The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL 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 21st day of April 1994.
Findings Of Fact The Problem: A Seawall In Danger of Collapse Applicant is an incorporated condominium association which owns the Gulf front property of Bonita Beach Club, a residential condominium located on the northern portion of a barrier island known as Little Hickory Island. The island is south of Fort Myers and part of Lee County. (Testimony of Truitt, Tackney; R-1.) Applicant's Gulf front property is protected by a 600-foot seawall; that seawall, exposed to wave and storm attack, is now in the beginning stages of failure. Applicant seeks a permit to place a revetment along the entire seaward face of the seawall "to help strengthen the seawall and stop the erosion at [its] . . . base . . . ." (R-1.) (Testimony of Truitt, Tackney, Sharma; R-1) The seawall shows evidence of profile lowering; sand has been scoured from its face, exposing 6 to 7 feet of wall above the sand line. Its face shows abrasions from buffeting by sand and sediment; its joints have begun to separate, allowing sand from behind the wall to leak through the cracks. Under high tide conditions, the seaward portions of the seawall are under water; under other tidal conditions there is no more than 6 to 7 feet of wetsand area between the base of the wall and the waterline. (Testimony of Truitt.) The present condition of the seawall is mainly due to two processes: the long-term shoreline migration of Little Hickory Island, and (2) profile steepening, scouring, and accelerated sand loss in the immediate vicinity of Applicant's seawall. There is a south-to-north longshore or littoral sand transport in the area off Little Hickory Island, a northward flowing "river of sand." This phenomenon has caused sand loss to beaches in front of and south of Applicant's property and sand accretion to the undeveloped northern beaches north of the island. The localized profile steepening and accelerating sand loss at Applicant's seawall is caused by waves hitting the vertical seawall, then rebounding-- causing removal of sand at the foot of the wall and steepening of the offshore profile. This localized sand loss and erosion has been aggravated by the original placement and alignment of Applicant's seawall. 7/ The seawall protrudes further seaward than adjacent seawalls or bulkheads. 8/ This protrusion, together with the wall's irregular shape, disrupts the otherwise straight shoreline and acts as a headland: an abutment which concentrates wave energy and longshore currents and causes accelerated erosion and sand loss in the immediate area. The effects of the northerly longshore drift and the localized sand loss have been dramatic: between 1974 and 1980 the sandy beach in front of Applicant's seawall has receded landward 50-60 feet. (Testimony of Truitt, Tackney, Sharma; P-1, P-2, P-3, P-4, 1-2, R-3, R-4, R-5, R-6, R-7.) In addition, the shoreline of Little Hickory Island is gradually and inexorably eroding. This is due to long-term backyard erosion, a natural )process by which barrier islands gradually migrate landward. (Testimony of Sharma, Tackney, Truitt.) II. Applicant's Solution: Place a Rock Revetment in Front of the Seawall In October, 1980, Applicant applied for a DNR permit to place a rock revetment along the existing seawall. By January, 1981, DNR's Bureau of Beaches and Shores determined that all of the documentation required by its rules 9/ had been submitted and the application was complete. Subsequently, the Applicant agreed to several design changes suggested by DNR and agreed to a permit condition requiring it to dedicate a travel easement to assure continued public access to beaches north of its property. As so modified, DNR proposes to issue the requested permit. (Testimony of Truitt; R-1, -R-11, R-12.) The proposed permit, with conditions, is contained in Respondent's Exhibits R-1, R-11, and R-12. 10/ The proposed shore protection structure is described as a rock toe-scour revetment to be placed along the seaward face of Applicant's existing seawall. The revetment extends 7 feet in the shore-normal direction and approximately 600 linear feet in the shore-parallel direction. It will consist of lime-rock boulders of various sizes stacked on top of each other. The top layer of rocks will be the largest, 75 percent of them weighing greater than 500 pounds. The rock revetment will rest on a layer of Filter-X mat to help stabilize the underlying sand. The revetment's elevation will range from 0.0 feet (NGVD) 11/ at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward. Its slope will be no greater than 3 horizontal units to 1 vertical unit. The mean high waterline will intercept the revetment-seawall interface at a maximum elevation of approximately +1.5 feet (NGVD). (R-1, R-11, R-12.) III. The Effects of the Proposed Revetment The proposed revetment will fulfill its primary purpose: it will protect the Applicant's seawall by reducing the amount of sand that is scoured and removed from