The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether the Department of Environmental Regulation (DER) should modify permit number 599070329, issued to the City of Boca Raton (City), to allow construction of an approved beach restoration project to commence on May 1, 1988, rather than on June 1, 1988.
Findings Of Fact On November 21, 1986, DER issued number 500970329 to the City for a beach restoration project. Issuance of the permit followed resolution of a dispute between DER and the City of Boca Raton which was the subject of an earlier proceeding before this hearing officer. See, City of Boca Raton, et al., v. Florida Department of Environmental Regulation, et al., DOAH Case number 86-0991 (Final Order of Dismissal rendered November 21, 1986). Although the City maintained in this case that the Coral Reef Society and Sierra Club, who are petitioners here, were intervenors in that prior proceeding through an umbrella organization, Save and Protect our Aquatic Resources and Environment (SPARE), no evidence was adduced supporting that contention. In the 1986 proceeding SPARE alleged that it was "a coalition of various environmental and commercial groups with a common interest in the protection of Florida's unique and fragile aquatic resources" (Amended Petition for Leave to Intervene in Case 86-0991, filed September 2, 1986). The groups which made up the coalition were not identified in that prior proceeding or in this one. SPARE filed a voluntary dismissal in the prior proceeding after learning that DER had decided to support issuance of a permit to the City of Boca Raton. After further administrative proceedings at the federal level, the U.S. Army Corps of Engineers issued a permit to the City of Boca Raton for the beach restoration project on or about January 28, 1988. The project, as currently permitted, involves the placement of approximately 980,000 cubic yards of sand, dredged from offshore, onto 1.45 miles of the City of Boca Raton's beachfront. The project will be constructed within and adjacent to two city Spanish River Park and Red Reef Park, and the waters of the Atlantic Ocean. The mean grain size of the dredged sand to be added to the beach is .32 millimeters. The dredged material is 99.6 percent sand and .4 percent silt or clay. The sand to be pumped onto the beach has characteristics almost identical to the current beach sand. As part of the approval process, the City of Boca Raton received a variance from turbidity standards otherwise applicable to Florida Class 3 waters. Turbidity is, to some extent, an unavoidable by-product of beach renourishment dredging. DER approved a mixing zone of 10,000 feet by 1,000 feet in which state water quality standards for turbidity could be violated during the construction period. The City of Boca Raton has also constructed artificial reefs comprised of natural limestone boulders and a protective groin approximately one-half mile south of the project area. Specific Condition Number Three (3) of the DER permit restricts project construction to the months of June, July, and August. In a letter dated February 12, 1988, the United States Fish & Wildlife Service (the Service) requested that the City of Boca Raton seek a modification of its DER permit to allow construction of the project to begin on May 1, 1988. The Service maintained the modification was important to avoid conflict with the peak nesting season of sea turtles, which are protected species. The Service did not make its request to the City to advance the project start date until February 12, 1988, because the Service was under the impression that the City had already requested permission from DER to commence construction sooner. In May of 1987, the City of Boca Raton had requested that the three month construction restriction of Specific Condition Number Three be deleted completely from the permit. When this request was made, the City of Boca Raton had hoped to begin construction of the project in the fall of 1987, and avoid construction during the sea turtle nesting season. DER's hydrographic engineer, Dr. Kenneth Echternacht, opposed this initial request to delete the construction limitation period. Due to delays in the federal permitting process and other logistical problems, the City of Boca Raton withdrew this earlier modification request. In order to meet the concerns of the Service, the City of Boca Raton applied by letter to DER dated February 22, 1988 for the suggested permit modification. Upon review of additional climatological and wave height data and littoral drift calculations from Dr. Robert Dean of the Costal and Oceanographic Engineering Department of the University of Florida College of Engineering, Dr. Echternacht supported a permit modification which would allow the construction period to begin in March, 1988. DER indicated its intention to grant the modification on March 10, 1988, acknowledging the concern of the Service and finding "the proposed modification is not expected to result in any adverse environmental impact or water quality degradation. " American Littoral Society, South Florida Chapter, and the Sierra Club, Florida Chapter, jointly, and