Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, 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 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of April, 2007.
The Issue The issue for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. 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 31st day of May, 1996.
Findings Of Fact On or about April 12, 1982, Raymond Gritton entered into a contract for the treatment of drywood termites with Palm Beach Exterminating Service covering his residence at 371 Forest Hill Boulevard in West Palm Beach, Florida. This contract provided for a five year guarantee, with annual renewal thereafter upon payment of annual renewal charges. There is no dispute that Gritton had made his annual renewal payments, and that at all times material hereto he had coverage under this contract with Palm Beach Exterminating Service. Under the terms of his guarantee, Gritton was entitled to an annual inspection and written report, upon request, from Palm Beach Exterminating Service. In early February, 1990, he requested an inspection, and on or about February 8, 1990, Respondent Douglas Armand conducted an inspection of the premises. Respondent went into Gritton's attic during the course of his inspection of the premises, and told Gritton that he had discovered an infestation of live drywood termites in the attic. Respondent showed Gitton what he represented were the remains of a drywood termite he had just killed in his attic. Following his inspection, Respondent told Gritton that he should have his house tented and fumigated for drywood termites, and that there would be a $40 charge for a written inspection report. In fact, the remains that Respondent showed to Gritton were of a carpenter ant, and not a recently killed drywood termite. This finding is based upon the inspection of the property by Joseph Parker, an expert in termite inspection, on May 8, 1990. There was no evidence of any live infestation of drywood termites in Gritton's attic, and therefore, there was no need for fumigation of the premises. Although another representative of Palm Beach Exterminating Service, David Sprague, informed Gritton on February 14, 1990, that there would be no charge for an inspection report and that one would be forthcoming, at the time of hearing in this matter, Gritton had still not received a copy of any inspection report on his house from Palm Beach Exterminating Service. At hearing, Respondent produced a copy of an inspection report which Respondent claims was sent to Gritton. However, this report evidences on its face that it was sent to the wrong zip code, and in any event, this report is of Sprague's inspection on February 14, 1990, and is not a report of Respondent's inspection on February 8, 1990. There is no dispute between the parties concerning Respondent's certification by the Department. At all times material hereto, Respondent has been a certified operator with Palm Beach Exterminating Service in West Palm Beach, Florida.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order imposing an administrative fine in the amount of $200.00 upon the Respondent. DONE AND ENTERED this 15th day of February, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Department's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-4. Adopted in Finding 2. 5-6. Adopted in Finding 3. 7. Adopted in Finding 4. 8. Adopted in Finding 6. 9. Adopted in Finding 5. 10. Adopted in Finding 7. 11. Adopted in Finding 6. 12. Adopted in Finding 7. COPIES FURNISHED: Karen Miller, Esquire District Legal Office 111 Georgia Avenue, #317 West Palm Beach, FL 33401 James L. Kolkana Palm Beach Exterminating Service 2110 Florida Mango Road West Palm Beach, FL 33409 Douglas J. Armand Palm Beach Exterminating Service 2110 Florida Mango Road West Palm Beach, FL 33409 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda K. Harris, Acting General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Findings Of Fact The parties stipulated and agreed to the operative facts in their Pre- Hearing Stipulation and those agreed-on facts are adopted herein as Findings of Fact 1-26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Respondent denied Petitioner's requested permit in this case because the status of his leases was currently in question for possible failure to maintain the allegedly required level of cultivation. Respondent applied the provisions of Rule 46-27.0092 F.A.C. (1988) to Petitioner's request for a permit, which rule in fact was not adopted until October 1, 1986, and the pertinent provisions of which did not exist in fact until the rule was amended on July 7, 1988. Rule 46-27.0092 F.A.C. (1988) cites as its specific authority four provisions of Florida statute which did not exist when Petitioner's oyster leases were acquired by contract with the State of Florida. Rule 46-27.0092 F.A.C. (1988) implements laws which did not exist at the time Petitioner acquired his contract interest in these leases. The Department denied Petitioner's request for a permit in reliance on Section 370.06(4), Fla. Stat. (1987), a statute which did not exist at the time Petitioner acquired his interest in these oyster leases by contract. A report by Dr. Charles Rockwood and others commissioned by the Department of Natural Resources of F.S.U. found that "The local contention that dredging [for oysters in Apalachicola Bay] would be ecologically harmful to the Apalachicola oyster population given the relatively soft and muddy bottom, it would cause excess siltation and the oysters would smother and die, is a conclusion not supported by ecological information available to the project researchers." The Marine Fisheries Commission 15 years later arrived at the same conclusion stated in #7. "We do not believe there would be any environmental problem associated with the use of dredges." In Louisiana dredges are allowed to a maximum of 7 Ft. and up to 6 per vessel. Ron Ducas from Louisiana, one of the top shellfish biologist in the southeast, said that the use of dredges does not cause any environmental damage or [un]necessary [sic] damage to the oyster. The findings noted in #7, 8 and 9 were submitted by Mr. Nelson of the DNR and on behalf of Respondent to the governor and cabinet during the Marine Fisheries Commission agenda of the cabinet meeting on June 14, 1988. It was noted in a memorandum from the Office of the Governor to Sally Monroe from Billy Buzzett regarding Apalachicola Bay Oyster Dredging dated July 13, 1988, that the owner of lease numbers 525 and 609 appeared to be in compliance with the requirements of his leases and they were validly held leases from the State of Florida. Most of the currently leased [Apalachicola) bay bottom is not productive because of lack of oyster habitat. Annually, Apalachicola Bay is filled with oyster spawn (spat). The spat would naturally attach to oyster beds of oyster shell and culch if such beds were created where the bottom is now only mud. The owners of leases have the right to create oyster habitat on their leases and to hardest the oysters that may grow thereon. The cost of depositing oyster shell and culch materials on the mud bottom in adequate quantities to create a suitable habitat for spat is about $5,000.00 per acre. In recent years, approximately 90 percent of the oysters processed in Franklin County by shucking and canning have come from outside Florida, and only about 10 percent from Florida. The supply of oysters from outside of Florida is unstable largely due to water quality degradation in other states, as well as the loss of oyster habitat to development. The use of dredges could allow the holders of leases to harvest oysters from the leasehold more quickly and less expensively. The savings in money could then be used to create more oyster habitat. Except for potential illegal use of dredges [on public bars], misuse of dredges on lease holds (scooping of all oyster bar materials, without redeposit of the shell and culch), and fracture of thin shelled oysters on lease holds, there is no evidence that oyster dredges will cause biological or water quality problems in Apalachicola Bay. Those permitted to use dredges on private leases would have the economic incentive to use the dredges in a manner that does not destroy their financial investment in the leasehold. The foregoing facts represented by #l2 through 20, were all positions advanced by Respondent and the Florida Marine Fisheries Commission to defend the validity of Rule 46-27.0092 and were conclusively found by the State of Florida, Division of Administrative Hearings in Franklin County, Seafood Workers Association, Royce Watson and Leroy Hall, Petitioners v. Department of Natural Resources, and Florida Marine Fisheries Commission, Respondents, in the State of Florida, Division of Administrative Hearings, Case NO. 87-4438R, 10 FALR 2190 (March 31, 1988) An oyster lease is, among other things, an interest in land. Petitioner is the owner of Oyster Lease Nos. 525 and 609 which were issued pursuant to Chapter 370.16(16)(b), Fla. Stat. (1953). The terms of the leases in question are perpetual and convey interest in parcels located in Apalachicola Bay in Franklin County, Florida. Petitioner applied for a permit to use implements or appliances on his leases on June 30, 1988. Petitioner issued its final order of denial on September 28, 1988. Respondent has not commenced any proceeding to revoke Petitioner's oyster leases. Additionally, the parties stipulated to the facts set forth as Findings of Fact 27-29 in their Stipulation filed February 9, 1989. Petitioner is the lessee of Oyster Leases Nos. 525 and 609, which constitute leased bedding ground. Petitioner has agreed to furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as he may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law. The attached form of bond [attached to the Stipulation] is acceptable to and approved by the parties for the above-stated purpose. The only conditions precedent to the issuance of a permit to a lessee to use on leased bedding ground any implements or appliances as he may desire are: 1) that the applicant for the permit be a lessee of an oyster lease, and 2) that he furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as the lessee may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of Olan B. Ward for a special activity license to use mechanical harvesting implements on Oyster Leases No. 525 and 609. DONE and ENTERED this 20th day of April, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Frank J. Santry Attorney at Law Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129 (32317) Tallahassee, FL 32308 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The central issue in this case is whether Petitioner's wholesale dealer's license should be approved for renewal.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years. DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2394 Rulings of the Proposed Finding of Fact submitted by Respondent 1. Rejected, outside the scope of evidence Submitted at the final hearing. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent, the Department of Environmental Protection (DEP), should grant Petitioners’ application for a coastal construction control line (CCCL) permit to armor the beach seaward of the CCCL at their properties on Alligator Point in Franklin County (permit number FR-740).
Findings Of Fact Petitioners own property fronting the Gulf of Mexico on Alligator Point in Franklin County. Finley and Jean McMillan own Lot 7, and Angelo Petrandis owns Lot 8, in Block V of Peninsula Point, Unit 6, a subdivision platted and recorded in Plat Book 2, page 2, of the Public Records of Franklin County. Petitioners complain that they applied to armor the beach at their properties, using rock rip-rap seaward of the CCCL, in the early 1990’s, but the Department of Environmental Regulation (the regulatory agency that preceded DEP) indicated its intent to deny the application and required Petitioners to build a wooden seawall that would be expendable in a major storm. Storms destroyed the wooden seawall and the Petrandis home on Lot 7. In 1995, Hurricane Opal severely damaged the McMillans’ home, which was later condemned and demolished. These homes have not been rebuilt. Since Opal, DEP permitted the construction of rip-rap revetments seaward of the CCCL to armor the beach and protect the homes of Petitioners’ neighbors to the west (Lot 6) and east (Lot 9)(an after-the-fact permit issued in September 2003). In October 2003, Petitioners applied for a CCCL permit to armor the beach seaward of the CCCL at their properties on Alligator Point (permit number FR-740). They proposed a rock rip-rap revetment to be constructed seaward of the approximate mean high water line, between 285 and 295 feet seaward of the CCCL, to tie into and “close the gap” between the rock rip-rap revetments of their neighbors to the east and west. DEP requested additional information, including documentation of ownership or control of the project area, all of which appeared to be seaward of the mean high water line, and requested payment of the application fee. The information and fee were provided, and DEP declared the application to be complete in August 2005. In September 2005, Petitioners’ engineering consultant filed, on their behalf, a waiver of the statutory 90-day limit DEP had to either grant or deny the application. See § 120.60(1), Fla. Stat. In May 2007, DEP gave notice of inactive 90-day clock waiver, meaning that there had been no activity on the application, which would be deemed withdrawn unless Petitioners notified DEP to the contrary. In June 2007, Petitioners’ engineering consultant responded with a request for “an additional 90-day extension to the . . . project” for Petitioners to revise the application to propose a tie-in to the rock revetment of the neighbor to the west but a 90 degree turn at the property boundary to the east to form an “L” there. However, no actual revision to the application was made. In May 2008, DEP gave a second notice of inactive 90-day clock waiver. There was no evidence of any response. In July 2009, DEP gave notice of its intent to deny the application. DEP’s notice of intent was issued because: there are no structures on Petitioners’ properties to be protected