The Issue Whether the Petitioners have standing to initiate this proceeding? Whether the Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP and the Variance?
Findings Of Fact The Parties The Sherry Petitioners and Their Property David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [a condominium unit] of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . . . of Okaloosa County, Florida." WD Ex. P-8, Bates stamped PET7157. Their address is 554 Coral Court, #511, Fort Walton Beach, Florida 32548. The Sherrys leased their condominium unit in May 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," WD tr. 840, the unit became their permanent residence. They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified: This particular area we chose because of the beach quality. Quite frankly, . . . I was surprised when I first saw the place . . . the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen. WD Tr. 841. Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the sugar white sand." Tr. 936, Case No. 10-0515 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry's routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island. Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed, I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.] Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it: I . . . swim. I surf on the skim board, float out in the water . . . I help Dave fish, we crab, . . . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen. * * * I've always run barefoot. That's the reason [we chose the beach next to the Surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . . [cross the beach] barefoot. WD Tr. 939. I actually think the project will impact me, at least, as much as my husband, David . . . my husband is . . . involved with . . . being board president of the Surf Dweller[.] I spend at least as much time as he does on the beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm . . . extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in . . . I don't miss my morning walk. Tr. 950, 10-0515. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island, Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. WD Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority in 1955 and recorded in the Official Records of the County at BOOK 121, PAGES 233-250. See WD County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4. See id., Part B: Areas of Application, at BOOK 121 Page 235. Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas." Id. at BOOK 121 PAGE 236. Part F of the Protective Covenants and Restrictions, provides, in part, Beach Protection * * * The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority . . . One hundred fifty feet inland from the mean water line, in front of all B1 and B2 Areas, will be public beaches. The next 150 ft. inland will be private beaches as set out on subdivision plats . . . WD County Ex. 13, at page marked "BOOK 121 PAGE 242." The Surf Dweller Condominium Property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller Condominium Property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions. Mr. Donovan and His Property John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN . . . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA." WD Ex. P-7, PARTIAL ASSIGNMENT OF SUBLEASE, Bates stamped PET7067. The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, Florida 32548. Mr. Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island: I've . . . got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf. * * * I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks. WD Tr. 973-4. In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as: A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF SANTA ROSA ISLAND A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is located) is also in Zone B-2 set up by the Protective Covenants and Restrictions. Block 8, just as Block 5, is governed by Part F, Beach Protection, of the Protective Covenants and Restrictions that places the beaches, for at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County WD 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium is between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat in County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," see Exhibit P-7, last page (un-numbered), that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions. The public beach designated by the same provision is seaward of the private beach. Concerns of the Sherrys and Mr. Donovan The Surf Dweller Condominium Property that serves the Sherrys' condominium unit and the El Matador Condominium Property that serves Mr. Donovan's condominium unit are along the segment of the beaches and shores of Okaloosa County that will be restored by the Okaloosa Island Project. The Sherrys and Mr. Donovan initiated this proceeding because they are opposed to the Okaloosa Island Project. One of the grounds for their opposition concerns the Project's borrow area to be used as a source of sand. It is offshore but relatively close to the beach immediately landward of the Sherry and Donovan condominium units. The Sherrys and Mr. Donovan presented evidence that the borrow area is sited and situated in such a way that once dredged it will cause impacts to the shoreline of Okaloosa Island. The impacts, they believe, in turn will affect their use and enjoyment of the beach. Mr. Donovan is concerned about the erosion and turbidity impacts that dredging the borrow site which serves the Project could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. He is concerned that turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, the change in the beach and shoreline along the El Matador Condominium property contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium. The Sherrys and Mr. Donovan have other concerns about the Project. For example, they believe that the sand used in the restoration will not be compatible with Okaloosa Island's "sugar white" sand. They also are concerned about the impact that placement of the sand will have on their view, their walks and their runs and the many ways in which they use and enjoy the beach. Furthermore, they presented evidence that the cost of the Project will outweigh its benefit. The Intervenors Intervenors John Dezzutto and Thomas Wilson own condominium units 102-D and 101-B in the Seaspray Condominium located at 1530 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. At its southern boundary the property that is subject to the declaration of condominium that created the Seaspray Condominium (the "Seaspray Condominium Property") is deeded to the MHWL. Hence, the Seaspray Condominium Property is considered to be "gulf-front." Intervenor David Wallace owns Unit 502 in the Destin West Beach and Bay Resort Condominium located at 1515 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. Similar to the Seaspray Condominium, at its southern boundary the property that is subject to the declaration of condominium that created the Destin West Beach and Bay Resort Condominium (the "Destin West Beach and Bay Resort Condominium Property") is deeded to the MHWL. The property, therefore, is considered to be "gulf- front." The Seaspray Condominium Property and the Destin West Beach and Bay Resort Condominium Property overlap the beaches that are to be restored by the Project. If the County is to restore the area of the beach that is on the condominium properties of the two condominiums in which the Intervenors own condominium units, it will need to heed the advice of General Condition Six in the Draft JCP which is interpreted by the Department as a warning against trespass as well as provide authorization for such use from the property owner as required by the Draft JCP. The County and the Department Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP and the Variance. The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations. Okaloosa Island Okaloosa Island is not an island. It is an unincorporated area of Santa Rosa Island. Santa Rosa Island is a barrier island that runs along much of the coast of the Panhandle of Florida. As explained by Mr. Clark at the final hearing, one is "in" Okaloosa Island while being "on" Santa Rosa Island. Okaloosa Island was conveyed to the County by the federal government and then leased by the County under long-term leases. The Surf Dweller and El Matador Condominium Properties (with units that belong to the Sherrys and Mr. Donovan, respectively), are in Okaloosa Island. Some of the other leaseholders in Okaloosa Island opted to have their leases converted to ownership of the leased property in fee simple. The Surf Dweller and El Matador Condominium Properties remain under long-term leases. Dry Beach Adjacent to Surf Dweller and El Matador Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. See his testimony quoted, below. The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its ever-changing nature might have on the width of the beaches between the MHWL and the Surf Dweller and El Matador condominium properties, at the time of hearing, there existed a 150 foot-wide stretch of beach water- ward of the two condominiums that the public has the right to occupy and use. David Sherry confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife in the following colloquy on cross-examination by Mr. Hall for the County: Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium? A . . . [N]o, they wouldn't have the right to do that. Q . . . [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium? A In that area, no. In the area south of that [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don't have any problem with that. We let people do it -- Q On [the] public beach[.] A On the public beach they're perfectly free to do that. * * * Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct? A Essentially, from the building to the Gulf of Mexico. * * * Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline? A Correct. Q So, there would be enough room today, based on the language of the restrictive covenants to have . . . 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13] now? A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded], yes. WD Tr. 891-3 (emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach, and it has a width of 150 feet. From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See WD Tr. 986-87. Opal and Okaloosa Island Beaches Today Hurricane Opal made landfall near Pensacola in October 1995. Prior to Hurricane Opal, the shoreline in Okaloosa Island had been stable. The width of the vegetated and upper berm and dune systems had been about 175 feet and the un- vegetated beach seaward of the dune system about 100 feet wide. Upland development was protected from storm surge and wave action by a good 285-foot width of dune system and beach. Opal devastated much of the Florida Panhandle. Okaloosa Island was not spared. The shoreline of Okaloosa Island both advanced and retreated. The western half of Okaloosa Island (west of R-8) showed shoreline recession, that is, the shoreline on the western half retreated landward. The shoreline on the eastern half (east of R-8) advanced water-ward. The dune system, however, was destroyed. From the point of protection the beaches and the dune system offer upland development, moreover, the advance of the beaches in the eastern half of Okaloosa Island did not offset the damage done from volumetric reduction of the sand that the eastern half of Okaloosa Island suffered. As for Okaloosa Island as a whole, the area lost considerable sand volume. Opal's damage to Okaloosa Island, in sum, consisted of substantial loss of sand volume, significant deflation of beach profile and erosion of the dune and beach system throughout the area. After Opal, the general trend along Okaloosa Island was recession. Based on an overall average, the recession measured about minus 7 feet per year. See OI Tr. 561. The Okaloosa Island shoreline moved toward upland development. Despite the general retreat of the shoreline, in some areas of Okaloosa Island, the beaches appear to the untrained eye to be healthy because they are usable and quite wide. But even at their widest points, Okaloosa Island beaches are "very low and flat" OI tr. 562. The only dunes (where there are any at all) are "insignificant manmade dunes," id., that do not protect upland development. In short, Okaloosa Island is in need of coastal protection. It is "completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms . . . ." OI Tr. 536. Critically Eroded Shoreline Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline": "Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects. Fla. Admin. Code R. 62B-36.002(4) (the "Critically Eroded Shoreline Definition"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. In 2005, the Department designated the area subject to the Okaloosa Island Project as having a "critically eroded shoreline." The designation was in accordance with the Critically Eroded Shoreline Definition and based on post-storm vulnerability after Hurricane Ivan which made landfall in the United States in September of 2004. An investigation was conducted in Fall 2008 to update the designation in response to a request from the County. The investigators concluded that there had been erosion, including deflation and recession of the dune and beach, to such an extent that upland properties and development were threatened between R-1 and R-8.5 and R-12 and R-13. The shoreline in the area between R-8.5 and R-12 (the "Gap Segment") standing alone did not meet the requirements for designation as critically eroded. Nonetheless, the Gap Segment was designated as having a critically eroded shoreline for continuity of management of the coastal system and to facilitate management of the adjacent beached in order to maintain the integrity of the Project's design. The same is true of the segment of the Project east of R-13, that is, from R-13 to R-15. ("Continuity of management and maintenance of a project's design integrity" is a basis for designating a shoreline to be critically eroded under the Department's rule.) Were the Gap Segment to be excluded from the Project, fill placed by the restoration effort in the adjacent, restored areas would collapse into it over time. The restored areas would not remain stable and the restoration effort would be defeated, diminished or endangered. That upland areas in the Gap Segment might not be threatened by a 25-year storm does not mean that restoration is not a useful activity for the segment. To the contrary, the upland areas alongside the Gap Segment will benefit from the Project. While the upland areas adjacent to the Gap Segment's shoreline may not be threatened by less damaging higher- frequency storms, they are "definitely threatened by a 50 or 100-year storm event and are in need of the project from that standpoint." OI Tr. 557. Genesis of the County's Efforts Following the designation by the Department of the shoreline subject to the Project as critically eroded, the County began to consider beach restoration in Okaloosa Island. The efforts gained momentum when the County entered an inter- local agreement with the City of Destin in 2006. The agreement provided that the Tourist Development Council (the "TDC") would be the lead agency in all beach restoration issues. The County chose the shoreline now subject to the Project for restoration because of the Department's designation of it as critically eroded. The Project The Project calls for the placement of 940,000 cubic yards of beach quality sand along a 2.8 mile stretch of shoreline. The shoreline is between the Department's reference markers R-1 and R-15 on Santa Rosa Island in an unincorporated area of the County known as Okaloosa Island, Sections 28 through 30, Township 2 South, Range 23 West, in the Gulf of Mexico, Class III Waters. The Project's entire site is situated within the Gulf Islands National Seashore which extends one mile offshore of Santa Rosa Island, the waters of which have been designated by the state as Outstanding Florida Waters ("OFW"). The placement on the beach of the sand (or fill) will create dunes that have the potential to become stable through vegetation, extend the beach seaward roughly two hundred feet, and elevate the beach an average of roughly five and an half feet. The design includes a 40-foot-wide dune crest at an elevation of 14 feet NAVD, a 60-foot wide backberm at 8.5 feet NAVD, and a variable width berm at 5.5 feet NAVD. The dune will transition into the backberm at a 1:4 (vertical:horizontal) slope; the backberm will transition into the berm at a 1:10 slope; and the berm will transition into the existing sea bottom at a 1:10 slope. In areas where the landward edge of the dune crest does not tie into the existing dune, the landward dune face will merge into the existing topography at a 1:4 slope. The fill for the Project will be dredged from an offshore borrow area. The Project includes the removal of sand placed on Okaloosa Island beaches in 2006. Referred to at hearing as "brown sand," see OI tr. 1668, Case No. 10-2468, the sand had been hauled in from an upland source by truck rather than being from an offshore borrow area as contemplated by the Draft JCP. The brown sand is not the same color as the "sugar white" sand on Okaloosa Island's beaches. It is being removed because it is not compatible on the basis of color with the sand on the beach. The ECL Morgan and Eklund, Inc., Professional Survey Consultants (the "ECL Surveyors"), prepared a document dated October 30, 2008, entitled "MEAN HIGH WATER LINE SURVEY AND PROPOSED OKALOOSA ISLAND EROSION CONTROL LINE FOR FDEP RANGE MONUMENTS R-1 TO R-16 OKALOOSA COUNTY, FLORIDA," see WD County Ex. 7. The document was referred to at hearing by Mr. Trudnak as the "Erosion Control Line drawings for the Okaloosa Island Project." WD Tr. 261. (The document, WD County Exhibit 7, will be referred to in this order as the "Proposed ECL Drawings.") The Proposed ECL Drawings show that a survey of the MHWL survey between R-1 and R-16 was conducted on September 16, 2008. As would be expected, the MHWL depicted on the Proposed ECL Drawings is not a straight line. For the most part, it meanders across the drawings with sections where the line comes to "points" that protrude seaward. For example, one prominent point would be at the end of a perpendicular line (that does not appear on the Proposed ECL Drawings) drawn seaward across the dry beach from a point (also not on the Proposed ECL Drawings) on Surf Dweller Condominium Property. See WD County Ex. 7, Case No. 10-2468. The Proposed ECL Drawings depict three other lines, entitled "LANDWARD LIMITS OF CONSTRUCTION," "POST CONSTRUCTION MEAN HIGH WATER LINE," and "SEAWARD LIMITS OF CONSTRUCTION," all of which are predominately straight lines. On April 21, 2010, the Board of Trustees of the Internal Improvement Fund by resolution (the "Resolution") "approved, adopted and certified for the purposes prescribed by Sections 161.141 through 161.211, Florida Statutes," OI Petitioners' Ex. 22, the Okaloosa Island Project ECL "particularly described in Exhibit A." Id. Exhibit A begins with the legal description of the ECL and ends with drawings entitled "OKALOOSA 001-016 EROSION CONTROL LINE OKALOOSA COUNTY, FLORIDA" (the "Approved ECL Drawings"). With a few exceptions (dates and titles) immaterial to this proceeding, the Approved ECL Drawings are identical to the Proposed ECL Drawings. The Seaward Limit of Construction Line is water-ward of the Post Construction MHWL, both of which are well water-ward of the MHWL set in September 2008. Generally, the width from the Seaward Limit of Construction Line to the Landward Limit of Construction Line on the drawings is about 400 feet. The Landward Limit of Construction The Landward Limit of Construction Line in much of the Proposed and Adopted ECL Drawings is over dry beach which, although under the strict control of the County, was declared to be "private" by the County's Protective Covenants and Restrictions. As its name suggests, the Landward Limit of Construction Line was expected by the ECL Surveyors to be the landward edge of the sand fill placed during construction of the Project. As explained by Mr. Trudnak at hearing, the line is "the back of the dune. So, it is the landward most point where sand will be placed." OI Tr. 270. But Mr. Trudnak explained further that the Landward Limit of Construction Line on the Proposed ECL Drawings (and therefore, on the Approved ECL Drawings as well) would not, in fact, be the actual landward- most point of sand placed during the construction phase of the restoration. Rather, the landward-most point where sand would be placed would be significantly waterward of the Landward Limit of Construction Lines on the drawings. Mr. Trudnak offered several reasons for his position. The Landward Limit of Construction Lines on the drawings are straight lines which is not consistent with what will happen when the construction is actually undertaken. Furthermore, a new limit of construction line will be determined when construction plans are submitted prior to the issuance by the Department of a Notice to Proceed, subsequent to the issuance of a JCP. The ECL Surveyors whose Proposed and Approved ECL Drawings contain the straight Landward Limit of Construction Lines that are too landward were not retained to produce drawings for construction plans. The line on the construction plans, when developed, will be much more seaward than the line on the Proposed and Approved ECL Drawings. The County intends, moreover, to construct the Project so that the landward limit of construction falls inside the 150 feet of public beach immediately waterward of the ECL, much further seaward of the Landward Limit of Construction Lines on the Proposed and Approved ECL Drawings. It is reasonable to expect that the County will be able to carry out its intention. See Okaloosa County Exs. 20 and 21, Case No. 10-2468 and Mr. Trudnak's testimony at OI Tr. 181. To the west of a point relatively close to R-12, that is, from R-1 to roughly R-12, the Project can be built on "public" property, that part of the beach declared by the Protective Covenants and Restrictions to be public and controlled by the officials of Okaloosa County or owned by the federal government as part of Eglin Air Force Base. The same is not true of the property to the east of a point just west of R-12. With the exception of the beach adjacent to Newman Brackin Wayside Park (see OI Joint Ex. 2B, sheet 4 of 4 and OI DEP 24), the property east of the federally owned Eglin property is privately owned to the MHWL. If the County does not get authorization from the owners of this private property to conduct restoration activities on the property, the property "would have to be skipped." OI Tr. 188. That would leave two gaps with no restoration landward of the MHWL: the eastern-most end, from roughly R-13.8 to R-15, and a gap from roughly R-11.9 to R-12.9. "Skipping" private properties in the event of a refusal of consent by the owners to use the property during construction would not mean that the Project should be abandoned. The Project could be fully constructed where consents were not required. Where necessary consents were not obtained, the Project could still be constructed below the MHWL. Thus, the project could be constructed over its entire proposed length from R-1 to R-15; east of R-12, however, the Project would not be at its proposed width along the entire length. Some sand from the areas that are restored fully would be transported to the private properties not restored above the MHWL. The Project width in the fully restored segments adjacent to the gaps would be diminished. The beach width in the eastern part of the Project will be narrower than if the private consents had been obtained and the eastern beach fully restored. If the Project's proposed width is narrowed in parts by lack of consents, the Project will not be as effective had the consents been obtained. Nonetheless, the Project will still provide protection over its entire length from surges and damaging wave action produced by tropical storms. Project Construction The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that work zone, there is a lot of heavy equipment that moves the sand around . . . looking at the Project . . . [from] an aerial view, roughly half the sand will be placed seaward and half the sand . . . landward of . . . [the] Mean High Water Line." WD Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a backberm and a wide variable berm. Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. The near-shore bar acts as a wave break. It dissipates wave energy during storms. A healthy near-shore bar provides significant storm protection. The Project will provide protection from a 50-year storm. Selection of the Sand Source: Borrow Area OK-A The engineers of the Project, ("Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore" site. The far-shore site is eight miles offshore and about a mile east of East Pass and is designated "OK-B." The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, OK-A is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately 0.9 miles wide north to south, it covers approximately 700 acres. At its landward-most side, it will be dredged 10 feet into the existing bottom. Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone. See WD Tr. 513. Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf." OI Tr. 513. It is referred as the near-shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site." The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts. Sand quality is "the number one criteri[on]." WD Tr. 143, 10-0515. It involves grain size, soil and shell content, sand color and size of material in the sand, including large shells. See OI Sherry 138. Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand. If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8-mile distance from shore that it would not impact the shoreline. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely. A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." WD Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distance. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B. Taylor Engineering (and ultimately the County) selected OK-A as the sand source. The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October 2009. The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." WD Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13. See further findings, below. The selection of OK-A was supported by Taylor Engineering's OK-A Borrow Area Impact Analysis. Borrow Area Impact Analysis An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July 2008. Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion. Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents. The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" WD Tr. 149. The basis was the 100-year storm data from Hurricane Opal. The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it: When you use . . . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . . . the propagation of distance of the waves is relatively short. And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . . in applications like [Okaloosa County's for the Western Destin Project], you ignore the effects of bottom friction. WD Tr. 150. The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." WD Tr. 152. Borrow Area OK-A is intended to serve five beach restoration projects in all. Three are completed: the two projects on Eglin Air Force Base and the Emergency Holiday Isle Project. The remaining two are the Western Destin Project and the Okaloosa Island Project. These five projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling. With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible. Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." WD Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." WD Tr. 152. (emphasis added). ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area. Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the borrow area would be negligible whether in normal or "storm" conditions. Upland Private Property Of the properties along the 2.8 miles of shoreline to be restored, six are deeded to the MHWL. The six are the properties of Eglin Air Force Base, the Sheraton Hotel, the Gulfarium, the Ramada Hotel, Destin West Beach and Bay Resort Condominium, and Seaspray Condominium. These properties are all located in the eastern part of the Project, from R-11.3 to Beasley Park at the east terminus of the Project. Intervenor Wallace and his wife Sondra S. Wallace were deeded Condominium Unit 502 in the Destin West Beach and Bay Resort-Gulfside by a Special Warranty Deed executed by Tolbert Gulfside Development Company on March 7, 2003. See OI Petitioners' 112. The Condominium Property associated with Destin West Beach and Bay Condominium extends to the MHWL of the Gulf of Mexico. The Parcel ID Number on the Special Warranty Deed is 00-2S-24-2185-0015-0030 (Parent Parcel). Id. A quitclaim deed admitted into evidence as OI County Exhibit 22 bears the same Parcel ID Number but without reference to "(Parent Parcel)." The grantor of the quitclaim deed is Okaloosa County and the grantee is Tolbert Enterprises, Inc. The deed contains the following language: IT IS THE EXPRESS intent of the Grantor that its reversionary estate in that portion of the original leasehold estate from the Okaloosa County and/or Okaloosa Island Authority which the Grantee now owns in the subject premises shall be merged with such present leasehold interest now owned by the Grantee, subject, however to such terms and conditions contained in the 1963 quitclaim deed of record from the United States of America to the Grantor and all Protective Covenants previously imposed of record on the above land by Okaloosa County or its agent, Okaloosa Island Authority, and by acceptance of this deed, Grantor acknowledges the validity of such Protective Covenants and Restrictions (with the term "owner" being substituted for "leaseholder" or "lessee" therein where appropriate), which are hereby reimposed. OI County Ex. 22 (emphasis in original). Whether the Protective Covenants and Restrictions apply to all of the six properties so that the first 150 feet landward of the MHWL is "public beach" under the "strict control of the County" is a question that cannot be decided on the state of this record. But it appears from the quitclaim deed that constitutes OI County Exhibit 22 that the County took pains when it conveyed the Okaloosa Island property subject to the deed to make sure that the grantees under the conveyances were aware of the Protective Covenants and Restrictions and that the County's intention in the conveyances was for the Protective Covenants and Restrictions to survive. For the properties in the Project that are not deeded to the MHWL, the County has control of the beaches through the Protective Covenants and Restrictions. In addition to the documents of record, the County's control is evidenced by seven main public access-ways to the beach along Okaloosa Island, additional smaller access-ways, public use of the access-ways, public parking serving access of the public to the beaches of Okaloosa Island and public use of the dry, sandy portion of the beach in Okaloosa Island. The Application An Application for a Coastal Construction Permit The Application was processed as a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit. Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits. The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See WD Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053(9) of the CCCL Statute provides as follows: "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 161.041 [the Shore Protection Statute] " The Department interprets section 161.053(9) to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP. Application Signatures Item 18 of the Application provides a signature line for the County and "the title of the person signing on its behalf." OI Joint Ex. 1, DEP From 73-500 (05/17/07), p. 4 of 9. The Item opens with: "A. By signing this application form, I am applying . . . for the permit and any proprietary authorizations identified above [see findings below related to "written authorizations"], . . . ." Id., (emphasis added). Item 18 also provides "signature lines" for an agent in Section B if the County designates an agent for the processing of the application. Section 18 C of the Application provides a signature line under the following heading: "PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING." There was no signature provided at any point in the application process by any person authorizing access to the property as called for by Item 18C. Joint Ex. 11, Page 4 of 27. The "Written Authorization" Provision Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in chapter 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute. Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1) and (2). Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4). Section (1) of rule 62B-41.008 provides, in pertinent part, as follows: A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department . . . The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" . . . is hereby incorporated by reference . . . . The application shall contain the following specific information: * * * (c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida. * * * (n) Written authorization for any duly- authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application. (emphasis added). Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B- 41.008(1)(f), (h), (i), (j), (k), (l), or (m), F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (c) or (n). The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the privately-owned properties within the Project area, including Intervenors. Demonstration of Property Ownership The Application demonstrated that the County owned much of the property subject to the Project. At the time of final hearing, it had permission, of course, to use that property. The County has also obtained the permission of the federal government to use Eglin Air Force Base property that is within the Project area. As for the other property, all privately owned, no written authorizations as of the final hearing had been obtained from the owners despite discussions between them and the County. Despite the clear requirement in rule 62B- 41.008(1)(c), the Department does not usually require that an applicant provide in the application written authorization from owners of upland property to be used in coastal construction projects. The Department might require written authorization in an application for certain coastal construction projects like a groin construction project, see OI tr. 476, or a similar project that involved one or two upland property owners. The typical beach restoration project, however, involves the use of many different upland properties, too many, in the Department's view to require the application to contain the written authorizations of all the owners. The Department justifies departure from enforcing the requirement of rule 62B-41.008(1)(c) in applications for beach restoration for a number of reasons. First, compliance is impractical. Aside from the significant number of signatures that must be obtained, the moment the application is submitted is too early in the process to require written authorization. In beach towns, where most restorations take place, many of the owners are absent and difficult to contact. By the time the restoration begins, the property may have changed hands. Second, the Department's practice is to require the authorizations as a permit condition and for written authorization to be submitted prior to construction, that is, sometime between when the JCP is obtained and the Notice to Proceed with construction is issued. An applicant in possession of a JCP for beach restoration cannot begin construction activities until a Notice to Proceed is issued. The aim of the rule is achieved in a timely manner whether all consents are submitted with an application or not. Aside from practical considerations and safeguards to ensure consent from upland property owners prior to the commencement of construction activities, written authorization in the application is not relevant in the Department's view in a permitting proceeding. Permitting proceedings are not designed to prevent trespass by an applicant. They are designed to consider environmental impacts. With regard to trespass considerations, there are other safeguards. These include the warning to the applicant in General Condition Six of the Draft JCP: 6. This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. The Draft JCP also contains General Condition Eight: 8. The Permittee, by accepting this permit, specifically agrees to allow authorized Department personnel with proper identification and at reasonable times, access to the premises where the permitted activity is located or conducted for the purpose of ascertaining compliance with the terms of the permit and with the rules of the Department and to have access to . . . copy any records that must be kept under conditions of the permit; to inspect the facility, equipment, practices, or operations regulated or required under this permit; and to sample or monitor any substances or parameters at any location reasonably necessary to assure compliance with this permit or Department rules. Reasonable time may depend on the nature of the concern being investigated. If the applicant conducted construction using upland property without written authorizations from the upland owner, the Department would view the construction to be in violation of the JCP and would bring an enforcement action to halt the construction until written authorization was obtained. There are many opportunities, therefore, to achieve the aim of the rule subsequent to the filing of an application. Lapse in the Application Chapter 62B-49 is entitled, "Joint Coastal Permits and Concurrent Processing of Proprietary Authorizations." Rule 62B-49.005 is entitled, "Application Requirements and Processing Procedures." The following appears in the rule: An application shall be denied if the applicant fails to provide additional information to the Department within six (6) months [the "Six Month Period"] after a written request for such information has been sent to the applicant. However, if the applicant can demonstrate that he or she has been actively working on collecting or developing the requested information, and that additional time will be required to complete their response to the "RAI," the applicant may request up to six (6) additional months to submit their response. Fla. Admin. Code R. 62B-49.005(4). On November 25, 2008, the Department sent its third Request for Information (the "Third RAI") to the County. The Third RAI asked for more information regarding a risk assessment, the permit fee, a biological opinion (the "Biological Opinion") from "Fish and Wildlife," OI tr. 91, and had a question regarding a lighting ordinance. The County did not respond to the Third RAI within six months which expired on May 25, 2009. Nor did it request an extension within the Six Month Period. Mr. Trefilio and others on behalf of the County were in touch with DEP throughout the Six Month Period about various issues concerning the JCP. See OI tr. 90. Mr. Trudnak, for example, in early May, prior to the expiration of the Six Month Period sent an e-mail to DEP personnel to inquire about the permit fee DEP had required because Taylor Engineering believed it was incorrect. The Department did not respond until early June. Taylor Engineering had been "continuously working on the . . . Economic Analysis that addressed the questions that DEP had about the Risk Assessment [and] . . . had been talking to DEP about that." OI Tr. 169-70. Mr. Trudnak corresponded with the Army Corp of Engineers about the Biological Opinion. His hope was that a draft could be timely submitted with the other responses to the RAI. He contacted Ralph Clark and spoke with Jamie Christoff, a Department employee, about its status. But, the County and its agents "were not able to get that done within the six month time frame." OI Tr. 170. On June 3, 2009, Mrs. Sherry wrote an e-mail to Michael Barnett. She asserted that the Application was dormant and had lapsed. She requested that it be denied on the basis of the rule. The next day, an e-mail from Mr. Barnett, Chief of DEP's Bureau of Beaches and Coastal Systems, posed the question to Department personnel, ". . . has there been any verbal or written communication from either the Applicant or their Agent as to when the Department might anticipate a response to RAI #3?" OI Petitioners' Ex. 65, Page 2 of 4. E-mail messages in the file and a conversation with her subordinate, Jamie Christoff, led Dr. Edwards, who was in charge of the processing of the Application, to conclude that the County and its agents had been working on the application during the Six Month Period. After the message from Mrs. Sherry to the Department (and after the expiration of the Six Month Period), Mr. Trudnak requested an extension of time under the rule. The extension was not granted in writing. Dr. Edwards concluded "because there was that active back and forth between the Department and the applicant [during the Six Month Period], there was no need for additional time being granted . . . ." OI Tr. 440. Application Deemed Complete Chapter 62B-49 establishes the joint coastal permit program "by combining the regulatory requirements of the coastal construction program (Section 161.041, F.S.) with the environmental resource (or wetland resource) permit program (Part IV of Chapter 373, F.S.) . . . ." Fla. Admin. Code R. 62B-49.001. The chapter also "provides concurrent review of any activity requiring a joint coastal permit that also requires a proprietary authorization for use of sovereign submerged lands owned by the Board of trustees of the Internal Improvement Trust Fund." Id. Rule 62B-49.003 is entitled "Policy." It provides as follows in pertinent part: Any application submitted pursuant to this chapter shall not be deemed complete . . . until the Department has received all information required for: a coastal construction permit under . . . Chapter 62B- 41, F.A.C.; . . . and Chapters 18-18, 18-20 and 18-21. Fla. Admin. Code R. 62B-49.003(3). Despite the absence in the Application of written authorizations required by rule 62B-41, the clear directive of rule 62B-49.003(3), and the failure of the County to respond in a timely manner to RAI #3 or obtain in writing an extension of the time to respond, the Department deemed the Application complete on December 30, 2009. If Written Authorizations are not Obtained If written authorizations are not obtained from the owners of the six private properties between R-11.3 and the eastern terminus of the Project, the County would have to decide whether and/or how to proceed. If the eastern-most 600 feet of the Project were deleted, for example, the Project could be modified to mitigate the effects of the