the Coral Reef Society, independently, filed virtually identical petitions on March 22, 1988, objecting to DER's proposed approval of the modification request, and each requested a formal administrative proceeding. Those petitions not only questioned the permit modification, but also sought to reopen the issue whether the beach restoration project should be undertaken at all. During a telephone conference hearing on the City of Boca Raton's motion to strike portions of the petitions, held on April 8, 1988, the issue in this proceeding was narrowed to whether DER's proposed approval of the modification, expanding the construction "window" by one month, was proper. The time for objecting to the entire project has passed and the permit modification proceeding cannot be used to reopen the issue whether the beach renourishment now permitted for June, July, and August may go forward. The purpose of the restriction of construction to June, July, and August in Specific Condition Number Three of the permit was to confine construction to the months of minimum wave height. In southeast Florida, the summer months are climatologically the months of minimum average wave height. The amount of sand transported by the coastal littoral system, and consequently, the amount of optical turbidity due to suspension of particulate matter in the water column such as fine sand, is a function of wave height and longshore currents. The lesser the wave height and calmer the sea, the less sand is resuspended and the lower are the turbidity levels. During the months of June, July, and August, the waves propagate from the southeast and the corresponding longshore littoral direction is predominantly to the north. The remainder of the year, the littoral drift is primarily to the south. DER determined that project construction during the period of predominantly northerly littoral transport would better protect Red Reef Rock, a large rock outcropping located to the south of the project area. The Red Reef Rock area supports rich and diverse fish resources as fish are attracted to the rock for feeding and take advantage of the relief the rock outcroppings provide. The City of Boca Raton agreed to construct a groin composed of limestone boulders in order to afford additional protection to Red Reef Rock against the drift of sand to the south. The City is also limited by Specific Condition Number Ten of the permit, which remains in effect, and restricts disposal of material in the southernmost .15 mile portion of the beach to times when the prevailing longshore current is from south to north. Nonetheless, construction during May increases the possibility that some material suspended in the water column as the result of the renourishment will be transported over the Red Reef Rock area. Although project construction during the months of June, July, and August presents the optimum conditions from a water quality perspective, construction during that period conflicts with the height of the sea turtle nesting season. The City of Boca Raton has been monitoring sea turtle nesting activity on the Boca Raton public beaches from Spanish River Boulevard to Palmetto Park Road, a distance of 2.6 miles which encompasses the project area, for the past 11 years. Three species of sea turtles, logger head, green and leatherback turtles have been known to nest on the beaches of Boca Raton within and adjacent to the project area. All three species are protected under state and federal law. Loggerhead sea turtles, by far the most numerous nesters on Boca Raton's beaches, are classified as a threatened species by the U.S. Department of Commerce. Green sea turtles and leatherback sea turtles are classified as endangered species. Compared to the number of nests historically established by loggerhead turtles, green sea turtles are infrequent nesters on Boca Raton's beaches. Leatherback turtles are very rare nesters in this area. Southeast Florida is not a significant nesting habitat for leatherbacks. During the eleven-year monitoring period an average of only 2.4 leatherback sea turtles nested on the beach each year, the largest number nesting in a single year was 7; an average of 8 to 9 green sea turtle nests have been recorded annually in this area. By way of comparison, during the same period an average of 333 loggerhead sea turtle nested in this area. Sea turtle nesting in Boca Raton has historically occurred from April through September. The earliest nest of the year recorded by the City of Boca Raton occurred on April 2, 1987, and was a leatherback. The latest nest of the year occurred on September 13, 1983, and was a loggerhead. Leatherbacks nest early, and green turtles are late to nest. Loggerhead nests commonly begin in May, with the peak nesting period occurring in late June and early July. In light of the facts set out above concerning the likely timing of sea turtle nesting, which also being cognizant of DER's water quality concerns, the Service requested the City of Boca Raton to seek a modification of its DER permit to allow construction to begin on May 1, 1988. This would enable the City of Boca Raton to avoid construction