south of R017 depicted on Respondents' 7. Respondents' 7 Respondents' 7 is an aerial photograph of developed uplands and off shore waters of the Atlantic Ocean in between which is the shore line and a stretch of beach in Brevard County. The sandy beach in the photo runs from north to south from Monument R013 to approximately 400 feet south of Monument R017, five monuments in a series set by the state along the Brevard County coast. The photograph is data the Department reviewed to determine if existing structures established a "reasonably continuous and uniform construction line closer to the mean high water line than [the coastal construction control Line]." § 161.053(5)(b), Fla. Stat. (This "reasonably continuous and uniform construction line" will be referred to as the "Construction Line" in this order.) The Pope property and the Ray property both straddle the Construction Line. The photograph shows four structures (the "Four Structures") that were determined by DEP to establish the Construction Line. Two are to the north of the Ray property; two are to the south. Of the two structures to the north, the closest is between 400 and 450 feet north of the northern boundary of the Ray property. It sits between Monument R015 and R014. The other structure to the north used to establish the Construction Line lies between Monument R014 and R013. Its southernmost corner is approximately 1200 feet to the north of the northern boundary of the Ray property. The roof of the closest of the Four Structures to the south, lying between Monument R015 and R016, viewed from the air above is rectangular indicating the structure to have a rectangular footprint. Positioned at an angle to the coast, its southeastern corner is along the 1981 CCCL. That corner is approximately 400 feet south of the southern boundary of the Ray property. The second structure to the south sits between R016 and R017. Its northernmost corner is roughly 850 feet south of the southern boundary of the Ray property. The Application Rule Florida Administrative Code Rule 62B-33.008(4), entitled "Permit Application Requirements and Procedures" (the "Application Rule"), requires that the Rays' application contain certain specific information, including that identified in subsection (f): Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of the application. The rule further calls for the topographic survey drawing to include specific information such as "[t]he location of any existing vegetation line on the subject property." Fla. Admin. Code R. 62B-33.008(4)(f)9. The topographic survey drawing submitted as part of the application in January of 2003 reveals a survey date of "7/17/02." Respondent's Ex. 1, Sketch of Boundary and Topographic Survey, Lots 12-15, Block 101, Avon by the Sea, Brevard County, Florida. Other than the date of the survey, the evidence at hearing did not reveal when the fieldwork in support of the survey was conducted.4 In all likelihood the fieldwork was conducted close to July 17, 2002, but obviously prior to July 17, 2002. Whether the date of the application is considered to be the date of Ms. Gumpher's certification (January 24, 2003), or the date of its receipt by DEP (January 27, 2003), it does not depict "field survey work performed not more than six months prior to the date of the application." January 24, 2003, is six months and one week after July 17, 2002. January 27, 2003, is six months and 10 days after the date of the survey. The Vegetation Line The topographic survey drawing submitted as part of the application did not meet precisely the requirements of the Application Rule in several other ways. For one, it did not label the location of "any existing vegetation line on the subject property." At hearing, the Rays submitted a revised copy of the topographic survey drawing (still dated "7/17/02"). The revision labels a line indicated on the originally submitted topographic survey drawing as "TOE OF SLOPE" (within a few feet of the top of the dune bank) as "TOE OF SLOPE AND VEGETATION LINE." Thus, it is apparent that the originally submitted topographic survey drawing depicted the vegetation line; it merely failed in its labeling of the vegetation line. The Department, once it became aware of the omission of a reference to a vegetation line in the original submission, waived the requirement for one. At hearing, Mr. McNeal testified that the waiver was authorized by subsection (7) of the Application Requirements and Procedures Rule: The Department recognizes that the requirements specified in paragraphs 62B- 33.008(4). . . (f) . . ., F.A.C. may not, due to the project circumstances, be applicable or necessary to ensure protection to the beach and dune system. In such cases, the applicant shall, as part of the application, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. Fla. Admin. Code R. 62B-33.008(7). There is no evidence of record that the Rays informed DEP of a position that the "location of the vegetation line" on the topographic survey