The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application filed by the DeVries for a coastal construction line (CCCL) permit to build a house (with dolomite drive, septic tank, and drain field) and a dune walkover seaward of the CCCL on their property on the St. Joe Peninsula in Gulf County (Permit GU- 501).
Findings Of Fact The Neighbors Mark and Rita DeVries own 0.163 acre in Block 6 of Peninsular Estates, which is on the St. Joe Peninsula in Gulf County. The St. Joe Peninsula is oriented approximately north and south, with the water of the Gulf to the west. DEP Monument R-83 is on the DeVries' property. Linda McAlpin also owns property in Block 6 of Peninsular Estates seaward of the DeVries' property. She and her husband, Dr. Glenn Mark McAlpin, bought the property in 2001. The dunes on the property had been cleared prior to 1973 for construction of a beach house and driveway. The prior owner's beach house was then damaged by major storms. In 2001 and 2002, the McAlpins got a CCCL permit to build a pile- supported 5,000 square foot, three-story house over a concrete slab used as a parking area, with a dolomite driveway, on her property. There is no private property to the west (i.e., seaward) of her property. In 2006, Dr. McAlpin quitclaimed his legal interest to his wife to insulate it from his potential professional liabilities. Except for the legal consequences of the quitclaim deed, the McAlpins continue to treat the property as a marital asset. Dr. McAlpin continues to handle practically all matters relating to the maintenance of the house, including repairs necessitated by major storms and beach erosion. The Beach and Dune System Besides the McAlpins, there are beach houses to the east (landward) and to the north of the DeVries' property. The house to the north was moved landward from its original location after it suffered major storm damage in 2005. It used to be north of the McAlpin house. There is a house to the south of the McAlpin house. Except for the house that was moved, there is a continuous line of construction seaward of the CCCL to the north and south along the line between the McAlpin house and the house to the south. The McAlpin house also suffered damage from the storms of 2004 and 2005. Sand sediment under the seaward side of the house was scoured out and undermined, and part of the frangible concrete slab and some of the plumbing under that part of the house dropped to the new, lower sand surface. The McAlpins had sand brought in to place under the house and began to build a seawall around the pilings and new sand until the seawall project was halted for failure to obtain a permit. In 2008 and 2009, a beach restoration project was installed on the peninsula, which added sand to the beach and formed a dune immediately seaward of the McAlpin house. There is a dispute whether the DeVries propose to build on a frontal dune. The McAlpins contend that the seaward toe of the frontal dune is seaward of their house, that its crest is on the DeVries' property just east of their common boundary, and that the frontal dune extends landward approximately to the DeVries' common boundary with the property to the east. Michael Dombrowski, P.E., gave expert coastal engineering testimony in support of McAlpins' contention. The DeVries and DEP contend that the beach restoration project re-created the frontal dune that was seaward of the McAlpins' house before the major storms of 2004 and 2005 and that the McAlpins' house sits on a separate primary dune landward of the primary dune. Michael Walther, P.E., and Tony McNeal, P.E., gave expert coastal engineering testimony in support of the contention of the DeVries and DEP. The beach restoration project created a dune, i.e., a mound or bluff of sand, that is landward of the beach, parallel to the shoreline, and continuous in the vicinity. The dune has been planted with native vegetation that is thriving and spreading. Since its installation, the dune has been stable, and sand has been accreting on the dune. The dune is of sufficient vegetation, height, continuity, and configuration to offer protective value up to a major, 40- to 60-year return storm. As such, it is a frontal dune. See § 161.053(5)(a), Fla. Stat. There is a trough between the dune created by the restoration project and dune on which the McAlpins' house sits. (The trough is the landward toe of the frontal dune and the seaward toe of the dune under the McAlpin house). The latter dune system crests at approximately 18 feet North American Vertical Datum of 1988 (NAVD) on the DeVries' property a little landward of the common boundary between the two properties. It is a significant dune in that it has sufficient height and configuration and vegetation (especially on the DeVries' property, which is heavily vegetated) to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). The alterations made to the McAlpin property by the prior owner adversely affected the alongshore continuity of the dune system, but it still is a primary dune in that it affords a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B- 33.002(17)(b). The Proposed Beach House The DeVries' application is to build a pile-supported 3,000 square foot, two-story house over a concrete slab used as a parking area, with dolomite drive and a dune walkover. The house would be up to approximately 110 feet seaward of the CCCL, landward of the adjacent McAlpin house, and landward of the 30- year erosion line (DEP's projection of the seasonal high-water line 30 years in the future). It is undisputed that the proposed construction will conform to the requirements of the Florida Building Code. The DeVries' proposed house would be on 18 one-foot square piles, with two eight-inch square piles supporting the wooden deck. This construction method, which is standard, minimizes impacts from erosion and scour. The DeVries propose a septic tank and drain field between the house and the common boundary with their neighbor to the east (i.e., the landward side of the property). This optimal location for the septic tank and drain field is made possible by the orientation and dimensions of the proposed house (a relatively narrow rectangle with the longer sides in the north-south direction). Petitioners contend that impacts should be minimized by requiring construction of a narrower, taller structure. The footprint already is smaller than the footprint of the McAlpins' house. Requiring a further reduction would create problems in the design of the interior space of the house. It was proven that the dimensions of the house proposed by the DeVries is reasonable and sufficiently minimizes impacts. There will be no net excavation of in situ sand for the construction authorized in proposed Permit GU-501. Sand excavated for the septic tank and drain field, along with additional sand brought to the construction site, will be used to fill a bowl-like feature in the middle of the DeVries' property and level the ground for the concrete slab under the DeVries' proposed house. There will be a net addition of sand to the site. The concrete slab beneath the DeVries' proposed house is designed to be partially cut so as to break into smaller pieces in a catastrophic storm event and not cause collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system. Cf. Fla. Admin. Code R. 62B-33.002(9). The concrete slab proposed beneath the house was reduced in size to eliminate a roughly seven-foot by 16-foot rectangle in the northwest corner and not to disturb a higher dune feature that exists in that location. Petitioners contend that the DeVries' concrete slab could be further reduced in size to minimize impacts to the primary dune. However, it was proven that the size of the concrete slab is reasonable and sufficiently minimizes impacts. The driveway authorized by proposed Permit GU-501 will narrow from approximately 30 feet wide at the house to approximately 12 feet at the County right-of-way, which reduces impacts (and is narrower than the McAlpins' driveway). Petitioners contend that the driveway should be narrower to minimize impacts. It was proven that the width of the proposed driveway is reasonable and sufficiently minimizes impacts. Frangible curbing is proposed along both sides of the driveway. This will prevent or discourage driving elsewhere on the lot. The Proposed Dune Walkover The DeVries' proposed dune walkover would be connected by stairs to a wooden deck off the northern end of the first story of the house. From the stairs, the dune walkover proceeds for a short distance in a northerly direction, then proceeds in a westerly direction towards the beach within a 10-foot wide access easement. It would be four feet wide and at least two feet above the ground surface and would pass within ten to 20 feet of the north side of the McAlpins' house. It would be supported by four-inch by four-inch wooden piles. Petitioners contend that the DeVries' proposed dune walkover should be denied because there is a public beach access off White Sands Drive approximately 500 feet to the south. The purpose of the dune walkover would be to avoid the impacts that would occur if people staying at the DeVries' beach house use the beach access easement instead of the public access. The existence of the public access is not a ground to deny private beach access via a dune walkover that meets CCCL permitting criteria. Petitioners also contend that the proposed dune walkover should be denied because a ground-level foot path was not considered. Since the purpose of the dune walkover is to avoid the impacts of an on-grade footpath, that option was considered and rejected. Petitioners contend that the proposed dune walkover