during the peak of the sea turtle nesting season in late June, July, and August. The construction should take about 30 days. In addition to the permit modification request, the Service has recommended several other "reasonable and prudent measures" to avoid possible adverse effects to sea turtle nesting activity during the renourishment of the beach. These include a) tilling the beach to soften the new sand if it becomes compacted over a certain degree, b) relocation of nests is undertaken only by trained persons, c) lighting on the dredge is minimized to reduce any confusion it could cause to turtles attempting to locate the beach for nesting, and d) the addition of dune plants to the project area. The City of Boca Raton has agreed to implement these measures. The Boca Raton beach restoration project will enhance sea turtle nesting activity in the future. Currently, the beach in the project area is critically eroded, posing an immediate threat to successful sea turtle nesting. Nests are at risk of being inundated by sea water or washed away if not found and relocated by City of Boca Raton staff. The project will provide a long-term benefit to sea turtles by providing a wider dry beach area for safer nesting and better nest site selection. The City proved that wave heights, littoral drift, and other climatological conditions in southeast Florida do not vary dramatically, on the average, between the months of May and June. May is a transitional month, and there is net littoral movement south due to cold fronts and northeast winds in the area, along with swells caused by storms out in the Atlantic Ocean. While there is a potential for isolated events in May which could have an adverse impact on Red Reef Rock by causing a shift of newly dredged material south over the reef, the evidence presented by petitioners did not persuade the hearing officer that the risk of such events was unacceptably large when balanced against the value of advancing the construction into May to minimize conflict with the peak nesting season of loggerhead sea turtles. The petitioners' evidence did not quantify the likelihood of storm-related events with enough energy to adversely affect the Red Reef Rock area. The hearing officer is, therefore, more persuaded by Dr. Echternacht's testimony that long-term (i.e., average) data is more useful when assessing safety margins, and the available data gives reasonable assurance that renourishment may take place in May. Consequently, construction commencing during the month of May would not present any adverse water quality or marine resource effects. Petitioners have not persuaded the hearing officer that the subject permit modification would adversely affect water quality to such an extent as to be contrary to the public interest. The City has obtained a permit for a mixing zone which will accommodate all the turbidity which is likely to be caused by the beach renourishment. There is insufficient evidence that climatological event in May are likely to cause the turbidity to extend beyond the approved mixing zone.
Recommendation It is recommended that the Department of Environmental Regulation enter a final order granting the permit modification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1590 The following are my rulings on the proposed findings of fact submitted by the petitioners pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Petitioners' Proposed Findings of Fact Covered in finding of fact 2. Covered in finding of fact 5. 3-4. Covered in finding of fact 6. 5. Covered in finding of fact 7. 6-7. Covered in finding of fact 8. Rejected because while wave heights are higher in May, there is insufficient evidence that higher wave height would cause turbidity in violation of the mixing zone which has been permitted. Covered in finding of fact 8. 10-11. Rejected as unnecessary. 12-15. Covered in finding of fact 8. 16. To the extent appropriate, covered in finding of fact 9. 17-20. Covered in finding of fact 9. 21-22. Covered in finding of fact 10. 23-24. Rejected because the Hearing Officer accepts the testimony of Mr. Possardt that southeast Florida is not a significant nesting habitat for leatherbacks, and therefore rejects the argument that leatherbacks are entitled to greatest protection. The Boca Raton Beach is a significant habitat for loggerhead turtles, and it is more appropriate to assess the impact of the project based on the predominate species of turtles nesting on the beach, rather than the impact of the project on a species which only rarely nest on this beach and has predominate nesting areas elsewhere. Rulings on Respondent DER's Proposed Findings of Fact Covered in finding of fact 2 and 4. Covered in finding of fact 3. Rejected because the evidence adduced at the hearing did not support findings concerning three systems of hard bottom and rock outcroppings. 4-6. Covered in finding of fact 8. Covered in finding of fact 8 and 13. Covered in finding of fact 14. Rejected as cumulative. Rejected for lack of evidence. Covered in finding of fact 13 and 14. Covered in finding of fact 10-12 Covered in finding of fact 10-12. 