its face and it will add significant structural stability to the wall. It will provide these benefits because its sloping surface will intercept and dissipate waves which would otherwise hit and rebound off the vertical seawall. Because wave deflection energy will be lessened, steepening of the offshore profile will be reduced and accelerating longshore currents will be slowed. It will also protect the seawall against storm, but not hurricane, damage. (Testimony of Truitt, Tackney.) However, the proposed rock revetment will not stop the migration of sands from the southern to the northern reaches of Little Hickory Island; the northward flowing longshore currents will continue. Neither will the revetment protect Applicant's property against long-term background erosion; the entire island will continue its steady easterly retreat to the mainland. Scouring at the ends of the existing seawall will be reduced, but not eliminated. Eddy currents at the ends of the revetment will cause some localized scouring to take place. Wave and water action will take its toll on the revetment; it will require periodic repair and rebuilding in the years ahead. (Testimony of Sharma, Tackney, Truitt.) Although the testimony is conflicting, the weight of the evidence is that the proposed revetment will not adversely affect adjacent beaches and the offshore profile. 12/ While localized scouring will not be eliminated, the evidence indicates that the rates will be lessened--that the existing erosion problems will be mitigated, not aggravated. With reduced localized scouring, longshore currents will not accelerate, and the offshore profile will not deepen at increasing rates. The expert witnesses agreed that, at least for the short term, the proposed revetment will protect the existing seawall against at least three-year storm conditions. (Testimony of Tackney, Truitt, Sharma.) While the revetment will not accelerate or contribute to the erosion of adjacent lands, it will impair the public's use of the beaches in front of and to the north of the Applicant's seawall. Because the revetment will protrude 6 to 7 feet seaward from the seawall--intercepting the mean high waterline--the public will be precluded from traversing the beaches in front of Applicant's property. That narrow corridor of wet-sand beach now permits dry passage only during low tide. With placement of the rock revetment on that passageway, it will become impassable to most people who use the Little Hickory Island beaches. 13/ (Testimony of Sharma, Member of the Public.) Generally, rip-rap revetments, such as that proposed by Applicant, do not eliminate erosion or cause sand to accrete. Rather, they tend to increase erosion and escarping beyond that which would occur if a shoreline is left in its natural, unaltered condition. (Testimony of Sharma, Truitt, Tackney.) IV. DNR Coastal Construction Permits: Practice and Policy There may be alternatives to the proposed revetment which will not endanger the Applicant's upland structure or block the public's access to beaches in front of and north of Applicant's property. 14/ DNR does not require the consideration of shore protection alternatives when it processes coastal construction permit applications. Neither, in its view, is public access to adjacent beaches a matter of regulatory concern in this licensing process. 15/ At the staff level of DNR, the sole consideration is engineering design of the proposed structure: At the level of staff of the Bureau of Beaches and Shores there are no other con- siderations other than simply engineering judgments on the appropriateness or other considerations of the design. I have no idea what the governor and cabinet or exec- utive director may consider. (Tr. 170.) This view of the agency's duty helps explain why DNR has never denied an application to construct a shore protection revetment, although it has suggested design modifications, as was done in this case. (Testimony of Truitt.) V. Interests of Objectors to Proposed Revetment Project DNR requires applicants for coastal construction permits to provide a map showing the location of the proposed erosion control structure and the shoreline for at least 1,000 feet on each side. Applicants are also required to provide a list of the names and addresses from the latest county tax role of all riparian property owners within 1,000 feet. It is DNR practice, in accordance with its rule, Section 165-24.07, Florida Administrative Code, to mail notice of a proposed project to those riparian property owners. By rule, such interested persons or objectors to a proposed project have the right to appear and make their positions known to the Governor and Cabinet at the time the agency decision is made. Id. (Testimony of Truitt; R-1.) Petitioners, Casa Bonita I and II Condominium Associations, Inc., and Seascape Condominium I and II Associations, Inc., assert that the proposed revetment will adversely affect their rights as riparian owners, that it will cause erosion of their shorelines; they also allege that it will prejudice their