by the proposed armoring seaward of the CCCL; Petitioners’ proposed armoring project would not “close a gap” of 250 feet or less in a continuous and uniform armoring structure construction line; and Petitioners’ proposed armoring project would have a significant adverse impact on marine turtles. There are no structures on Petitioners’ properties. While the rock revetment on the property of the neighbor to the west is stable and would prevent upland erosion from a 15-year return interval storm, there is no such structure for well over 250 feet to the east of Petitioners’ properties. The dwelling on the property to the east has suffered severe storm damage and has been abandoned. The armoring structure permitted and built on that property is in disrepair, dilapidated, disorganized, and made of rocks that are too light in weight to be stable or capable of preventing upland erosion from a 15-year return interval storm; from the evidence, including the damage from storms since 2003, it is not clear whether the structure ever was capable of preventing upland erosion from a 15-year return interval storm. Female marine turtles instinctively return to lay eggs on the beach where they were born. Threatened and endangered marine turtles use the sandy beaches of Alligator Point for nesting. One successfully used Petitioners' beach for nesting in June 2005. If rigid coastal armoring prevents a turtle from nesting, the turtle will seek a nearby alternative. If a good alternative is not found easily enough, the turtle may abandon nesting and release her eggs in the water, where they will perish. This makes a dry sandy beach between stretches of armored beach (a so-called “pocket” beach) valuable for turtle nesting. For these reasons, Petitioners’ beach is valuable for turtle nesting, and it is expected that turtles will again use it for nesting (although no nest has been documented on Petitioners’ beach since 2005.) Petitioners’ proposed armoring structure would prevent nesting marine turtles from coming ashore at their beach. Petitioners did not prove that their proposed beach armoring structure would not significantly impair breeding by marine turtles, or that the resulting “take” of marine turtles has been authorized. Petitioners complain that they should have been allowed to build a rock rip-rap revetment in the early 1990’s, instead of being denied and required to build the wooden seawall that was destroyed by storms. However, it was not proven that their earlier application should have been granted, or that it was error to approve the wooden seawall application. Petitioners complain that DEP should be responsible for the delay in processing their application, which they now claim would have been granted if acted on promptly. Clearly, events that occurred during the delay, including the major storms that struck in 2004 and 2005, complicated Petitioners’ application and gave rise to grounds to deny it. However, Petitioners did not prove that that the rock revetment of the neighbor to the east ever was suitable for “closing the gap.” Even if the rock revetment to the east was suitable for “closing the gap” in 2003, the evidence did not prove that DEP was responsible for any delays in the permitting process either before or after the storms of 2004 and 2005. Since Petitioners’ application was not complete until August 2005, it cannot be said that their application would have been granted if acted upon before then. The next month, Petitioners’ consultant relieved DEP from responsibility for further delay by waiving the “90-day clock.” It appeared from Petitioners’ testimony at the final hearing that they misunderstood the meaning of the “90-day clock waiver.” They thought it imposed a duty on DEP to act on their application within the following 90 days. Actually, it was a blanket waiver. Similarly, they seemed to think the notice of inactive 90-day clock waiver deactivated the waiver and restarted the 90-day clock. Actually, it notified Petitioners that there had been no activity since the waiver and that DEP would deem their application to be withdrawn unless Petitioners told DEP otherwise. The consultant’s response to the second notice of inactive 90-day clock waiver was couched as a request for a 90-day extension, which Petitioners interpreted as reactivation of the 90-day clock. Actually, it was a request that DEP not consider the application withdrawn for 90 days, during which Petitioners would be revising their application. No revision was filed, and DEP did not deem the application withdrawn after 90 days. Instead, DEP proceeded with its review of the pending application and denied it approximately a year later. Even if DEP were responsible for this last delay of over a year, there was no evidence of anything occurring during that time that further complicated Petitioners' application or gave rise to any additional grounds for denial. Petitioners complain that DEP should not have approved the rock rip-rap revetments of their neighbors to the east and west. They contend that the revetment to the east should not have been permitted since it was destroyed by the storms of 2004 and 2005 and that both had marine turtle nesting habitat comparable to their property. The destruction caused by the storms of 2004 and 2005 did not prove that the revetment to the east should not have been approved. There was no evidence of actual turtle nesting on Lots 6 and 9 at the time of the approval of the rock revetments there. In addition, impacts on nesting marine turtles from the neighboring revetments would have been reduced by the existence of Petitioners’ unobstructed beach; conversely, the existence of the neighboring revetments increased the value of Petitioners’ property for marine turtle nesting, as possibly indicated by the successful nest in 2005. In addition, the evidence was that Petitioners possibly could get a permit to “take” marine turtle nesting habitat as a result of a beach armoring project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order denying Petitioners’ application for CCCL permit FR-740. DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2011. COPIES FURNISHED: Finley L. McMillan Jean B. McMillan Post Office Box 68 Panacea, Florida 32346-0068 Norman West Gregory, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Angelo Ernest Petrandis Post Office Box 189 Panacea, Florida 32346-0189 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Harbor Course South is a one hundred and seventy two lot real estate development which is a portion of the Ocean Reef Club located at the extreme northern end of Key Largo, Monroe County, Florida. The Harbor Course South property was acquired in approximately 1964 along with over 1200 acres of adjoining property for approximately 1.5 million dollars. Driscoll Properties, Inc. ("Driscoll"), a Florida Corporation, is the developer of Harbor Course South. Driscoll Foundation, Inc., (the "Foundation") is a non-profit Florida corporation which owns a portion of the Harbor Course South property. (Driscoll and the Foundation are collectively referred to as the "Intervenors" or the "Permittees.") The Ocean Reef Club is a one thousand two hundred unit development encompassing approximately eight hundred acres including at least two eighteen hole golf courses, a marina and an air strip. Nine holes of golf are located in Harbor Course South. These nine holes were leased to the Ocean Reef Club in 1974-1975 pursuant to an agreement providing for creation of golf course lots and lake-front lots in Harbor Course South. The nine holes of the golf course located in Harbor Course South were in place by at least 1978 and have been in use since that time. In order to install those nine holes, some roads were cut through the property and the lakes were dredged. Thirty-eight of the one hundred and seventy-two lots in Harbor Course South were originally platted in 1978 or 1979. These thirty eight lots are referred to as Section 1 of Harbor Course South. All of lots in Section 1 have been sold to individual purchasers for an average price of $34,210.00 per lot. The thirty-eight lots in Section 1 were all sold prior to 1988. In approximately 1979, some roads were cleared and paved on the Harbor Course South property in order to provide access to the thirty-eight originally platted lots in Section 1. A number of the lots in Section 1 have been permitted for construction by Monroe County and houses have been constructed on several of them. No individual lot owner in Section 1 has been denied a permit for clearing at least some of his land for a homesite. Both the United States Fish and Wildlife Services ("U.S.F.W.S.") and the Florida Game and Fresh Water Fish Commission (the "Commission") have determined that the clearing and/or development of the lots in Section 1 will not require permits for the taking of endangered or threatened species or their nests. In 1985, the Intervenors, in conjunction with the Ocean Reef Club, sought a determination as to the extent of their vested development rights with respect to the Harbor Course South property by initiating a vested rights hearing before Monroe County. These proceedings were initiated under Chapters 380 and 120, Florida Statutes and resulted in a Joint Stipulation on February 23, 1988 recognizing that the Intervenors have vested rights to develop the Harbor Course South plats. (The Joint Stipulation is referred to as the "Vested Rights Determination.") The Vested Rights Determination recognized that the Intervenors and the Ocean Reef Club had incurred obligations and expenditures based upon the approval of the master plan for development of Ocean Reef in 1977 in accordance with the then-existing regulations of Monroe County. The expenses and improvements upon the property included the construction of roadways, water main extensions, medical facilities, and golf courses. As a result of these expenditures, the Vested Rights Determination established that the Intervenors were authorized to continue development under the master development plan for the Ocean Reef Club, notwithstanding the enactment of a comprehensive land use plan and development regulations by Monroe County on September 15, 1986. No appeal of the Vested Rights Determination was filed by the Florida Department of Community Affairs or any other party. The remaining one hundred thirty-four lots in Harbor Course South were subdivided into three plats in 1986. These plats have been designated Ocean Reef Plat Numbers 17, 18 and 19 (also referred to as Sections 2, 3 and 4 respectively of Harbor Course South.) The Intervenors were not required to obtain a permit from the U.S.F.W.S. or the Commission prior to subdividing and/or selling lots of the Harbor Course South property. Most of the infrastructure for development of Plats 17, 18 and 19 is in place. Paved roads were completed in 1987-1988. The electrical lines and sewer lines are in place and operational in all three plats. The water lines are in place and connected in Plat 17. The waterlines are also in place, but not connected, in Plats 18 and 19. The total area of Sections 2, 3 and 4 of Harbor Course South is 134.09 acres. The remaining one hundred thirty-four lots occupy approximately 53.66 acres of this total. The lots in the area are priced at an average of $127,000 each. The Intervenors have begun selling the lots in Plat 17 (Section 2 of Harbor Course South). This plat consists of twenty-five lots. No competent substantial evidence was offered to establish the exact number of lots sold or houses constructed in this area, but it appears that ten to twelve lots were sold between July 1, 1989 and December 13, 1989. At least one house has been constructed on this plat and three building permits are pending before Monroe County. Prior to selling the lots in Plat 17, the Intervenors reached an informal agreement with the U.S.F.W.S. and the Commission as discussed in more detail in Findings of Fact 33 below. In accordance with that agreement and because there was no indication of the presence of endangered or threatened species on these lots, it was determined that none of the lots sold in Plat 17 would require the issuance of a permit from the Commission before land clearing could take place. The sales of the lots in Plat 17 were not completed until after the issuance of a Proposed Permit by the Commission for the "incidental taking" of endangered and threatened species with respect to the entire Harbor Course Property. (This Proposed Permit is discussed in more detail in Findings of Fact 44.) After the Proposed Permit was issued and this challenge was filed, the titles to the lots sold in Plat 17 were transferred to the purchasers. As indicated above, some of these lot owners have proceeded with the development of their property without the need of a permit from the U.S.F.W.S. or the Commission. None of the lots in Plats 18 and 19 (Sections 3 and 4) have yet been offered for sale. The natural vegetation of North Key Largo, including the Harbor Course South property, consists largely of tropical hardwood hammock. The quality of the vegetation varies widely throughout the area. Development of the Ocean Reef Club has largely supplanted the hardwood hammock in that area. The golf course which is located on the Harbor Course South property was placed in the midst of the hammock. The golf course and the infrastructure for development of Harbor Course South have fragmented the hammock in Plats 17, 18 and 19. The hardwood hammock of North Key Largo is a unigue flora to North America, being extremely tropical in character. It is characterized by vegetation more commonly found on the tropical islands of the Carribean and is different from the tropical hammocks of mainland South Florida because of a difference in hydrology, i.e., the Florida Keys are substantially drier and have a lower water table. The hammock of North Key Largo has a very high species diversity with one hundred and five species of trees and shrubs and fifteen species of woody vines in the hammock vegetation. The ecology of a hardwood hammock is cyclical. Over the years, the hammock has demonstrated its ability to regenerate naturally. Thus, while much of North Key Largo was used as agriculture land in the late nineteenth and early part of the twentieth century, the