14-20. Rejected as unnecessary because the only evidence submitted pertain to potential violations of water quality standards or adverse affect on habitat of endangered species. Rulings of Respondent Boca Raton's Findings of Fact 1. Covered in finding of fact 1. 2. Covered in finding of fact 2. 3. Covered in finding of fact 5 and 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11 and 12. 9. Covered in finding of fact 8. Covered in finding of fact 13. Rejected as argument. COPIES FURNISHED: Alexander Stone Judy Schrafft, President South Florida Director Coral Reef Society American Littoral Society 357 North Lake Way 75 Virginia Beach Drive Palm Beach, Florida 33480 Key Biscayne, Florida 33149 Alfred Malefatto, Esquire Karen Brodeen, Esquire David C. Ashburn, Esquire Department of Environmental Post Office Box 24615 Regulation West Palm Beach, Florida 33416 Twin Towers Office Building 2600 Blair Stone Road Alan J. Kan, Esquire Tallahassee, Florida 32399-2400 Penthouse Suite 11088 Biscayne Boulevard Jonathan Shepard, Esquire Miami, Florida 33181 5355 Town Center Road Suite 801 Dale Twachtmann, Secretary Boca Raton, Florida 33486 Department of Environmental Regulation Daniel H. Thompson, Esquire 2600 Blair Stone Road General Counsel Tallahassee, Florida 32399-2400 Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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 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.
Findings Of Fact On 24 July 1979 the Board of County Commissioners of Palm Beach County adopted Resolution R-79-887 petitioning the TIITF to establish an erosion control line (ECL) extending from South Lake Worth Inlet to the northern city limits of Delray Beach in conjunction with a beach restoration project in the same area. The project as then proposed encompassed extension of the south jetty at the Inlet 170 feet, construction of eight groins at 400-foot intervals commencing just south of the Inlet, and widening the beaches by 500 feet with 150 feet above the mean high water and 350 feet below mean high water, for a distance of approximately 4.8 miles. The restoration project is proposed to be accomplished with sand from a borrow area located approximately one-half mile off shore. The project is designated "Ocean Ridge-Briny Breezes" beach restoration project. SLWID objected to the project and, following conferences between Palm Beach County, SLWID and DNR the County amended its project to exclude property owned by SLWID from the ECL and beach restoration projects with the restoration of the beach to commence 300 feet south of the Inlet and continue for 2.6 miles to the town of Briny Breezes. Extension of the jetty and installation of groins were deleted. Palm Beach County's proposed beach restoration project was authorized by the U.S. Congress and the U.S. Army Corps of Engineers in House Document 164 (Exhibit 5). The proposed "Ocean Ridge-Briny Breezes" beach restoration project was designed in accordance with the criteria set forth in Exhibit 5. The project is designed to restore the severe beach erosion that has occurred in the 2.6-mile project area and to provide the affected uplands protection against the ten-year design storm event. The ten-year design storm event implies a 3.8-foot storm surge with up to eight-foot waves superimposed thereon. The proposed ECL has been surveyed by Palm Beach County along the mean high water line in the proposed area. Over 60 percent of the ocean front property owners have approved the establishment of the ECL in conjunction with a beach restoration project by executing letters of consent. Following notice by DNR a public hearing was held on February 13, 1980, to receive evidence relative to the necessity and propriety of the proposed beach restoration project and the proposed location of the ECL. The Hearing Officer's report (Exhibit 28) concluded that there is a definite need to restore the proposed area where severe beach erosion has occurred and the establishment of the ECL would accomplish the purpose stated in Section 161.161, Florida Statutes. Approval of the project was recommended. The staff of DNR approved the project and prepared the agenda item for the next meeting of the TIITF in which this project was to be considered for final approval. Prior to this meeting of the TIITF, SLWID filed its initial Request for Formal Proceeding and the item was removed from the TIITF agenda and referred to the Division of Administrative Hearings. The beach erosion in the project area has been documented by Palm Beach County, DNR and the U.S. Army Corps of Engineers. Much of the erosion in the northernmost mile of the project has involved the beach above high water, as well as the offshore beach, while the erosion in the southern 1.6 files of the project has predominantly been offshore. During the period 1955-1981 approximately 1.6 million cubic yards of sand has been lost in the project area. Beach erosion determinations are made by calculating both onshore and offshore changes in the beach profile. Significant offshore erosion will lead to onshore beach recession by storm-generated waves. A gradually sloping beach is a natural absorber of wade energy