recreational use of sovereignty lands--the public's beaches lying below the line of mean high water. Relative to the site of the proposed revetment, Casa Bonita I Condominium Association, Inc., lies 1,350 to 1,400 feet south; Casa Bonita II Condominium Association, Inc., 670 feet south; Seascape Condominium I and II Associations, Inc., lie immediately adjacent to the site. (Testimony of Tackney; R-1, R-14.) No evidence was presented to establish that intervenor Lee County is a riparian property owner within 1,000 feet of the proposed revetment. The Lee County Board of County Commissioners were, however, notified of the instant application and given an opportunity to object. The parties have submitted proposed findings of fact; to the extent such findings are incorporated in this Recommended order, they are adopted; otherwise they are rejected as irrelevant to the issues presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Bonita Beach Club Condominium Association, Inc., for a coastal construction permit be GRANTED, subject to the agreed-upon conditions described above, including the dedication of a travel easement allowing the public to circumvent the 600-foot rock revetment. 21/ DONE AND RECOMMENDED this 16th day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
Findings Of Fact On or about April 12, 1982, Raymond Gritton entered into a contract for the treatment of drywood termites with Palm Beach Exterminating Service covering his residence at 371 Forest Hill Boulevard in West Palm Beach, Florida. This contract provided for a five year guarantee, with annual renewal thereafter upon payment of annual renewal charges. There is no dispute that Gritton had made his annual renewal payments, and that at all times material hereto he had coverage under this contract with Palm Beach Exterminating Service. Under the terms of his guarantee, Gritton was entitled to an annual inspection and written report, upon request, from Palm Beach Exterminating Service. In early February, 1990, he requested an inspection, and on or about February 8, 1990, Respondent Douglas Armand conducted an inspection of the premises. Respondent went into Gritton's attic during the course of his inspection of the premises, and told Gritton that he had discovered an infestation of live drywood termites in the attic. Respondent showed Gitton what he represented were the remains of a drywood termite he had just killed in his attic. Following his inspection, Respondent told Gritton that he should have his house tented and fumigated for drywood termites, and that there would be a $40 charge for a written inspection report. In fact, the remains that Respondent showed to Gritton were of a carpenter ant, and not a recently killed drywood termite. This finding is based upon the inspection of the property by Joseph Parker, an expert in termite inspection, on May 8, 1990. There was no evidence of any live infestation of drywood termites in Gritton's attic, and therefore, there was no need for fumigation of the premises. Although another representative of Palm Beach Exterminating Service, David Sprague, informed Gritton on February 14, 1990, that there would be no charge for an inspection report and that one would be forthcoming, at the time of hearing in this matter, Gritton had still not received a copy of any inspection report on his house from Palm Beach Exterminating Service. At hearing, Respondent produced a copy of an inspection report which Respondent claims was sent to Gritton. However, this report evidences on its face that it was sent to the wrong zip code, and in any event, this report is of Sprague's inspection on February 14, 1990, and is not a report of Respondent's inspection on February 8, 1990. There is no dispute between the parties concerning Respondent's certification by the Department. At all times material hereto, Respondent has been a certified operator with Palm Beach Exterminating Service in West Palm Beach, Florida.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order imposing an administrative fine in the amount of $200.00 upon the Respondent. DONE AND ENTERED this 15th day of February, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Department's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-4. Adopted in Finding 2. 5-6. Adopted in Finding 3. 7. Adopted in Finding 4. 8. Adopted in Finding 6. 9. Adopted in Finding 5. 10. Adopted in Finding 7. 11. Adopted in Finding 6. 12. Adopted in Finding 7. COPIES FURNISHED: Karen Miller, Esquire District Legal Office 111 Georgia Avenue, #317 West Palm Beach, FL 33401 James L. Kolkana Palm Beach Exterminating Service 2110 Florida Mango Road West Palm Beach, FL 33409 Douglas J. Armand Palm Beach Exterminating Service 2110 Florida Mango Road West Palm Beach, FL 33409 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda K. Harris, Acting General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether the application submitted on behalf of the City of Miami Beach, Florida (City) for a coastal construction control line (CCCL) permit should be approved.