drawing was a requirement inapplicable or unnecessary to ensure protection to the beach and dune system.5 Nonetheless, construing its waiver authority to be broader than authority limited to cases in which identification of inapplicable and unnecessary requirements had been made by those seeking DEP waivers, the Department waived the requirement. The waiver was based on knowledge gained from the experience of DEP employees. The employees (Mr. Tammisetti and Mr. McNeal) knew that the vegetation line would be close to the top of the dune bank line and the toe of slope line, both of which were located on the topographic survey drawing.6 Respondents' 2 supports the Department's waiver since it labels the vegetation line where the Department roughly expected it to be. Complete Dimensions and Distance Perpendicular The Application Rule further demands that the topographic survey drawing contain: 15. Accurate dimensions and locations of the foundation outlines of any structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of Section 161.053(5)(b) or 161.052(2)(b), F.S., and the distance perpendicular [the "Distance Perpendicular"] from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures . . . . Fla. Admin. Code R. 62B-33.008(4)(f). The application contained the dimensions and locations of the two (2) duplexes located on the Pope property, that is, the adjacent area to the north of the Ray property. With regard to the adjacent area to the south of the Ray property, the application contained the seaward dimensions and locations of the major structure that makes up the Discovery Beach Resort structure. The topographic survey drawing did not contain the dimensions of the complete footprint of the Discovery Beach Resort. Nor did it contain the distance perpendicular from the CCCL or 50-foot setback to the seaward corners of the foundations of all major structures depicted. Mr. McNeal noticed that required elements were missing from the application. When he made the permitting decision, he waived them pursuant to a delegation of authority from the Office of Beaches and Coastal Systems. Delegations of Authority Office of Beaches and Coastal Systems The Director of the Office of Beaches and Coastal Systems has delegated certain authority to subordinates in the Office of Beaches and Coastal Systems with respect to the CCCL permitting program. The delegations, as reflected in a document entitled "Delegations of Authority, OFFICE OF BEACHES AND COASTAL SYSTEMS" (Pope Ex. 1), is to "the Director of Office of Beaches and Coastal Systems, or his/her designee." Id., 3.a. As the administrator of the CCCL program within the Bureau of Beaches and Wetlands Resources, Mr. McNeal has been delegated authority under Delegation "OBCS-9" (id., p. 14 of 24), to "[t]ake final agency action on permit applications . . . pursuant to Sections . . . 161.053 . . ., Florida Statutes, and Rule 62B-33, F.A.C., [subject to exceptions immaterial to this proceeding.]" Id. The authority so delegated is not without limitation. Among limitations enumerated and express in the Delegations of Authority document is that "[t]the exercise of any delegated authority shall conform with all statutes and rules applicable to the DEP." Id., 3.a. Waivers Pursuant to Delegated Authority Pursuant to the authority over final agency action on CCCL permit applications, Mr. McNeal, as the head of the CCCL Program in the Office of Beaches and Shores, waived the depiction of the location of the vegetation line on the topographic survey drawing, the full dimensions of the Discovery Resort in the adjacent area to the south of the Ray property and the notation of the Distances Perpendicular. He did so because the information contained on the topographic survey drawing was sufficient, in his view, to allow the Department to perform the calculations and analyses as part of the application process that would be served by a review of the topographic survey drawing. An example has been alluded to in this order. Based on years of collective experience, Mr. McNeal and Mr. Tammisetti concluded it was reasonable to assume the vegetation line would be very near the toe of the slope line in relation to the dune bank. Their assumptions were proved correct at hearing. The dimensions and locations of the major structures located immediately north and south of the proposed project (the Pope duplexes and the Discovery Resort structure) and the Distances Perpendicular were required to be included on the topographic survey drawing, but they were not intended by the Rays to establish a Construction Line. Establishment of any such line is governed by Section 161.053(5)(b), Florida Statutes: If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the CCCL], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department, if such structure is also approved by the department [and other conditions are met]. A Construction Line The Rays contend in their application and DEP agrees that the Four Structures establish a Construction