and the most effective. Since maximum wave height is a function of the depth of the water, waves rapidly dissipate when they reach shoal water. With offshore erosion and the resulting deeper water near the shore, incoming waves can be higher and will impact on the upland area with greater force than would occur with a gradually sloping beach. There is a net annual littoral drift of 200,000 cubic yards of sand southward in the project area. Prior to the construction of the Inlet this drift replaced sand lost during storms, thus creating a dynamic beach which receded and was augmented from time to time. The installation of the jetties disrupted this littoral flow and caused the sand to build up on the beach north of the jetty while starving the beach south of the jetty. This problem was partly corrected by the erection of a sand transfer plant on the north jetty which pumped some of this sand across the Inlet to the beach south of the Inlet. The sand transfer plant was not operated during WWII due to the fuel shortage and severe erosion occurred in the project area. Following WWII the sand transfer plant was replaced in operation, sand was dredged from the Inlet and deposited on the beach south of the Inlet and the beach in the project area was largely restored. In 1967 the north jetty at the Inlet was extended and the sand transfer plant was moved eastward some 130 feet. This plant is a fixed plant consisting of a suction line on a boom which dredges sand to be pumped south of the Inlet only from the area that can be reached by the boom. Although capacity of the plant is adequate to pump the sand needed to replace in the project area that sand intercepted by the jetty, due to the limitation of the plant to reach a larger area there is insufficient sand available for the plant to pump to capacity. As a result, even if the plant operated all the time and there was sand available to pump, there would still be a net loss of sand in the project area (Exhibit 21). During recent winter storms property-threatening beach erosion has occurred to beach property in the project area. Some of the property owners have erected bulkheads and seawalls and others are proceeding with plans to do so. In some places in the north portion of the project area there is no exposed beach at high water. In the southern portion of the project area the offshore erosion will, if left to continue, result in severe damage and loss of upland beach if impacted with seas commensurate with a ten-year design storm event. This erosion, both on and offshore, will, if uncorrected, result in a calculated total of 134 feet of beach recession for the ten-year design storm event. This could result in the inundation of S.R. A1A, which runs near the beach in the northern portion of the project area. S.R. A1A is the primary north-south highway east of the Intracoastal Waterway and the evacuation route to the bridges to the mainland in the event evacuation of the beach is necessary in a hurricane situation. The proposed beach restoration project is designed to replace sand lost offshore and onshore erosion in the the project area and provide a sloping beach to absorb wave impact. It will not accelerate erosion. The proposed restoration of the beach will protect property and structures in the project area against the forces associated with a ten-year design storm event. Addition of the 1.5 million cubic yards of sand in the project area will result in some sand infiltration of the Inlet. This was calculated at 8,000 cubic yards the first year, 6,000 cubic yards the second year and 4,000 cubic yards per year thereafter. This will result in insignificant shoaling in the Inlet but will require infrequent maintenance dredging. It will not adversely impact the tidal prism in the Inlet or materially increase the maintenance of the Inlet. Heavy storms result in immediate loss of sand from the upland beach. Most of this sand is deposited in the offshore beach and is returned to the upland beach by the normal action of waves and tides. Approximately ten percent of the sand so removed from the upland beach is not returned but is lost.
The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1994.
Findings Of Fact The Problem: A Seawall In Danger of Collapse Applicant is an incorporated condominium association which owns the Gulf front property of Bonita Beach Club, a residential condominium located on the northern portion of a barrier island known as Little Hickory Island. The island is south of Fort Myers and part of Lee County. (Testimony of Truitt, Tackney; R-1.) Applicant's Gulf front property is protected by a 600-foot seawall; that seawall, exposed to wave and storm attack, is now in the beginning stages of failure. Applicant seeks a permit to place a revetment along the entire seaward face of the seawall "to help strengthen the seawall and stop the erosion at [its] . . . base . . . ." (R-1.) (Testimony of Truitt, Tackney, Sharma; R-1) The seawall shows evidence of profile lowering; sand has been scoured from its face, exposing 6 to 7 feet of wall above the sand line. Its face shows abrasions from buffeting by sand and sediment; its