Findings Of Fact The Petitioner, Wallace Corporation, owns and operates the Richmond Hotel located at 1757 Collins Avenue, Miami Beach, Florida. The Richmond Hotel (the Richmond) was built in 1941 by Allan Herbert's grandfather. It has been continuously controlled by Mr. Herbert's family since that time. The Richmond prides itself on its appeal to upscale international travelers. It seeks to offer unique accommodations, service, and privacy. The Richmond was recently renovated and restored at a cost of several million dollars. The guest rooms, roof, plumbing, and electrical systems were upgraded while the original Art Deco decor was preserved. Included in the renovations were improvements to the pool area, landscaping, and a dune walk-over. These renovations sought to appeal to a "boutique" clientele seeking a peaceful and tranquil housing accommodation while enjoying the Miami Beach locale. The Respondent, City of Miami Beach, is the applicant for the instant CCCL permit. Coastal Systems was retained by the City to file and procure the subject permit which is identified in this record as CCCL permit no. DA-361. The CCCL permit application was filed with the Department on June 19, 1997. Since that time it has been modified to address Department concerns. The Department of Environmental Protection is the state agency charged with the responsibility of reviewing applications for CCCL permits. In its review of the instant permit, the Department deemed the application complete on February 5, 1998. Thereafter, the Department's Bureau of Beaches and Coastal Systems entered a proposed order to approve CCCL permit no. DA-361. If approved, this permit will allow the construction and improvements sought by the City. The project proposed by the City will allow for the construction of a beachwalk that would extend from Lummus Park at 14th Lane to an existing boardwalk at 21st Street. This beachwalk, along with its attendant improvements, will allow the public to access the beach at several controlled points along the dune system. Additionally, it will allow pedestrian traffic to move efficiently length-wise along the dune system. The project concept is to limit the number of points across the dune system that the pedestrian public uses for access to the beach. Further, the beachwalk will offer the public an efficient means of traveling north to south or vice versa without reverting out to Collins Avenue. Shifting pedestrian traffic away from Collins Avenue should improve traffic conditions in this highly urbanized area. The design of the beachwalk minimizes impacts to the beach dune system and prevents erosion by keeping pedestrians on the walk and off the dune. The design will act as an erosion preventative measure and should assure minimal adverse impacts to the dune and beach system. In this regard, it is critical to note that the dune and beach system in this area of Miami Beach are the product of beach renourishment. The beach itself was created in the late 1970s and 1980s by the U.S. Army Corps of Engineers. In order to address the severe erosion that threatened properties along Miami Beach, the Corps stepped in and deposited millions of cubic yards of sand on the beach. The beach renourishment project expanded the beach from government cut to 32nd Street. It was designed to provide storm protection for upland owners by widening the non-existent beach and by creating a dune system. The dune was established immediately seaward of the erosion control line (ECL). This ECL had formerly been the mean high water mark for the beach prior to the massive undertaking to deposit sand along the coast. The newly created dune served as a dike to reduce the impacts which would be expected from a 100-year storm event. In theory, water generated in such a storm event would be blocked from coming onshore thereby minimizing damage from wave or surf action upland of the ECL. To enhance the dune's efficiency in this regard, a vegetation program was implemented to address wind and pedestrian erosion to the dune system. This vegetation program will be expanded as explained below if the instant permit is approved. Currently the dune system is marred by cross-over channels cut by pedestrian traffic through the dune. These pathways provide convenient access to the beach but do so at a cost to the dune's efficiency and security. Because they cut through the dune in an easterly direction, they allow wind and, potentially water in a storm event, to gouge the dune. The cuts in the dune undermine the efficiency of the erosion control. By installing the beachwalk proposed by the City, the number of cuts across the dune will be minimized. Moreover, they will be designed to trap sand and to promote erosion control. The areas which have already been gouged will be re- vegetated to deter pedestrian use. The native vegetation planned for this work should promote erosion control and enhance the dune system. The types of vegetation and manner of planting should also deter future unauthorized pedestrian access through the dune. Subsequent to the beach renourishment program, the beach, along the entire project length, has experienced a natural accretion. This