should be reduced to three feet. But it was proven that the proposed four-foot width is standard and reasonable; that the construction method already minimizes impacts; and that the impacts from a three-foot wide walkover would not be much less than the proposed walkover. Petitioners also contend that the DeVries' dune walkover should use rounded piles, not square ones as proposed. They base this contention on DEP's Beach and Dune Walkover Guidelines (Dune Walkover Guidelines), which state that rounded piles are preferred. Rounded piles are not mandatory, and it was proven that the proposed piles are reasonable and sufficient. Petitioners contend that the proposed dune walkover actually is wider than four feet overall because the application drawings make it appear that the wooden piles are outside the walkway. However, it was proven that the drawings are in error to that extent and that the maximum width of the dune walkover actually will be four feet, as required by special condition 8 of proposed Permit GU-501. Petitioners contend that the proposed dune walkover must be denied because the site plan depicts it as terminating on the frontal dune created by the 2008 beach restoration project, which is contrary to the Dune Walkover Guidelines. Petitioners also contend that, while the Dune Walkover Guidelines require adequate elevation to clear the vegetation on the dunes, every part of the proposed walkover may not clear the dune entirely, according to the elevations in the site plan and construction drawings in the DeVries' application. Special condition 8 of proposed Permit GU-501 addresses Petitioners' contentions. It requires the proposed dune walkover to extend up to (but more than ten feet seaward of) the existing line of vegetation (not the line of vegetation at the time of the survey included as part of the DeVries' application) and requires that "the deck of the walkover structure shall maintain an elevation above the existing dune vegetation canopy . . . ." Also, under special condition 8, "[t]he optimum siting of the walkover structure shall be determined by the [DEP] staff representative during the preconstruction conference to provide maximum protection to the existing dune topography and vegetation located on the site." This will ensure compliance with the Dune Walkover Guidelines, which defines optimal siting. Petitioners contend that the proposed dune walkover must be denied because the DeVries' beach access easement does not extend to the existing vegetation line. Proposed GU-501 does not authorize a trespassing. See Fla. Admin. Code R. 62B-33.0155(4). If additional access easement is required to reach the beach, it will have to be acquired. Otherwise, the proposed dune walkover cannot be built. To mitigate for the minimized impacts from the DeVries' proposed construction, special condition 5 of proposed Permit GU-501 requires the DeVries to "plant a mix of a minimum of three native salt-tolerant species within any disturbed areas seaward of the control line, including the septic tank and drain field area." Obviously, there will not be mitigation planting where the concrete slab and dolomite driveway will be. The plants must be indigenous species or approved by DEP, and "a minimum of 80 percent of the planted areas shall be covered with the selected species." Sod and planting invasive nuisance species are not authorized. In addition, the site plan, which is part of the application, has a proposal to "maintain [planted native vegetation] adequate by temporary irrigation." Petitioners contend that the GU-501 conditions are not sufficient because the indigenous plants are not specified. However, the evidence provided reasonable assurance that appropriate species would be planted. Petitioners also contend that the GU-501 conditions are not sufficient because the success criteria are inadequate. Specifically, Petitioners compare the 80 percent coverage requirement in special condition 5 with the 90 percent success rate after 180 days and after 360 days required by the conditions of the beach restoration project. The beach restoration project's conditions could be viewed as less strict than the GU-501 conditions. In any event, the GU-501 conditions provide reasonable assurance of mitigation of the impacts. Petitioners contend that temporary impacts are not mitigated. However, temporary impacts will be minimized by special conditions 1 (pre-construction conference) and 3 (requirement of optimal construction fencing, including to protect the dune feature at southwest corner of the DeVries' property), 4 (only minimum disturbance required for construction allowed), and 9 (requirement to remove all rubble and construction debris to a location landward of the CCCL). This small level of risk from temporary disturbances during construction and before mitigation plantings take hold is unavoidable. It does not warrant the denial of a CCCL permit. In accordance with DEP's requirements, the proposed dune walkover is designed as a minor, expendable structure, and partitions of the house are designed to break away or be "frangible"—i.e., to "collapse from a water load less than that which would occur during a 100-year storm event without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting foundation system." See Fla. Admin. Code R. 62B-33.002(9). These designs help prevent larger, unmitigated storm damage to the beach and dune system. Due to its proximity, the McAlpins' house could sustain additional damage from the frangible parts of the DeVries' construction during such a storm. However, those risks are contemplated by DEP's frangibility requirements and are relatively small. Those risks do not warrant the denial of a CCCL permit. The County Right-of-Way There is a paved road called White Sands Drive that approaches the McAlpins' dolomite driveway and the proposed location of the DeVries' dolomite driveway from the east. The McAlpins' driveway extends from their house in a southeasterly direction, crosses the County right-of-way for Blue Water Circle (which has not been built), and connects with the paved surface of White Sands Drive in the curve between its east-west segment and its north-south segment. The DeVries' proposed dolomite driveway would terminate at the County right-of-way for Blue Water Circle to the northeast of the McAlpins' driveway, where the elevation is approximately 13 to 14 feet NAVD (similar to the elevation of the McAlpins' driveway). There is a relatively narrow dune feature between the McAlpins' driveway and the DeVries' proposed driveway that rises to an elevation of approximately 19 feet NAVD in the center of the dune feature. This dune is significant in that it has sufficient height and vegetation to provide protective value. See Fla. Admin. Code R. 62B-33.002(17)(a). In itself, it is not a primary dune because it does not have the configuration and alongshore continuity to afford a measurable level of protection to upland property and structures from the predictable erosion and storm surge levels associated with coastal storm events. See Fla. Admin. Code R. 62B-33.002(17)(b). This dune feature extends into the County right-of- way. Depending on the route taken, a car using the DeVries' proposed driveway might drive over or through a small part of the extreme southeastern end of this dune feature. It might be possible to avoid the dune feature entirely by hugging the eastern side of the driveway and, to the greatest extent possible, using the part of the County right-of-way that is used by the neighbor to the east to access their dolomite driveway from White Sands Drive. If not entirely avoiding the dune feature, it would be possible to drive over or through only a very small part of the dune feature where elevations are no greater than 14 to 15 feet NAVD. DEP and the DeVries contend that impacts to the County right-of-way should not be considered because they were not timely raised. However, Petitioners' allegations were broad enough to include consideration of those impacts. DEP and the DeVries also contend that impacts to the County right-of-way are prohibited by general and special conditions. General permit conditions include: Construction traffic shall not occur and building materials shall not be stored on vegetated areas seaward of the control line unless specifically authorized by the permit. If the Department determines that this requirement is not being met, positive control measures, such as temporary fencing, designated access roads, adjustment of construction sequence, or other requirements, shall be provided by the permittee at the direction of the Department. . . . * * * The permittee shall not disturb existing beach and dune topography and vegetation except as expressly authorized in the permit. Before the project is considered complete, any disturbed topography or vegetation shall be restored as prescribed in the permit with suitable fill material or revegetated with appropriate beach and dune vegetation. * * * (j) Any native salt-tolerant vegetation destroyed during construction shall be replaced with plants of the same species or, by authorization of the Department, with other native salt-tolerant vegetation suitable for beach and dune stabilization. Unless otherwise specifically authorized by the Department, all plants installed in beach and coastal areas - whether to replace vegetation displaced, damaged, or destroyed during construction or otherwise - shall be of species indigenous to Florida beaches and dunes, such as sea oats, sea grape, saw palmetto, panic grass, saltmeadow hay cordgrass, seashore saltgrass, and railroad vine, and grown from stock indigenous to the region in which the project