Line. Once such a line is established provided the structures are not duly affected by erosion, the Department is conferred with the discretion to permit a proposed structure along the line seaward of the CCCL under certain circumstances. See § 161.053(5)(b), Fla. Stat. Among those circumstances, the permit "shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided [by statute.]" § 161.053(5)(b), Fla. Stat. Furthermore, by rule of the Department, written evidence from local government must be provided that the location of the proposed structure along a Construction Line seaward of the CCCL is consistent with the Local Comprehensive Plan. See Fla. Admin. Code R. 62b-33. Written evidence that Brevard County regards the Rays' proposed site to be consistent with Local Comprehensive Plan and not contrary to local setback requirements or zoning codes was provided by Brevard County to the Department. Establishment of a Construction Line Whether a Construction Line can be established for a proposed project is unique to the project and its coastal location. To establish such a line, the Office of Beaches and Coastal Systems may rely exclusively on information provided by the applicant for a permit to construct along such a line. The Office may also refer to its own database of aerial photographs (as it did in this case) and other data with regard to the State's coastal systems. The Construction Line running across the Ray property accepted by DEP is nearly identical to the 1981 CCCL. In contesting the establishment of the Construction Line, Mrs. Pope makes a number of points, several of which are worthy of discussion. For one, in 1993, the Department considered an administrative challenge brought by Mrs. Pope to the CCCL permit for the construction of the Days Inn Tower (now Best Western) hotel (one of the structures used by the Rays to establish a Line of Continuous Construction). See, OR-1, Pope v. Department of Environmental Protection et al., Agency Final Order dated May 9, 1994, DOAH Case No. 93-4560 (the "1993 Pope Case.) The Pope duplex had been found to be three or four blocks north of the property for which the permit was sought. If her property had been found immediately adjacent to the Days Inn Tower property, Mrs. Pope would have been accorded standing to contest issuance of the permit to the Days Inn Tower applicant. The hearing officer had recommended that Mrs. Pope not be accorded standing under the rule because her duplex property was not "immediately adjacent" to the Days Inn Tower parcel. Since Mrs. Pope's parcel was separated by at least what has been identified in this proceeding as the Ray property and the property of the Discovery Resort, she did not qualify for standing under the DEP Rule. Nevertheless, Mrs. Pope was afforded the opportunity to acquire standing by proving that her substantial interests would be affected by issuance of the permit. The hearing officer concluded that her attempt in this regard failed.7 The Department accepted the hearing officer's recommendation that Mrs. Pope be determined to have no standing, in part because her property was not "immediately adjacent" to the Days Inn Tower property. Mrs. Pope also asserts that the Four Structures along the 1981 CCCL do not establish a Construction Line on the basis of the testimony of her witness, Dr. Harris. Dr. Harris opined that the structures to be used to establish the Line of Continuous Construction, if one exists, are not the four used by DEP that are in the area of the Ray property but the structures on the two pieces of property closer to the Ray property, that is, immediately adjacent: the Pope property to the north and the Discovery Resort property to the south. The easternmost point of the structure on the Pope property is approximately 50 feet landward of the 1981 CCCL and extends approximately 100 feet seaward of the Control Line. The structure on the Discovery Resort property to the south is along the Control Line. See Respondents' 7. The line that Dr. Harris would establish does not run parallel to the shore line, the 30-year erosion line, the 1981 CCCL or the Control Line. It would run at an angle of approximately 15 degrees from the easternmost point of the Pope duplexes (the "point of beginning") about 425 feet to the easternmost point of the Discovery Resort structure. The point on the Discovery Resort structure (at the end of the line) is approximately 100 feet seaward of the point of beginning. If these structures are to be considered in the determination of whether a Construction Line exists as Mrs. Pope argues, then continuing the line to include the Four Structures would yield broken lines rather than a reasonably "uniform" and "continuous" line. The Department did not consider the structures in the property immediately adjacent to the Ray property to break the line it determined is established by the Four Structures. It ignored other structures as well between the northernmost and the southernmost of the four