deletion without much effect on the remainder of the Project. If more of the Project were deleted, it would present more of a challenge to the effectiveness of the Project. In any event, the Project can be completed along its entire length up to the MHWL. The Project may not be at full width where consents are not obtained but it will still provide some storm protection where narrowed. It would also still provide significant protection westward of R- 11.3 all the way to R-1 albeit the closer to R-11.3 the more diminished would be the effectiveness of the Project if the Project is not at full width east of R-11.3. Legislative Declaration of Public Interest Section 161.088, Florida Statutes, bears the catchline, "Declaration of public policy respecting beach erosion control and beach restoration and nourishment projects." It states: Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the . . . Gulf of Mexico . . . from erosion and that the Legislature makes provision for beach restoration and nourishment projects . . . . The Legislature declares that such beach restoration . . . projects, as approved pursuant to s. 161.161, are in the public interest; must be in an area designated as critically eroded shoreline, or benefit an adjacent critically eroded shoreline; . . . (emphasis added). Proprietary Public Interest Test Chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004 sets out management policies, standards and criteria. It opens as follows: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands . . . . General Proprietary. (a) For approval, all activities on sovereignty lands must be not contrary to the public interest . . . "Public interest" is defined as: Demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action . . . Fla. Admin. Code R. 18-21.003(51) (the "Proprietary Public Interest Test"). The rule also states that "[i]n determining the public interest in a request for use . . . [of] sovereignty lands . . . , the board shall consider the ultimate project and purpose to be served by said use " Dr. Fishkind, an economist, conducted an economic cost/benefit analysis of the Project and concluded that the economic benefit is between $5.77 and $12.09 million while the cost of the Project is between $16.30 and $21.58 million. The Department did not present an economist to rebut Dr. Fishkind's analysis. The Department takes the position that the Project is in the public interest and meets the Proprietary Public Interest Test because of the declaration by the Legislature in section 161.088. The Department interprets the Legislature's declaration in section 161.088 that beach restoration projects are in the public interest to relieve the County from having to provide evidence that the Project meets the Proprietary Public Interest Test and to relieve the County and the Department from a need to rebut the evidence provided by Petitioners' economist. The Department draws support for its interpretation from language in section 161.091(3). The language makes reference to the declaration in section 161.088 that beach restoration projects are in the public interest. It finds further "that erosion of the beaches of this state is detrimental to tourism, the state's major industry, further exposes the state's highly developed coastline to severe storm damage, and threatens beach-related jobs, which, if not stopped, may significantly reduce state sales tax revenues " § 161.091(3), Fla. Stat. Impacts The depth of OK-A should not exceed -49.4 feet, NGVD, in an area where the depth of the ocean bottom is roughly -40 feet, NGVD. OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area. Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." WD Tr. 633. Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts. Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally General Wave Dynamics "[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." WD Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also begin to diffract. Shoaling is a growth in height from interaction with the shallow bottom or a shoal. Refraction is a process of alignment of waves with bottom contours. Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features. As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions. Dr. Dally offered the following description of wave changes as they close in on the face of the beach and interact with the shoreline. The description includes potential impacts of an excavated OK-A on the beaches and shores adjacent to the Surf Dweller and El Matador condominium property: As they pass into the very nearshore . . . they, of course, grow in height. They then break . . . [or] [s]ometimes, as they pass over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation . . . * * * Wave reflection from abrupt bathymetric changes. . . in this case, the landward most . . . notch of the borrow area would be a reflective surface . . . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they will reflect and begin defraction [sic] so that it becomes a . . . complicated wave field . . . . WD Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport. Sediment Transport "Sand can move along or away from the beach in two ways." WD Tr. 1141. It can move along the shoreline or it can move offshore. Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, rather than those that break straight onto the beach. The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west. The Sherrys and Mr. Donovan own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "Those beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." WD Tr. 1143. This area of the Okaloosa County's beaches and shores is the area most likely to be affected by an excavated OK-A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site. Borrow Site Impacts Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area. The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," WD tr. 640, in essence, a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea. The second wave process creates the potential for the waves to become "very, very, complicated." WD Tr. 640. They could "trip," that is, the notch in the borrow area could break the waves. "[B]rag scattering" (WD tr. 641) could make the waves deteriorate into shorter period waves. If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," WD tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport. Like Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial. The area of shoreline that would be affected by wave impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern . . . increases the size of the shadow zone," WD tr. 680, to a size much larger "than the actual shadow zone of the . . . borrow area." Id. Along these same lines, if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property. The distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." WD Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And that's when you can really cause impacts to the beach, both accretive and erosive impacts." Id. (emphasis added). The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that adverse impacts will occur. The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach. In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report. The OK-A Borrow Area Impact Analysis Generally Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report. Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction. The only numerical data analysis specific to the excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report. The Report described its evaluative efforts: [T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes. STWAVE (Steady-State Spectral Wave Model) simulated normal (average) and extreme (100-year (yr) storm) waves propagating over the baseline and post-dredging bathymetries. ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet. WD County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics. Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data are not measured wave data. Instead, they consist of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data are then placed in a model coded to represent the entire Gulf. The WIS station from which data were collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurements, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurements would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however, If you don't have [field measurement data], then . . . especially over the long-term . . . a year or more [or] if you're analyzing your beach profile data over a 10 year period, you would like to have . . . wave data to accompany that 10 year period. Generally we don’t and that's when we start relying on models to fill in this missing information. WD Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is . . . limited to [the] deployment period." WD Tr. 1234. It is not practical to take 10 years' worth of field measurements. As Mr. Trudnak explained: Typically, you would install those gauges for . . . a month or a couple of months . . . you want to use representative conditions . . . you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions. * * * [W]hen you . . . install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you . . . capture representative conditions. Id. (emphasis added). The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data. For its extreme STWAVE modeling, Taylor relied on WIS information generated during Hurricane Opal in 1995. Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." WD Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County. Criticisms of Taylor's STWAVE Modeling Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction results from its STWAVE models or conduct any sediment transport analysis. Mr. Trudnak offered refutations of the criticisms. For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't . . . feeling the bottom so they're not being affected by the bottom friction." WD Tr. 1236. The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort. Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling was not sufficient to support an opinion of "no impacts," but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches. See WD Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models are." WD Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id. With regard to the modeling used in Taylor's Borrow Area Impact Analysis, Dr. Young summed up: [W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer . . . it's not precisely the right answer, but . . . nobody knows how wrong the answer is. I don't know it, Mr. Trudnak doesn't know and Mr. Clark doesn't know. And that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data. WD Tr. 1160. In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore borrow area impacts analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any. See tr. 1233 and 1234. The Boussinesq Model is typically used where diffraction plays the dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area. If not more appropriate than the Boussinesq Model, STWAVE is an acceptable model under the Project's circumstances. When asked about the Boussinesq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience, he was "almost certain," WD tr. 691, that Boussinesq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion . . . [that is] momentary . . . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial. When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." WD Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system. Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing. In short, Dr. Dally criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his testimony whether the impacts will be entirely de minimus, see rule 62B- 41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County, a system whose ocean bottom, beaches and shores already contain scalloped features. Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project. The Walton Project and Its Borrow Area Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County (East Destin) and western Walton County. Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project. Location and Comparison to OK-A The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See WD Ex. P-13. The area between the eastern-most point of the OK-A Borrow site and the western-most point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its eastern-most point is roughly one-half mile off-shore. OK-A is larger than the Walton Borrow Area and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water. Nonetheless, because of proximity, Petitioners characterize the two sites as similar. Despite proximity, there are significant differences between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK-A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . . . further offshore . . .[s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." WD Tr. 306. The predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . . . and it included the outer flanks of the ebb shoal." WD Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone. Walton Borrow Area Impact Analysis and Monitoring Taylor Engineering's borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." WD Tr. 156. The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year. Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach. As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report. Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." WD Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008. After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend . . . ." Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." WD Tr. 160. Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier. Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre-construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area. In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. WD Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area) is having a beneficial impact on the beaches to the west of the project and its borrow area. Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes. In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton Borrow Area, which showed erosion early after completion of the Project, is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts that are beneficial. Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark. Mr. Clark's Review of OK-A Impacts Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, and the Murrough P. O'Brien Award from the American Shore and Beach Preservation Association, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer. During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" WD tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water . . . ." Id. He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." WD Tr. 486. Specific duties of Mr. Clark's include the review of "scopes of work and project feasibility studies that are provided . . . by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review of the Okaloosa Island Application and additional information related to the Project. On the basis of Mr. Clark's review and his testimony, it is found that "the project is a well designed hurricane protection project that is critically needed to restore the beaches of this beach community of Okaloosa Island " OI Tr. 519. The Project will protect recreational benefits and wildlife habitat in addition to providing necessary storm protection. The placement of 940,000 cubic yard of sand fill as called for by the Draft JCP will provide a significant amount of storm protection from the storm surge and waves of hurricanes or lesser storms that had impacts to the beaches and shores in the Project area. See OI tr. 520. The excavation of the sand from OK-A for the Project along with the excavation of sand from OK-A for all of the other projects the borrow area serves is not expected to have any adverse impacts to the beaches of Santa Rosa Island, including the beaches within the Project area. See WD tr. 488. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system in Okaloosa Island and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity; extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents. Mr. Clark has reviewed 136 beach restoration projects. Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number," WD tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas. Id. The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies. Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips. In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project. During his 37 years of service, Mr. Clark has been on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico. Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document," WD tr. 494, now electronically available to the public on the Department's website. Mr. Clark performed the "Critically Eroded Shoreline" evaluation for the beaches and shoreline subject to the Project. Storm Protection It is reasonable to expect that hurricanes in the future will have impacts on Okaloosa Island. "Okaloosa Island is completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms and is in need of coastal protection." OI Tr. 536 The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. Comparison to Other Borrow Area Impacts The OK-A Borrow Area is an offshore borrow area. Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island. In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." WD Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area. Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach . . . ." WD Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." WD Tr. 520. If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but to the beach to the west of the borrow area the impact would be accretion. Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." WD Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores of Okaloosa County. Modeling and Dr. Young's Opinions For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering. Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island. Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse impact from a borrow area . . . ." WD Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id. Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young: [W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And . . . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design. * * * We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated. WD Tr. 1150-1 (emphasis added). When asked the question of whether there is a definition of a failed beach restoration project in the literature or that is generally accepted by the coastal engineering community, see WD tr. 1152, Dr. Young testified, "I have not seen one." Id.. He added, "I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." WD Tr. 1152-3. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts. Other Projects Constructed with OK-A Fill The OK-A Borrow Area is the sand source for other projects, several of which have been completed. Of the 7 million cubic yards of sand in OK-A, 1.1 million has been removed for other projects, including two projects on federal property that is part of Eglin Air Force Base, referred to as sites A-3 and A-13 (the "Eglin Projects"), and a small 2600-foot stretch of beach in Destin, referred to as the Holiday Isle Emergency Project. The Eglin Projects The Eglin Projects were completed in May 2010. During the construction phase of the Eglin Projects, hopper loads of OK-A Fill were analyzed on the basis of silt content. "[A] visual shell content analysis and a grain size analysis and color analysis" OI tr. 219, was also conducted on the hopper loads of OK-A Fill. An analysis of carbonate content was not conducted during the construction phase because of expense. Carbonate content analysis was saved for later after "post construction sampling." Id. The Eglin Projects were governed by a Sand Quality Control and Quality Assurance Plan (the "Sand QC/QA Plan") approved by the Department. The Okaloosa Island Project is also governed by a Sand QC/QA Plan. Sand QC/QA Plans The Department requires an application for beach restoration to include a Sand QA/QC Plan by rule: The application shall contain the following specific information: * * * (k) Two complete sets of construction plans and specifications . . . . The plans shall include the following: * * * 4. Permit applications for . . . beach restoration . . . shall include: * * * Quality control/assurance plan that will ensure that the sediment from the borrow sites to be used in the project will meet the standard in paragraph 62B-41.007(2)(j), F.A.C. [the Sand Rule] Fla. Admin. Code R. 62B-41.008(1). The purpose of a Sand QC/QA Plan was explained at hearing by Dr. Koch. It provides an outline of a level of observation and testing that has to be done during construction and post-construction. It provides remediation measures if fill is placed on the beach that is not "beach compatible fill" as defined in the Sand Rule. It is not a method by which the Department obtains reasonable assurance of compliance; reasonable assurance is obtained by the Department through "review of the sediment data." See OI tr. 705. The QC/QA Plan is more like "an insurance policy." Id. If something were to happen that was unexpected or not in compliance with the Sand Rule, the QA/QC Plans ensure that the "dredger is not going to be dredging outside the limits that's . . . outlined in the plan." OI Tr. 706. If non-compatible beach fill "were to be placed on the beach, [the QC/QA Plan] outlines triggers for [remediation] so that [remedial] action can be taken immediately." OI Tr. 707. Application of the Sand QC/QA to Eglin Project A-3 A few of the hopper loads used on Eglin A-3 failed. "One or two had a carbonate content greater than 5 percent. A couple had a grain size that was a millimeter or two under the acceptable range." OI Tr. 220. Given that the hopper used in the Eglin A-3 Project holds 2,500 cubic yards of material and that DEP requires compliance over an area of 10,000 square feet, "sand from one hopper load [that failed] could be blended in with sand from other hopper loads." Id. The remedial measure employed in the Eglin A-3 Project of blending non-compliant fill with good fill did not succeed. Mr. Trudnak offered at hearing that the OK-A Fill used at the Eglin A-3 Project had "a higher percentage of dark material," OI tr. 216, than the fill used in the Emergency Holiday Isle Project and therefore, the sand color in the restored Eglin A-3 Project "is inferior to the [sand color of the restored beach in the Emergency] Holiday Isle Project." Id. The darkness of the material used in the Eglin A-3 Project was confirmed by aerial photography conducted by Dr. Young a month after construction was completed. See discussion, below. Mr. Trudnak attributed the inferior quality of the fill used in the Eglin A-3 Project to the area of OK-A from which it was taken: the southeast and south central portions. Fill taken for the Emergency Holiday Isle Project which Mr. Trudnak opined was superior from the standpoint of color was taken from OK-A's southwest corner. Mr. Trudnak's assessment of the inferior color of the sand placed in the Eglin A-3 Project, however, was not revealed by testing of four post-construction samples taken on May 27, 2010 and tested on June 2, 2010. Those four samples all yielded recorded results for Munsell color at the lightest (and predominate) color assigned to the native beach: 5Y 8/1 or as the post construction testing results admitted into evidence show: "5Y Chroma 1 Value 8." See OI County Ex. 13. These tests results call into question the validity of the tests and other test results of the quality of the sand that is OK-A Fill. Sand Quality Quartz and Carbonate; Native Sand Quartz or Silicon Dioxide, a principal constituent of ordinary sand, is a brilliant, crystalline mineral, occurring in abundance in the earth's crust, most often in a colorless, transparent form. Quartz is usually present in beach sands in high percentages. Like quartz, carbonate also occurs in abundance in the earth's crust and is often present in beach sand. The source of carbonate in beach sand is mainly shells of organisms like clams and scallops. But carbonates that are not from shells also occur in marine environments. These non-shell carbonates may also be constituents of beach sand. The sand on the beaches of Okaloosa Island is predominately quartz and contains an extraordinarily low amount of carbonates. The references to Okaloosa Island beaches as being composed of "sugar white sand" and the beauty of their color which drew the Sherrys to Okaloosa Island is due to their general character as predominately "quartz" beaches to an unusual degree rather than as beaches with a significant amount of carbonate content or other content that would make the color other than "sugar white." As Dr. Young put it in the section of his report which analyzed the carbonate content of OK-A Sand used at A-3, the Eglin East Beach Restoration Project: Okaloosa Island sands are renowned for their unique, mature, quartz composition providing a "dramatic landscape of drifted blinding white sand that often puts northern visitors in mind of snow;" to quote the Walton County Chamber of Commerce website. This project [the Eglin East Project] has replaced that pure quartz sand with beach fill [that] would rank the beach as the highest carbonate content beach on the Panhandle. OI Petitioners' Ex. 40, (un-numbered 5th page). The awareness of the quality and color of Okaloosa Island beaches is accepted by all of the parties to this proceeding. Taylor Engineering, the County's agent, wrote the following in section 3.3 of its Sand Source Investigation Report, entitled "Color Analysis": Residents and visitors cherish the beaches of Okaloosa County for their very white clean sand. Thus, renourishment activity must address maintenance of the native beach sand color. * * * The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y8/1 (white) and described several other samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations . . . . OI Petitioners' Ex. 42 at 16, OKC41283 (emphasis added). In order to ensure that the County's restoration efforts in Okaloosa Island would "address maintenance of the native beach sand color" and other characteristics of the sand native to Okaloosa Island, Taylor and the County made significant effort to comply with the Department's Sand Rule. The Sand Rule Rule 62B-41.007 is entitled "Design, Siting and Other Requirements." Section (1) sets out requirements in general for coastal construction. Section (2) provides special guidelines. Subsection (j) of Section (2) (the "Sand Rule") sets out the guidelines for "beach compatible fill" to be used in coastal construction projects including the beach restoration of the Okaloosa Island Project. The Sand Rule reads as follows: 62B-41.007 Design, Siting and Other Requirements. * * * Coastal construction shall be designed in accordance with established engineering and scientific practice, and the following special guidelines: * * * To protect the environmental function of Florida's beaches, only beach compatible fill shall be placed on the beach or in any associated dune system. Beach compatible fill is material that maintains the general character and functionality of the material occurring on the beach and in the adjacent dune and coastal system. Such material shall be predominately of carbonate, quartz or similar material with a particle size distribution ranging between 0.0062mm (4.0F) and 4.76mm (-2.25F)(classified as sand by either the Unified Soils or the Wentworth classification), shall be similar in color and grain size distribution (sand grain frequency, mean and median grain size and sorting coefficient) to the material in the existing coastal system at the disposal site and shall not contain: Greater than 5 percent, by weight, silt, clay or colloids passing the #230 sieve (4.0F); Greater than 5 percent, by weight, fine gravel retained on the #4 sieve (- 2.25F); Coarse gravel, cobbles or material retained on the 3/4 inch sieve in a percentage or size greater than found on the native beach; Construction debris, toxic material or other foreign matter; and, Not result in cementation of the beach. If rocks or other non-specified materials appear on the surface of the filled beach in excess of 50% of background in any 10,000 square foot area, then surface rock should be removed from those areas. These areas shall also be tested for subsurface rock percentage and remediated as required. If the natural beach exceeds any of the limiting parameters listed above, then the fill material shall not exceed the naturally occurring level for that parameter. Fla. Admin. Code R. 62B-41.007(2)(j) (emphasis added). In compliance with the Sand Rule, the Department seeks to ensure that fill placed on the beach in a restoration project maintains the general character and functionality occurring in the coastal and dune system adjacent to the beach that is the placement site. If a beach is predominately quartz, then the fill should be predominately quartz. The same is true for a beach that is predominately carbonate; the fill to restore that beach should be predominately carbonate. It is the general character and functionality of sand on the beach and the adjacent coastal and dune system where the fill is to be placed that is the baseline against which the Department determines the compatibility of fill. Fill compatible with one beach in Florida is not compatible with all beaches in Florida. Fill that is predominately carbonate, for example, might be compatible with many beaches in the state; it would not be compatible with the predominately quartz coastal and dune systems adjacent to the beaches of Okaloosa Island. OK-A Fill: Not Compatible The environmental functions the Department considered when applying the Sand Rule to this case are nesting habitat for turtles, nesting and foraging habitat for shorebirds and general habitat for beach mice. There may be overlap between the general character of the material at issue and its environmental functionality. Color, a sand characteristic, is a component of the general character of sand. Color can also relate to environmental functionality. It has an effect, for example, on the temperature of the sand which, in turn, determines sex ratios for turtle hatchlings as well as the incubation period for turtle eggs. Sand color, therefore, has an effect on environmental function related to sea turtles. To the extent it affects thermal characteristics of beach sand, color can affect other organisms whose habitat includes beaches. The County and the Department presented evidence that the fill from OK-A ("OK-A Fill") will maintain the environmental functionality on the Project's beaches. The evidence presented by Petitioners to rebut the evidence of the County and Department as to environmental functions or functionality otherwise was insubstantial. The fill from OK-A will maintain the environmental functionality of the Project's placement site. In contrast to environmental functionality, the evidence established that OK-A Fill will not maintain the general character of the native beach subject to the Okaloosa Island Project beach. The finding that the fill will not maintain the general character of the placement site is based on three factors: 1.) carbonate content, 2.) color, and 3.) the presence of 3/4 inch material. Carbonate Content Native Beach Taylor Engineering's Sand Search Investigation Report, see Petitioners' OI 42, Case No. 10-2468, determined the carbonate content of the native beach in Okaloosa Island to be 0.00%. Most beaches in Florida have shell and carbonate content. Carbonate content of "0.00%," therefore, is highly unusual and it underscores the unusual if not unique character of Okaloosa Island beaches. Taylor's determination of "0.00%" carbonate content of the native beach was based on acid digestion tests conducted by Ellis & Associates, a certified laboratory. While there may be other ways of objectively determining carbonate content, acid digestion is the best method. Carbonate content cannot be determined on a percentage basis visually. To arrive at an accurate acceptable percentage, acid digestion is required. See Deposition of Gregory William Stone, Ph.D., at 22. Taylor Engineering conducted tests on 16 sand samples collected by Taylor at four different monuments on the beach and from the adjacent dune system in Okaloosa Island. At R-1 and R- 6, samples were taken at "Mid-Berm," mean high water and mean low water. At R-11 and R-16, samples were taken in areas of dune vegetation, at the dune toe, Mid-Berm, mean high water and mean low water. (Samples were also taken by Taylor in areas of dune vegetation and at the dune toe at R-1 and R-6. These samples were excluded from the analysis by Ellis and Associates because they represented "non-native dune restoration sand trucked in from an upland source." OI Joint Ex. 3G at 2.2). Each of the 16 samples of native beach sand yielded a calcium carbonate content of "0.00%." There was other evidence that indicated that beaches of Okaloosa Island must contain some amount of carbonate, no matter how small, despite Taylor Engineering's testing and analyses that yielded carbonate content at 0.00%. Dr. Stone, the County's witness, testified that in the Okaloosa Island portion of Santa Rosa Island carbonate "is in the swash zone . . . where the waves break, and the water is pushed up and then falls back under gravity." Deposition of Gregory William Stone, Ph.D., at 12. Carbonates from shells are always present in swash zones. Dr. Stone had not conducted carbonate analyses of the native sand and could not testify as to what percentage of Okaloosa Island beach sand is carbonate. During storms, however, large shell fragments are pushed onto the beach. The conflict in the evidence as to the extent to which Okaloosa Island beach sand contains carbonates is resolved by the following. The carbonate content of the native sand is extraordinarily low, at a figure that approaches zero. OK-A Fill Carbonate The persuasive evidence in this case establishes that the carbonate content of OK-A Fill is so much higher than the carbonate content of the sand native to Okaloosa Island beaches that, for this Project, OK-A Fill is not "beach compatible fill," as defined by the Sand Rule. Supportive of the finding is Dr. Young's credible analysis of the OK-A Fill used in the Eglin East Project. The analysis appears in OI Petitioners' Exhibit 40 (marked as "DOAH Case No. 10-2468, Exhibit Sherry 40"), entitled: "Analysis of carbonate content for the Eglin (East) beach nourishment project." Dr. Young acquired 21 random samples of beach sediment in August of 2010 from the Eglin East Project after construction using a sampling grid and ArcGIS. Criticized by the Department because the samples were all taken close to the shoreline and none were taken within the back of the berm to the back of the dune, his methodology for selecting and collecting the samples is found to be reasonable nonetheless. The samples were subjected to standard procedures including "Acid Digestion" for the determination of insoluble residue as an estimate of carbonate content. The data from Dr. Young's "acid digestion/insoluble residue determination," see OI Petitioners' Ex. 40 at 4, show carbonate content to range from as low as 3.89% to as high as 11.81% (using rounded figures). The averaging of the percentage of carbonate content for the 21 samples yields an average carbonate content for OK-A fill of 6.29% (a rounded figure). In addition to Dr. Young's carbonate content results for OK-A fill used in the Eglin East Project, carbonate content acid digestion testing results of OK-A Sand was introduced into evidence as part of the Sand Source Investigation. See OI Petitioners' 42. Table 5.5 of the document, id. at 36, shows that 61 vibracore samples were taken from different locations and different depths at the locations in OK-A. Of the 61 vibracore samples, 24 were subjected to analysis for carbonate content. Several were rejected because they were out of the area to be dredged. The acid digestion tests conducted on Taylor's behalf for the samples selected to be included in the results yielded an average carbonate content of OK-A fill at 3.77%. The carbonate content of OK-A fill, whether measured by Dr. Young or Taylor Engineering, significantly exceeds the carbonate content of seven beaches along the Panhandle of Florida tested for carbonate. These beaches stretch from Perdido Bay in Escambia County to the West to the Walton County 30 A Corridor in the east (with Okaloosa Island being in the middle). The carbonate content in these seven beaches averages 0.6%. The beach with the highest carbonate content of the seven (denominated "Perdido Bay" by Petitioners' Exhibit 3) is located in Escambia County. It is shown to have a carbonate content of 1.4%. Of the seven, the beach with the lowest carbonate content is "Okaloosa Island" at "0." OI Petitioners' 3. The restored beach subject to the Project, therefore, would change from prior to restoration to having either no carbonate content or almost none to being the beach on the panhandle, at least as to its restored portion, with the highest carbonate content by a significant margin. The fill to be used in the Project is not "beach compatible fill" because it will not maintain the general character of the pre-Project sand from the standpoint of carbonate content. 2. Color Unlike the objective testing (acid digestion) that was used to determine the carbonate content of OK-A Fill and sand native to Okaloosa Island, the color of the fill and native sand was determined subjectively. Color determinations were made at various stages in the application process prior to the issuance of the Consolidated NOI. One determination was made when Taylor Engineering conducted an investigation (the "Sand Bleaching Investigation") into how much time it would take for OK-A Fill to lighten up and to what degree it would lighten after it had been excavated and exposed to sunlight and the atmosphere. The investigation led to a report issued in October of 2008 (the "2008 Sand Bleaching Report"). Another determination was made by Ellis and Associates, the laboratory which contracted its work with Taylor. The determinations were reported in a document entitled "Eglin AFB/Okaloosa County/Destin Sand Source Investigation- Okaloosa County, FL" dated October of 2009 (the "2009 Sand Source Report"). Other determinations were made by Department personnel. All of the various color determinations made at the different steps employed the Munsell Color System. The Munsell Color System In Florida, the Munsell System is used to assess the color of beach sand and sand fill used in restoration projects. The Munsell Color System assigns color notations composed of the three dimensions of a color sphere it uses as a model. The three dimensions of the sphere represent hue (five colors of the rainbow and five colors in between each of the five colors), value (lightness), and chroma (saturation or color purity). With regard to hue, Section 3.3 entitled "Color Analysis" of Taylor's Sand Source Investigation Report states, "The hue notation of a color indicates its relation to red, yellow, green, blue and purple." OI Petitioners' Ex. 42 at 16, OKC41283. Hues are identified in Munsell notation by one of ten alphabetical notations that are either a single letter and a number or two letters and a number. The single letter notations indicate the color, "R" for red, "Y" for yellow, "G" for green, "B" for blue and "P" for purple. The double-letter notations are also color notations: "YR" for yellow-red (orange), "GY" for green-yellow, "BG" for blue-green, "PB" for purple-blue, and "RP" for red-purple. The number notation is for one of ten degrees or shades of each hue. The hue that bears a five is not influenced by the adjacent hues. Thus, "5Y" is completely yellow without any influences of "green-yellow" or "yellow-red." The hues that matched the colors of the sand analyzed in this case were either "Y" which stands for "Yellow" or "YR," "yellow-red." The value notation in the Munsell Color System indicates lightness. The Munsell symbols for value span from 0 for absolute black to 10 for absolute white. "Thus, a value of 5 falls visually midway between absolute white and absolute black." Id. The chroma notation "indicates strength or departure from a neutral of the same lightness." Id. The lower the chroma number and the higher the value, the lighter is the color. Munsell color charts used in this case describe a value of 8 and a chroma of 1 to be "white." Thus sand classified as "5Y 8/1" would be a hue of "yellow" that approaches "white" because of value and chroma. Sand classified as "5y 7/1" or 5Y 7/2" as allowed by the permit would not be called "white" but rather, from what appears in Table 1.1 of the Sand Bleaching Investigation Report a grayish shade of "yellow." See OI Joint Ex. 3F at 2. Allowable Color Table 1 of Attachment G to the Application sets out "Sediment Characteristics" as part of the Draft Sand Quality Control and Quality Assurance Plan [the "Draft Sand QC/QA Plan"] for Eglin AFB/Okaloosa Island Beach Restoration Project." OI Joint Ex. 1G. Allowable Moist Munsell Color proposed by the Draft Sand QC/QA Plan for "Native Beach" is "2.5Y 7/1 or lighter." Id., Table 1. For "Borrow Area Acceptable Material Limits," it is "2.5Y 6/2 or lighter." Id. The values of the borrow area were applied for at "6" or lighter because "70 percent of [OK-A] sand has a Munsell value of 7 or lighter and, roughly, 30 percent has value of 6." OI Tr. 362. The moist Munsell colors the Application proposed to be considered as the color of the native beach and acceptable colors for OK-A Fill were not approved by the Department. The Draft JCP set the two, respectively, at "5Y 7/1 - 5Y 8/1" and "5Y 7/2, 2.5Y 7/2, or lighter." OI Joint Ex. 11, last page (un- numbered). A "5Y 7/2" is darker than "5Y 7/1," which in turn is darker than "5Y 8/1," the lightest color assigned by the Draft JCP to the native beach. A "2.5Y 7/2" shares the same value and chroma as a "5Y 7/2" but its hue is not a true yellow; it is of a hue closer to yellow-red (orange) than is the full yellow hue "5Y." Immediately after being dredged, OK-A Fill is darker than the native beach sand. For the time it has been at the bottom of the Gulf, it has not been exposed to natural forces that Taylor hypothesizes to affect the color of the sand on Okaloosa Island's beaches. Native Okaloosa Island beach sand, subject to sun, winds and waves, on the other hand, in Mr. Trudnak's view, has "been in an environment where it's really cleaned up." OI Tr. 212. The Sand Bleaching Investigation conducted by Taylor Engineering concluded that OK-A Fill lightens up once it is dredged and exposed to the elements. Sand Bleaching Investigation Before Taylor prepared its Sand Source Investigation Report that is contained in the Application, it sought to quantify how long it would take to OK-A Fill to lighten and the degree of lightening, if any, after placement on the beach. Taylor's investigation