is located. Fla. Admin. Code R. 62B-33.0155(3). In addition, special condition 4 of proposed Permit GU-501 states: "Existing vegetation shall be disturbed only to the minimum extent necessary to complete work within the authorized construction limits." Finally, proposed permit GU-501 does not authorize the construction of a driveway through the County right-of-way. See Fla. Admin. Code R. 62B-33.0155(4) (permit does not authorize trespass). Notwithstanding the conditions and limitation of proposed GU-501, it is reasonable to foresee that, to use the proposed driveway, cars will drive through the County right-of- way between the DeVries' proposed driveway and White Sands Drive. The extent to which the dune feature would be impacted must be considered in this case. See Fla. Admin. Code R. 62B-33.002(33) (impacts can be direct or indirect). It appears possible to use the DeVries' proposed driveway and avoid any parts of the dune feature in the County's right-of-way above the 14-foot NAVD elevation by using the part of the right-of-way currently being used for access by the DeVries' neighbor to the east. To minimize impacts, this should be required as an additional condition of GU-501. Construction of the proposed beach house and dune walkover on the DeVries' property will not alter the coastal system by measurably affecting the existing shoreline change rate, significantly interfering with its ability to recover from a coastal storm, disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered. As such, there will be no significant impacts. See Fla. Admin. Code R. 62B-33.002(33)(b).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing GU-501, with an additional condition to use the part of the County's right-of-way currently being used for access by the DeVries' neighbor to the east and avoid any parts of the dune feature in the right-of-way above the 14-foot NAVD elevation to access the DeVries' proposed driveway. DONE AND ENTERED this 2nd day of November, 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 2nd day of November, 2011. COPIES FURNISHED: Ross Stafford Burnaman, Esquire 1018 Holland Drive Tallahassee, Florida 32301-4508 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. Dylan Rivers, Esquire Ausley and McMullen, P.A. 123 South Calhoun Street Tallahassee, Florida 32301-1517 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue At issue in this proceeding is whether Respondents Daniel and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005 (collectively referenced herein as "Applicants") qualify for an exemption from the requirements of coastal construction control line ("CCCL") permitting pursuant to section 161.053(11)(b), Florida Statutes, for their proposed activities in regard to a dune walkover structure seaward of the CCCL at the end of Milliken Lane in St. Johns County, as provided in the Amended Exemption Determination issued by the Department of Environmental Protection ("Department") on September 8, 2011.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: The proposed project site is located at the seaward end of Milliken Lane, in the development known as "Milliken's Replat," in Crescent Beach, Florida. The development consists of 10 lots between State Road A1A and the Atlantic Ocean. The privately maintained Milliken Lane runs west to east, perpendicular to A1A. Milliken Lane bisects the 10 lots, i.e., five lots are on each side of the lane. Lots 1 through 5 are on the north side of Milliken Lane, and Lots 6 through 10 are on the south side. Lots 5 and 6 are the largest lots and are the lots nearest the ocean. Petitioner Anastasia, Inc., owns Lot 5 and Petitioner Amanda Pope owns Lot 6. The sole officer and shareholder of Anastasia, Inc., is Kenneth Pfrengle. The remaining eight lots are owned by Applicants, as follows: Steven Frey owns Lot 1; Daniel and Donna Grace own Lot 2; Paul and Debra Linger own Lot 3; Ann Pastore owns Lot 4; Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005, own Lot 7; Joseph and Linda Noftell own Lot 8; Joseph and Dottie Scruggs own Lot 9; and Thompson and Dana Filmer own Lot 10. Milliken's Replat was duly recorded on October 11, 1983, in the Public Records of St. Johns County, Florida, Map Book 15, Page 100. The Milliken's Replat graphic representation of the development shows a line between Lots 5 and 6 and indicates that it is a "6' WIDTH WALKWAY FOR WALKWAY TO BEACH." The indicated walkway begins at the end of Milliken Lane and extends at least to the CCCL.2/ The walkway straddles Lots 5 and 6, the two lots owned by Petitioners. Milliken's Replat is also subject to a Road Maintenance Agreement recorded by the original developers on January 28, 1994, in the Public Records of St. Johns County, O.R. 1034, Page 1596. The Road Maintenance Agreement provides for the continuing maintenance of Milliken Lane and "That certain six foot wide walkway reflected on the plat running between the cul-de-sac at the end of Milliken Lane to the Atlantic Ocean, including existing dunes walk-over structure." The Road Maintenance Agreement goes on to provide as follows, in relevant part: Such road and walkway shall be maintained by the parties to this agreement, their heirs, successors and assigns in a condition so as to make it free and passable in perpetuity. The costs of the maintenance of said road and walkway shall be shared to the end that each lot owner shall pay one-tenth of the cost associated with maintenance costs. Owners of multiple lots shall be responsible for one-tenth of the cost for each lot owned. * * * 5. In the event that sixty percent of the lot owners determine that maintenance work is necessary and contract to complete same, they shall have the right to maintain a lien against any lot owner who refuses to pay the assessment pursuant to the provisions of this agreement. Unless waived, each lot owner shall be given a minimum of ten (10) days' written notice of the proposed meeting to determine assessments.... Petitioners purchased their respective lots subject to the terms of Milliken's Replat and the Road Maintenance Agreement. On March 11, 2011, Applicant Dan Grace sent a notice to the "Property Owners of Milliken Lane" stating that a meeting to discuss the maintenance of Milliken Lane would take place on March 24, 2011, pursuant to paragraph 5 of the Road Maintenance Agreement. The notice went on to state that the walkover "is in need of maintenance to maintain and preserve the integrity of the existing walkover," and that a proposal for the cost of repair would be presented at the meeting. Finally, the notice stated that a vote on the proposal would be taken at the meeting. Mr. Grace contacted Rick Powell, owner of Barefoot Marine Construction, to provide a quote for the repair and maintenance of the dune walkover. Mr. Powell visited the site, took measurements, and provided a quote to Mr. Grace prior to the March 24, 2011, meeting. On March 22, 2011, Daniel Mowrey, counsel for Applicants, had a telephone conversation with West Gregory, an attorney in the Department's office of general counsel, regarding the proposed repair and maintenance to the dune walkover. The next day, Mr. Mowrey followed up with a letter to Mr. Gregory that included copies of Milliken's Replat and the Road Maintenance Agreement. The Applicants' chief concern was Mr. Pfrengle's contention that the repair of the walkover was subject to his consent as the owner of the property on which the walkover sits. Mr. Mowrey stated his clients' position as follows: I believe the Department has taken the position this matter has to do with Title and/or Ownership to the property whereon easement lies. This matter is clearly not about ownership. The fact the easement lays on the property of Mr. Pfrengle and Amanda Pope is not a matter of contention. There is no authority I can find that forces the Department to obtain permission from Mr. Pfrengle or Ms. Pope to issue this permit. The Road Maintenance Agreement controls and is clear as to the rights of all owners in the Milliken Replat. Denial of a permit from the Department to maintain, repair and/or replace the existing walkover is unreasonable. All members of the Milliken Replat have sufficient title interest through the easement and Road Maintenance Agreement to make application based on recorded rights. It appears the Department has made the interpretation of title interest as meaning right of possession. This is clearly flawed. I am fully aware that this matter may end up in Circuit Court to resolve this dispute. I want to be clear in my representation of my clients. If the Department is going to deny this request for a permit, I would like to know the legal justification for doing so. The recorded documents are clear and speak for themselves. While Mr. Pfrengle may not want the walkover replaced, he agreed to the provisions of the easement and Road Maintenance Agreement when he purchased his home as shown on the recorded instruments. If my clients are required to fill out a formal written request for a permit, please notify me and provide the proper documentation for that request. . . . The owners' meeting was held on March 24, 2011, pursuant to the March 11 notice. All of the Applicants voted in favor of the repairs and maintenance to the dune walkover,3/ making an eighty percent majority for the work to proceed. Petitioners did not attend the meeting. Also on March 24, 2011, Mr. Gregory sent an email to Mr. Mowrey that read as follows, in relevant part: After discussing this matter with the Department's permit processor and Mr. Mowrey, it appears your proposed activity may be eligible for an exemption. If you would like to pursue an exemption determination, please