structures. Mrs. Pope, therefore, describes the Construction Line established by the Department as "imaginary" and without a factual basis. This point is one of opinion. The Construction Line is neither imaginary nor without a factual basis. It has a factual basis in precisely the data used by DEP: the aerial photograph that shows four major structures between Monuments R013 and R017, Respondents' 7, along the 1981 CCCL. The disregard for the Pope duplexes and the Discovery Resort structure as well as other structures in the areas north and south of the Ray property is a matter that falls within professional opinion and Department expertise. The establishment of the Construction Line is justified by the data DEP examined: Respondents' 7 (on which the Four Structures were identified and circled by Mr. Tammisetti at hearing.) The greater weight of the evidence is that DEP's determination of the establishment of the Construction Line should not be disturbed. It is, moreover, not surprising that such a line exists. One would expect that structures built after 1981 but before 1986 would be located along the 1981 CCCL and that structures that followed (such as the Discovery Resort structure) would be built along that Construction Line. Post-establishment of a Construction Line Establishment of a Construction Line does not entitle an applicant to a permit to build along that Construction Line. After a Construction Line is accepted by DEP as established, an applicant must satisfy three remaining sets of conditions expressed in Section 161.053(5)(b), Florida Statutes. Section 161.053(5)(b), Florida Statutes A discretionary exercise Once a Construction Line is established, an application for a permit to allow a proposed structure is subject to the discretion of the Department: "a proposed structure may, at the discretion of the department, be permitted along such line on the written authorization of the department, if such structure is also approved by the department." ii. Local Requirements The Department has no such discretion, however, if the construction or activity would "contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than . . . requirements [in chapter 161]." Id. To this list, the Department, by rule, has added consistency with state-approved Local Comprehensive Plans. See Fla. Admin. Code R. 62B- 33.008(4)(d). Before exercise of department discretion and inquiry into compliance with local requirements, there is a more fundamental condition that must be demonstrated by the applicant: the existing structures that establish the Construction Line must not have been unduly affected by erosion: If in the immediate contiguous or adjacent area a number of existing structures have established a [Construction Line], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line . . . [h]owever, the department shall not contravene [local requirements] . . . equal to, or more strict than, those requirements herein. § 161.053(5)(b), Fla. Stat. Unduly Affected by Erosion The parties differ in their view of the testimony and evidence introduced at hearing with regard to whether structures that establish the Construction Line "have not been unduly affected by erosion." Id. Neither DEP employees nor the Rays' witnesses visited the shoreline between R0-13 and R-017 to evaluate the four structures that establish the Construction Line and the effects of erosion, if any.8 Mrs. Pope asserts in her Proposed Recommended Order, "[n]o evidence or testimony was offered as to whether the structures considered by DEP were affected by erosion." Petitioners' Proposed Recommended Order, p. 24. In contrast, Respondents cite to the testimony of Mr. Boehning and Respondent's 7 with the assertion, "[t]he existing structures, which form the line of continuous construction, have not been unduly affected by erosion." Respondents' 7 supports the claim of Respondents. It reveals a distance perpendicular from the Construction Line to the dark, wet sand along the shore to be approximately 275 feet. This distance encompasses white sandy beach that is approximately 175 feet and a vegetated area that is approximately 100 feet. The finding that the structures that establish the Construction Line are not unduly affected by erosion does not mean that there are not erosion problems in the area. In fact, as found earlier in this order, the beach depicted on Respondents' 7 is "critically eroding." The stretch of beach depicted in the aerial photograph that is Respondents' 7 has undergone considerable fluctuation since 1963 through erosion and beach nourishment. From 1972 to 2002, for example, the location of the mean high water line at R-015, the monument closest to the Pope and Ray properties, has varied by 206 feet from a low in September of 1972 to a high of 369.3 feet in April of 2001. Dr. Harris wrote this in a report introduced into evidence: The beach profile data show that at R-15 the beach and dune are subject to erosion. From 1972 to 2002 the variation in the MHW shoreline position