joints have begun to separate, allowing sand from behind the wall to leak through the cracks. Under high tide conditions, the seaward portions of the seawall are under water; under other tidal conditions there is no more than 6 to 7 feet of wetsand area between the base of the wall and the waterline. (Testimony of Truitt.) The present condition of the seawall is mainly due to two processes: the long-term shoreline migration of Little Hickory Island, and (2) profile steepening, scouring, and accelerated sand loss in the immediate vicinity of Applicant's seawall. There is a south-to-north longshore or littoral sand transport in the area off Little Hickory Island, a northward flowing "river of sand." This phenomenon has caused sand loss to beaches in front of and south of Applicant's property and sand accretion to the undeveloped northern beaches north of the island. The localized profile steepening and accelerating sand loss at Applicant's seawall is caused by waves hitting the vertical seawall, then rebounding-- causing removal of sand at the foot of the wall and steepening of the offshore profile. This localized sand loss and erosion has been aggravated by the original placement and alignment of Applicant's seawall. 7/ The seawall protrudes further seaward than adjacent seawalls or bulkheads. 8/ This protrusion, together with the wall's irregular shape, disrupts the otherwise straight shoreline and acts as a headland: an abutment which concentrates wave energy and longshore currents and causes accelerated erosion and sand loss in the immediate area. The effects of the northerly longshore drift and the localized sand loss have been dramatic: between 1974 and 1980 the sandy beach in front of Applicant's seawall has receded landward 50-60 feet. (Testimony of Truitt, Tackney, Sharma; P-1, P-2, P-3, P-4, 1-2, R-3, R-4, R-5, R-6, R-7.) In addition, the shoreline of Little Hickory Island is gradually and inexorably eroding. This is due to long-term backyard erosion, a natural )process by which barrier islands gradually migrate landward. (Testimony of Sharma, Tackney, Truitt.) II. Applicant's Solution: Place a Rock Revetment in Front of the Seawall In October, 1980, Applicant applied for a DNR permit to place a rock revetment along the existing seawall. By January, 1981, DNR's Bureau of Beaches and Shores determined that all of the documentation required by its rules 9/ had been submitted and the application was complete. Subsequently, the Applicant agreed to several design changes suggested by DNR and agreed to a permit condition requiring it to dedicate a travel easement to assure continued public access to beaches north of its property. As so modified, DNR proposes to issue the requested permit. (Testimony of Truitt; R-1, -R-11, R-12.) The proposed permit, with conditions, is contained in Respondent's Exhibits R-1, R-11, and R-12. 10/ The proposed shore protection structure is described as a rock toe-scour revetment to be placed along the seaward face of Applicant's existing seawall. The revetment extends 7 feet in the shore-normal direction and approximately 600 linear feet in the shore-parallel direction. It will consist of lime-rock boulders of various sizes stacked on top of each other. The top layer of rocks will be the largest, 75 percent of them weighing greater than 500 pounds. The rock revetment will rest on a layer of Filter-X mat to help stabilize the underlying sand. The revetment's elevation will range from 0.0 feet (NGVD) 11/ at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward. Its slope will be no greater than 3 horizontal units to 1 vertical unit. The mean high waterline will intercept the revetment-seawall interface at a maximum elevation of approximately +1.5 feet (NGVD). (R-1, R-11, R-12.) III. The Effects of the Proposed Revetment The proposed revetment will fulfill its primary purpose: it will protect the Applicant's seawall by reducing the amount of sand that is scoured and removed from its face and it will add significant structural stability to the wall. It will provide these benefits because its sloping surface will intercept and dissipate waves which would otherwise hit and rebound off the vertical seawall. Because wave deflection energy will be lessened, steepening of the offshore profile will be reduced and accelerating longshore currents will be slowed. It will also protect the seawall against storm, but not hurricane, damage. (Testimony of Truitt, Tackney.) However, the proposed rock revetment will not stop the migration of sands from the southern to the northern reaches of Little Hickory Island; the northward flowing longshore currents will continue. Neither will the revetment protect Applicant's property against long-term background erosion; the entire island will continue its steady easterly retreat to the mainland. Scouring at the ends of the existing seawall will be reduced, but not eliminated. Eddy currents at the ends of the revetment will cause some localized scouring to take place. Wave and water action will take its toll on the revetment; it will require periodic repair and rebuilding in the years ahead. (Testimony of Sharma, Tackney, Truitt.) Although the testimony is conflicting, the weight of the evidence is that the proposed revetment will not adversely affect adjacent beaches and the offshore profile. 