send a letter requesting the exemption to the Bureau. The items to include in the request are listed in 62B-33.008(11). . . . Late on the afternoon of March 24, 2011, Mr. Mowrey on behalf of his clients emailed a written request for an exemption from the CCCL permit requirements to David Kriger, permit manager for the Bureau. On March 30, 2011, the Department issued the Exemption Notice quoted in the Preliminary Statement, supra. On April 14, 2011, Rick Powell of Barefoot Marine Construction provided a verbal description of the walkover project to Fritz Wettstein, environmental manager of the CCCL program. The project plans included the use of "sister" posts directly abutting and fastened to the existing posts to support the repaired structure. Robert Morgan, a licensed professional engineer whose company worked on the project for Barefoot Marine, testified that the timber in the existing walkover was old, possibly warped, and did not provide a pure nailing surface. However, the impact on the dune topography of pulling out the old posts for replacement would have been "tremendous." "Sistering" the new posts to the old ones would provide the needed support while minimizing environmental impact. On April 23, 2011, Mr. Morgan's company, RGM Engineering, Inc., provided the Applicants with two sets of structural drawings/engineering plans for the dune walkover, one of which was accepted and ultimately built. The plan that was built was designed and measured to be an exact duplicate of the existing walkover in all dimensions. The second plan would have lowered the rebuilt walkway, making it less visually obtrusive to Mr. Pfrengle and Ms. Pope. On September 8, 2011, the Department issued the Amended Exemption Determination quoted in the Preliminary Statement, supra. Based on Mr. Powell's project description, the Department determined that the project was exempt pursuant to section 161.053(11)(b), Florida Statutes. On September 16, 2011, Bureau field inspector Trey Hatch conducted a site inspection of the proposed construction area and beach dune system. Mr. Hatch's written inspection report stated that the existing walkover, "located within a 6' easement area used by local neighborhood," appeared to be in need of repair or replacement due to the age of the wood and support hardware. Mr. Powell testified that his company waited 21 days after the issuance of the Amended Exemption Determination before commencing work on the walkover. Mr. Powell's company performed all the work. The digging of postholes was done by hand, without the use of machines. Only two workers were on the ground at a time, and only those materials immediately required were carried to the walkover. Materials were passed up and down to the workers on the structure to minimize disturbance to the dune system. Mr. Morgan testified that the new posts were placed about five feet into the ground, to the depth of the old posts. Nearly every old post was sistered to a new post, and most of the walkover's structure was replaced. Mr. Morgan stated that the repaired walkway had a slightly larger east-west footprint due to the sistered posts, but that the north-south footprint was exactly the same as that of the old walkover. As noted above, the Department's Amended Exemption Determination found the Applicants' project exempt pursuant to section 161.053(11)(b), which provides: Activities seaward of the coastal construction control line which are determined by the department not to cause a measurable interference with the natural functioning of the coastal system are exempt from the requirements of subsection (4).4 Florida Administrative Code Rule 62B-33.008 implements section 161.053. Subsection (11) of the rule provides specificity to the exemption provided by section 161.053(11)(b) as follows: Requests for the Department to determine that the proposed activity is exempt from permitting pursuant to the provisions of Section 161.053(11)(b), F.S., shall include, at a minimum, a survey meeting the requirements of Rule 62B-33.0081, F.A.C., and the information requirements of paragraphs 62B-33.008(3)(l), (m), (n), (p), (r), and subsection 62B-33.008(5), F.A.C. The Department recognizes that the requirements specified above may not be necessary to make an exemption determination. In such cases, the applicant shall, as part of the request for exemption, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. The "information requirements" of rule 62B-33.008 referenced in the quoted portion of the rule are as follows, in relevant part: (3) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) or 50-foot setback from the Department. . . shall submit two (2) copies of a completed application form to the Bureau . . . The application shall contain the following specific information: * * * Two copies of a dimensioned site plan. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the state of Florida. The site plan shall include: The locations and exterior dimensions of all proposed structures, including foundations and other activities, and the bearings and distances from the CCCL or 50- foot setback to the seaward corners of the foundations of any major structures or the seaward limit of any coastal or shore- protection structure. Dimensions and locations of the foundation outlines of any existing structures on adjacent properties and distances from the CCCL or 50-foot setback to the seaward corners of the foundations of any existing structures or the seaward limit of any coastal or shore-protection structure. These measurements shall include all structures that the applicant contends have established a reasonably continuous and uniform construction line for permits requested under the provisions of sections 161.052(2)(b) or 161.053(5)(b), F.S. Dimensions and locations of the foundation outlines of any existing structures on the subject property and distances from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures or the seaward limit of any coastal or shore-protection structure. The horizontal location of the erosion control line (if one exists), any contour lines corresponding to elevation 0.00, the approximate contour of mean high water and the seasonal high water, and the horizontal location of the seaward line of vegetation and outlines of existing natural vegetation. The horizontal location of the CCCL or the 50-foot setback (if no CCCL is established for the county in which the property is located) for the full width of the subject property, including the location and full stamping of the two nearest Department or published second order or higher horizontal control points. The location and dimensions of the property boundary, rights of way, and easements, if any. The property owner and project name, street address, scale, north arrow, sheet number, and date of drawings. The location of work limits, construction fences, and dune features and vegetation to be protected during construction. Two copies of a dimensioned grading plan. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the State of Florida. The grading plan shall include: Existing and proposed elevations, contours and spot elevations. For any proposed excavation or fill: A table of all permanent, temporary, and net excavation and fill volumes seaward of the CCCL; The storage locations and description of handling methods for all temporary excavation and fill material; and Soil and geotechnical data for beach compatible imported or excavated material proposed for placement on the beach seaward of a frontal dune or on the sandy beach. Two copies of dimensioned cross- sections. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the State of Florida. The cross-sections shall include a typical view from the mean high water line to the CCCL depicting all structures and building elevations, proposed and existing grades, subgrade construction, excavation, fill, and elevations for any proposed or existing rigid coastal structures. * * * (p) Details, including engineering design computations, for any proposed waste or storm water discharge onto, over, under, or across the beach and dune system, such as storm water runoff, swimming pool drainage, well discharge, domestic waste systems, or outfalls. . . (r) Two copies of detailed planting plans, including the location of proposed plants, existing native vegetation, and plants to be removed. Plans shall include a plant list with both scientific and common names. * * * (5) The staff shall require the applicant to provide other site specific information or calculations as is necessary for proper evaluation of the application. The dimensions for the plans referenced in this section shall be submitted in U.S. Customary System units. Structures shall be located with distances measured perpendicular to the control line, 50-foot setback line, or the mean high water line, as appropriate. All elevations in this rule shall be referenced to NAVD 88 (U.S. survey foot). Site, grading, drainage, and landscape plans as well as cross-sections shall be drawn to a scale no smaller than 1'' = 40' in the horizontal dimension. Mr. Morgan testified that a survey was not required for this project because the plan was simply to replace an existing walkover that was already on the ground. The existing footprint would be maintained during construction. Mr. Morgan testified that because the project was being undertaken within the confines of an existing structure, there was also no need for a dimensioned site plan or a dimensioned grading plan. Mr. Morgan testified that it was necessary to provide dimensioned cross-sections to ensure that the renovated walkover conformed exactly to the dimensions of the existing walkover. Those