was 206 feet. Beach nourishment and inlet sand by-passing operations were performed between some of the time periods, and are largely responsible for the periodic beach and dune widening. Even with the beach nourishment project, dune erosion continues to be a problem, and although the recent beach nourishment project greatly widened the beach, the position of the dune remained the same. The FDEP design wave height elevation for a 100-year storm is 14.2 feet NGVD for R-15, which is higher than the existing dune elevation. This means that the upland properties would experience storm surge, flooding and wave action during a 100-year storm. Pope 16. Projects of beach nourishment (placement of sand through human activity) were performed in 1972, 1986 and 2001. The need for beach nourishment and re-nourishment reinforces the status of the beach near R-015 as "critically eroding" and underscores the importance of protecting as much of the dune system as possible. That the beach is critically eroding is not inconsistent with a finding that the structures that establish the Construction Line are not unduly affected by erosion. Whether or not due to the 1986 and 2001 nourishment projects, the evidence of record is that, despite the status of the beach as critically eroding, the structures that establish the Construction Line are not unduly affected by erosion. Not Contrary to Local Requirements On December 30, 2002, a site-plan approval was issued by Brevard County with regard to "RAY CONDOS aka MICHELINA CONDOMINIUM" with a site address of "420 Harding Avenue, Cocoa Beach, FL 32931." Respondents' 1, Vol. 1, Tab 12, second page. Signed by the designee of the Director, Permitting and Enforcement, the development order is entitled, "BREVARD COUNTY LAND DEVELOPMENT SITE-PLAN APPROVAL" and contains the following: The site plan to which this approval is attached has been reviewed by affected County divisions, departments and agencies and has been determined to comply in general with the Brevard County Code of Ordinances and Comprehensive Plan Elements. * * * It is the responsibility of the Owner/Engineer of Record to contact Office of Natural Resources for a Land Clearing/landscaping Permit Two (2) sets of As-Built drawings must be provided to Land Development prior to the Issuance of a C.O. Id. The development order concludes with a statement related to the vested right of the Rays to develop in accord with the site plan: If a Certificate of Occupancy has not been issued for the principal structure by Dec. 30, 2005 the three (3) year vesting period, beginning with the date of site development plan approval, expires and said site plan shall become Null and Void. Only those phases of the development that have an active and valid building permit may be completed after the three-(3) year time period. Id. The reference in the site-plan approval to the "Brevard County Code of Ordinances" does not include building codes. The reference covers local setback requirements and zoning codes. Mrs. Pope appealed the issuance of the site-plan approval to the Brevard County Board of County Commissioners (the "Board"). Her appeal was heard over three meetings of the Board on May 6, 2003, June 8, 2003, and August 12, 2003. At the conclusion of the August 12, 2003, proceedings on the appeal, the Board voted unanimously to accept the staff recommendation to deny the appeal. An unnumbered resolution of the Board "DENYING THE APPEAL OF JAMES AND CAROLE POPE . . . PERTAINING TO THE MICHELINA CONDOMINIUM SITE PLAN" was produced by Mrs. Pope at the hearing together with the following statement of a Deputy Clerk for the Board: This is to advise that the Office of the Clerk to the Board of County Commissioners does not have any correspondence indicating a copy of the Findings of Fact on Michelina Condominium was forwarded to Mr. or Mrs. Pope. Pope 7. The resolution is signed by the Chairperson of the Board. Immediately below the signature block there appears the following: "(As approved by the Board on August 12, 2003)." Pope 8. The document is not stamped received by the Clerk of the Board or the County Clerk's Office, nor is there other clear indicia that the order has been rendered through a filing with the Clerk's office. On its face, however, appears an undated attestation of a deputy clerk under a seal of Brevard County that appears to attest to the Chairperson's signature. As of the dates of the final hearing in this proceeding, Mrs. Pope had not sought judicial review of the decision of the Board. At hearing, on the strength of the signed resolution denying Mrs. Pope's appeal of the site-plan approval and the site-plan approval, itself, and the apparent finality of the approval, Mrs. Pope was ruled estopped from presenting evidence that the Permit contravened local setback or zoning requirements or was inconsistent with the Local Comprehensive Plan. The establishment of a Construction Line, that the structures establishing the line are not unduly affected by