hammock has recovered in those areas where it has been allowed to naturally regenerate. The species of plants in the hardwood hammock are well-adopted for colonizing. The trees are "good at getting their seeds into places where they will grow." Many of the species of hammock trees and shrubs have fruits that are attractive to birds and some animals such as raccoons. These animals, birds, and raccoons eat the fruit, do not digest the seeds, but pass them in their fecal material which helps spread the vegetation. Tree growth in a young hammock is initially rapidly vertical before spreading out to provide larger coverage. A mature hammock provides a "closed canopy" of branches which affords protection and transportation for many animals including woodrats and cotton mice. As the hammock matures, there is an accumulation of humis and leaf litter on the ground beneath the trees. This humis layer serves as a seed bed for new growth and accumulates over the years. The humis layer is an important factor in assessing the quality of a hammock as habitat for endangered species. It takes decades for a hammock to fully mature to the point that it provides habitat and food sources for woodrats and similar creatures. Because of the biological richness of the hardwood hammock, as well as to protect the off-shore coral reefs from the detrimental effects of run-off from development, the State of Florida, through the Conservation and Recreational Land Acquisition program, ("CARL") has designated much of area of North Key Largo at the top of the acquisition priority list. The area slated for acquisition under the CARL program extends approximately twelve miles from the point where U.S. Highway 1 enters Key Largo northeastward to the southern boundary of Harbor Course South. The State of Florida has already acquired large tracks of North Key Largo under the CARL program. These tracks include a large portion of the land on the east side of State Road 905 from Port Bougainville to the southern border of the Ocean Reef Club (Harbor Course South.) Moreover, the Foundation is currently negotiating with the State regarding the acquisition of approxiately twelve hundred acres immediately adjacent to Harbor Course South. The federal government has established the Crocodile Lake National Wildlife Refuge which embraces most of the land lying west of State Road 905 from Card Sound Road (near and west of the Ocean Reef Club) south to Lake Surprise, a distance of approximately twelve miles. In sum, a large portion of the property in North Key Largo outside the Ocean Reef Club and Harbor Course South does not have vested development rights. A vast majority of this property is, or will likely become in the near future, publicly owned for conservation purposes. Thus, large quantities of high quality tropical hardwood hammock habitat have been, or are in the process of being, acquired in the immediate vicinity of the Harbor Course South property. The hardwood hammocks of North Key Largo are inhabited by certain endangered and threatened species. The Commission has the authority to determine endangered species within the area of its jurisdiction under the Endangered Species Act of 1973, 35 U.S.C.A. 1531, et seq. The Key Largo woodrat (neotoma floridana smalli) and the Key Largo cotton mouse (peromystus gossypinus allapaticola) are animals which can be found in the secondary growth and mature tropical hardwood forests of North Key Largo. Both the woodrat and cotton mouse as well as the Schaus' swallowtail butterfly (heraclides aristodemus ponceana,) have been listed as endangered species in Rule 39-27.003, Florida Administrative Code. The hardwood hammock of North Key Largo also serves as a habitat for the Eastern Indigo snake (drymarchon corais couperi), which has been listed as a threatened species by the Commission pursuant to Rule 39-27.004, Florida Administrative Code. Rock piles, tree roots, mounds, piles of sticks, holes in the rock substrate, holes in the humis layer beneath the trees and similar hiding areas all serve as nests or "refugia" for the woodrat. A mature hammock provides an ideal habitat for the woodrat. Destruction of the habitat of the woodrat has been a key factor in the woodrat becoming an endangered species. The Key Largo cotton mouse occupies much of the same habitat as the woodrat. Although the density of the population has not been established, there is no dispute that some portions of the Harbor Course South property are populated with woodrats and cotton mice. The quality of the habitat varies significantly throughout the property. There is only limited evidence of the presence of the Schaus' swallowtail butterfly on the Harbor Course South property. There have been a few citings of the species in the vicinity of Harbor Course South, but it does not appear that this property is an important habitat for the Schaus' swallowtail butterfly. There is no specific evidence of the presence of the Eastern Indigo snake on the subject property. Before a lot owner in Harbor Course South can clear his homesite, the Monroe County Code requires the owner to secure a habitat analysis which must be prepared by an accredited biologist approved by the County. That analysis determines the quality of the hammock on the lot, which in turn determines the amount of vegetation which the County will allow the lot owner to clear. This requirement was in place for the first thirty eight lots that were originally platted in Section 1. Under the existing Monroe County Land Clearing Regulations, only twenty percent of a lot with high quality tropical hardwood hammock can be cleared; forty percent of a lot with medium quality hammock can be cleared and forty to eighty percent of a lot with low quality hammock can be cleared. As of the date of the hearing in this case, all lot owners in Harbor Course South who have applied for a building permit were allowed to clear at least a portion of the lot for construction of a homesite. It does not appear that any lot owner was permitted to clear more than forty percent of his lot. As indicated above, no permits from the Commission or the U.S.F.W.S. were necessary in order to clear the lots and commence building on the thirty- eight lots in Section 1. Likewise, the Commission determined that the habitat quality in the area of Plat 17 was sufficiently low that a permit would not be required for development on that Plat. However, the Intervenors were aware of the presence of endangered and threatened species in this area. Around the time that the Vested Rights Determination was obtained, the Intervenors entered into discussions with the U.S.F.W.S. and the Commission in an attempt to obtain an overall permit for Plat 17, 18 and 19 with respect to endangered and threatened species. During these negotiations, the Intervenors received permission from the U.S.F.W.S. and the Commission to proceed with development in Plat 17 even before a permit was issued. The Commission determined that the Intervenors could proceed with the development of Plat 17 without obtaining a permit because of the relatively low habitat value of most of the parcel and the apparent absence of any endangered species in this area. As part of the negotiations regarding this authorization, the Intervenors agreed to seek a permit with respect to the remaining one hundred and nine lots in the subdivision. The negotiations were prompted, at least in part, by an agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority (which provides water to the area) that established certain requirements before water connections could be made to new residential property in North Key Largo. This agreement requires that, before water connections can be made to an area inhabited by endangered or threatened species of wildlife, a permit must be obtained by the U.S.F.W.S. During the negotiations, the U.S.F.W.S. indicated to the Intervenors its desire to address the conflict between the endangered species on North Key Largo and development interests in "one big conflict rather than having to handle it land owner by land owner." The Commission agreed with this approach feeling it could better protect the subject species through required mitigation by the developer which would probably not be possible or practical when dealing with individual lot owners. Although the Intervenors questioned the legality of the requirements imposed as a result of the agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority, the Intervenors decided to try and work with both the federal and state agencies and attempt to meet their concerns rather than engage them in a legal battle over their authority to impose mitigation requirements on new developments. A permit from the U.S.F.W.S. or the Commission is not necessary for the Intervenors to sell the lots in Plats 17, 18 and 19. The Intervenors sought permits from the Commission and the U.S.F.W.S. in a good faith attempt to cooperate with the agencies responsible for enforcing the Endangered Species Act and to eliminate obstacles to the clearing and development of the lots by individual lot purchasers. The U.S.F.W.S. has developed specific rules and procedures for protecting the habitat of endangered species and issuing "incidental take" permits for activities that may impact on the species or their habitat. The Commission has not adopted any rules that specifically protect the habitat of endangered species other than a prohibition against molesting or harming their nests. Similarly, the Commission has no specific rules regarding "incidental take" permits. The Intervenors filed an application with the U.S.F.W.S. on March 13, 1989 seeking a permit for covering all of Plats 17, 18 and 19. Attached as exhibits to the application were copies of the pleadings from the proceedings whereby Intervenors received their Vested Rights Determination, a summary of a proposed revegetation project to be undertaken in connection with the permit; the Harbor Course Subdivision construction plans together with construction details; a report prepared by Dr. Earl Rich regarding North Key Largo endangered rodent preservation measures; a report by Dr. Jack Stout setting forth the results of woodrat and cotton mice trapping in the subject area; and an aerial photograph of the subject area. The application sought a "permit for the incidental taking of endangered species in connection with completion of development of a residential subdivision and related site improvements surrounding an existing golf course. The area to be cleared may include habitat for the Key Largo woodrat, cotton mice, or Schaus' swallowtail butterfly." A permit has not been issued by the U.S.F.W.S. with respect to Plat 17, 18 and 19. The Intervenors' application for a permit has been transmitted to the Commission. It is not clear how the application filed with U.S.F.W.S. came before the Commission for consideration. The Commission has no direct agreement with the Florida Keys Aqueduct Authority regarding water connections. The Commission's authority for asserting jurisdiction over the development is not based on any existing rules or statutes regarding "incidental take" permits. The U.S.F.W.S. has apparently agreed to defer to the Commission with respect to the issuance of a permit for the Harbor Course South development. The U.S.F.W.S. has been kept abreast of the negotiations and terms of the Proposed Permit and has suggested various changes during the negotiation process in an effort to coordinate the conditions of the two permits. By letter dated July 24, 1989, the Commission set forth conditions for the issuance of a permit to the Intervenors which would authorize them to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, and to take Eastern Indigo snakes, "incidental to land clearing operations and building construction of single family and cluster homes" on Plat 17, 18 and 19. The permit does not authorize the killing of woodrats, cotton mice or Schaus' swallowtail butterflies. The Commission stated that the permit was being issued pursuant to Rules 39-27.002(1) and 39- 27.002(2), Florida Administrative Code. (The July 24, 1989 letter setting forth the conditions for the permit will be referred to as the "Proposed Permit.") The Proposed Permit states that the permit will inure to the benefit of the Intervenors and their "successors in title or their agents." In other words, purchasers of lots from the Intervenors would be covered by the Permit and no additional permit would be necessary to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, or to take the Eastern Indigo snakes incidental to the development of their lots. The terms and conditions of the Proposed Permit were prepared after several meetings and discussions between Commission personnel, the Intervenors' expert biologist Dr. Stout and the developers themselves. The Proposed Permit requires both on-site mitigation and off-site mitigation. The on-site mitigation requires the permanent dedication in the form of a conservation eastment of 5.94 acres in Tract E of Harbor Course South, Section 3 ( Ocean Reef Plat 18) to provide perpetual protection for the habitat for the species listed in the Proposed Permit. The exact provisions of this conservation easement are not speficified in the Proposed Permit and were not established in this proceeding. The Permit also requires specific habitat enhancement of Tract E by planting torchwood seedlings as a means to attract Schaus' swallowtail butterflies in the area of an old service road on Tract E, revegetation in accordance with specific planting instructions of another road that bisects Tract E and the placement of ten piles of rocks and logs of at least four cubic yards each in the old roadway. A ten thousand dollar surety bond or letter of credit is required to ensure compliance with the planting and debris placement provisions within three years of the date of the issuance of the permit. The Intervenors had intended to subdivide Tract E into ten additional lots to be sold as homesites. While Petitioner contends that the development of lots in Tract E may have been prohibited because of the high quality hammock on some of these lots, the evidence established that most, if not all, of the lots in Tract E will be sold and developed as individual homesites if the area is not set aside