led to a report (the "Sand Bleaching Investigation" and the "Sand Bleaching Report"). See OI Joint Ex. 3F. Forty samples of OK-A fill were kept on the rooftop of a building in Jacksonville and subjected to natural conditions for at least 99 days. The samples were compared to Munsell colors. See the representation of the color of Munsell Hue 5Y in 24 panes on a chart labeled "Table 1.1 Representation of Munsell Colors Used in this Analysis" in the Sand Bleaching Report, OI Joint Ex. 3F, at 2. Values range from 4 to 8 with half steps between each value (4.5 and 5.5, for example) and chromas of 1, 2 and 3. The difference between "5Y 6/1" and "5Y 8/1" is obvious to the human eye. See OI Joint Ex. 3F at 2. The comparison of a sample of sand to Munsell colors and the grading of the sample leading to the assignment of the three Munsell color dimensions do not constitute objective, scientific measurement. Instead, it is merely a visual comparison by the person conducting the test. "[I]t is a subjective test." OI Tr. 237. The grading of the values in Taylor Sand Bleaching Investigation was determined visually by two Taylor employees. As Ms. Naimaster, one of the two Taylor employees testified, "[w]e held the sand up to the book." Naimaster Deposition at 9. Ms. Naimaster did not have any specialized training in use of the Munsell Color System. She was taught how to use the system by the other Taylor employee involved in the grading of the samples, Mr. Hall. Together, the two graded the samples toward the aim of determining the time it took for them to lighten and the degree of lightening. Mr. Hall and Ms. Naimaster reached the conclusion that the majority of the samples taken in the Sand Bleaching Investigation, when exposed to the elements on a Jacksonville rooftop lightened one value, say, "from a Munsell 7 to a Munsell 8 or a Munsell 6 to a Munsell 7." OI Tr. 214. They agreed on most of the comparisons of the samples pre-exposure to the samples post-exposure. When they disagreed, they worked collaboratively: We held the sample up to the book, and he said what he thought, I said what I thought, and we decided together, who was closer. Naimaster Deposition at 11. Mr. Hall, Ms. Naimaster's trainer, was a 27-year old Taylor staff engineer with a Masters of Engineering from Cambridge University in England at the time of his deposition in July 2010. His sole experience with sand bleaching consisted of the work he did that led to the 2008 Sand Bleaching Report. Prior to that work, he had no experience in sand bleaching. Whether quartz sand grains change color when exposed to sun, wind, and water was unknown to Mr. Hall at the time of his deposition. His description of the grading process during the Sand Bleaching Investigation matched Ms. Naimaster's: they agreed on the color selections for the samples "approximately 80 percent of the time; and then on the ones we disagreed, it was fairly quick to come to a consensus." Jonathan Hall DEPO-10- 2468 at 15. The lightening observed by Mr. Hall and Ms. Naimaster did not occur because of a change in the quartz in the samples. It occurred because of changes in the impurities in or on the quartz. Sand Source Grading and Review While anybody can look at a sample of beach sand and compare it to a Munsell color sheet and come up with a subjective determination of the Munsell color dimensions to be assigned, Taylor Engineering relied on a certified laboratory, Ellis and Associates, to conduct the grading of OK-A Fill during the Sand Source Investigation. See OI Tr. 237. The Sand Source Investigation report was also reviewed by Dr. Jennifer Koch, a coastal geologist with the Department, including "the color tests for each of the individual samples." OI Tr. 663. Her review, when it came to color consisted of cross-checking the color data that was provided. Although based on "data" (the samples and the Munsell Color sheets), her review was not conducted using objective standards. It was visual and subjective as she explained: You look at the color information for every individual sample. And then . . . a Vibracore or a portion of borrow area and you kind of look from there. Kind of like creating composites in the same way as you would with sediment data. You look at the overall color and you look at the individual sample color and compare that to what's existing on the beach. OI Tr. 686. Dr. Koch also visited other beach restoration projects to examine OK-A Fill in use. Later, Dr. Koch did her own color testing on samples using the Munsell Color System when she returned to her office. But before she left, Dr. Koch took pictures of the beach restoration in the emergency Holiday Isle project in which OK-A Fill was used. They appear in Department Exhibit 42. The pictures show the fill material to be clearly darker than the native beach sand. Nonetheless, Dr. Koch's assessment of the OK-A Fill used during the Holiday Isle Emergency Project is that "[t]he material was beautiful and it was beach compatible." OI Tr. 703. The Department concluded that the County had provided reasonable assurance that the OK-A Fill material to be used in the Project is beach compatible in every way, including color. The Department's Exhibit 42 establishes that the color of OK-A Fill after placement at Holiday Isle is significantly darker than the native beach. Dr. Young's testimony and other photographs in evidence relate to the color of OK-A Fill more than 100 days after it had been placed on the beach. The testimony and photographs establish that the color of the fill from OK-A is significantly darker than 5Y 8/1, the predominate color of Okaloosa Island native sand, after it has been on the beach for a time long enough to have received the effects of weathering claimed by the Sand Bleaching Investigation Report. The color of the native beach in A-3, one of the Eglin Projects, is rated as 5Y 8/1 or 5Y 7/1, the same as the native beach subject to the Okaloosa Island Project. In Dr. Young's aerials, taken from about 500 feet on June 21, 2010, the line between the restored beach and the native beach is easily seen by their color difference, the fill from OK-A being obviously darker. Sand Source Report Color Conclusions The Sand Source Report states the following: The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y 8/1 (white) and described several others samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations (see Section 2.2). To help establish acceptable borrow material color criteria, the current study evaluated the effects of sun bleaching on sediment color. The color test exposed 40 potential offshore borrow material samples - representing various core borings collected during the detail phase of the investigation (Chapter 5) - to the Florida sun between 12/7/2007 and 3/17/2008 (99 days). Of the 40 samples, 23 began as value 7 and 13 began as value 6. The samples represented various vibracore depths, ranging between 0 ft and 18 ft. The test results, presented in Table 3.5, indicate that all samples with a Munsell value/chroma of 7/1, 7/2, or 7/3 turned white or nearly white (value of 8) due to weathering within 99 days of placement. Approximately 85% of placed sand with a Munsell value/chroma of 6/1, 6/2, or 6/3 lightened in value to at least 7 within that same period. * * * Importantly, the weathering analysis discussed above likely underestimates the level of lightening the beach fill will experience for two reasons. First, the borrow material will undergo a rigorous washing effect through particle abrasion as the sand travels through the dredge pipes during dredge loading and offloading. Second, wind and waves will weather the beach fill. The weathering analysis did not account for such weathering actions. OI Petitioners' Ex. 42, Section 3.3, at 16-17 (emphasis added). The methodology employed in the Sand Source and Sand Bleaching Investigation tests, however, was not scientific. See OI tr. 1424. Explanations The County offered several explanations to minimize the disparity between the quality of sand in OK-A Fill when first placed on the beach and the quality of the sand native to Okaloosa Island. Sand raking is an explanation offered for the low carbonate content of the native sand as determined by Taylor Engineering. "The county has been mechanically cleaning the beaches for close to two decades. Depending upon . . . the season, it's either once every day . . . [or] twice a week . . . [t]hese machines pick up things as small [as] cigarette butts and they've been picking up . . . shells, as well . . . ." OI Tr. 97. The darkness of OK-A Fill used in the Eglin Projects and the darkness of the OK-A Fill in general was attributed by Dr. Stone and Dr. Koch to heavy mineral content. Heavy minerals or iron-bearing minerals occur naturally in Florida Panhandle beach sand and in sand offshore. Dr. Stone's testimony about iron-bearing minerals suggested that OK-A Fill prior to dredging is in an anerobic environment and therefore will lighten when exposed to oxygen in the beach environment was refuted by Dr. Young. As Dr. Young testified, sediments in an anerobic environment are in a reduced form that "tend to look black or gray on the Munsell chart." OI Tr. 1424. Sediments from an anerobic environment are termed "gley," which indicates the presence of reduced iron. The OK-A Fill pumped onto the beach in the Eglin A-3 Project "tend to look more tan or brown, which suggest that the iron in them has . . . been oxidized." OI Tr. 1424-25. Iron imparts much of the color of sediment. If the iron in OK-A Fill has been oxidized prior to excavation, it is not "gleyed." It cannot be expected that it will oxidize and lighten after exposure to air. See tr. 1425 and 1426. As recognized by all parties OK-A Fill at the moment of excavation is darker than the sand native to the beaches of Okaloosa Island. When it is initially placed on the beach, the evidence demonstrates that the rigorous washing effect from particle abrasion as it is piped ashore does not lighten it sufficiently to meet the "whiteness" of the color of the native sand as hoped for by Taylor and the County as the result of their investigations. Aerial photographs of the Eglin A-3 Project taken four weeks after the completion of the project demonstrate "how easily one can . . . delineate the boundaries of the project based entirely on color being assessed at a height of about 400 feet." See OI Petitioners' 8-DDD and 8-GGG. The Eglin A-3 Project was completed at the end of May in 2010. Dr. Young visited the Eglin A-3 site "four or five times," OI tr. 1422, in late June, August and on November 30, 2010. During those visits, including the last visit more than 180 days or six months since completion of the project, he did not observe the OK-A Fill to have "bleached or lightened in color." Id. 3. 3/4 Inch Material Native sand in the beach subject to the Project has little to no material that would be retained on a 3/4 inch sieve. Photographs of OK-A Fill used in the Emergency Holiday Isle Project and at the Eglin A-3 Project were introduced into evidence. They demonstrate the presence in OK-A Fill of an amount of shell material that would not pass through a 3/4 inch sieve much greater than is present on the beach subject to the Project. After the Emergency Holiday Isle Project, an effort was made to remove shells that were in the OK-A Fill deposited on the beach. How much the shell weighed that was removed or how many days of tilling or screening to remove the shells was not established. Mr. Trefilio, the Coastal Management Coordinator acting on behalf of the County "told our contractor to use his professional judgment to basically remove as many shells as possible." OI Tr. 140. Dr. Young' visit to the Eglin A-3 Project and his personal observation establish that the OK-A Fill used at the A-3 site contains a significant amount of shell material that would not be retained on a 3/4 inch sieve. The fill from OK-A already excavated and used in other projects contains material that would be retained on the 3/4 inch sieve in a percentage significantly greater than the percentage of that material on the beach subject to the Project. It is highly likely that any fill taken from OK-A to be used in the Project would contain unacceptably-sized material at significantly greater percentages than on the native beach. Regulatory Public Interest Section 373.414 requires the County to provide reasonable assurance that the activity authorized by the JCP "will be clearly in the public interest" (as opposed to "not contrary to the public interest") since a portion of the OK-A Borrow Area is in an OFW. The statute provides: In determining whether an activity . . . is clearly in the public interest, . . . the department shall consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. § 373.414(1)(a), Fla. Stat. The Department determined the Project to be clearly in the public interest. In doing so, the Department did not consider the Project's "non-environmental" impacts to the property of others under the authority of Miller v. Dep't of Envtl. Reg., 504 So. 2d 1425 (Fla. 1st DCA 1987). Criterion 1 A distinction is to be drawn between effect on the public health, safety and welfare, on the one hand, and the property of others, on the other hand. The project will not adversely affect the public health, safety or welfare of others. To the contrary it will serve the public health, safety and welfare. The restoration will protect upland structures and property vulnerable to extreme storm events and waves and storm surge should they occur during the life of the Project. The Project will affect the property of the Sherrys and Mr. Donovan by placing sand on the beach waterward of their condominium property that is not beach-compatible fill. The effect is likely to be adverse but to what extent is not established by this record. Criterion 2 The draft permit contains minimization measures during construction to protect endangered and threatened species such as turtles, shorebirds, and mice. The restoration of a critically eroded beach increases the habitat for endangered and threatened species. The environmental assessment developed to address potential impacts to threatened or endangered species, supplemented with literature review of the effects of beach restoration on natural habitat, demonstrates that there will be little to no adverse impacts with the exception of to the benthic infauna communities. Any adverse affects to the benthic infauna communities would be temporary. These communities rebound quickly. The temporary impacts are not considered adverse and they are certainly not significantly adverse. Dr. Robbin Trindell, the Biological Administrator for the State of Florida Management Program, reviewed the Project and concluded that OK-Fill is acceptable for turtle nesting. The conclusion was based on the grain size information submitted by Dr. Stone and from working with the Department's biologists. Criterion 3 The Project will not affect navigation. It is far from inlets and a significant distance from East Pass, which connects Choctawhatchee Bay to the Gulf. The Project may cause erosion, but it may also cause beneficial impacts to the shoreline. Harmful shoaling will not be caused by the Project. Criterion 4 Fishing is not expected to be impacted by the Project. The recreational value of the beach should increase. Marine productivity would not be affected adversely with the exception of the temporary impact to benthic infauna, an impact that would not be adverse in the long term. Criterion 5 The activity will be temporary. Criterion 6 There are no significant historical and archaeological resources in the project area. Criterion 7 The current condition and relative value of functions being performed by the areas affected by the Project will remain the same. It will continue to be a recreational beach adjacent to the Gulf. It will continue to provide habitat to endangered species and wildlife and will provide storm protection. Variance and Conditions The northern boundary of OK-A is within Outstanding Florida Waters ("OFW"). In a letter dated October 14, 2009, Taylor Engineering on behalf of the County requested three variances from rule provisions in chapter 62-4, which governs "Permits," as follows: [W]e request a variance from the provisions of Rule 62-4.244(5)[(c)], F.A.C., to establish a temporary mixing zone greater than 150 meters in an Outstanding Florida Water; a variance from the provisions of Rules 62-4.242(2)(a)2.b., 62-302.700(1), and 62-312.080(3), F.A.C., to establish a maximum allowable turbidity level above background levels for work with an Outstanding Florida Water; and a variance from the thirty-day time period, pursuant to Rule 62-4.242(2)(a)2.b. F.A.C., in which elevated turbidity levels may occur within a mixing zone located in an Outstanding Florida Water. OI Joint Ex. Vol. 3, Ex. 12. Rule 62-4.244(5)(c) which governs "Mixing zones: surface waters" provides: In no case shall the boundary of a dredge and fill mixing zone be more than . . . 150 meters in radius in . . . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants. Rule 62-302.700(1) is in the rule chapter that governs "Surface Water Quality Standards." Entitled "Special Protection, Outstanding Florida Waters, Outstanding National Resource Waters," it provides: It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in subsections 62.4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. (emphasis added). Rule 62-312.080(3) is in the rule chapter that governs "Dredge and Fill Activities". It provides: "[n]o permit shall be issued for dredging or filling which . . . is within an outstanding Florida Water unless the applicant complies with Section 403.918(2), F.S. (Supp. 1192), and Rule 62-4.242, F.A.C." (emphasis added). Both rules 62-302.700 (an OFW anti-degradation rule) and 62-312.080(3) (an OFW anti-degradation rule applicable to dredging and filling) allow an exception when the applicant complies with rule 62-4.242. Rule 62-4.242(2) sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows: (a) No Department permit . . . shall be issued for any proposed activity . . . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that: * * * 2. The proposed activity . . . is clearly in the public interest, and . . . * * * b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity . . . , except on a temporary basis during construction for a period not to exceed thirty days . . . . [the "Thirty-Day Requirement]. The Department referred to the three variances in its Consolidated NOI as the "Variance" (in the singular rather than the plural). The Department reviewed the request for the Variance under section 403.201(1): Upon application, the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons. There is not practicable means known or available for the adequate control of the pollution involved. Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required. To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification. The Department determined that the Variance could be granted to the County for either of the first two reasons, (a) or (b), listed in section 403.201(1). Petitioners do not attack the Variance, however, for failure to meet the requirements of section 403.201(1). Instead, they attack the Variance for failure to satisfy section 120.54(2) [the "APA Variance Statute]: Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. The APA Variance Statute requires that two elements be met for a variance to be granted pursuant to it: 1.) the purpose of the underlying statute will be or has been achieved by other means; and 2.) violation of fairness (not at issue) or hardship. Hardship Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150-meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150-meter radius, the County "would have had to almost continually be shutting down . . . .[its hopper] dredge," WD tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150-meter radius. The Variance "allows an anti-degradation allowance of . . . 3 NTU's above background rather than zero NTU's above background at the edge of that mixing zone." WD Tr. 438. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the Variance for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more down time and conditions [could cause] a cutterhead . . . to stop dredging and go into safe harbor into East Pass." WD Tr. 173. The Variance from rule 62-4.244(5)(c), therefore, was needed because the standard-size mixing zone would have created a substantial hardship for the County. Furthermore, the Department had determined that the Project is clearly in the public interest. While the existing ambient water quality within the OFW is likely to be lowered for more than thirty days by the dredging in OK-A, it will not be lowered for more than ninety days, a "temporary" period. It would be a substantial hardship to require the County to meet the mixing zone standards in rule 62-4.244(5((c) and the 30-day requirement in rule 62- 4.242. b. Underlying Statutes: Achievement of Purpose The statutes implemented by the rules covered by the request for the Variance are provisions in either chapter 403 or 373, which control water pollution or protect water resources. No resources in the area, such as hard bottom or sea- grass beds, will be affected by a turbidity plume and an expanded mixing zone. The Department reached the conclusion that the purposes of the underlying statutes would be achieved. The conclusion was based on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," WD tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500-meter mixing zone was determined to be appropriate. Independent of the information provided by the County, the decision was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that there was a comparable project in the area that had been allowed a 1500-meter mixing zone. There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," WD tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI. Deepwater Horizon Oil Spill 346. Rule 62B-49.005(16) provides: If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 90 day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the Application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico. No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area. The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See WD tr. 175. Prior to the completion of the Emergency Holiday Isle Project, the County hired E-Tech Environmental Consultants to monitor and inspect OK-A. On August 9, 2010, a team of divers investigated the bottom of the borrow area for evidence of oil constituents. "Nothing out of the ordinary was seen on the bottom at the borrow site." OI Tr. 402. The team of divers collected samples at the same time they conducted their visual observation. The samples were sent to Pace Analytical Services in Ormond Beach, Florida, and were received there on August 12, 2010. The results of the analysis showed the presence of no oil constituents. Furthermore, no oil was found in the OK-A Fill pumped onto the beach during the Emergency Holiday Isle Project. A similar inspection, observation, sampling and testing of samples will be conducted prior to the commencement of operation on the Okaloosa Island Project. The QA/QC Plan and the Sand Rule cover foreign material (including oil). The plan and the rule should be sufficient to protect the beaches from oil contamination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order that denies the application of Okaloosa County for issuance of the Joint Coastal Permit for the Okaloosa Island Beach Restoration Project. Denial of the JCP renders the request for the Variance moot. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2011. COPIES FURNISHED: Gregory T. Stewart, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Post Office Box 11008 Tallahassee, Florida 32302 Joseph Alexander Brown, Esquire Hopping Green & Sams 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Harry F. Chiles, Esquire Nabors, Giblin and Nickerson, P.A. Post Office Box 11008 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Edward A. Dion, Esquire Nabors, Giblin, & Nickerson, P.A. 208 Southeast Sixth Street Fort Lauderdale, Florida 33301 Walter C. Thompson, Jr. Barkley and Thompson, LC 1515 Poydras Street, Suite 2350 New Orleans, Louisiana 70112 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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 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 Whether a vessel is owned by Petitioner, Jonathan Selby, and is a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2020), and City of Riviera Beach Derelict Vessel Policy, No. 4.2., and therefore, subject to the provisions of section 705.103, Florida Statutes.