cross-sections were provided to the Department. Mr. Morgan testified that it was not necessary to provide details, including engineering design computations, for any proposed waste or storm water discharge onto or over the beach and dune system because no impervious surface was being added. Mr. Morgan testified that it was not necessary to submit planting plans because the dunes were not being disturbed. Mr. Morgan testified that no other site-specific information or calculations were necessary for the exemption application "because it was all straightforward. There again, it's an existing structure." Tony McNeal, the administrator of the CCCL program, testified as an expert in coastal engineering. Mr. McNeal also addressed the criteria for obtaining an exemption pursuant to rule 62B-33.008(11), and concluded that none of the items listed in subsection (11) were necessary for the Department to determine that the project would not cause a measureable interference with the natural functioning of the coastal system. Petitioners offered no evidence that the requirements of rule 62B-33.0081, paragraphs 62B-33.008(3)(l), (m), (n), (p), (r), or subsection 62B-33.008(5) were necessary to make an exemption determination pursuant to section 161.053(11)(b). The evidence demonstrated that the Applicants identified which of those requirements were inapplicable and why, and that the Department waived the inapplicable requirements. The unchallenged testimony of Mr. Morgan and Mr. McNeal established that the proposed project would not cause a measurable interference with the natural functioning of the coastal system, and that the criteria for the grant of an exemption from the CCCL permitting requirements were met in this instance. However, the finding that the proposed project would meet the exemption criteria of section 161.053(11)(b) does not end the inquiry. Petitioners contend that Applicants' project is simply not the kind of project to which the section 161.053(11)(b) exemption provision is intended to apply. Rather, this project was of the type contemplated by section 161.053(11)(a), which provides in relevant part: The coastal construction control requirements defined in subsection (1) and the requirements of the erosion projections in subsection (5) do not apply to any modification, maintenance, or repair of any existing structure within the limits of the existing foundation which does not require, involve, or include any additions to, or repair or modification of, the existing foundation of that structure.... Petitioners contend that because it included "additions to, or repair or modification of" the walkover foundation, the project should have been required to seek a CCCL permit. Petitioners argue that the project as a whole constituted a replacement of the existing walkover, not merely repairs and maintenance. As such, it was not the type of activity that the Department should have considered for exemption under section 161.053(11)(b). Petitioners offered documentation from the Department's files indicating that no beach walkovers have been granted exemptions from the need to obtain at least a field permit.5/ Trey Hatch, a senior field inspector for the Bureau, testified that he has never issued an exemption for a dune walkover. He stated that he issues "quite a few" field permits for walkover structures. These include permits for new walkovers, additions, and repair and rebuilding. Mr. Hatch stated that aboveground repairs to walkovers typically do not require permits. He testified that he has issued field permits for such repairs in order to assist homeowners in obtaining building permits from local authorities. However, foundation modification such as digging holes, replacing posts or modifying the structure outside its existing dimensions would require a permit. Mr. McNeal testified that the Department regularly issues permits for dune walkovers and has issued more than a thousand such permits over the years. To his knowledge, the Department has never granted an exemption under section 161.053(11)(b) for a walkover structure prior to the instant case. Despite this lack of precedent, Mr. McNeal, who has been the administrator in charge of the CCCL program since 1998, expressed confidence that a permit was not required for this project because the proposed activity would not cause a measurable interference with the natural functioning of the coastal system. Petitioners contend that the walkover was not "repaired" nor was it the subject of "maintenance." They assert that the walkover was replaced from the foundation up, and that such replacement makes the Applicants' project ineligible for exemption. Petitioners state that digging and setting of new posts constituted modification of the foundation that required a permit under section 161.053(11)(a). The Department replies that the exemption was not granted pursuant to section 161.053(11)(a) but under the standard set forth in section 161.053(11)(b). Therefore, Petitioners contentions regarding the repair or replacement of the walkover's foundation are irrelevant. In similar fashion, the Department dismisses Petitioner's contention that the sistered posts violated Florida Administrative Code rule 62B-34.050(19)(b), which provides: Elevated walkovers that provide access to the beach shall meet the following design criteria: * * * (b) The piles for the walkover structure shall not be greater that [sic] four by four inch posts and shall not be encased in concrete. Petitioners point out that by sistering the new four- by-four posts to the existing four-by-four posts, Applicants have created piles for the walkover structure that are now four inches by eight inches, in excess of the maximum allowed by the quoted rule. However, the Department points out that the quoted rule sets forth the conditions for general permits for activities seaward of the CCCL, in particular for a new dune walkover structure. As such, the rule is irrelevant to a consideration of whether the repairs to the already existing walkover meet the specific criteria for an exemption pursuant to section 161.053(11)(b) and rule 62B-33.008(11). Petitioners argue that a form of estoppel should apply to the Department's grant of an exemption in this case because of prior Department actions regarding the same walkover. In 2005, one of the Applicants in the instant case, Paul Linger, obtained a field permit to repair the stairs on the walkover and to install a cantilevered bench seat. Controversy ensued when both Ms. Pope and Mr. Pfrengle objected and insisted on removal of the bench seat. The Department ultimately decided that Mr. Linger had installed the bench seat farther seaward than the permit allowed, and that the seat extended beyond the easement onto Ms. Pope's property. Ms. Pope also raised the question whether Mr. Linger had the authority to obtain the permit without her permission. Jim Martinello, an environmental manager with the Bureau, wrote as follows in a letter to Timothy J. Perry, counsel for Ms. Pope, in a letter dated March 25, 2008: In Mr. Perry's letter dated March 17, 2008, he has advised Department staff that his client, Amanda Pope, would be amenable to remove the cantilevered seating area from her property. Pursuant to section 161.053(12)(c)(6), Florida Statutes,6/ the removal of any existing structures or debris from the upland, provided there is no excavation or disturbance to the existing topography or beach/dune vegetation is exempt from the Department's permitting requirements. The installation of the handrail would also be considered an exempt activity; however, be advised that if Ms. Pope proposes to install a wooden post into the ground, then the activity would no longer be exempt and a Department permit would be required. If, after removal of the cantilevered seating area and placement of the handrail, no additional compliance issues are identified by staff, the file on this matter will be closed. Since the subject dune walkover is within an easement, any future reconstruction or repairs to the subject dune walkover must be authorized with an administrative Coastal Construction Control Line permit. A Department field permit will not be available for any future proposed activities regarding the subject structure. (emphasis added). In a follow-up letter dated June 19, 2008, noting that the bench seat had been removed and the Department's file on the matter had been closed, Mr. Martinello reiterated: As previously stated, since the subject dune walkover is within an easement, any future reconstruction or repairs to the subject dune walkover must be authorized with an administrative Coastal Construction Control Line permit. A Department field permit will not be available for any future proposed activities regarding the subject structure. With reason, Petitioners question why the Department's representative cautioned Ms. Pope that the installation of a single wooden post would trigger the need to obtain a permit from the Department, but three years later the Department determined that the installation of more than 30 posts on the same walkover was exempt from permitting. The letters clearly state that any future reconstruction or repairs to this dune walkover would require an administrative CCCL permit rather than a mere field permit. However, three years later, no permit whatever was required for an extensive renovation of the same walkover. At the hearing, Mr. Marintello testified that the intent of his language regarding the need for a permit was "informational." He wanted to advise the parties that they could not obtain a field permit for reconstruction because the walkover was within an easement. Mr. Martinello