as a conservation area pursuant to the terms of the Proposed Permit. The establishment of a conservation area in Tract E will help preserve a continuous habitat area for the endangered species. Tract E is adjacent to a large track of property that has been or is in the process of being acquired by the state for conservation purposes. By requiring the Intervenors to provide rubble and debris piles and revegetation on Tract E, the Proposed Permit will further enhance the quality of the habitat in this area. The Proposed Permit requires the existing dirt road which currently cuts through Tract E to be closed and revegetated. There is no requirement that the fill installed for the road bed be removed. While Petitioners contend that such a condition is necessary for the development of this tract into high quality habitat for the endangered species, the natural regeneration of the hammock will be enhanced by the revegetation plan and this area will ultimately develop into high quality habitat. Planting torchwood in the area of Tract E, which is close to the golf course and areas that will be developed, may actually harm the survival potential of the Schaus' swallowtail butterfly. The butterflies are extremely susceptible to chemical insecticides. Planting torchwood in areas where insecticides will be used may create an attractive nuisance to the butterflies. Therefore, the requirement for planting should be moved to an off-site area that is remote from the development to guard against this problem. The area of the old service road should be revegetated pursuant to a schedule similar to the one used for the other revegetation area. Off-site mitigation is to be provided through the enhancement of hammock succession on five, one acre segments of the right-of-way of Old State Road 905 or an alternative similar site approved by the Commission with an area of enhancement to equal five acres. The amount of off-site mitigation was baseed upon a calculation of the amount of road surface in Harbor Course South. The Proposed Permit requires the old road bed and asphalt to be removed and the road restored to original grade. The enhancement of the site is to be accomplished by planting tropical hardwood vegetation from a specified vegetation list, adherence to specific planting instructions governing phase of planting, survival rate and watering conditions, placement of twenty rock and debris piles, (each four cubic yards in volume), removal of exotic plant species semi-annually for a five year period and removal of weedy species of trees and shrubs in an area within a radius of three feet around each planted tree over a similar time period. Four lots in Plat 18 are to be set aside as an assurance against failure to complete the planting or failure to provide an alternative site. A surety bond or letter of credit in the amount of $50,000.00 is also required to ensure compliance with the planting requirements. Old State Road 905 is currently owned by the Florida Department of Transportation. There are plans to convey this right-of-way to Monroe County which in turn plans to abandon the road, remove the road bed and asphalt, and cooperate with the restoration. Thus, it appears that Monroe County may assume responsibility for removing the asphalt road along Old State Road 905. The Proposed Permit requires the Intervenor to ensure that this removal is accomplished. Old State Road 905 is utilized by some utility companies to service their utility lines. At this point, it is not clear whether the utility easements will preclude the revegetation required by the Proposed Permit from becoming effective. The Proposed Permit provides adequate procedures for selecting alternative sites in the event that Old State Road 905 can not be effectively used for a mitigation area. With respect to both the on-site and off-site mitigation, the revegatation requirements in the Proposed Permit are reasonably related to the Commission's goal of enhancing the long term survival of woodrats and cotton mice on North Key Largo. While the diversity of the flora in a natural hammock is greater than that called for in the proposed mitigation, the revegetation will accelerate the development of the mitigation areas into high quality habitat for the endangered species. While a hardwood hammock has a natural capability to regenerate on its own, the regeneration can be enhanced by planting trees in a scarified area. The revegetation required pursuant to the Proposed Permit will be placed mainly in corridors replacing old road ways. This placement will hasten the redevelopment of these areas into high quality habitat. The Intervenors are required to ensure a two year, seventy five percent survival rate for trees planted. Any trees that die are to be replaced by the species with the highest survival rate. The evidence established that the most effective way to enhance the revegetation process is to plant those species of trees that are slow to seed or that are relatively rare. It is not clear whether the planting schedule and sucession procedures attached to the Proposed Permit have taken this fact into consideration. While the diversity of species detailed in the attachments to the Proposed Permit could be reallocated between species to further enhance the revegetation process, the proposed schedules are adequate except for the requirement of planting torchwood on Tract E. Torchwood is an important habitat and food source for Schaus' swallowtail butterflies and should not be placed in an area where chemical insect control efforts are likely. As indicated above, the Proposed Permit requires a survival rate of 75% for the planted trees within two years of the initial planting. The Intervenors are also required to inspect the revegetation sites semi-annually for five years and to remove invasive exotic plants. In addition, Intervenors are required to remove weeding trees, shrubs and vines within a radius of 3 feet around each planted tree for a period of five years. Semiannual reports must be filed with the Commission for the first five years after planting to advise as to the presence of such species. There are no enforcement mechanisms in the Proposed Permit to ensure that the monotoring and removal of exotic species requirements will be completed. The bond requirements of the Proposed Permit only apply to the plantings and installation of debris piles. The requirement for removal of exotic species will help ensure that those exotic species cannot invade the mitigation sites and prevent or retard the natural hammock regeneration process. This requirement will enhance the development of a high quality hammock which will hopefully provide habitat for the endangered species. It is important that an enforcement mechanism be provided in the permit with respect to this requirement. The State Department of Natural Resources has a program for the removal of exotic plants from state lands. DNR is currently preparing a major management plan for North Key Largo and DNR employees are currently involved in removing exotic species from the right-of-way of Old State Road 905. The requirements of the Proposed Permit will augment the on-going efforts of DNR and free-up resources to focus on the removal of exotic species in neighboring areas. The Proposed Permit does not impose qualifications on the individuals who will be responsible for removing the exotic species. The permit should require the Intervenors to retain qualified people to identify the exotic species. The spacing, watering and survival rate aspects of the revegetation plan were based, in part, upon the experiences with revegetation at a previous mitigation site (the Budd Post site discussed below) and represent a reasonable effort for enhancing the revegetation of the hammock. While there is no requirement that the planted trees survive longer than two years after the initial planting, the 75% survival requirement during the first two years provides reasonable assurance that the revegetation will be done properly and with a high probability of success. General Condition 1 of the Proposed Permit indicates that the Commission will review the Permit periodically and "may initiate enforcement or revocation action for any violation of the Permit Conditions by the Permittee, its agents, its employees, or representatives." There is no provision for enforcement or revocation of the permit for violations of the permit conditions by purchasers of lots or other third parties who obtain title to the property from the Intervenors. This enforcement mechanism will become essentially obsolete if and when the Intervenors transfer their interests in the property. General Condition 2 of the Proposed Permit indicates that the Permit is valid "only for the specific processes and operations applied for and indicated in the approved drawings or exhibits." This provision is meaningless since there are no "specific processing operations applied for" and there have been no approved drawings or exhibits other than the planting schedules which are part of the revegetation aspect of the mitigation requirements. There are certain provisions of the Proposed Permit which are vague and/or ambiguous. Special Conditions 4(b) indicates that the requirements of Specific Condition 3(j) are applicable to the restoration of Tract E. Special Condition 3(j) requires the placement of twenty debris piles. However, Specific Condition 4(c) only requires a placement of ten such piles in Tract E. This ambiguity should be clarified. Special Condition 4(d) indicates that there are utility lines in the revegetation area which will have to be maintained. Under this provision, the applicant is allowed to maintain, using hand tools only, a clear path of up to eight feet wide over each utility line. It is not clear from the evidence presented how many utility lines are involved and whether a separate eight foot area can be cleared for each utility line. If several separate utility lines are involved, this provision could effectively prevent the regeneration of the area into high quality hammock habitat. Free ranging domestic pets, especially cats, are a significant threat to the endangered species. One of the conditions imposed by the Proposed Permit would prohibit free ranging pets within the subdivision pursuant to a subdivision covenant to run with the land. The specific wording of such a covenant has not been provided. The Proposed Permit does not provide for any enforcement mechanism with respect to this covenant. Some enforcement mechanism must be provided in order for this condition to provide any effective protection for the endangered species. The Proposed Permit requires the Intervenors to hold four lots from sale until the off-site mitigation requirements have been met. If the planting is not accomplished within a five year period, the Intervenors are required to include these four lots as part of the conservation easement in Tract E. The lots being withheld for sale have an average market value in excess of $120,000 per lot. Thus, this requirement places a major incentive on the Intervenors to comply with the terms of the Proposed Permit. However, it is not clear whether this enforcement mechanism can be applied to the provisions of the Proposed Permit regarding the removal of exotic species. The Proposed Permit does not allow the Intervenors to kill any member of the endangered species. The Proposed Permit does allow the "incidental taking" of the threatened species (Eastern Indigo snake). The term "incidental taking" is interpreted by the Comimssion to include the killing of a member of the threatened species which is incidental to the conduct of otherwise lawful activities. The Commission contends that it has the jurisdiction to issue such an "incidental take" permit for an endangered species under appropriate conditions and mitigation requirements. The Commission did not believe an incidental take permit was necessary with respect to the endangered species on this site because the Commission felt that the habitat quality was relatively low and the likelihood of encountering a member of the species at the site was also low. The evidence established that there is a possibility that some members of the endangered species, i.e., woodrats and cotton mice, will be killed during the development and building of the subdivision. While this possibility is speculative, the chances of such a killing can be minimized by incorporating further protections in the permit. The evidence did not indicate any likelihood that East Indigo snakes or Schaus' swallowtail butterflies will be killed incidental to land clearing and/or development of Harbor Course South. The U.S.F.W.S. requires a habitat conservation plan ("H.C.P.") before it will issue an incidental take permit. A habitat conservation plan committee was established by the Governor in 1985 to prepare an H.C.P. for the North Key Largo area. The goal of the Committee is to designate areas which would be suitable for development and areas which may be necessary for conservation. A Draft Habitat Conservation Plan has been prepared, but it has not yet been officially approved. Harbor Course South is outside the study area of the Draft Habitat Conservation Plan and therefore is not proposed as a conservation area. The framework and structure of the Proposed Permit reflects the Commission's desire to apply a comprehensive permitting approach to the Harbor Course South development rather than rely upon a lot-by-lot determination of jurisdiction with each individual lot purchaser at the time clearing or development activities are sought. The evidence established that there is insufficient indicia of woodrat or cotton mouse presence on a number of the lots in Harbor Course South. Thus, if a lot-by-lot approach was used, the Commission would not have the authority under its current rules to require a number of the individual lot owners to obtain a permit before land clearing. Without question, further fragmentation of the hammock will reduce the quality of the habitat for the endangered species. If a lot-by-lot permitting process is utilized, the owners of the lots that do not show any signs of the presence of woodrats or cotton mice would be able to clear to the maximum extent allowable under the Monroe County development