means that natural erosion is not occurring. Natural erosion results from wind, tidal, or other naturally occurring influences. In contrast, however, are the man-made erosion sources: pedestrian paths, cuts in the dunes which endanger the dune and limit its effectiveness. The danger from these unregulated cuts could potentially undermine the dune and accelerate erosion from natural events. Dune cross-walks such as proposed by the instant project (and as maintained by the Petitioner) are required for the prevention of erosion. Thus the project in its entirety will prevent erosion. The proposed project will not adversely impact the beach-dune system. Petitioner presented no evidence to establish a significant impact. The project creates a net improvement of sand and vegetation to the dune and will restore all dune cuts. The beachwalk is proposed to follow the shore, parallel to the beach. It is to be constructed of paver blocks and is to accommodate controlled movement of pedestrian traffic and bicyclists. While it could accommodate emergency vehicle traffic such as police or medical rescue, it is not designed for such use on a routine basis. The beachwalk will improve public access at 17th and 18th Streets. These access points will give the public better availability of parking and public accommodations. All of the street end dune cross-overs are designed to trap sand and to minimize erosion to the dune. The proposed access points significantly improve the west to east access to the beach. As currently designed, the beachwalk will not cause wind borne or water borne projectiles during a storm event. Moreover, the paver block walk is located landward of the dune in most instances. Even this walk has been designed to break apart and result in no increased erosion during a storm event. The beachwalk will be constructed of paver blocks installed on a crushed shell or rock base. This base should give the path stability under normal use yet give way in a significant storm event. In some areas the height of the dune will be increased by the placement of additional sand fill. Foundations for improvements proposed along the beachwalk are also designed to give way in a storm event. Thus, planters or low walls should easily collapse if undermined in a storm event. All of the improvements seaward of the ECL are minor structures. Most of the project will be located on state lands. In the instances where the project crosses or touches private property the City recognizes it must secure easements or other appropriate access to construct and maintain improvements. It is unlikely that the improvements will cause scour. It is also unlikely that the project will accentuate or contribute to storm surge. As currently proposed, the beachwalk project will have no adverse impact on the dune system. Moreover, the project will create an improvement to the system by adding sand, stabilizing and improving vegetation on the dune, controlling pedestrian access to the beach, and trapping sand. Prior to 1980 there was no documented turtle nesting on the project area of Miami Beach. Since that time, and the creation of the beach from renourishment, there has been a marked increase in turtle nesting in the area. While such nesting is encouraged by the Department, due to the urbanized nature of the area and the intense pedestrian and public use of the beach, all turtle nests located along this beach are relocated to hatcheries. This relocation policy and practice for the area existed before the proposed project was submitted for approval. The relocation program is managed by Miami-Dade County under a permit issued by the Department. Pursuant to the permit, the County conducts nesting surveys, operates self-release and restraining hatcheries, documents false crawls, and rescues turtles for relocation. None of the foregoing activities will change if the instant permit is approved. Given the width of the beach in the subject area of the proposed beachwalk, the limitations on the lighting proposed for the path, and the current restraints employed to deter the public from interfering with turtle nesting, it is unlikely turtle nesting in the subject area will change. If anything, there is a possibility that nesting may increase. For reasons unknown to the experts, turtle nesting on Miami Beach is greater in the better lit areas of South Beach. More turtles have nested along the better lit area, have had more false crawls, and have resulted in more nest re-locations from the highly commercial area of South Beach than in the darker, more traditional beach of the subject area. As turtles and hatchlings become disoriented by lights, this documented phenomenon seems contrary to the typical turtle scenario which would have the nesting turtle approach a dark, quiet beach, nest within a limited distance of the rack line (the line of seaweed deposited by tide along the beach), and return to the ocean. At the area of the Richmond, turtle nests are typically found within 50 feet of the rack line. Turtles nest within a limited distance of this line, rarely more than 100 feet. Since the beach is several hundred feet wide along the project length, it is unlikely