erosion, and the collateral estoppel of Mrs. Pope's claim that construction or activity seaward of the Control Line along the Construction Line is contrary to local requirements, clears the way for the exercise of Department discretion as to whether to issue the permit. Department Discretion The Department's exercise of discretion must, of course, take into consideration the beach and dune system within the fixed coastal cell in which Ray property and the Pope property are located. No other conclusion could be gathered from the statements of legislative intent and the statutory scheme. Lest there be any misunderstanding, the Department has codified its policy statement on such matters: (1) The beach and dune system is an integral part of the coastal system and represents one of the most valuable natural resources in Florida, providing protection to adjacent upland properties, recreational areas, and habitat for wildlife. A coastal construction control line (CCCL) is intended to define that portion of the beach and dune system which is subject to severe fluctuations caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. These fluctuations are a necessary part of the natural functioning of the coastal system and are essential to post-storm recovery, long term stability, and the preservation of the beach and dune system. However, imprudent human activities can adversely interfere with these natural processes and alter the integrity and functioning of the beach and dune system. The control line and 50-foot setback call attention to the special hazards and impacts associated with the use of such property, but do not preclude all development or alteration of coastal property seaward of such line; Fla. Admin. Code R. 62B-33.005, Department Policy Statement on Permits. The exercise of this discretion is guided by criteria under rule. Among those criteria are those found in 62B- 33.005(4)(g): The construction will not cause a significant adverse impact to marine turtles, immediately adjacent properties, or the coastal system unless otherwise specifically authorized in this rule chapter. Chapter 62B-33, Florida Administrative Code, defines the term "Impacts" to include separate definitions for the terms "Adverse Impacts," "Significant Adverse Impacts," "Minor Impacts," and "Other Impacts": "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the system becomes unstable or suffers catastrophic failure; . . . * * * (d) "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. Fla. Admin. Code R. 62B-33.002(30). Minimization of Impacts and No Significant Adverse Impacts The site selected on the Ray property for the proposed project poses impacts to Mrs. Pope's duplexes during a storm event such as a 100-year storm. Because of the shore- parallel dimension of the proposed structure (84 feet), storm- generated waves and storm surge would be concentrated into the relatively narrow gap between the proposed structure and the duplexes. The resulting hydrodynamic load would cause scouring of the foundations of the duplexes. The proposed project has "frangible" or "breakaway" ground level walls. They would pose the potential for generating waterborne missiles that, hydro-dynamically propelled, would damage the duplexes. The proposed project was designed in accordance with the American Society of Civil Engineers 7 Code ("ASCE-7") and most pertinently (since referenced in the Construction Line Statute), the Florida Building Code. But the Building Code does not take into consideration a proposed structure's design or proposed site on an adjacent property or the adjacent property's structures. The proposed project, moreover, is not designed and sited to mitigate aerodynamic loading on Mrs. Pope's duplexes. During high-wind conditions, there will be a number of wind effects on the duplexes caused by the proximity of the proposed project: gust loading, high turbulence shedding, and vortex shedding among others that can be reasonably expected to cause structural impacts to the duplexes such as suction loads on roofs and eaves, flying debris and window breakage. The proximity of the proposed structure to the Pope property will have a shading effect that will cause adverse impacts on the growth of native coastal vegetation on the Pope property. As a result, there will be a reduction in the interception of wind-driven sand by the vegetation that enables it to develop healthy, deep root systems that add to dune stability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: an impacts assessment be conducted as required by Florida Administrative Code Rule 33.005(3)(a); that the proposed project be re-sited to mitigate the impacts that its siting now poses to the Pope Property and the Popes' duplexes; that the proposed project be permitted to be constructed up to the Construction Line, provided that the permit is supported by both the impacts assessment and a re- siting of the proposed project to mitigate wind, water and shading impacts; and if the proposed project is not supported by an adequate impacts assessment, or if it cannot be re-sited to mitigate the impacts to the Pope Property, that the permit be denied. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004.