ordinances. Such an approach would not halt the further fragmentation of hammock. By utilizing a comprehensive permit, the Commission can establish uniform standards for development and require stronger mitigative measures to offset the impact of development in the area on the endangered and threatened species. The approach is further justified in view of the Commission's determination that the Harbor Course South property is of only minimal importance as a habitat for the endangered and threatened species. See, Findings of Fact 80-81 below. In sum, land development and land clearing activities are likely to take place on the Harbor Course South property regardless of whether the Proposed Permit is issued. If the Commission utilizes a lot-by-lot determination of jurisdiction, a large portion of the lots on Harbor Course South would not be required to obtain a permit from the Commission because many of those lots do not have nests or any indication of the presence of the endangered species. Under these circumstances, the Commission would probably not be able to obtain comprehensive mitigation conditions and the habitat for the endangered species would be further fragmented with little or no mitigation. As noted above, the Commission has not adopted any rules setting forth its policies and procedures for issuing an overall blanket permit for the "incidental taking" of endangered species. Similarly, there are no formal guidelines adopted to establish when the Commission has jurisdiction over land- clearing activities. In determining whether to assert jurisdiction over a particular piece of property, the Commission looks for evidence of existing nests or habitat of an endangered species or the probability that a taking, killing or some other molestation will occur to a particular member of the species. In connection with the Proposed Permit, the Commission determined that it had the authority under Rule 39-27.002, Florida Administrative Code, to issue permits for clearing and development activities that molest the nests of endangered species. As discussed below, the Commission has issued only one prior permit for land clearing and development activities. That prior permit is was not timely challenged. No rules or standards have been promulgated by the Commission to set forth the mitigative requirements that can be imposed, if any, upon individual lot purchasers. An important factor in the Commission's decision to issue the Proposed Permit in this case was the Commission's determination that the overall quality of the Harbor Course South property as habitat for the endangered species was minimal. In determining that the Harbor Course South property was of minimal importance to the survival of the endangered species, the Commission took into consideration various reports on the sparse density of the population of the endangered species on the subject property. The Commission also took into account what it deemed to be inevitable future development as reflected in the Vested Rights Determination, the fact that the site was not designated for preservation in the Draft Habitat Conservation Plan, and the fact that the site was not part of the North Key Largo CARL acquisition project. Finally, the Commission considered that the site was already a highly fragmented tropical hardwood hammock as demonstrated by Landsat Thematic Mapper Classfied Satellite Imagery. The only previous instance in which the Commission has issued a permit to molest or harm the nests or habitat of endangered species pursuant to land clearing or development activities involved another residential sub-division in North Key Largo. In June of 1986, separate permits were issued by the U.S.F.W.S. and the Commission to the Nichols/Post Hendrix Corporation to destroy nests and habitat of the Key Largo woodrat and Key Largo cotton mouse. (The permit issued by the Commission in connection with this prior project will be referred to as the "Budd Post Permit.") The property covered by the Budd Post Permit is south of Harbor Course South. It lies approximately six miles south of the intersection of Old State Road 905 and Card Sound Road. That property consists of approximately ten acres of high quality hardwood hammock located within the project area of the North Key Largo Hammocks, CARL land acquisition program. Thus, the property was essentially surrounded by high quality tropical hardwood hammock. The Budd Post property is similar to the Harbor Course South property in that both areas run from County Road 905 east to the ocean and both tracts contain habitat suitable for use by endangered species. However, Harbor Course South is a lesser quality habitat than the Budd Post property because it is more highly fragmented and is bordered on the north by the highly developed Ocean Reef property. Overall, there was a significantly greater indication of the presence of the subject endangered species on the Budd Post Property than there is at Harbor Course South. The Budd Post Permit was the first of its kind issued by the Commission and was processed simultaneously and concurrently with the comparable federal permit from the U.S.F.W.S. As a condition to issuance of the Budd Post Permit, the Commission required the permittee to set aside a preservation area, build debris piles to encourage nesting of woodrats and cotton mice and plant vegetation off-site to mitigate the loss of hammock habitat. A condition of the Budd Post Permit required the permittee to trap and remove the endangered species during land clearing activities. A similar condition in the Proposed Permit would help reduce the likelihood of any killing of the endangered species. The results of the mitigation plan for the Budd Post Permit indicate that such a plan can serve to enhance the survivability of the endangered species by providing high quality habitat and accelerating the revegetation of scarified areas. A little more than two years after the mitigation plan for the Budd Post Permit was implemented, it appears that the efforts are achieving their intended results. Specifically, the plants that were planted as a result of the revegetation plan are flourishing and at least some of the debris piles have been colonized by woodrats. Thus, it appears a viable habitat has been created. There is no definitive method for determining the density of population of woodrats or cotton mice at a given site. In making its jurisdictional determination with respect to the Budd Post property, the Commission looked for the presence of stick nests, (which are widely presumed to be constructed by woodrats) as the primary jurisdictional indicator. Subsequent to the issuance of the Budd Post Permit, the Commission has recognized that stick nests are not the sole indicators of the presence of wood rats and the Commission now considers other factors as well. The U.S.F.W.S. requires a trapping study of woodrats and cotton mice as part of its permit application. The permittee for the Budd Post Permit provided the U.S.F.W.S. and the Commission with a "trapping report" prepared by Dr. Stout. The Intervenors also hired Dr. Jack Stout, who is a biologist and professor at the University of Central Florida, and a similar report was prepared for Harbor Course South. The same methodology was used to trap woodrats and cotton mice on both sites. Dr. Stout concluded that the Harbor Course South property had a low density population of woodrats and cotton mice. Dr. Earl Rich, a biologist and ecologist and a former professor at the University of Miami with extensive experience researching woodrat habitat on North Key Largo, also inspected the Harbor Course South property on behalf of the Intervenors. His inspection took place after the date of the Proposed Permit. He determined that the overall quality of the subject property as habitat for the endangered species was low because of the fragmented and uneven quality of the hammock. These qualities are largely attributed to the existing intrastructure and the golf course which winds throughout the subject property. Julie Hovis, a wild life biologist employed by the Commission, performed a site inspection report in connection with the application for the Proposed Permit. While not an expert on the endangered species, she was qualified to identify certain signs of the presence of the species. She found that there was some evidence that woodrats and cotton mice were present on the Harbor Course South property. She noted that the quality of the habitat varies greatly. Her inspection and conclusions were the basis for the Commission's assertion of jurisdiction over the subject site. Dr. Steven Humphrey and Dr. Numi Goodyear inspected the area on behalf of the Petitioners to determine the presence and/or density of the endangered species populations. While their studies find more evidence of the presence of wood rats and cotton mice on the subject property than the prior studies had indicated, they also conclude that the property is a mixed quality habitat for the endangered species. While there are some areas that appear to be high quality habitat, these experts recognize the fragmented character of the habitat and the effect of the golf course in disrupting the habitat and producing "islands of vegetation." The Goodyear and Humphrey studies confirm that the densities of the endangered species are lowest in areas where the hammock is highly fragmented. The Goodyear and Humphrey studies do not refute the Commission's conclusion that a significant number of the lots of Harbor Course South do not reflect sufficient indicia of the presence of the endangered species to allow the Commission to assert jurisdiction on all the property if a lot-by-lot permitting process was utilized. The Commission has concluded that the continuing development of Harbor Course South is inevitable. The Commission has also concluded that its authority over clearing of individual homesites is limited. In view of these conclusions, the Commission has attempted to enhance the survivability of the endangered species by imposing certain mitigation requirements on the Intervenors. The evidence has established that, assuming the development of Harbor Course South is inevitable, and the Commission lacks the authority to halt the development of Harbor Course South, the Commission's comprehensive approach to permitting will be more favorable to the survival potential of the endangered species than a lot-by-lot jurisdictional determination would be.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Game and Fresh Water Fish Commission enter a Final Order setting forth the terms and conditions for an Agreement with the Intervenors for a specific period of time as set forth in Paragraph 30 of Conclusions of Law, whereby permits will be issued for the incidental destruction and/or molestation of the nests and habitat of the subject endangered species in accordance with the terms and conditions of the Proposed Permit as modified in accordance with the provisions of Paragraph 32 of the Conclusions of Law above. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of October, 1990. J. STEPHEN MENTON 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 18th day of October, 1990.
The Issue Whether the Buntins and the Stovalls should receive an after-the-fact coastal construction control line (CCCL) permit to allow a sand-filled HESCO Basket System constructed in the aftermath of Hurricane Dennis in 2005 and that is now primarily a vegetated dune to remain as a permanent structure in Walton County?
Findings Of Fact Sea Turtle Nesting Habitat on a Hurricane-battered Coast Along the northernmost reaches of the Gulf of Mexico, roughly in the center of the Florida Panhandle coast, the beaches and shores of Walton County have been subject to the many vicissitudes of coastal climate over the years. So have marine turtles, several species of which have relied through the ages on Florida beaches and shores, including those in Walton County for nesting habitat. Survivors of shifting circumstances brought by weather, sea turtles are now imperiled by exposure to man-made dangers. Anthropogenic turtle hazards on populated beaches are numerous and, without educational efforts of the Department and the Commission, not likely to be recognized by beach-goers interested in the enjoyment of surf and sun. Folding beach chairs and canopies, board walks designed to protect the dune system, and other seemingly-harmless by- products of human beach activity, even holes dug by children building sand castles, can contribute to sea turtle injury and cause sea turtle fatality. While sea turtles in recent times have made their way across the Walton County beach toward their nests through obstacles set up by human beings and hatchlings have scurried toward the sea through these same impediments, owners of beachfront property have had to contend with powerful tropical storms, particularly in the relatively recent past. Especially damaging to property along the Walton County Coastline have been three hurricanes that hit in the span of a decade: Opal in 1995, Ivan in 2004 and Dennis in 2005. The intense storm surge of Hurricane Opal destroyed much of the dune system along the stretch of Seagrove Beach in Walton County that is the subject of the aerial photography introduced into evidence in this case. Ivan, which made landfall just west of Gulf Shores, Alabama, as a Category 3 Hurricane on September 16, 2004, caused heavy damage to the Walton County coastline and areas west. Of the three, though, the damage done by Dennis is the sine qua non of this proceeding brought by Petitioners to preserve and protect their property. The Stovall and Buntin Property When Hurricane Dennis hit, the Stovalls had owned the property located at 711 Eastern Lake Road, Santa Rosa Beach, Walton County, for some time. Purchased by both Mr. and Mrs. Stovall and in both their names at the time the petition was filed, by the time of hearing, the property had been transferred into Mrs. Stovall's name only. The Stovalls bought the lot around 1997 give or take a year. "[T]he house itself is about 11 years old," tr. 17, built in 1998 or thereabouts. Seaward of the CCCL established on December 29, 1982, construction of the house required a CCCL permit from the Department. In the words of Mr. Stovall, the