12/ While localized scouring will not be eliminated, the evidence indicates that the rates will be lessened--that the existing erosion problems will be mitigated, not aggravated. With reduced localized scouring, longshore currents will not accelerate, and the offshore profile will not deepen at increasing rates. The expert witnesses agreed that, at least for the short term, the proposed revetment will protect the existing seawall against at least three-year storm conditions. (Testimony of Tackney, Truitt, Sharma.) While the revetment will not accelerate or contribute to the erosion of adjacent lands, it will impair the public's use of the beaches in front of and to the north of the Applicant's seawall. Because the revetment will protrude 6 to 7 feet seaward from the seawall--intercepting the mean high waterline--the public will be precluded from traversing the beaches in front of Applicant's property. That narrow corridor of wet-sand beach now permits dry passage only during low tide. With placement of the rock revetment on that passageway, it will become impassable to most people who use the Little Hickory Island beaches. 13/ (Testimony of Sharma, Member of the Public.) Generally, rip-rap revetments, such as that proposed by Applicant, do not eliminate erosion or cause sand to accrete. Rather, they tend to increase erosion and escarping beyond that which would occur if a shoreline is left in its natural, unaltered condition. (Testimony of Sharma, Truitt, Tackney.) IV. DNR Coastal Construction Permits: Practice and Policy There may be alternatives to the proposed revetment which will not endanger the Applicant's upland structure or block the public's access to beaches in front of and north of Applicant's property. 14/ DNR does not require the consideration of shore protection alternatives when it processes coastal construction permit applications. Neither, in its view, is public access to adjacent beaches a matter of regulatory concern in this licensing process. 15/ At the staff level of DNR, the sole consideration is engineering design of the proposed structure: At the level of staff of the Bureau of Beaches and Shores there are no other con- siderations other than simply engineering judgments on the appropriateness or other considerations of the design. I have no idea what the governor and cabinet or exec- utive director may consider. (Tr. 170.) This view of the agency's duty helps explain why DNR has never denied an application to construct a shore protection revetment, although it has suggested design modifications, as was done in this case. (Testimony of Truitt.) V. Interests of Objectors to Proposed Revetment Project DNR requires applicants for coastal construction permits to provide a map showing the location of the proposed erosion control structure and the shoreline for at least 1,000 feet on each side. Applicants are also required to provide a list of the names and addresses from the latest county tax role of all riparian property owners within 1,000 feet. It is DNR practice, in accordance with its rule, Section 165-24.07, Florida Administrative Code, to mail notice of a proposed project to those riparian property owners. By rule, such interested persons or objectors to a proposed project have the right to appear and make their positions known to the Governor and Cabinet at the time the agency decision is made. Id. (Testimony of Truitt; R-1.) Petitioners, Casa Bonita I and II Condominium Associations, Inc., and Seascape Condominium I and II Associations, Inc., assert that the proposed revetment will adversely affect their rights as riparian owners, that it will cause erosion of their shorelines; they also allege that it will prejudice their recreational use of sovereignty lands--the public's beaches lying below the line of mean high water. Relative to the site of the proposed revetment, Casa Bonita I Condominium Association, Inc., lies 1,350 to 1,400 feet south; Casa Bonita II Condominium Association, Inc., 670 feet south; Seascape Condominium I and II Associations, Inc., lie immediately adjacent to the site. (Testimony of Tackney; R-1, R-14.) No evidence was presented to establish that intervenor Lee County is a riparian property owner within 1,000 feet of the proposed revetment. The Lee County Board of County Commissioners were, however, notified of the instant application and given an opportunity to object. The parties have submitted proposed findings of fact; to the extent such findings are incorporated in this Recommended order, they are adopted; otherwise they are rejected as irrelevant to the issues presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Bonita Beach Club Condominium Association, Inc., for a coastal construction permit be GRANTED, subject to the agreed-upon conditions described above, including the dedication of a travel easement allowing the public to circumvent the 600-foot rock revetment. 21/ DONE AND RECOMMENDED this 16th day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