stated that the Department had previously decided that it would be better to use the administrative CCCL permitting process where an easement was involved. The greater scrutiny of that process would insure that the applicant is eligible to obtain the permit. Mr. Martinello stated that he defers to the opinion of Mr. McNeal and the Bureau permitting staff as to whether an activity qualifies for an exemption. He testified that he had no intent for his letter to preclude anyone from ever obtaining an exemption to perform work on the walkover, and that in any event he lacked the authority to make such a conclusive pronouncement. The Department and Applicants strenuously argued that any evidence not strictly addressing the criteria for exemption under section 161.053(11)(b) is irrelevant to this proceeding. In so arguing, they seek to avoid the threshold question of whether section 161.053(11)(b) is the applicable provision for repair or replacement of an existing structure such as a dune walkover. The testimony and the statute itself lead to the finding that the specific provisions of section 161.053(11)(a), not the general exemption language of section 161.053(11)(b), should have been applied to the "modification, maintenance, or repair" of this existing structure. When Mr. Morgan testified to justify the lack of need for various items listed in rule 62B-33.008(11), he did so in terms of section 161.053(11)(a): it was unnecessary to provide a ground survey, dimensioned site plan, dimensioned grading plan, or other site specific information or calculations because the project was staying within the confines of the existing structure. The Department's own personnel made it clear that their long practice has been to apply section 161.053(11)(a) to alterations of dune walkovers. Mr. Hatch testified that he has never issued an exemption for a dune walkover, and that his common practice is to issue field permits for dune walkovers. In his experience, aboveground repairs to walkovers are exempt and foundation modifications require a permit. Mr. Hatch was obviously referencing section 161.053(11)(a) in stating these criteria. Mr. Martinello's letters cautioning Ms. Pope not to install a wooden post in the ground were plainly premised on the section 161.053(11)(a) limitation on changes to the foundation. Mr. Martinello's testimony regarding his intent in writing the letters was an unconvincing attempt to revise his views to reflect the Department's new interpretation of the statute. The Department's own expert, the head of its CCCL permitting program, Mr. McNeal, conceded the novelty of granting a section 161.053(11)(b) exemption for a dune walkover. He could point to over one thousand walkover permits but not a single walkover exemption during his long tenure at the Bureau. In summary, the Department misapplied the general exemption criteria in section 161.053(11)(b) to a situation that met the more specific criteria of section 161.053(11)(a). Applicants should have been required to obtain either a permit pursuant to section 161.053(11)(a) or a Department determination that such a permit is not required because of the nature of the work performed on the walkover. Finally, Petitioners raised the issue of whether Applicants had the authority to obtain an exemption from the Department. Petitioners contended that neither Millken's Replat nor the Road Maintenance Agreement authorized Applicants to effect repairs on the walkover without express permission of the property owners, Ms. Pope and Anastasia, Inc. The Department argued that it has no obligation to investigate ownership rights prior to issuing an exemption. Based on the foregoing finding that the exemption was improvidently granted, there is no need to address this issue at this time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Daniel and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005, for an exemption from the requirements of coastal construction control line ("CCCL") permitting pursuant to section 161.053(11)(b), Florida Statutes, for their proposed activities on a dune walkover structure seaward of the coastal construction control line at the end of Milliken Lane in St. Johns County. DONE AND ENTERED this 5th day of October, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 5th day of October, 2012.
The Issue Whether the Petitioners, and each of them, have standing to bring the instant action before the Division of Administrative Hearings. Whether the 5500 North Corporation has meets the requirements set forth in Section 161.053, Florida Statutes, and Rule 16B-33, Florida Administrative Code, for obtaining a permit to construct a structure seaward to the coastal construction control line (CCCL).
Findings Of Fact The Department of Environmental Protection, f/k/a Department of Natural Resources, is the state agency charged with the responsibility of regulating coastal construction under Chapter 161, Florida Statutes. 5500 North Corporation (Respondent/Applicant) is the owner of the property located at 5600 North Atlantic Avenue, Cocoa Beach, Brevard County, Florida 32931. 5500 North Corporation submitted an application for a coastal construction control line (CCCL) permit to build on the vacant portion of its property, a seven (7) story building, along with required access drives and parking, as an addition to the Cocoa Beach Days Inn Hotel complex. The site of the proposed Days Inn Tower fronts on the Atlantic Ocean and is located three (3) miles south of Port Canaveral, near DNR survey monument R-16. The application and attached document were compiled and submitted to the Department of Environmental Protection by Plata Engineering, Inc., and consisted of the following documents: Application to the Department for the proposed construction of the building, consisting of three pages, front and back, six pages total. A legal description of the property, and a Warranty Deed for the property demonstrating ownership in 5500 North Corporation. Reduced certified survey of the site, showing control lines and other required information. Reduced Site Plan prepared by Plata Engineering, Inc. Section C - which is a section through the site plan, showing the dune configuration in relation to the proposed building and the construction control lines. A depiction of a section through the proposed building and some of its structural elements. Full size drawing of the proposed site. Turtle assessments form with attached lighting specifications of the manufacturer, and aerial of the site attached. Structural Design Calculations. Complete set of Building Plans, dealing with floor planning, and the structural elements of the calculations that were submitted with the structural calculations. The application was deemed complete, and on May 20, 1993, the Department issued a proposed Final Order issuing Permit Number BE-760 for the proposed structure. Standing of Petitioners Petitioner, Carole Pope, resides in the City of Rockledge, Brevard County, Florida. She is the owner of Lot 11, Block 101 of the platted subdivision known as Avon-By-The Sea which is located in unincorporated Brevard County, north of the existing north boundary of the City of Cocoa Beach. A duplex dwelling unit is located on the parcel. Petitioner occupies one unit annually during the summer. Petitioner Pope's property is not adjacent to the property where the proposed Days Inn Tower is to be located. The property is located approximately three blocks directly north of the proposed building and measures 475 feet east- west by 50 feet north-south and is bounded on the east by the Atlantic Ocean. Petitioners, Hugh and Cora Harris, own property located at Lot 13 of replat of Blocks 104 and 105, Avon-by-the Sea, in the unincorporated land of Brevard County, which borders on the City of Cocoa Beach. Petitioners' property is located across Young Avenue, and north of the property owned by 5500 North Corporation. The Harris's property contains a single family dwelling unit and is adjacent to the property were the proposed Days Inn Tower is to be located. Petitioners, Patricia A. and Eugene A. Wojewoda, own a unit at the Cocoa Beach Towers, a multi-family condominium, which is located north of the property owned by 5500 North Corporation, across Young Avenue, in the City of Cocoa Beach. The Wojewoda's unit is located on property which is adjacent to the property where the proposed Days Inn Tower is to located. Petitioners Wojewodas are Real Estate Brokers and owners of Professional Touch Realty, Inc. One of their four offices is located at 108 Young Avenue, immediately across the street and north of the subject property. Petitioners, Howard and Martha Crusey, own a unit, which they rent out, in the Cocoa Beach Towers, which is located north and adjacent to the property owned by 5500 North Corporation. Petitioners reside at 430 Johnson Avenue in Cape Canaveral, Florida. The Department sent out a notice for public comment to each of the immediate adjacent property owners. Existing Uniform and Continuous Line of Construction As part of the application process, the Department made a determination of the existing line of uniform and continuous construction. The existing line of uniform and continuous construction is a theoretical line that goes from the most seaward extent of the two adjacent structures, where adjacent structures exist, and extends north and south along the seaward edge of the structures. In the instant case, there is historical development of major habitable structures on either side of the parcel for which the proposed building is being constructed and which are co-terminus with the prior CCCL. The footprint of the proposed Days Inn