permitting process required "hundreds of hoops to jump through." Tr. 18. The lot had been in foreclosure and the permit was obtained through the services of a reputable architectural firm. The house, therefore, was designed and constructed to survive a major hurricane, a requirement of the permit. The house was built on pilings sturdy enough to support the house in the event of a major hurricane. High enough to allow the bottom floor of the house to be above storm surge, the pilings' height and house elevation also allowed ample parking for vehicles beneath the house. At the time the Stovall house was built, despite the damage done by Opal, there remained a good natural dune system seaward of the house, one that was "beautiful . . . wonderful," tr. 19, in the words of Mr. Stovall. After the house was constructed, Mrs. Stovall took particular pleasure in the dune system and worked to preserve and cultivate sea oats in its support. She also was thrilled by the presence of two turtle nests not long after the purchase of the lot, one nest found in 1998 and the other discovered on July 22, 1999. After the discoveries, Sharon Maxwell, the County- authorized "local turtle coordinator," tr. 295, and "the only person in the County permitted to touch . . . turtles," tr. 296 was contacted. Ms. Maxwell measured the nests from points related to the Stovall house. They were at least 20 feet seaward of the toe of the most seaward dune. Because the nests were on a busy stretch of the beach, protective measures were implemented. Among the protective measures were actions by Mrs. Stovall. In addition to working with the local turtle coordinator, Mrs. Stovall became involved in circulation of information to neighbors about sea turtle conservation. She was part of an effort to encourage the information to be placed in rental units in the neighborhood. The information recommended turning out lights on the beach that interfered with turtle nesting, "brought out the importance of a single . . . beach chair [that] can misdirect and kill over hundreds of endangered hatchlings . . . [and] umbrellas . . . left overnight [that] can interfere with nesting." Tr. 293. She called local government commissioners and attended commission meetings where she advocated beach removal of items hazardous to sea turtles, their nests and their offspring. Her efforts have extended off-shore as well. As a scuba diver, she learned how to respect sea turtles and their marine habitat and "encouraged others to stay away and not harass the turtles, which many divers do." Tr. 195. The Buntin property, located at 701 Eastern Lake Drive, is adjacent to the Stovall property on the east side. Owned by the Buntins since 1990, the house on the lot was built in 1991 or early 1992. Like the Stovall house, the Buntin house is seaward of the CCCL and built to withstand the forces of major tropical storms. The Buntins, similar to the Stovalls, care about the beaches and shores of Walton County and particularly the beach adjacent to their property. Their intent with regard to the coastal environment is to protect it. There have been times over the past two decades when the Buntins greatly enjoyed their property. Their relationship to it, however, has changed. As Mr. Buntin put it at hearing, "[I]t's a situation we put ourselves in [but] I wish we didn't have any beach property. And I imagine there's a lot of other folks that wish that, too,. . ." Tr. 54. A major factor in Mr. Buntin's change-of-attitude is damage done by Hurricane Dennis. Hurricane Dennis Hurricane Dennis made landfall near Navarre Beach not far west of the Stovall and Buntin Properties on July 10, 2005, having struck the tip of peninsular Florida the day before. Classified according to the Saffir-Simpson Scale as a Category 4 Hurricane at moments in its journey through the Caribbean and the Gulf of Mexico, it came ashore in the northern Gulf as a Category 3 hurricane. Some of the worst damage it caused was along the panhandle coast. One of its damaging effects was enormous erosion of the beaches and shores along the coastline where the Stovall and Buntin property is located. That stretch of beach remains classified as a "critically eroding beach." After the storm, there was nothing left of the dunes seaward of the Stovall and Buntin houses. The Stovall house, itself, was not structurally damaged; there was not "a crack in the Sheetrock. The house stood solid." Tr. 30. It had lost its bottom deck and the deck on its western side but true to the CCCL permitting criteria, the house, perched on pilings about the storm surge, had also withstood the Category 3 force winds of the hurricane. Dennis had caused more damage to the property, however, than just the loss of a few decks. It had eroded the beach as far up as landward of the Stovall's house. At hearing, Mr. Stovall described his first view of the property post-Dennis: [T]he water was lapping back . . . behind the house. And if anybody walked up to where it was, it would just cave in. I fully believed that if that storm would've gone on another two hours, it would have been in the man's house behind me[.] . . . [W]e had no access to the front door and one of the neighbors down the street brought in a ladder . . . It would have taken a 20 or 21-foot ladder to have gotten up to [the] first deck level . . . . Tr. 25. Without a ladder, the house was not accessible. Most pertinent to the Stovall's persistence in bringing this proceeding, there was nowhere to park their vehicles. The parking area under the house had been scoured out. The Buntin property likewise suffered the impact of the hurricane's scour. Mr. Buntin was contacted by a neighbor and told that the scouring under his house was so bad that the air-conditioners midway between the seaward and landward sides of the house were "hanging over a 20-foot drop-off." Tr. 45. Mr. Buntin did not give the report much credibility at first but, to his dismay, found it true when he visited the property shortly after the storm. Just as in the case of the Stovall property, a car could not be parked under the house in the space that had served as the parking area prior to Dennis. Half of a car could be parked under the house but the rest of the sand- based parking area was gone. In its place was a steep embankment that "dropped off 20 feet." Tr. 46. A Serious Parking Problem Eastern Lake Road runs roughly east-west just north of the Stovall and Buntin properties. The roadbed lies in a roadway and utility easement. Because of the easement, property owners along the roadway are not allowed to use it for permanent parking. The restriction includes the entire right-of-way that extends beyond the roadbed. As a combination of the easement and the parking restriction, under-story parking is the only permanent parking place that can serve the properties. Aware that their properties were seaward of the CCCL, the Stovalls and Buntins sought guidance as to how to re- establish parking for their beach front property. They turned both to local government and to DEP. DEP's Emergency Order On the same day that Hurricane Dennis hit South Florida (the day before it made landfall on the panhandle coast), the Department issued an Emergency Final Order (the "Emergency Final Order." Styled, In re: EMERGENCY AUTHORIZATION FOR REPAIRS, REPLACEMENT, RESTORATION AND CERTAIN OTHER MEASURES MADE NECESSARY BY HURRICANE DENNIS and dated July 9, 2005, the Emergency Final Order followed a declaration by Governor Jeb Bush of a state-wide emergency. By State of Florida Executive Order No. 05- 139, the Governor declared that a state of emergency exists throughout the State of Florida, based upon the serious threat to the public health, safety and welfare posed by the Hurricane. Department Exhibit 9, paragraph 2., at 1. The Department's Emergency Order, therefore, had state-wide application and applied to Walton County even though Dennis had not yet come ashore onto the panhandle coast. The Final Emergency Order made the following findings: The Department finds that the Hurricane has created a state of emergency threatening the public health, safety, welfare and property throughout the Emergency Area. As a result of the emergency, immediate action by Florida's citizens and government is necessary to repair, replace, and restore structures, equipment, surface water management systems, works, and operations damaged by the Hurricane. The Department finds that an emergency authorization is required to address the need for immediate action because the normal procedures for obtaining the necessary authorizations would not result in sufficiently timely action to address the emergency. The Department finds that immediate, strict compliance with the provisions of the statutes, rules, or orders noted within this Order would prevent, hinder, or delay necessary action in coping with the emergency, and that the actions authorized under this order are narrowly tailored to address the immediate need for action and are procedurally fair under the circumstances. Department Exhibit 9, at 2. With regard to "Coastal Construction Control Line Activities," Section 3., of the order was clear. It did not "authorize the construction of structures that did not exist prior to the emergency . . . ." Id. at 17. The Final Emergency Order contained a provision, however, that may have related directly to the predicament of the Stovalls and the Buntins. Paragraph 3.b., entitled "Activities Requiring Local Authorization," opens with an introductory statement with regard to certain activities and then lists those activities as follows: Local governments are authorized to issue permits in lieu of Department permits to private and public property owners for the activities listed below. * * * (4) Return of sand to the beach dune system which has been deposited upland by the Hurricanes. Id. (emphasis added). The activity of returning sand to the beach dune system is subject to a section of the Final Emergency Order dedicated to "General Conditions." Id. at paragraph 4., pp. 20- In addition to the requirement that the activities "be performed using appropriate best management practices" id. at 20, in accord with the Florida Land Development Manual, the General Conditions section contained explicit provisions with regard to sea turtles: The nature, timing, and sequence of construction activities authorized under this Order shall be conducted in such a manner as to provide protection to, and so as to not disturb . . . listed species and their habitat, including threatened or endangered sea turtles If activities under C.3 of this Order occur during the marine turtle nesting season (March 1 through October 31 in Brevard and Broward County, May 1 in all other coastal counties), such activities must be coordinated with the Florida Fish and Wildlife Conservation Commission's Imperiled Species Management Section to ensure that all activities comply with state and federal requirements for the protection of seat turtles, their nests, hatchlings, and nesting habitat. Nothing in this order authorizes the taking, attempted taking, pursuing, harassing, capturing or killing of any species (or the nests or eggs of any species) listed under Rule 68A-27 of the Florida Administrative Code or under the Federal Endangered Species Act. Id. at 21-22. Under Section D., "GENERAL PROVISIONS," of the Emergency Final Order, the order cautioned, "[u]nder no circumstances shall anything contained in this Order be construed to authorize the repair, replacement, or reconstruction of any type of unauthorized or illegal structure, habitable or otherwise." Id. at 27, 28. The Emergency Final Order declared its effectiveness for 60 days following its execution on July 9, 2005, by the Secretary of the Department. Expressly set to expire on September 7, 2005, therefore, it promised in the meantime, "to act on requests for field authorizations in a timely and expeditious manner." Id. at 28. The Field Permit True to its word, the Department issued a field permit to Mr. Stovall on August 16, 2005. See Department Exhibit 10. The project is described in the field permit as repair and replacement of wooden decks and "repair/replace understructure concrete/brick paver parking area to original condition." Id. The repairs included electrical, plumbing and HVAC work and replenishment of approximately 1800 yards of sand for foundation pilings. The permit stressed, "[n]o other activity is authorized." Id. And, as part of its special conditions, the permit listed, "all construction shall comply with attached marine turtle conditions." Id. In the attempt to return the understory parking to its original condition, simply replacing sand did not work. "[I]t became pretty obvious to us as we put the sand in there," Mr. Stovall testified at hearing, "the sand was running out." Tr. 31. The Buntins were experiencing much of the same difficulties. Mr. Buntin compared the situation right after the hurricane to four years later at the hearing: There was so much confusion going on . . . we are so far after the fact now [August of 2009]. It's kind of hard to put yourself back in the position we were in at the time [summer of 2005] because there were an awful lot of questions and very few answers. You would get referred . . . this is what the regulations say. Well, you read the regulation and it is left to interpretation . . . the written word is . . . wonderful, but if you've got three people reading it, it's kind of hard to figure out exactly what it means. Now [August of 2009], after the fact . . ., we [have] answers . . . we didn't have at the time. Tr. 51 (emphasis added). Mr. Buntin knew one thing for sure: placing sand under the house would not be enough, "you've got to have some way to keep it underneath . . . because you're going to have to build a parking pad on top of it." Tr. 47. Neither an expert in CCCL regulations nor a coastal engineer, Mr. Buntin had no doubt "[y]ou can't just pile up sand and park the car on sand." Tr. 48. Mr. Buntin knew that in a coastal environment the understory parking would require a base of sand and a means of retaining the sand base under the house. The answer to the quandary was presented by Mike Jones, a contractor hired initially by the Stovalls and eventually by the Buntins, too. Mr. Jones suggested