Findings Of Fact Petitioner is the owner of the 1987 Wellcraft marine vessel, Florida Boat Registration Number FL5632FV (HIN: WELC24661687)(the “vessel”), that sunk on the north side of the Riviera Beach Marina. Riviera Beach Marina is in the City of Riviera Beach. The vessel broke free from a mooring in a storm and is now in a wrecked, junked, or substantially dismantled condition. Therefore, the vessel is a “derelict vessel” as defined in section 823.11(1)(b)1., and the City of Riviera Beach Derelict Vessel Policy, No. 4.2. There was no evidence presented that the vessel became derelict because of the negligence of Petitioner.
The Issue Whether 1800 Atlantic Developers is entitled to a DER fill permit and water quality certification for the creation of a sand beach, approximately 500' long X 100' wide, requiring placement of 2,620 cubic yards of fill, 2,200 yards of which would be waterward of mean highwater (MHW), off Key West, Florida.
Findings Of Fact The Proposal By its initial application in April 1985, 1800 Atlantic proposed to place 4,100 cubic yards of fill (manufactured sand) along approximately 460 feet of eroded shoreline facing the Atlantic Ocean and fronting its 168-unit condominium (still under construction) in Key West, Florida. In connection with this project, 1800 Atlantic also proposed a 200 foot jetty at the east property line; a second and smaller jetty (if needed) at the west property line; a 400 foot long (10' high and 20' wide) fishing pier on the western property line; and a 50 x 50 foot art display platform seaward of the new beach. Approximately one and one-half acres would be filled of which 0.9 acres would be below the MHW line. The "proposed use" for the new beach was designated "private multi- dwelling." By affidavit Atlantic 1800 certified that it was record owner, lessee, or easement holder of the project site. 1/ (Atl.Exh.1) On May 7, 1985, 1800 Atlantic revised its application by submitting a new plan view to Teryl Kranzer, DER's field biologist. The modification tapered the beach fill into the shoreline toward the western property line and reduced the size of the westernmost jetty. (Atl.Exh.4) On May 10, 1985, DER sent a "Completeness Summary" to 1800 Atlantic, asking for additional information to complete the application. (DER Exh.5) On June 18, 1985, 1800 Atlantic responded to DER's Completeness Summary by submitting the additional requested information to Douglas L. Fry, Environmental Supervisor of DER's South Florida District. Revised drawings were submitted eliminating the east jetty from the project. The volume of beach fill material was indicated as 2620 cubic yards--420 above MHW, and 2200 below MHW. (Atl.Exh.5) On July 1, 1985, DER sent another Completeness Summary to 1800 At1antic seeking still more information to make the application complete. (DER Exh.6) t 20, 1985, 1800 Atlantic supplied the additional information and modified its proposal by eliminating the art display platforms the fishing pier and the west jetty. The beach fill was also modified by tapering the fill from the corner of the existing seawall at the east property line into the existing shoreline on the west property line. Total beach fill volume was shown as 2700 cubic yards--300 above MHW and 2200 below. The proposed dry beach extended 70 feet seaward (the June 18, 1985 submittal showed an 80 foot wide beach) and the toe of the fill extended 100 feet seaward of the MHW line. In response to DER's inquiry about public access, Edward Swakon, 1800 Atlantic's consulting engineer, stated: will be no provision made to assure perpetual public access to the project area. As we previously stated, the applicant has no intentions of prohibiting public access, however, you should be aware that the appli- cant is the owner of the submerged land and that no guaranteed public access is assured. (Atl.Exh.7) Mr. Swakon, on behalf of 1800 Atlantic, then addressed each of the permitting criteria of Section 403.918(2)(a), Florida Statutes (1985), though contending that they did not apply to the project: project will not affect the public health, safety, welfare or the property of others. On the contrary, as a result of this project the tax base of the City of Key West will be improved and therefore benefit the residents of the community. The beach fill will provide an added degree of protection to the upland development, thereby reducing the potential claims to the Federal Flood Insur- ance Program. In addition, the project provides a beach for 168 residents of the upland development and their many guests. This reduces the impact on the already over crowded public beaches in Key West. project will not adversely effect the conservation of fish and wildlife within the immediate vicinity. The area to be filled is devoid of significant vegetation. It is our opinion that the placement of this fill would result in an imperceptible impact to the marine resources. There are no endan- gered or threatened species or habitats located within the area to be filled. project will not adversely effect navigation, the flow of water or cause harmful erosion or shoaling. On the contrary, the placement of this material will improve the overall shoreline conditions. The filling will not cause any erosion or shoaling in the vicinity. the fill area is barren, it is our opinion that this project will have no impact on fishing, recreational values and/or marine productivity in the vicinity of the project. project will be permanent in nature will be no impact to historic or archeological resources. Id. t 26, 1986, DER received the August 20, 1986 submittal of 1800 Atlantic and the application became complete. r 5, 1985, the District Manager of DER's South Florida District in Fort Myers noticed his intent to deny the permit application. According to Douglas Fry, DER's supervisor of the District's dredge and fill section, the denial was based on information that he had received: I expected that the project would degrade both general water quality standards as established in the intent, including turbidity, biological integrity, transparency, other things noted as well as degradation of fish and wildlife standards as encompassed in part of the public interest requirements; I felt that the project would be contrary to the public interest. (Tr.546) the months that followed, 1800 Atlantic pursued the matter with various DER personnel, including Mr. Fry; Ms. Kranzer, the District biologist who performed the initial biological and water quality appraisal for the project; Steven J. Fox, Director of the Division of Environmental permitting, and William Hennessey, Deputy Director, both located in Tallahassee and supervisors of district permitting operations 2/ and Kenneth L. Echternacht, a DER hydrographic engineer in Tallahassee. Negotiations ensued, various modifications were proposed. Ms. Kranzer, the DER field biologist who had conducted the initial environmental evaluation in May 1985, and had recommended denial in September 1985, never submitted a new report evaluating the subsequent modifications, although she did discuss changes with other DER staff members. At the time she evaluated the project, it had already been modified once--cubic yardage had been reduced; the fishing pier, art platform and both jetties had been eliminated. t of negotiations between DER and 1800 Atlantic, DER reversed its initial position and, on March 27, 1986, gave notice of its intent to issue a permit for the revised project. The proposed permit incorporated changes agreed to by 1800 Atlantic. These changes required that the waterward 1/3 of the fill volume consist of coarse sand or sand aggregate no finer than 2mm in diameter; that approximately 10 percent of the sand range in size from 2mm to 6mm in diameter; and that 1800 Atlantic conduct a seagrass monitoring program for the duration of the permit. These changes were meant to resolve DER's concern that the fill material might migrate seaward and smother offshore seagrass beds. The area below the MHW line to be covered by the fill (approximately 1/2 acre) remained the same as indicated in the last drawings submitted by 1800 Atlantic on August 20, 1985. (Atl.Exh.7) l 1985, the City (of Key West) and the Coalition (Florida Keys Citizens Coalition) timely requested an administrative hearing to challenge proposed issuance of the permit. R had announced its intention to grant the permit, Mr. Fry, DER's District environmental dredge and fill supervisor continue to have concerns about the project: . . . I did not believe that the project still was clearly in a public interest, and that I did not see that the project had been modified enough to eliminate the destruction of aquatic habitat. I was concerned that the project did not encompass any mitigation to offset those, that damage. I was concerned that we had not received reasonable assurances that the project was clearly in the public interest. I was concerned that we had not received reasonable assurances that the beach fill would stay in place, thereby contributing to future degradation, and I had experienced some concerns regarding cumulative impact. (Tr.547) These concerns prompted representatives of DER and 1800 Atlantic to meet in Tallahassee on Friday, June 20, 1986. This was three working days prior to final hearing. Neither the City nor the Coalition were aware off or invited to, the meeting. s meeting, DER and 1800 Atlantic agreed to certain additional project modifications. One addition required construction of a small terminal jetty or groin on the western end of the project to stabilize the fill and replace rocky habitat to be covered by the fill. The specifications for this groin were not subsequently calculated or submitted at hearing. 1800 Atlantic proposes to "field engineer" the groin within these parameters: It would be designed to contain the fill or it would be designed in the field when the material was in place and would be designed with specifications that the rocks really didn't come any higher than the fill itself and would be adjusted so as to allow for some movement of sediment back and forth between it so as to minimize any down drift concerns that might exist. (Tr.121) l hearing, DER and 1800 Atlantic reduced this addition to writing as one of several proposed conditions to the DER permit. These conditions, ostensibly providing precision and specificity to the project changes described at hearing, were received over objection as part of DER's post-hearing Exhibit No. 7. The particular condition describing the groin-type structure to be built at the west end of the beach fill provides in pertinent part: Prior to construction of the beach fill, the permittee shall submit approximately dimen- sioned sketches of the structure, for review, modification as necessary, and approval by [DER]. (DER Exh.7) DER and 1800 Atlantic thus propose that specifications and drawings for this coastal structure be submitted, reviewed, and approved sometime in the future, after the requested permit is issued. The need for specifications is acknowledged, yet submittal and review is put off until after a permit is issued. Hence, detailed specifications for the structure remain unknown or ill- defined; scrutiny of those specifications by the City and Coalition is threatened; APA 3/ processes are frustrated. e which DER and 1800 Atlantic agreed to at the Friday meeting was to taper the toe of the fill on the western one-half of the fill area to more closely match the contour of the existing shoreline. 1800 Atlantic's engineer sketched this change, free-hand, while testifying at final hearing. Hence, it also remains ill-defined and uncertain. Like the groin, this change was reduced to writing and received as part of DSR post-hearing Exhibit No. 7. And like the groin, before construction but after the permit is issued, 1800 Atlantic is to submit a "fully dimensioned and scaled plan view of the revised beach fill limits for review, modifications as necessary, and approval" by DER. (DER Exh.7) The procedural shortcomings of such a procedure have already been noted. e which DER and 1800 Atlantic agreed to at the Friday meeting concerned off-site mitigation. As explained at final hearing, 1800 Atlantic would purchase an upland site equal in size to the area to be covered by the proposed fill and excavate it to tidal or subtidal elevations. (The upland mitigation site could be located as far as Big Pine Key (35 miles away) or elsewhere in the Florida Keys.) If this mitigation measure could not be accomplished prior to placement of the fill, a bond to assure its performance would be posted with DER. But this mitigation measure, when later reduced to writing and received as post-hearing DER Exhibit No. 7, became something quite different. The post-hearing exhibit specified that the upland mitigation site would be at least twice the size of (not equal in size to) the proposed one-half acre fill project. Moreover, the mitigation site was to be inspected and approved by DER prior to placement of the fill. If the mitigation site was not approved prior to filling, a bond (of unknown amount) would be posted to assure purchase and the excavation. With this condition, as with those already mentioned, critical features were left to future review and approval by DER, and so placed beyond the scrutiny of the other parties to this proceeding. The specific nature and location of this mitigation site is not known; neither is the amount of the bond to be posted if filling precedes mitigation. Whether the mitigation will, in fact, offset any loss of plant, fish, and wildlife habitat eliminated by the proposed fill is, likewise, unknown. Finally, the written condition, to the extent it doubles the size of the mitigation site presented at final hearing, is rejected as an unauthorized attempt to present new and additional evidence after the close of evidentiary presentation. (DER Exh.7) s other on-site mitigation measures were agreed to at the Friday meeting. As explained at hearing, algae-covered rocks within the fill area would be moved to a non- vegetated part of the submerged land; a Halodule grass bed within the fill area would be relocated waterward of the fill area; the toe of the proposed fill would be staked prior to construction; and fill placement would occur only during periods of low tide. When later reduced to writing as a post-hearing exhibit, these conditions generally conformed to their description at final hearing. Effect of Fill Project on Fishing or Recreational Values; Navigation; Marine Productivity; and Conservation of Fish and Wildlife t site is located on the southern shoreline of Key West on a narrow strip of beach known as Rest Beach, which includes a 2900 foot shoreline between Bertha Street to the east and White Street Pier to the west. The pier, a 950-foot long solid fill structure, is located 2400 feet west of the project site. Directly west of White Street Pier is another public beach (1400 feet long) known as Higgs Beach. With the exception of the submerged lands at the project site, to which 1800 Atlantic asserts titled all of the submerged lands adjacent to Rest Beach are publicly owned. (Atl.Exh.2-I; DER Exh.4) s at the project site are part of the navigable open waters of Hawk Channel and the Straits of Florida (Atlantic Ocean), designated by DER as Class III waters. On May 8, 1985, the waters in the area of the project (within the boundaries of the Florida Keys Special Waters), were also designated (by rule) as "Outstanding Florida Waters"--thereby imposing DER's most stringent level of protection from degradation of water quality loss of fish and wildlife habitat, and reduction in marine productivity. (Rule 17-3.041(4)(i); DER Exh.4) t site is bordered on the east by Bertha Street, which ends at a seawall facing the ocean. South Roosevelt Boulevard begins at the end of Bertha Street and parallels the shoreline east of the site. A public boat ramp is located on South Roosevelt Boulevard just east of Bertha Street. Just east of the ramp is a long curving jetty or groin at the southern end of a 3350-foot long public beach known as Smathers Beach. This public beach is within a few hundred feet of the project site. (Atl.Exh.6; DER Exh.4) o the west of the project site is an undeveloped parcel of land consisting largely of mangroves separated from the ocean by a sandy berm. Although the berm has been overwashed and tidal connections have opened in the past, no tidal connection was apparent at the time of final hearing. In some places the berm may have been artificially altered west of this undeveloped wetland site. Other residential condominiums are located on uplands to the west. d directly landward to the project site is a 168-unit, four story L-shaped condominium owned and developed by 1800 Atlantic. Recreational facilities, such as a swimming pool and club house, overlook the ocean. A third wing of the condominium (parallel to and abutting Bertha Street) was still under construction in July, 1985. s not the first time a permit has been sought to create or restore a beach at the site. In 1979, the trusteeship of Eugene J. Weiss, a 1800 Atlantic's predecessor in title, applied to DER for a similar "beach restoration" permit. He proposed to place (between groins to be constructed at opposite ends of the property) 1750 cubic yards of sand waterward of MHW and 2500 cubic yards landward. The approximate area to be filled was .59 acres waterward of MHW, .80 acres landward. Curtis Kruer then an environmental specialist with DER, performed a biological and water quality appraisal of the project and recommended denial because the fill would bury vegetated benthic communities that provide habitat and nutrients to marine organisms which, in turn, become a food source for a large number of juvenile fish and shellfish. He also was concerned about the short and long-term cumulative biological effects of a number of such projects on the shoreline of Key West. In April 1982, Eugene Weiss withdrew the application. (Coalition Exh. 3) s at the project site are shallows as the bottom slopes gently seaward. At mid-tide, depths of 1.5 feet are found 100 feet seaward of the MHW line. At low tide, the entire fill area is exposed. Even at high tide, water depths in the fill area range from zero (at MHW line) to approximately two feet at the toe of the fill. Because of the shallow depths, the fill project will have no significant adverse effect on navigation. (DER