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)
Findings Of Fact At all times material hereto Respondent Howard B. Berman has been a licensed real estate broker having been issued license number 0178090. At all times material hereto Respondent Michael J. Weil has been a licensed real estate broker having been issued license number 0179132. At all times material hereto Respondent Paramount Realty, Inc., has been a corporation licensed as a broker having been issued license number 0196048. Although Respondent Berman was a director of Respondent Paramount Realty, Inc. since at least March 7, 1979, he did not become an officer or stockholder in that corporate broker until December of 1982 or January of 1983. Although Respondent Weil was a director of Respondent Paramount Realty, Inc. since at least March 7, 1979, he did not become an officer or stockholder in that corporate broker until January of 1984. Prior to the time that Respondent Berman and Respondent Weil became officers and stockholders of Paramount Realty, Inc., they were not employed by Paramount but rather had an independent contractor relationship with that corporate broker. On or about June 13, 1979, Respondent Weil, acting as trustee for himself and for Respondent Berman, entered into a contract to purchase a certain parcel of land located in Broward County, Florida, with the intent of developing that land by building a condominium thereon. On or about October 18, 1979, Respondent Weil as trustee sold the above-referenced parcel of land to an investors group known as North Beach Development Group, Ltd., a Florida limited partnership, which the Respondents organized. The general partner in that limited partnership was North Beach Development Company, a Florida corporation, in which none of the Respondents had an interest. On or about October 18, 1979, Respondents Berman and Weil, as employees of North Beach, Inc., a Florida corporation, negotiated and obtained a consultation agreement between North Beach Development Group, Ltd. and North Beach, Inc. under which Respondents Berman and Weil would provide consultation services in connection with the development of a 34 unit condominium complex on the above-referenced parcel of land. On or about October 19, 1979, the general partner North Beach Development Company, and each of its stockholders, and each of the limited partners of North Beach Development Group Ltd. executed an Approval, Consent and Ratification agreement approving the above mentioned consultation agreement, establishing Respondent Paramount as the exclusive real estate agent for the condominium units, and approving the purchase by Respondents Berman and Weil of condominium units Nos. 604 and 607 for a combined total purchase price of $185,000. Prior to the creation of North Beach Development Group, Ltd., Respondents Berman and Weil placed $25,000 of their moneys on deposit under the contract to purchase the above-referenced land. During the existence of the limited partnership Respondents Berman and Weil loaned approximately $40,000 to the partnership. Respondents Berman and Weil also personally guaranteed the three million dollar construction loan involved in the project. Accordingly, both Respondents Berman and Weil had their personal funds at risk in the development of the condominium project. At no time did either Respondent Berman or Respondent Weil represent to Pat Dalton or any other investor or potential investor that either or both of them had invested or would invest any of their personal moneys in either the general partner North Beach Development Company or the partnership North Beach Development Group, Ltd. Five changes were made to Respondent Berman's unit 604, the total cost of all five changes being approximately $2,300. On May 19 and May 20, 1981, two checks were written off the account of North Beach Development Group, Ltd. to pay for the five changes to unit 604. On May 26, 1981, Respondent Berman (and his wife) closed on their purchase of unit 604. At the closing, Respondent Berman totally reimbursed North Beach Development Group, Ltd. the moneys it spent six days earlier for the five changes to unit 604.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final order be entered finding Respondents Howard B. Berman, Michael J. Well and Paramount Realty, Inc., not guilty of the allegations in the Amended Administrative Complaint filed against them and dismissing that Amended Administrative Complaint with prejudice. DONE and RECOMMENDED this 25th day of January, 1985, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985. COPIES FURNISHED: Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Post office Box 1900 Orlando, Florida 32802 Richard S. Rachlin, Esquire 1810 New World Tower 100 N. Biscayne Boulevard Miami, Florida 33132