a HESCO Basket System. The HESCO Basket System In the aftermath of the storm, it was difficult to get assistance from repair companies. Mr. Stovall described the difficulty at hearing: "That was a tough job because everybody along the beach had damage, too, and getting someone to even come out there and give you a bid on it was like pulling eye teeth." Tr. 30. Eventually, through his brother, Mr. Stovall learned about Michael Alan Jones ("Mike Jones"), a general contractor licensed in Georgia. Mr. Jones agreed to look at the property. At hearing, he recalled his initial assessment of the Stovall and Buntin repair jobs: [T]here was a crater below the residences. We had to use an extension ladder to gain access to the Stovall property and we had to use some unique engineering to be able to access Mr. Buntin's property. There was no place to park. I noted on the Stovall property that . . . a paver system . . . was used for his parking area and the end of Eastern Lake Road as well, and the majority of that system was either currently . . . in the ocean or was in various stages of disrepair. It was falling apart. It was sagging one foot, 18 inches in many areas. It appeared . . . unsafe. * * * Some of . . . the pressurized [water] lines had been broken. The drain lines that lead into the septic or the county sewer were broken . . . the same on both properties. The air conditioning units were hanging by the power cables [I'd guess] 15 to 20 feet in the air, which, of course, poses a serious threat to anybody that walks . . . underneath them when the cable . . . unhook[s] itself from whatever connector or breaks. I noted at Mr. Stovall's, the whole bottom level of his deck was missing. * * * Mr. Buntin's dune walkover and much of his deck were sagging and unsafe [with] pieces missing. There was no . . . foundation on which to place a vehicle or anything for that matter underneath . . . the houses. I also noted . . . several onlookers . . . were using the area underneath the Stovalls' and Buntins' houses to access the beach, which was, in my opinion, extremely unsafe . . . [because of] falling five pound bricks and air conditioners hanging and wood falling off the side of the house. Tr. 82-83. The "crater" under the houses was not just a parking problem. Before the necessary repairs could be started, the understory had to be shored up. In the meantime, efforts were made to keep "onlookers" from using the area under the houses but they were not completely successful. Every morning that Mr. Jones visited the site at the beginning of his efforts, there was evidence left behind by people under the house the night before. Mr. Jones was of the same opinion as the Stovalls and the Buntins. For replacement of sand to work, there had to be a system for retaining the sand under the house. For several weeks, he conducted research by traveling up and down the beach discussing the issue with other contractors. Ultimately, Mr. Jones reached the conclusion that "the least invasive, most efficient . . . , environmentally friendly" system was a HESCO Basket System. HESCO Baskets HESCO Baskets are wire-framed open cell structures. One cell consists of four flat panels of wires of the same gauge. The "top" of the cell or basket is completely open as is the "bottom." Each of the four sides consist of horizontal wire rods spaced equally apart and welded to four similar-sized rods in a vertical position to form a panel of squares framed by the rods but which are mostly open space. The fours sides are bound together by a coil of wire of a gauge identical to the wire used in the rest of the structure. Attached to the sides on the inside of the cells is felt-like material that is water- permeable. Two baskets are created by joining three wire panels to an existing basket. Only seven panels, therefore, are needed to create two baskets since one of the panels is shared. Used in military applications to create revetment structures to protect aircraft and personnel and in river settings for flood control in places as diverse as Alaska and the Middle East, HESCO baskets also have commercial applications. These were investigated by Mr. Jones as he talked to other contractors in the area. Ultimately, he viewed the process of installation of HESCO baskets locally, obtained a list of installers from a HESCO basket distributor and picked Robert Klemen, an installer who worked in the area of the Stovall and Buntin properties to hire as a subcontractor under his supervision. Before installation, however, a permit was required. Under the DEP Final Emergency Order authorizing local governments to issue permits for temporary emergency protection seaward of the CCCL, separate permits for the Stovall and Buntin properties were issued by Walton County. The Walton County Permits On October 28, 2005, Billy Bearden, Building Official for Walton County, issued two building permits to Robert Klemen. The first, Permit No. SW398Dennis, (the "County Stovall Permit") was for 711 Eastern Lake Dr., the Stovall Property. The second, SW400Dennis, (the "County Buntin Permit") was for 701 Eastern Lake Dr., the Buntin Property. The County Stovall Permit gives Mr. Kleman permission for "TEMP SEAWALL STABLILIZING BASKETS." Department Exhibit 8. Similarly, the County Buntin Permit gives Mr. Kleman permission for "TEMP Stabilizing BASKETS." Each permit recited that "[t]he Florida Department of Environmental Protection in Hurricane Dennis Emergency Final Order 05-1700 is attached," and warned that "[p]ursuant to the FDEP emergency order, care must be taken for the protection of sea turtles, their nests, hatchlings and nesting habitat." Department Exhibit 8, the 7th and 15th pages of fifteen un- numbered pages. The two permits also recited the following: All temporary retaining walls (or other types of beach armoring), permitted as an emergency measure as a result of Hurricane Dennis and Katrina, must be removed within 60 days of completion or applied to be permitted through DEP as a permanent structure. * * * For ease in monitoring and control, Walton County will consider all temporary restraining walls complete no later than October 28, 2005 and therefore must be removed within (sic) 60 days of completion or by December 27, 2005, whichever is sooner (unless complete application made to DEP). Department Exhibit 8 (emphasis added.) Each permit contained a drawing of the permitted activity. The County Stovall Permit drawing depicts a system consisting of three rows of baskets, two on bottom and one on top, that runs for 70 feet seaward of the Stovall House and then in an "L-fashion" 30 feet to the west of the house. The baskets are shown to be 3 feet wide each so that the bottom row is 6 feet wide. The height of each basket is depicted as 4 feet so that the height of the structure would be 8 feet. The drawing is consistent with the representation at hearing that each basket within the vegetated dune the structure now supports is 3 feet by 3 feet by 4 feet. The drawing also shows a connection to the Buntin system to be installed to the east. The County Buntin Permit shows the same type of structure with three rows of baskets, two on bottom and one on top. The structure extends 60 feet to the east of the Stovall structure seaward of the Buntin house. Prior to construction, it was made clear to Mr. Jones that the "system needed to be as much within the footprint of the house," tr. 93, as possible. The information was communicated from both county representative who conducted inspections and DEP representatives who "were around the property during the process of doing the beach walkovers, as well as the HESCO systems . . .". Id. The HESCO Basket System was not designed to meet coastal armoring standards. Nor was it designed to minimize impacts to sea turtles. Installation Pursuant to the County permits, the Hesco Basket Container Systems were installed on the Stovall and Buntin properties over the course of several weeks. The official CCCL location of the installation is approximately 285 to 399 feet east of DEP's reference monument R-93 in Walton County with a project address of 701 and 711 Eastern Lake Road, Santa Rosa Beach. The purpose of the installation of the man-made structures, consistent with their design, is to assist the retention of sand beneath the understory parking area of the two houses. As depicted on the permit drawings, the Stovall and Buntin systems were unified into one structure, that is, connected so that the structure ran without a break seaward of the Stovall and Buntin houses. During the construction process, Mr. Jones saw and conversed with several DEP representatives who were taking pictures along the beach. Although Mr. Jones "acted firmly in the belief that there would be no problem getting a permanent permit for [the HESCO] structure," tr. 96, he was never told by any DEP representatives, either on site or in phone conversations with Department employees in Tallahassee, that the structure would be permitted permanently by the Department. He was not told that such a permit application would be denied, either, he simply "was never able to get an actual answer . . .". Id. The structure on the Buntin property was constructed as depicted on the permit drawing. There were two rows installed on the bottom and one row on top for a total height of 8 feet. The structure installed on the Stovall property, however, was more elaborate than what was shown on the permit drawing. "[T]he Stovall property has three on the bottom, then two in the middle and then one on the top stacked pyramid style." Tr. 97. Twelve feet tall, the HESCO structure installed on the Stovall property was four feet higher than specified by the County permit. The structures were covered with sand in order to "rebuild the dune," tr. 109, in other words, the HESCO Baskets were installed in such a way as to serve as the core of a restored dune feature. The purpose of the installation was to provide a means of stabilizing the sand under the houses to restore the under-story parking. The installation was complete on November 4, 2005. The sand wall installed by Mr. Jones and his crew was then plugged with sea oats that were watered in the hope that their establishment would encourage the creation of a dune. A Vegetated Dune Pictures introduced into evidence reveal that the HESCO structure installed by the Stovalls and the Buntins, the sand installed on top and around it and the planting of the sea oats has resulted in a well-vegetated dune. As Mrs. Stovall put it at hearing, "y'all have got to admits that's the prettiest set of sea oats y'all [have] ever seen in your lives." Tr. 296. By the time of hearing, the dune had been maintained for nearly four years without any more sand imported by human hands. There has occurred, however, some exposure of wires of the HESCO system. A corner of one of the baskets in front of the Stovall house was exposed at the time of hearing and a picture introduced into evidence showed exposure of the top of several baskets in 2007. Mrs. Stovall expressed a desire to add more sand and ultimately to restore the dune to its pre-Opal status which "would add five-and-a half feet and make [the dune] level with the deck." Tr. 298. No sand has been added since the installation in November of 2005, however, because of the uncertain outcome of this proceeding. The exposure to date of the HESCO Baskets is in all likelihood the result of wind. Wave action, should it reach the system and be strong enough, will cause even more exposure. In fact, the HESCO Basket dune is not likely to be able to withstand wave action from 15 and 25-year return storms and a storms of such strength could expose the entire HESCO Basket structure leaving a jumble and tangle of wires on the beach. A recent series of aerial photographs from 2004 to 2007 show that the dune position to the west of the Buntin/Stovall property is approximately 30-to-50 feet further landward. The dune created by the HESCO baskets, therefore, is more seaward and more interactive with coastal processes than the dune to the west making the HESCO basket dune less likely to survive wave action than the dunes to its west. Nonetheless, as of the time of hearing, the system has maintained its integrity since installation. After the installation, the Stovalls and the Buntins were under no illusion that they had done all that was required in the way of governmental permitting. They knew that the County permits were good for only 60 days. They knew that they needed a CCCL permit from the Department if the structure were to achieve permanent permitting status. For that, they turned to their Qualified Representative in this proceedings, Ong-In Shin. Mr. Shin duly filed a CCCL permit application. The Application and Action by DEP On June 28, 2006, the Department received two applications for permits for construction seaward of the CCCL. Both were filed by Mr. Shin. One was filed on behalf of the Stovalls, the other on behalf of the Buntins. Section 4., of the applications, which called for "[a] brief description of the proposed work, activity or construction," contains the description: "Coastal Armoring." By letter dated July 11, 2006, the Department requested additional information related to the application. Among the eight separate requests was a request for a description of the proposed activity: "Please describe the work done at the subject property for which this After-the-Fact application has been submitted." Department Exhibit 7, at 80. In the notes of the request for additional information there appears the following: Please be advised that structures to be protected must be eligible and vulnerable as per Rule 62B-33.051, F.A.C. * * * Id. at 82. DEP has been notified by the Florid (sic) Fish and Wildlife Conservation Commission that Hesco box structures require an incidental take permit from the U.S. Fish and Wildlife service. The application was deemed incomplete a number of times and specific information was requested for it to be deemed complete. During the course of DEP's correspondence and additional submittals by Mr. Shin on behalf of the Stovalls and the Buntins, the Commission wrote to the Department on May 10, 2007, about its concern with regard to sea turtles. Based on Mr. Shin's representation that HESCO boxes are designed