Exh.4; Atl.Exh.5) f stacked but unstabilized railroad ties separates the upland area (where the condominium and associated structures are located) from the beach slope. The narrow, graveled beach slope contains a mix of sand, rock, rubble and beach plants. Several distinct zones of seawrack are found on the beach slope: Thalassia at the lower portion of the beach face and Sargassum at the base. (Atl.Exh.15, 16) t 100 feet seaward of the MHW line, which includes all of the fill area, consists of small rubble embedded with calcareous sediments. The rubble consists of chunks of limestone rock and pieces of concrete less than two feet in size. Scattered among the rubble is anthropogenic debris such as bottles, asphalt and cast iron pipe. (Tr.130) f the limestone rock and rubble found on the submerged project site are residential lag from a fill at the site prior to or during the early 1960s. The boundaries and extent of the prior fill have not been established. It appears, however, to have consisted of a mix of carbonate particles ranging from silt and clay to the rocks, rubble and coarse sand now found on the project site. The fill material on site is what remains from the earlier artificial fill. e rock and rubble in the littoral zone provide attachment sites for various green, brown, and red algae such as Laurencia, Caulerpa, Cymopolia, Digenia, Batoptiora, Padina, Halimeda, Neomeris and Congia. These algal species play a positive role in the marine environment. The near shore contains a coarse sandy-shell substrate. (DER Exh.4; Atl.Exh.16) f seagrasses grow on, and immediately seaward of, the fill site. These include Cuban shoalweed (Halodule wrightii) and turtle grass (Thalassia testudinum). Some patches of seagrass are found as close as 30 feet from the MHW line. 4/ Approximately 95 feet seaward, cuban shoalweed becomes dominant; turtle grass coverage increases as one travels seaward from the site. Some cuban shoalweed patches are dense and healthy, with blades sometimes two feet in length. There is a patch of cuban shoalweed on the eastern portion of the project site. Although 1800 Atlantic has agreed to dig-up and transplant this seagrass to unvegetated portions of its property seaward of the toe of fill, the success of such a transplanting is not assured. Unvegetated bottoms can usually be explained by environmental factors. (DER Exh.4; Atl.Exh.16) s communities play a beneficial role in the marine environment. They provide habitat, feeding, and nursery areas for aquatic organisms. They supply primary nutrients as well as perform nutrient uptake and removal functions. The proposed fill would adversely impact the seagrass communities on the site--by smothering or burying any seagrasses not successfully transplanted. Moreover, the site, once converted to sandy beach for the use of owners and guests of the adjacent condominiums, could no longer support seagrass communities. r shore zone of seagrass and algal communities, adversely impacted by the proposed fill, constitutes a productive shallow water habitat that supports a variety of juvenile fish and crustaceans. These include hares, banded tulip shells, nerites, xanthid crabs, blue crabs, lizard fish, barracuda, parrotfish, killifish, needlefish, grey snapper, sergeant major, tomtates, hermit crabs, shore crabs and blue crabs. c macrofaunal species and diverse species of crustaceans live in the sediment of the in-shore rocky algae and seagrass communities. These species include Scyphoproctus, Notomastus hemipodus, Capitella capitata, Pulliella, Capitomastus, Capitellidae, Chaetozone, Tharvz annulosus, Caulleriella, Carilleriella bioculate, Glyceridae papillosa, Axiothella, Ceratonereis, Nereis Succinea, Nereis Rava, Nereis caudata, Onuphis magna, Protoariciinae, Proscoloplos, Cirrophorus lyriformis, Hasmineira elegans, Jasmineira bilobata, Fabricia, Augeneriella, Faebicola, Minuspio, Prionospio heterobranchia, Prionospio steenstrupi, Nerinides goodbody, Brania clavata, Exogone dispar, Exogone naidina, Odontosyllis, Sphaerosyllis labyrindiophia, Streptosyillis, Typosyllis hyalina, Typosyllis regulata, Typosyllis alternata, Typosyllis prolifera, Langerhansia cornuta, Langerhansia ferrugina, Syllida bansei, Terebella turgidula, Streblosoma hartmanae, Streblosoma abranachiata, Streblosoma, Pista palmata, Arca, Chjione caniculater, Tellina iris, Melita dintata, Elasmopus, Melito, Melita nitida, Rudilembordes, Dexamine, and Erichsonella filiformis. (Coalition Exh. 6) g at the site took place as recently as June 1986. Three petite ponar samples were taken in seagrass beds 150-160 feet seaward of the shoreline; three were taken in the rubble zone just seaward of the toe of the proposed fill; and two were taken in seagrass beds off nearby Smathers Beach. As measured by the Shannon Weaver Species Diversity Index, the level of species diversity in the rock rubble just seaward of the toe of fill was 2.19; in the seagrass beds farther offshore, 4.71; and in the seagrass beds off Smathers Beach, 4.76. A diversity of 4 is in the upper range of food habitat. Although diverse species of benthic organisms are found on the site, the level of diversity is substantially less than the high levels found in the thicker seagrass immediately seaward of the project site. (Atl.Exh.16) t Beach area (including the project site), provides a valuable habitat for migratory birds, wading birds, and shore birds. It is one of the last major stretches of uninterrupted shallow water bird habitat in Key West. Ms. Francis Hamer, a local resident and bird watcher for over 40 years, visits the area regularly. One of her favorite vantage points is on White Street Pier; from there, using a telescope, she observes birds feeding and wading along the Rest Beach shoreline. Although most of the birds she sees gather at the western end of Rest Beach, she has seen sandpipers, including the least sandpiper, twelve species of herons, including the yellow crowned night heron and the blue heron in the vicinity of the project site. When asked where would one go to see Sandpipers if the Rest Beach habitat was eliminated she replied, "I don't know of any other place in Key West." (Tr.645) Ms. Kranzer, the DER biologist, and Mr. Kruer, the U.S. Army Corps of Engineers' biologist, have visited the site many times over the years and observed numerous wading and shore birds in the area. Ms. Kranzer photographed eight herons in the fill area at one time. 5/ Mr. Kruer has observed the little blue heron, the great egret, the cattle egret, the white ibis and the laughing gull, numerous shore birds. The proposed fill would adversely impact this valuable feeding ground for birds. The shallow algae and rubble zone, which supports the crabs and marine organisms which nourish bird life, would be replaced with beach sand. It is also likely that increased recreational use of the beach would drive off bird life. e many natural areas typical to the Florida Keys which, as DER and 1800 Atlantic contend, are more valuable than the project site in biological productivity, and as nursery and feeding grounds for fish, marine life, and wildlife. Nevertheless, this fact does not negate the substantial benefits which the site now provides to juvenile fish, crustacenas, benthic marine organisms, and bird life. l placement of the fill will have no impact on mobile organisms able to retreat to safer waters. Benthic and other organisms on the site which are relatively immobile would be destroyed by the fill. The number killed would be a relatively small fraction of the total of such organisms along the Key West shoreline, and their loss--alone--would not affect the marine environment to an extent which is quantifiable. Effects of the Proposed Fill on Water Quality Standards; Public Health, Safety or Welfare; Significant Historical and Archeological Resources; Endangered Species or their Habitats d project will not adversely affect public healthy safety, or welfare; significant historical and archeological resources; or endangered species or their habitats. (Neither the City nor the Coalition presented any affirmative evidence establishing adverse effect.) l the project degrade or cause violations of DER water quality standards for Outstanding Florida Waters. See Rules 17-3.051, 17-3.061, and 17- 3.121, Fla.Admin.Code. Turbidity will be minimal, since filling would take place at low tide and turbidity curtains will be used. The loss of algae at the site would not cause significant degradation of water quality. (Algae covered rocks would be moved outside the fill area.) c contends that water quality would actually be enhanced by the proposed fill. The seagrasses seaward of the site have beneficial effects on water quality, but their sediment beds are shallow. 1800 Atlantic contends that the finer particles of its fill material, dispersed by waves, would provide needed sediment to the offshore seagrass beds. This ostensible benefit is problematic. The study performed to support this contention did not sufficiently investigate or explain how seagrass beds beyond the reach of nearby beaches (and their sediment) could flourish. Dense and healthy seagrass offshore has not been shown to be endangered due to shallow sediment. It is clearly less than certain that just the right amount (too much would smother, too little would have no effect) of just the right kind of fill (only the fines are needed, not the large or coarser particles) would be delivered to offshore seagrass by natural forces. Impacts on Erosion, Shoaling and Sand Migration h and shoreline at the project site are relatively stable and in equilibrium; no greater erosion is occurring than at other unfortified shorelines in the Key West area. The coarse material and rubble that line the bottom of the site act as a "natural seawall" or armor which prevents or slows down erosion. (Tr.249) Removal of the existing rubble, as proposed, would eliminate this "natural armor." (Tr.260) e in the vicinity at the site faces south to south- southeast. This exposure is relatively windward with respect to winter storms. Gentle prevailing east to southeast winds, however, produce low-energy waves that approach the shore and generate longshore currents moving east to west. (Atl.Exh. 15) f a shallow limestone ridge offshore the Atlantic shoreline in Key West, waves reaching the shore are ordinarily well-dampened. Although subject to storm and hurricane attack by high energy waves, the southern shoreline is characterized as "low-energy." (Atl.Exh.15) vicinity of the project site on the southern shoreline, there is no natural onshore supply of sediments to beaches from offshore. The beaches at Smathers Beach and at the project site (which have been narrowed by erosion over the last 25 years) are artificial, composed of limestone fragments derived from quarries. The fill was placed at both beaches sometime prior to 1962. s have undergone gradual erosion. Fine sand and silt from the beach material is carried seaward, with no natural offshore sediment to replace it. The proposed fill will provide, at least temporarily, an added degree of protection to the upland development by widening existing upland between the condominium and the sea. It will not, however, prevent continued erosion. Over time, it too, will be dispersed by wave action and longshore drift to shorelines to the west. The fill would also temporarily stabilize the public sidewalk and street to the east of the site, currently being undermined. Protection of the public sidewalk and boat ramp from erosion, however, is part of public road maintenance duties. c has neither alleged nor shown that its upland condominium, still under construction, is endangered by erosion or high-energy wave action. Nor has it shown that there are no reasonable methods of supplying an "added degree of protection" to the upland development, methods not requiring elimination of productive habitat for fish, marine life, and wildlife. s net east-to-west longshore transport of sediment along the southern shoreline of Key West. Two groins at Smathers Beach (to the east) and the nearby public boat ramp have, to some extent, interrupted the normal longshore sand transport from the east. As a result, the effects of erosion are more pronounced on the eastern portion of the site, causing a shoreline "discontinuity." Although the proposed fill would partially eliminate this discontinuity, it has not been shown that the discontinuity is a serious problem. While it may trap floating debris, this was not a significant problem in July 1985, when Ms. Krenzer, the DER biologist, inspected the site. Moreover, the proposed groin near the west property line (to stabilize the fill material) would--in itself--add a new shore discontinuity, and may cause more discontinuity to the west if it interrupts the normal longshore movement of sand. (DER Exh.4) s finer than 200 microns tend to move in suspension, while grains finer than 40 microns cause turbidity. Grains coarser than 200 microns tend to move along the sea bottom when sufficient wave or current energy is present. Analysis of onshore and offshore sediment indicates that not much material coarser than 200 microns is moving offshore into seagrass beds seaward of the project site. Most of the material larger than 200 microns found in the seagrass beds is being produced there naturally. d that the proposed fill would migrate seaward and smother offshore seagrasses, seeks a condition (to which 1800 Atlantic has agreed) requiring that the seaward one-third of the fill volume consist of coarse sand no finer than two millimeters in diameter. The evidence is insufficient, however, to eliminate the possibility that constant wave action could gradually pulverize the coarse limestone into smaller particles that, when dispersed, could smother seagrass beds directly offshore and southwest of the site. 0 Atlantic has selected fill material with settling characteristics compatible with the existing beach material on site, placement should not cause an increase in turbidity. Although 1800 Atlantic posits that just enough of the fine sediments would migrate seaward to nourish grassbeds, leaving the coarse material to migrate westward by longshore drift, these results are not assured. Winter storms and high energy waves could remove and disperse even coarse material seaward or pulverize it into smaller particles for wider dispersion. Dispersion of the coarser sand to the west by longshore drift could result in shoaling which would block periodic tidal connections which occur between the sea and the mangrove covered wetlands. n structure toward the west boundary--designed to stabilize and hold the fill material in place--may contribute to erosion to the west by interrupting natural longshore transport. The wisdom of such an artificial structure ("field designed" on-site), which may interrupt the natural longshore transport of beach sands, is doubtful. Even 1800 Atlantic's own experts criticize it. y 1982, the U.S. Army Corps of Engineers completed a "Feasibility Report for Beach Erosion Control" with an accompanying Environmental Impact Statement. This report proposed a beach restoration program on the southern shore of Key West consisting of construction of a level beach berm, four feet above MHW and 100 feet wide along the 3,000 foot length of Smathers Beach; and a beach 25 feet wide along 2,370 feet of shoreline east and 3,400 feet west of Smathers Beach. 1800 Atlantic's proposed fill falls within the boundaries of this proposed beach restoration program. y is the local sponsor of the beach erosion control project described in the Feasibility Report. As late as August 1985, the Mayor of the City sent a letter to DER's dredge and fill supervisor confirming the City's continued support for the overall beach renourishment project. Although 1800 Atlantic suggests otherwise, the City's support of a comprehensive publicly financed beach restoration project along its southern shores (which presumably would assure public access to the restored beaches) is not necessarily inconsistent with its opposition to a relatively small fill project undertaken primarily for the private benefit of the owners, guests, and tenants of an adjacent condominium. h 1981, the Governor of Florida expressed written support for the Corps of Engineers' beach restoration project, but recommended that, in order to protect the marine environment, "any future beach renourishment be done in an environmentally sensitive manner. (Atl.Exh.19) The Governor's endorsement of the public beach restoration program does not, however, equate to his endorsement of the particular and more limited private beach project at issue. Even if it did, a gubernatorial expression of support cannot supplant DER's duty to exercise its regulatory authority in accordance with Chapter 403, Florida Statutes (1985). h fill project proposed by 1800 Atlantic was designed to be consistent with the overall U.S. Army Corps of Engineers beach restoration project described in the Feasibility Report. It should be noted, however, that the Corps project was criticized by federal environmental agencies for adverse impact on seagrass beds and fish and wildlife resources. (Atl. Exh.19, Appendix 3.) c has already received a coastal construction permit for its proposed project from the Florida Department of Natural Resources ("DNR"). This permit, however, was issued by another state agency exercising regulatory authority under a different statute, with different criteria for issuance. Cumulative Impact e no similar applications for beach fill projects in the Lower Keys pending before DER, although inquiries have been made by a nearby landowner. least the last two years, DER has not issued a permit in the Keys for a fill project similar to the one proposed by 1800 Atlantic. l may be placed on submerged lands (not previously conveyed to private ownership) without the consent of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund--the owner of sovereignty lands. The Trustees have not approved an application to place beach fill on sovereignty lands in the Florida Keys for the last three years. Nor are there any pending applications for approval to do so. (As already noted, except for the project site, all remaining submerged lands in the Rest Beach area are publicly owned.) h serves as the staff for and makes recommendations to the Trustees, has a general policy of opposing the creation of unnatural beaches in the Keys on publicly owned submerged lands. As stated by Casey Fitzgerald, Chief of DNR's Bureau of State Lands Management: [Mr. Fitzgerald] A. So in a general sense, our recommendations would typically be negative, unless shown for some public interest purpose that it should be otherwise. Q. By that latter comment, do you mean, in connection with, for example, an overall publicly sponsored beach restoration project? A. That would be one example, yes. (e.s.) (Atl.Exh.20; p.8) Whether the Proposed Fill Would be Clearly in the Public Interest y for a DER permit, 1800 Atlantic must provide "reasonable assurance that the project will be clearly in the public interest." Section 403.918(2), Fla.Stat. (1985). In deciding whether a project is "clearly in the public interest," several statutory criteria must be considered and balanced. The issue though broadly phrased--is fundamentally a factual one, and must be decided on a case-by-case basis. 6/ Section 403.918(2)(a) Fla.Stat. (1985). d in light of the seven statutory criteria, it must be concluded that the applicant has failed to show that the proposed fill would be "clearly in the public interest." t should not cause violations of water quality standards or significantly degrade state waiters. Neither should it adversely affect (1) the public health, safety, or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) navigation or the flow of water; or (4) significant historical material and archaeological resources. Nevertheless, the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity. The site, which would be permanently covered with beach sand, now provides viable intertidal marine habitat and a feeding ground for migratory, shore and wading birds. It supports numerous species of juvenile fish and crustaceans, a diverse benthic and algae community, and patches of seagrass which benefit water quality and enhance the ecology of the marine environment. This shallow water habitat, gently sloping to the sea from an extended unfortified shoreline, is a diminishing resource in Key West. The existence of other submerged areas which are more biologically productive and support an even greater diversity of marine life do not diminish the positive value of the undisturbed project site to the marine environment. r adverse environmental impacts could occur. The proposed groin could cause increased erosion on property to the west by interrupting longshore sand drift. Shoaling could block tidal connections which periodically occur in the adjacent mangrove wetlands. Fill sands, pulverized and dispersed seaward by hurricanes or violent winter storms, could smother offshore seagrasses. y for the fill project has been shown. Though erosion has occurred over the last 25 years, the shoreline is stable, in equilibrium, and protected by a "natural armor" of coarse material and lag rubble. 