nesting turtles will be deterred by the construction of the path. Additionally, it is unlikely the lights proposed for the beachwalk will adversely impact turtles. The number, placement, and limitations proposed on the lights will adequately minimize lighting impacts expected from this project. Given the need for some lighting to address security and safety issues for the public using the beachwalk, given the relocation of all turtle nests on the subject beach, given the project distances and design considerations to be employed for the path, and given the lack of substantial evidence to the contrary, it is found that the proposed project does not constitute a "take" of marine turtles in the project area. Miami Beach is a very well lit, commercial area. The pockets of dark beach are only dimly lit in comparison to the more pronounced lights from night clubs or other entertainment areas. The lighting plan proposed by the City adequately addresses the potential for impacts to turtles such that the project should not have a significant adverse impact. To further limit impacts, however, construction of the project should not occur during nesting season. The proposed beachwalk with its attendant improvements does not cross in front of the Richmond. The project stops immediately to the south of Petitioner's property. The project picks back up immediately to the north of Petitioner's property. The original design of the project was modified in this fashion because Petitioner opposes the construction of the path and its attendant improvements. Because Petitioner opposes the project, no portion of the beachwalk will impede Petitioner's riparian rights to the beach/ocean. None of the proposed improvements will be constructed seaward of the ECL along Petitioner's property. All owners of property upon whose land the beachwalk will be constructed, have or will be required to give written consent to the project. Any public entity upon whose land the beachwalk will be constructed, has or will be required to give written consent to the project. Petitioner expects the beachwalk to damage business at the Richmond. Mr. Herbert believes the damage should be comparable to the events such as the cold winter of 1958, World War II, and, more recently, the murder of foreign visitors. While it is certain the beachwalk has the potential for increasing pedestrian traffic along the beach in front of the Richmond, any damage suggested by Petitioner is too remote or speculative to be of significant consideration. The construction of the proposed beachwalk will have no adverse impact on the physical condition of Petitioner's property. The proposed project will not create a significant adverse impact to the property of others. Petitioner was not required to establish its dune cross-over was required for erosion control. All dune cross- overs allowed by the Department previous to the instant request were not required to establish that they were required for erosion prevention. All of the existing and proposed cross-overs are seaward of the ECL. No upland riparian rights will not be adversely affected by the project. Petitioner's rights as an adjacent property owner to the project will not be adversely affected by the beachwalk. Petitioner will not be adversely affected from storm impacts as a result of this project.
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 CCCL permit no. DA-361 with the conditions as set forth in the proposed agency action order and with additional assurances that construction of the project will not occur during turtle nesting season, and that all property owners over whose land the project will meander provide written approval of, and authorization for, the proposed improvements to their properties. DONE AND ENTERED this 8th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. Parrish 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 8th day of June, 1999. COPIES FURNISHED: Neil Chonin, Esquire Chonin, Sher & Navarrete, P.A. 95 Merrick Way, Suite 100 Coral Gables, Florida 33134 Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431 Ricardo Muratti Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Earl G. Gallop, Esquire Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301 Miami, Florida 33133-4741 Raul J. Aguila, Assistant City Attorney Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
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.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction And Closing File in this proceeding.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110, TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DEO-11-0028 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Development, and that true and correct copies have been furnished to the persons listed below in the manner described, on this JS Thay of November, 2011. Y ‘ Miriam Snipes, Agenéy Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail and Electronic Mail: Mr. Benjamin Gross, Esq. City of Daytona Beach 301 S. Ridgewood Avenue Daytona Beach, FL 32114 grossb@codb.us By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable J. Lawrence Johnston Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550