to collapse if subject to wave attack, Robin Trindell, Ph.D., wrote on behalf of the Commission to DEP, "Sea turtles attempting to nest or hatchlings in an area with HESCO containers could become entangled in these collapsible structures. Therefore, we do not recommend that these blocks be installed in sea turtle nesting habitat." Id. at 49. The application was deemed complete on August 30, 2007. On November 28, 2007, the Department issued a notice of denial that was received by Mr. Shin on December 4, 2007. While the HESCO Box System was found to meet applicable siting requirements, it was found to have failed to meet coastal armoring criteria related to eligibility, vulnerability, and design. Furthermore, the Department concluded that "the construction of the HESCO Box Container System does not meet the Department requirements for . . . absence of significant adverse impact to marine turtles." Id. at 9. A December 17, 2008, memorandum from Mr. Shin, received by the Department on December 24, 2007, put DEP on notice of his clients' intent to appeal the denial of the permit. The memorandum requested a 60-day extension of time to research the issues associated with the denial before beginning the "formal appeal process." Id. at 2. Mr. Shin filed the Petition for Formal Administrative Hearing with DEP on February 15, 2008. It initiated this proceeding at DOAH when the Department on February 29, 2008, requested assignment of an administrative law judge to conduct the proceedings. The issues in this case fall under two broad categories: Coastal Armoring and impacts to marine turtles. Coastal Armoring "Armoring" is defined by Florida Administrative Code Rule 59C-33.001(5): "Armoring" is a manmade structure designed to either prevent erosion of the upland property or protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures but it does not include jetties, groins, or other construction whose purpose is to add sand to the beach and dune system, alter the natural coast currents or stabilize the mouths of inlets. (emphasis added). There is no question that the Stovall/Buntin Hesco Basket System is a manmade structure. Its purpose is to retain the sand under the Stovall and Buntin houses. At the same time, its construction resulted in sand added to the beach and dune system. One thing is clear: the HESCO Basket System is not conventional coastal armoring. Unlike "seawalls, revetments, bulkheads, retaining walls or similar structures" listed in the rule as examples of coastal armoring, the construction of the HESCO System led to a vegetated dune. Coastal armoring is closely regulated under Chapter 161 of the Florida Statutes by the Department and its Bureau of Beaches and Shores because that chapter is "all about protection of the beach dune system." Tr. 337. Coastal armoring usually contravenes such protection. "Coastal armoring does not protect the beach dune system. It's purpose . . . is to protect upland development." Id. While the purpose of the HESCO Basket System is to protect upland development unlike typical coastal armoring, it has added not only sand to the beach but has resulted in the creation and presence of a well-vegetated dune. Prior to 1995, "coastal armoring was only authorized as a last case possibility . . . ." Tr. 337-338. And it was only authorized when approval was given at the highest level of the state executive branch of government, the Governor and Cabinet. But the law was changed in 1995 in recognition that property owners have a right to protect their property. The Coastal Armoring Rule was amended to set up eligibility, vulnerability, siting and design criteria that would strike a reasonable balance between protection of the beach dune system and a property owner's right to protect his or her property. The law was amended again in 2006 to incorporate a new technology for dune restoration: geotextile systems. HESCO Basket Systems use in coastal armoring is also a new technology when it comes to Florida's beaches and shores. Use of HESCO baskets was described at hearing as "very new", tr. 344, relative to the time of the filing of Stovall and Buntin application. If the HESCO Basket System constructed on the Stovall and Buntin properties constitutes "armoring," then it must meet the requirements of Florida Administrative Code Rule 62B-33.051 which govern "Coastal Armoring and Related Structures" (the "Coastal Armoring Rule"). These requirements include conditions related to "eligibility", "vulnerability", and "design," some of the bases upon which the Department's denial of the after-the- fact permit rests. See Fla. Admin. Code R. 62B-33.0051(1)(a) and (2). Mr. McNeal's testimony established that the HESCO Basket System does not meet the "eligibility," "vulnerability," and "design," criteria for coastal armoring. But the Coastal Armoring Rule also encourages applicants for coastal armoring to "be aware that armoring may not be the only option for providing protection." Fla. Admin. Code R. 62B-33.0051(1). To that end, applicants for would-be armoring "are encouraged to evaluate other protection methods . . . such as dune restoration." Id. The HESCO Basket System installed by the Stovalls and Buntins follows the encouragement of the rule: it is a protection method that has resulted in dune restoration. CCCL Permit General Criteria Regardless of whether the HESCO Basket System and the vegetated dune it now supports constitutes coastal armoring, the structure on the Stovall and Buntin property must meet the General Criteria contained in Florida Administrative Code Rule 62B-33.005 for issuance of CCCL permits. Applications for those permits must be denied "for an activity which . . . would result in a significant adverse impact . . .". Fla. Admin. Code R. 62B-33.005(3)(a). Impact assessments conducted by the Department "shall include the anticipated effects of the construction on . . . marine turtles." Id. Marine Turtle Behavior Marine turtles spend most of their lives at sea often foraging hundreds of miles from their nesting habitat. Adult females migrate from feeding grounds and their foraging areas and aggregate off shore beginning in May of nesting season, generally from May through August. Off shore, the female turtles wait for nightfall to swim ashore and crawl landward in search of a spot to nest. Four species of marine turtles typically nest in Walton County: the Loggerhead, the green turtle, the Leatherback and Kemp's Ridley. Because the Loggerhead and green turtle are by far the most prevalent on Walton County beaches, the Commission focused on their specific behavior when it presented the testimony of Dr. Witherington. The mechanics of crawling differ between Loggerhead and green turtles. Loggerheads use an alternating gait while green turtles have simultaneous butterfly-style strokes. Both species drag the plastron or "belly shell" using all four flippers. Their crawls enable them to scale slopes and penetrate dune vegetation but they are not able to crawl backward. They are capable of crawling up a slope that is steeper than one to one. At a location between the recent high water mark, often observable by a wrack line (floating seaweed washed ashore) and the crest of the primary dune, the female selects a spot. The female creates a pit that she can slide her body into it. Loggerheads do so by scraping sand from the front with their front flippers and by gathering sand from beneath at the posterior to push it behind. This behavior referred to as "body pitting" tr. 474, results in a pit that the turtle eases into at a slight angle posterior end-downward at the deepest part of the pit. Green turtles have similar body-pitting behavior but it is more elaborate. "A green turtle will . . . blast the sand out in front of it, dig an enormous pit . . . two or more feet deep and create a very large mound." Tr. 475. Beneath the body pit, the turtle digs an egg chamber. For Loggerheads the depth of the egg chamber is "a little over two feet . . . say 26 inches or so," tr. 482 from the surface of the sand. For a green turtle, the depth is closer to 3 feet. On average, clutch size for a Loggerhead is 115 eggs. The range is from 70-to-170 eggs per clutch. Average clutch size for green turtles in Florida is roughly 128 with a range from 70 to 200. Turtles and the Stovall/Buntin Property Assuming no obstacles such as an exposed HESCO Basket, a sea turtle would have no trouble making its way to the crest of the HESCO Basket dune on the Stovall/Buntin property. The Stovall/Buntin dune supported by HESCO baskets is mostly vegetated with sea oats. There is Seaside Evening Primrose and some Beach Morning Glory, too. As long as the turtles are not interfered with by the HESCO baskets, a sea turtle would have no problem nesting amidst the vegetation on the Stoval/Buntin dune. Heavily eroded beaches do not discourage sea turtle nesting behaviors. But where sea turtles choose to nest on a heavily eroded beach is altered by the erosion. Dr. Witherington explained: [F]ollowing a severe erosion event, . . . [t]he beach tends to be flatter and in some cases broader and with escarpment from erosion that has occurred. And almost invariably following severe erosion events . . ., sea turtles aim for the high ground. In part, because that is the only dry sand remaining on the beach, . . . [a]nd they're choosing the safest sites on the beach to nest. Tr. 485. Thus, the erosion that has occurred on the Stovall/Buntin property is not likely to deter sea turtles from nesting there. Almost all of the area seaward of the Stovall and Buntin houses is nesting habitat, but if a sea turtle chooses to nest there, the most likely place is somewhere on the dune created by the HESCO Baskets. Threats to Sea Turtles Sea turtles encounter numerous threats, impediments and hazards when they are attempting to nest on beaches visited by human beings as much as the beaches of Walton County currently. Coastal armoring is commonly recognized as a threat to sea turtle nesting because it serves as a barrier to sea turtle nesting habitat -- precisely the opposite of the Stovall/Buntin HESCO Basket-supported dune which is an appealing place along a severely eroded beach in which to nest. Man-made debris is a threat to sea turtles. There are numerous types of debris: monofilament line is one example. Holes in the sand dug by beachgoers, beach furniture and walkways are either barriers or can cause entanglement that can lead to sea turtle injury or death. If a turtle gets up on a sea wall and falls, the fall can seriously injure the turtle or result in death. Artificial lighting is a particularly dangerous and prevalent threat. The lighting can disorient both nesting turtle and hatchlings causing them to move away from the ocean or gulf. Death can result from dehydration in the morning sun, wandering inland and falling prey to predators, or ending up on highways and being struck by cars. In addition, there are natural threats to sea turtles. A variety of predators dig into sea turtle nest for the eggs. The eggs may be swept away when the sediment around the clutch is washed away. Inundation, as well, if over too long a period can destroy the eggs. Exposed HESCO baskets are a threat to sea turtles and their hatchling in multiple ways. The ways in which they could injure or kill a turtle were described by Dr. Witherington: HESCO baskets accessible to sea turtles would act as a barrier to a sea turtle reaching an appropriate nesting habitat. An open HESCO basket . . . could act as a trap, . . . [for] turtles that might end up inside the top of the basket itself, and then there's an entanglement effect that would probably be of very little concern for HESCO baskets that were not exposed, but when they do become exposed, the entrapment effect would be much . . . larger . . . Tr. 502. Dr. Witherington also described three problems that could be posed by an exposed HESCO basket shown in a photograph taken on the Stovall property and attached to a Site Inspection Report date November 19, 2007. See Department Exhibit 16P, at 9. These were first, "the pitfall hazard," tr. 504, second, a vertical fall that the turtle might take from atop an exposed basket, and, third, entrapment. As for entrapment, Dr. Witherington opined, "it may look to many that the open HESCO baskets don't leave much opportunit[y] for the sea turtle to become entrapped, but one thing we learned is that sea turtles often make their own traps," id., when presented with situation similar to that of an exposed HESCO basket. There is another hazard to sea turtles posed by a HESCO basket if the baskets were buried beneath where a nesting turtle was digging its nest. If the turtle were to dig into the basket and strike it, it could cause the turtle to abandon the site and return to the sea. If the dune that the HESCO Baskets support were to be washed away in a storm and the basket structure were to fail, the debris left would be a "particularly pernicious tangle of wire and mesh that would very much have the potential to ensnare sea turtles." Tr. 507. A Sea Turtle Take In Dr. Witherington's opinion, HESCO baskets constitute significant habitat modification or degradation that could significantly impair the essential behavioral pattern of breeding. If HESCO baskets killed or injured a marine turtle, therefore, they would constitute a "Take," as defined by Section 373.2431(1)(c)2., Florida Statues: "'Take' means an act that actually kills or injures marine turtles, and includes significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering." "Any person . . . that illegally takes . . . any marine turtle species, or the eggs or nest of any marine turtle species . . . commits a third degree felony, punishable as provided [by law.]" § 379.2431(1)(e)5., Fla. Stat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Coastal Construction Control Line Permit applied for by the Stovalls and Buntins be issued with the conditions listed in paragraph 110, above. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building, Room 108 620 South Meridian Street Tallahassee, Florida 32399-1600 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ong-In Shin Florida Coastal Development Consulting, Inc. 4654 East Highway 20 Niceville, Florida 32578 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