1800 Atlantic has neither alleged nor asserted that the structural integrity of its upland condominium (still under construction) is threatened. The proposed fill would widen the upland between the condominium and the sea, providing an added degree of protection. While this benefits the upland structures, it is a benefit which would seemingly result whenever a fill project converts submerged land (seaward of a structure) to dry upland. Further, no necessity for an expanded private beach has been shown since there is a convenient 3000 foot public beach within a few hundred feet of the site. n measures proposed by 1800 Atlantic are insufficient to offset the known and potential adverse effects. These measures are vague, ill- defined, and uncertain. The design of the groin is left to "field engineering;" the adequacy of other mitigation measures is left to future review and decision by DER. The specific location and nature of the upland mitigation site (to be converted to submerged lands) is unknown, as is the amount of the bond to be posted if the beach fill project precedes mitigation. n expanded beach would provide recreational benefits to the owners, guests and tenants of the upland condominium, it has not been shown that similar benefits would inure to the general public. 1800 Atlantic does not guarantee that the public will have access to the beach. (It asserts only that any right of access which the public may have will not be infringed.) 1800 Atlantic's affidavit of ownership, which must be taken as true, asserts ownership of the submerged lands presumable by previous conveyance from the Trustees of the Internal Improvement Trust Fund. It is entirely possible that 1800 Atlantic, as owner of the submerged lands and upland beach, could deny access to the general public. 1800 Atlantic has not shown that the general public has any existing right to enter upon and use the submerged lands and existing beach. By promising no greater access right than the public now has, and by failing to show that the public has any existing right to enter and use the submerged lands and shoreline, 1800 Atlantic has failed to demonstrate that its beach project would provide recreational opportunities to the general public. c benefit asserted by 1800 Atlantic is that the fill would eliminate an existing shoreline discontinuity, a discontinuity that has not been shown to be a significant problem. 1800 Atlantic would replace it with a new discontinuity created by a proposed groin at the west end of the property--a groin with uncertain effects on the shoreline to the west. Another claimed benefit is that needed sediment--of the correct quality and quantity--would be contributed to offshore seagrasses; but whether this would actually occur is uncertain. c also points out that its privately funded beach restoration project is consistent with and falls within the boundaries of a proposed public beach restoration project proposed by the U.S. Army Corps of Engineers, supported by the Governor, and sponsored by the City. Any public benefit to be derived from this consistency is also doubtful. It was not shown that the Corps of Engineer's project involving Smathers Beach and Rest Beach has been finally approved and funded, or when (if at all) it would take place. Federal environmental agencies have pointed out the adverse environmental effects of such a project. A main benefit of the Corps project--expanded beach recreational opportunities for the general public--has not been shown to be a benefit which would result from 1800 Atlantic's fill project. , 1800 Atlantic has not affirmatively shown that, on balance, its proposed fill would be clearly in the public interest. The fill would have significant adverse environmental impacts--some certain, others possible. Measures offered to mitigate these impacts are vague, ill-defined, and inadequate. While benefits would inure to private upland owners, guests, and tenants, benefits to the general public are illusive or inconsequential. No necessity for the project has been shown, alternate methods of providing additional protection to the condominium may be available. A Corps of Engineers' beach restoration project for the entire area has been proposed and studied. While such a project would have adverse environmental effects at the 1800 Atlantic site, increased beach recreational opportunities would benefit the general public. 1800 Atlantic has not shown that its beach project would confer a like benefit.
Recommendation Based on the foregoing, it is RECOMMENDED: that the application for a fill permit and water quality certification filed by 1800 Atlantic be DENIED, based on failure to provide reasonable assurances that the project is clearly in the public interest. DONE and ORDERED this 3rd day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 3rd day of September, 1986.
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact The subject property Petitioners, Michael and Janice Rush, are the owners of a single family residence located at 3032 North Atlantic Boulevard, Fort Lauderdale, Broward County, Florida. Such residence lies seaward of the Broward County Coastal Construction Control Line (CCCL) and is therefore subject to the permitting jurisdiction of respondent, Department of Natural Resources (Department). Section 161.053, Florida Statutes. The first application In April 1991, Petitioners filed a permit application (Permit File No. BO-267) with the Department for permission to renovate their home and construct a swimming pool. That application was found to be incomplete, and by letter of April 17, 1991, the Department notified petitioners of the information required to complete their application. Following receipt and review of the requested information, the Department, by letter of July 26, 1991, advised petitioners that, as proposed, their application to construct a pool and renovate the home would have to be denied. Pertinent to the proposed pool, such letter observed that a portion of the pool would be located seaward of the 30-year erosion projection which is prohibited 1/, the general construction line of major structures would be advanced further seaward, adverse impacts to the beach/dune system during a major storm event could be expected, and cumulative adverse impacts could be expected. Thereafter, by letter of August 14, 1991, the Department was advised that petitioners were submitting new house plans for the subject property, and that the request for leave to construct the pool had been removed from their application. 2/ On December 23, 1991, the Department issued a final order in Permit File No. BO-267 which authorized the petitioners to remodel their home. Such final order observed: . . . The direct and cumulative impacts to the beach and dune system that will be caused by both the seaward location and shore- parallel width of the proposed construction represent the maximum such impacts that are acceptable to the Department. Therefore, future construction on the site seaward of the coastal construction control line shall not extend further seaward of, or increase the shore- parallel coverage occupied by, the proposed structures approved pursuant to this permit. The pool, which petitioners had initially proposed to construct seaward of the home, but subsequently deleted from their plans, constituted a major structure, albeit nonhabitable. Rule 16B-33.002(54)(b), Florida Administrative Code. Petitioners were expressly advised by the Department of their right to request an administrative hearing pursuant to Section 120.57, Florida Statutes, to contest the provisions of the final order. No such contest was filed. 3/ The pending application On February 20, 1992, petitioners filed a new application (Permit File NO. BO-289) with the Department for permission to construct the swimming pool on their property. As proposed, the pool would be located in the beach-dune system seaward of petitioners' home, as well as seaward of an existing retaining wall on the petitioners' property. The pool would measure 16.0' x 35.7' externally, be constructed of reinforced gunite, and be supported by ten piles. The alignment of the pool would be in the shore parallel direction, rather than the shore normal direction as proposed in the prior application, thereby placing the pool landward of the 30-year erosion projection. By letter of March 8, 1992, the Department advised petitioners that their application was incomplete, and requested additional information. Petitioners submitted the final information necessary to complete their application on July 21, 1992. By letter dated October 7, 1992, received by petitioners' representative on October 13, 1992, the Department issued a public notice as follows: The referenced application for a permit pursuant to Section 161.053, Florida Statutes, has been placed on the agenda of the head of the Department of Natural Resources (Governor and Cabinet). The application will be reviewed by the Cabinet Aides in the Cabinet Meeting Room on the lower level of the Capitol, at 9:00 a.m., October 14, 1992. The application will then be heard by the Governor and Cabinet in Room LL03 of the Capitol, at 9:00 a.m., October 20, 1992. You may attend these meetings if you desire. The recommendation [for denial] shown on the enclosed agenda item has been made to the head of the Department by the Executive Director. This represents an agency determination. . . . The notice, consistent with the provisions of Rule 16B-33.012(8), Florida Administrative Code, further advised that any substantially affected person had the right to request a formal hearing, pursuant to Section 120.57, Florida Statutes, within 21 days of receipt of the notice, and that "If the decision of the Governor and Cabinet is different from the staff recommendation as noticed . . ., then the applicant or any substantially affected person shall have 21 days from the date of the Governor and Cabinet's announcement of their decision in which to petition the agency for a hearing." The basis for the Department's denial of petitioners' application to construct the swimming pool was stated as follows: The proposed swimming pool is not consistent with Rule 16B-33.005(1), Florida Administrative Code, because it has not been clearly justified by the applicant and less impactive alternatives are available. For example a similar structure could be sited in a less impactive location landward of the single-family dwelling on the southwest corner of the property. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(a), Florida Administrative Code, for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade. The proposed swimming pool is not designed and located pursuant to Rule 16B- 33.005(2)(c), Florida Administrative Code, for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties. The proposed swimming pool is inconsistent with Paragraph 161.053(5)(b), Florida Statutes, because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area. The proposed swimming pool is inconsistent with Rule 16B-33.007(1), Florida Administrative Code, because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shore line fluctuations and to preserve dune stability and natural recovery following storm-induced erosion. The proposed swimming pool is not designed pursuant to Rule 16B-33.007(2), Florida Administrative Code, to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system. * * * 8. The proposed project is not designed pursuant to Rule 16B-33.005(7), Florida Administrative Code, because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event. The Department, therefore, may not authorize the construction of the pool. On October 13, 1992, petitioners requested that their application be removed from the agenda, and be rescheduled for "a later date to be determined." The rationale for petitioners' request was to afford "an opportunity for the permittee and staff to meet in Tallahassee in early to mid November and reach a design for a pool which can be recommended favorably by staff." By letter of October 14, 1992, the Department granted petitioners' request and the item was removed from the agenda for the Governor and Cabinet meeting of October 20, 1992. Such letter further provided that although the Department was willing to meet with petitioners to discuss the staff concerns about their application, that it "must caution you . . . that at this time I do not anticipate that a swimming pool, as you requested, can be satisfactory [sic] located seaward of your home." Petitioners and the Department were unable to resolve their dispute. Accordingly, petitioners filed a petition on November 2, 1992, to contest the proposed denial of their application. By letter of November 13, 1992, the Department advised petitioners that their request for formal administrative hearing was inadequate, but accorded them 14 days from receipt of such letter to submit an appropriate request. Petitioners timely submitted an appropriate request for hearing on November 30, 1992, and the matter was thereafter referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. 4/ The merits of the pending application As heretofore noted in the findings of fact, the Department enunciated seven reasons to support its denial of petitioner's application. The first basis for denial was the Department's assertion that the proposed swimming pool was not consistent with Rule 16B-33.005(1), Florida Administrative Code, "because it has not been clearly justified by the applicant and less impactive alternatives are available." In this regard, it is observed that Rule 16B-33.005(1), Florida Administrative Code, provides: . . . Establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line . . . shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (Emphasis supplied) The aforesaid rule does not further explain what is contemplated by the requirement that the applicant clearly justify the "necessity" of the proposed development; however, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary. 5/ In this regard, "necessity" is defined to mean "something that cannot be done without." Websters New Twentieth Century Dictionary. It is also defined as "something needed for the existence, effectiveness, or success of something (a requirement)," and "the state or fact of being required or unavoidable." The American Heritage Dictionary of the English Language. Here, the proof fails to demonstrate any "necessity" to construct the swimming pool since it fails to credibly support the conclusion that such construction is required for the effective or reasonable use of petitioners' property or that such construction is essential for the well-being of its occupants.6/ To the contrary, the petitioners' decision to construct the pool is merely a matter of personal preference or convenience. Moreover, the proof fails to demonstrate any "necessity" to construct a pool of the size and configuration proposed (16' x 35.7' with a maximum depth of 8') or of the materials selected (reinforced gunite supported by piles). Indeed, a pool of a different configuration or size could be located elsewhere on the property and the pool could be constructed on a base slab foundation or of vinyl to alleviate the adverse effects of its current design, discussed infra. 7/ As further reasons for denial, the Department concluded that construction of the swimming pool was not consistent with Rule 16B-33.005(2)(a), Florida Administrative Code, "for the protection of the beach/dune system in that the structure is to be sited on the seaward slope of the frontal dune and results in excavation remaining as a permanent feature below natural or existing grade"; Rule 16B-33.005(2)(c), Florida Administrative Code, "for the protection of adjacent properties, because the rigid pile foundation and slabs will cause localized scour and erosion which may affect adjacent properties"; Rule 16B- 33.007(1), Florida Administrative Code, "because the structure is not located a sufficient distance landward of the beach/dune system to permit natural shoreline fluctuations and to preserve dune stability and natural recovery following storm-induced erosion"; and Rule 16B-33.007(2), Florida Administrative Code, "to minimize adverse impact to the beach/dune system, because the rigid pile foundation and slabs will increase localized scour and erosion within this area as it interacts with storm waves and surge resulting in a significant adverse impact to the beach/dune system." Pertinent to the aforesaid reasons for denial, Rule 16B-33.005(2), Florida Administrative Code, the "Department Policy Statement on Permits," provides: Seaward of the coastal construction control line . . ., special siting, structural and other design considerations are required: (a) for the protection of the beach-dune system; * * * (c) for the protection of adjacent properties. And, Rule 16B-33.007, Florida Administrative Code, the "Structural and Other Requirements Necessary for Permit Approval," provides: The proposed structure or other activity shall be located a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and natural recovery following storm induced erosion . . . . All structures shall be designed so as to minimize any expected adverse impact on the beach-dune system or adjacent properties and structures and shall be designed consistent with Section 16B-33.005, Florida Administrative Code. Relevant to such rules, the proof demonstrates that the frontal dune on the subject property appears to have been leveled at an elevation of approximately +12.0 feet NGVD, and petitioners' home is located on top of the crest of the frontal dune. The seaward slope of the frontal dune begins at the seaward face of the house and slopes down to the beach. Approximately 12 feet seaward of the house is an existing retaining wall. The proposed pool will be sited immediately seaward of such wall and therefore on the seaward slope of the frontal dune. The proposed pool is a pile supported concrete swimming pool with exterior dimensions of 16.0' shore-normal by 35.7' shore-parallel, and a maximum depth of 8.0'. The foundation is specified to be auger-cast piles, which will penetrate to an elevation of -23.0' NGVD or 3' embedment where a rock layer is encountered. The elevation of the pool is proposed at +13.0' NGVD, with a bottom elevation of +4.0' NGVD. As designed and sited, construction of the pool would destabilize the dune, hinder its function of protecting upland development during a storm event, and adversely affect natural shoreline fluctuation and recovery following storm induced erosion. In this regard, the proof demonstrates that the location of the pool seaward of the existing retaining wall would interrupt the natural continuity of dune formation because sand would accumulate seaward of the pool in a less stable location and would impede the accumulation of sand on adjacent properties. Construction of the pool, as designed and sited, would also induce scour during the course of a storm event impacting the structure. Such storm- induced scour, in addition to erosion, would cause the loss of additional sand at the vicinity of the structure, robbing the beach-dune system of additional sand necessary to protect upland structures, and would also contribute to the potential failure of the structure itself and other upland structures. In this regard, the proof demonstrates that approximately 1,000 cubic yards of sand would be lost on petitioners' section of the beach in the event of a 10-year storm. Additionally, structure-induced scour of 77.5 cubic yards from the ten piles, 120.4 cubic yards from the pool shell, and 15.8 cubic yards from the "end effects" of the pool (the amount of structure-induced scour from the ends of the structure) might reasonably be anticipated in the event of a 10-year storm. If the pool were to be impacted by a higher frequency storm, such as a 20-year or a 100-year storm, scour and erosion would increase. 8/ As an additional basis for denial, the Department concluded that construction of the pool was not consistent with Section 161.053(5)(b), Florida Statutes, "because the structure would extend closer to the line of mean high water than a reasonably continuous and uniform construction line in the immediate contiguous or adjacent area." Here, the proof supports the Department's conclusion. As its final basis for denial, the Department concluded that construction of the pool was not consistent with Rule 16B-33.005(7), Florida Administrative Code, "because a number of similar structures sited at the same relative location on the seaward face of the dune will result in significant cumulative impact which will threaten the beach/dune system or its recovery potential following a major storm event." Pertinent to the aforesaid basis for denial, Rule 16B-33.005(7), Florida Administrative Code, provides: An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . Here, petitioners' project is expected to have significant adverse impacts to the beach-dune system as a consequence of its design and siting. Accordingly, the provisions of Rule 16B-33.005(7), Florida Administrative Code, are not relevant. Moreover, there was no proof concerning any similar structures along the coast, existing or proposed, that would contribute to or intensify the degradation of the beach-dune system occasioned by the proposed project. Accordingly, it cannot be concluded that cumulative impact is a relevant issue in these proceedings. While cumulative impact is not relevant to the pending application, the other reasons advanced by the Department for denial of the application have, as heretofore found, a rational basis in fact. Under such circumstances, petitioners have failed to demonstrate their entitlement to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered denying petitioners' application to construct seaward of the CCCL. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November 1993.