Tower does not extend seaward of the existing uniform and continuous line of construction, although a new structure (Discovery Beach) north of the Cocoa Beach Towers has been constructed landward of the current CCCL. The existing structures, which form the existing line of uniform and continuous construction, have not been unduly affected by erosion. The property was purchased by 5500 North Corporation in 1988. The property was commercially developed with the existing hotel buildings between 1959 and 1962, and the site has been operated as a hotel since that time. The footprint of the building was set by the engineers based on the parking requirements of the City of Cocoa Beach, and environmental concerns. It was determined that if the parking were located on the seaward side of the building, there would be drainage problems, and the need for a storm water treatment system for the parking lot. With the parking lot located landward of the proposed building, there will be no drain off to the side areas, but rather drain off would be to the middle of the property where the exfiltration system is located. The parking lot located landward of the proposed building meets the City of Cocoa Beach parking requirements and the drainage requirements. When siting the footprint of the proposed building, the engineers also took into consideration the fact that if the parking were located on the seaward side of the proposed building, the headlights would shine out to the beach and possibly impact sea turtles nesting. The applicants stated that construction seaward of the control line or 50-foot setback is considered necessary for reasonable use of the property, for the following reasons: The proposed building is basically an addition to a completion of the original concept of the overall hotel complex that was never completed in the past due to either financial or room availability need. The proposed placement seaward of the CCCL can be attributed to the configuration of the existing on-site buildings and the require- ment to satisfy the City of Cocoa Beach's extensive parking and limited access point requirements that have been subjected to this proposed site development. Please note that the proposed building is not being placed seaward of the existing line of continuous construction that has been established by the adjacent buildings to the north and the south. The Department determines necessity based upon the impacts the proposed structure will have on the active beach, and the dune system, and the neighborhood properties including the subject property, how the property is zoned, and whether it is situated behind the existing continuous line of construction. It is the Department's opinion that if the proposed building is in compliance with the standards established in Chapter 16B-33, F.A.C., the necessity of the proposed building has been justified. Impacts to the Beach-Dune System The greater weight of evidence supports the conclusion that the shoreline fronting the site of the proposed Days Inn Tower is stable. This section of the coastline has historically been accretional, and still continues to be accretional. There exists adequate evidence of current littoral trends. There exists accepted methodologies for determining evidence of expected wind, wave, hydrostatic and hydrodynamic forces associated with the design storm event which was presented in 5500 North Corporation's application for CCCL permit. Based on the 1989 Brevard County Study conducted by Olsen and Associates, Inc., there is no erosion at the location of the proposed building, instead the shoreline is prograding seaward instead of landward. Therefore, the shoreline is at least stable or accretional. Based on its in-house analysis, the Department of Environmental Protection conservatively adopted an erosion rate of one foot per year, which is considered a relatively minor erosion rate. Based on the Department of Environmental Protection's projection of the erosion for the area being one foot per year, the location of the proposed building lies well in excess of 200 feet landward of the thirty-year seasonal high water line. Although the proposed structure extends 118 feet seaward of the CCCL, the setback of the proposed building from the existing dune line is significant; therefore, there was no evidence of a threat of impact on the beach, to the beach or dune system as a result of the construction at the specific site. There are existing devices (i.e., an existing fence on the property which funnels people into boardwalks so that people cannot walk uncontrolled on the beach dune system) implemented in Brevard County and specifically on the site which will help manage people impacts as well. The setback between the dune and the proposed construction qualitatively relates to the ability of the site to recover after a one-hundred year storm. If a structure is located too far seaward, either immediately adjacent to or on top of the dune, it would inhibit the natural storm recovery process. The proposed building is set a significant distance landward of the dune formation itself, so there will be adequate room for the dune to recover in the future should there be a one-hundred year storm event. The proposed structure is located at a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and the natural recovery following storm induced erosion. The proposed construction will not have a cumulative impact that will threaten the beach or dune system or its recovery potential following a major storm event. low. Impacts to Adjacent Property Owners The probability of potential impacts to adjacent property owners is One reason the proposed building will not have adverse impacts to adjacent properties is that the proposed building is located significantly landward, and does not go further seaward than the existing line of construction. The adjacent buildings were constructed landward of the previous CCCL. The nature of the design associated with the particular project or the structural components of the design also minimize the impact to the parcel and to adjacent parcels. The first feature of the design of the proposed building is that the major habitable floors of the building are above the elevation of the one- hundred year storm and wave activity on top of the storm surge, so they will not be impacted by the water height or the wave activity of the storm. The second feature of the design of the proposed building is that everything below the habitable floors is designed to break away and lie down during any impact by wave activity, which allows the storm to go through the building rather than having those forces exerted on the building itself. The frangible driveway is designed so that the individual stones will fall as the grade falls, and most of them will end up buried in the event of a storm. The third feature of the design of the proposed building is that the building is elevated on a pile foundation which is sunk to a depth which is sufficient to accommodate for the anticipated erosion of a one-hundred year storm, and the pile caps are sunk well into the ground so that they do not contribute to erosion. Therefore, the building has been designed to withstand the one-hundred year storm, and the dynamics of the storm are allowed to go through the building and to be dissipated, in contrast to endangering the building or endangering adjacent properties. Due to the fact that the proposed building is "super-elevated and the portions that are actually impacted by the one-hundred year storm being frangible," the proposed building will not impact the adjacent properties. The proposed Days Inn Tower would serve to protect the adjacent Cocoa Beach Towers, and Petitioner Harris's property, by blocking the impact of a storm coming from the southeast. The proposed structure is designed so as to minimize any expected adverse impact on the beach dune system or adjacent properties or structures and is designed consistent with Section 16B-33.005, Florida Administrative Code. The proposed building meets the requirements of Chapter 161, Chapter 16B-33, Florida Administrative Code. Structural Design of Proposed Building The applicant provided adequate engineering data to the Department concerning the construction design of the building. The structure is designed in accordance with the minimum building code adopted for the area pursuant to Section 553.70-553.895, Florida Statutes. The proposed building is designed in accordance with the local code, and, in the opinion of the structural engineer who designed the building, either meets or exceeds the required codes. The proposed building is designed in accordance with Section 6, American National Standards/American Society of Civil Engineering 7-88 (July 1990) "Minimum Design Loads for Buildings and Other Structures", and has a minimum basic wind speed of 110 miles per hour. The proposed building is designed so that the building and its components will not become airborne missiles. The plans for the windows and doors require that they meet the 110 miles per hour wind loads. The proposed building is made of concrete reinforced masonry, and does not have bricks or attached masonry which could detach in a storm and become airborne. There are no substantial walls or partitions to be constructed below the level of the first finished floor, except for the elevator and stairs, seaward of the CCCL. The walls on the first floor are frangible walls which are designed to resist the 110 mile per hour wind pressure, but they lie down or collapse into the erosion hole created under wave surge pressure. The frangible walls are made of 4-inch thick concrete with reinforcing rods inside them, and are cut into 4 foot by 4 foot panels. The Department of Environmental Protection requires that any walls constructed below the one-hundred year storm surge plus storm wave elevations be frangible walls. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculation for wave forces on building foundations and building superstructures is based on minimum criteria and methods given in professionally recognized documents accepted by the Bureau of Coastal Engineering and Regulation with the Department. The structural design considered hydrostatic loads which would be expected under the conditions of maximum water height associated with a one- hundred year storm event. The calculations for hydrostatic loads considered the maximum water pressure resulting from a fully peaked, breaking wave superimposed on the design storm surge. Both free and confined hydrostatic loads were considered in the design calculations. Hydrostatic loads which are confined were determined using the maximum elevation to which the confined water would fully rise if unconfined. Vertical hydrostatic loads were considered as forces acting both vertically downward and upward; however, there is no action upward because the maximum water level is at midlevel of the first floor and does not reach the second floor. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculations for hydrodynamic loads considered the maximum water pressure resulting from the motion of the water mass associated with a one- hundred year storm event. Full intensity loading was applied on all structural surfaces above the design grade which would effect the flow velocities, which are above the first floor and are not reached by the wave surge. The proposed building is elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave set up of one-hundred year storm. The piling foundation is designed to withstand anticipated erosion, scour, and loads resulting form a one-hundred year storm, including wind, wave, hydrostatic and hydrodynamic forces, and the pile caps are located below the erosion line as indicated by the Department's information and graphs. The elevation of the soil surface used in the calculation design grade is less than that which would result from the anticipated beach and dune erosion due to the one-hundred year storm event. The erosion calculations for foundation design account for all vertical and lateral erosions and scour producing forces. The pile caps are set below the design grade which includes localized scour, and are designed for the erosion of soil during the one-hundred year storm event. The piles are driven to a penetration which achieves adequate bearing capacity taking into consideration the anticipated loss of soil above the design grade, based on information provided by the geotechnical engineer's recommendation and the Department's requirements. The design plans and specifications submitted as part of the permit application for the proposed Days Inn Tower are in compliance with the standards established in Rules 16B-33, Florida Administrative Code. Turtle Impacts There is a two prong test which the proposed structure must meet to determine if the proposed building would have an adverse impact on nesting sea turtles. First, the proposed structure must not occupy marine turtle habitat, and second, the proposed structure's lighting must be adequate to eliminate adverse impacts to marine turtles. The effects of pedestrian traffic or flashlights on the beach are not considered by the Department when reviewing a permit application for adverse impacts to the marine turtles. The proposed building is sited significantly landward of the nesting beach, which is evidenced by the 75-foot wide dune stretch; therefore, it is not anticipated that the structure will result in any direct mortality of any marine turtle, nor would the building result in the degradation of the marine turtle nesting habitat. The proposed seven story structure will not occupy marine turtle habitat. The permit requirement to do dune restorative work, proposed by the Department, enhances the marine turtle habitat by further building the dune and enhancing the dune. Although the turtles do not nest beyond the dune crest, the dune is an integral part of protecting the habitat. There is a potential that the building, due to its height, could enhance marine turtle nesting habitat by blocking out the ambient glow from the City of Cocoa Beach which would create a dark beach directly in front of the proposed structure which could attract nesting. The applicant submitted a lighting plan to the Department which complied with the guidelines that are established in the information form entitled "Assessment to reduce impacts to marine turtles for lighting to reduce adverse impacts associated with coastal lighting." There are two main components of the lighting plan associated with the proposed building: the parking lot lights and the structural lighting. The parking lot lighting is designed as low-level Ballard-style lighting which is only 48 inches above the grade and emits light in a downward direction which will not be directly visible from the beach. The parking lot lighting design is the type recommended by the Department for parking lots, and is a good lighting design. The Department also recommends that an applicant plant hedges or landscape features to block out parking lights. The applicant is proposing to plant hedges in front of the 18 parking spaces that are on the seaward side of the proposed building. The structural lighting plan does have lighting on the seaward facade of the proposed building, which is not recommended by the Department, but the lights are designed to eliminate or significantly reduce the impact to marine turtles. The lights consist of canister, shielded, down-casting lights on the balconies which house a yellow bug lamp which is less impactive to turtles, and which is acceptable to the Department. The Department issued an approval letter regarding the proposed building to the project engineer which contained permit conditions for the protection of the marine turtles in association with the project. The permit conditions are as follows: No construction, operation, transportation or storage of equipment or materials is authorized seaward of the existing chain link fence located approximately 175 feet seaward of the coastal construction control line. No temporary lighting of the construction area is authorized at any time during the marine turtle nesting season (March 1 through October 31). All permanent exterior lighting shall be installed and maintained as depicted in the approved lighting schematic. No additional permanent exterior lighting is authorized. c All windows and glass doors visible from any point on the beach must be tinted to a transmittance value (light transmission form inside to outside) of 45% or less through the use of tinted glass or window film. Pursuant to the Department's requirements, the proposed construction will not have an adverse impact on nesting sea turtles, their hatchlings, or their habitat. Vegetation Impacts The vegetation patch on the dune system is approximately seventy five feet wide under today's conditions, and is probably growing to some degree. The vegetation system is basically comprised of a low-level dune which is planted both naturally and artificially with indigenous, salt-tolerant type vegetation, and sea oats. The existing line of construction which the proposed building is set behind is well landward of the zone of indigenous vegetation. Special condition #4 contained in the permit issued by the Department requires the applicant to convert some of the existing sodded area between the vegetation limits and the proposed construction to plantings with indigenous vegetation, which will serve to enhance the dune system. The native beach vegetation will be adequately protected by the permit conditions, given the location of the construction. Local Government Approvals On June 3, 1992, the Cocoa Beach Board of Adjustment granted a variance to the CCCL to the 5500 North Corporation for construction of the proposed building. Challenges to decisions of the City's Board of Adjustment is to the circuit court. In the instant case, the time for challenging the decision of the Board has expired. The City of Cocoa Beach Planning Board has the authority to approve site plans for site specific construction. The City's Planning Board has the responsibility of ensuring that the site plan conforms with the Comprehensive Plan and to recommend changes, if needed, to the City Commission. On July 13, 1992, the Cocoa Beach Planning Board voted to approve the site plan for the proposed building submitted by the 5500 North Corporation. The decision of the Planning Board granting approval of the 5500 North Corporation's site plan showed part or all of the building was seaward of the CCCL. The Petitioners did not file an appeal of the Planning Board's decision with the City Commission. Nor did they challenge the Planning Board's action in the circuit court. The 5500 North Corporation was not required to apply to the city commission for an amendment to the Cocoa Beach Comprehensive Plan in order to permit the proposed hotel tower to be located in the designated high hazard area. On July 6, 1993, the Building Official issued a building construction permit to the 5500 North Corporation for the proposed building, which has been subsequently extended for an unknown period of time. There are no other permits or local government requirements which have not been met by 5500 North Corporation. The applicant submitted written evidence to the Department from the City of Cocoa Beach, who has jurisdiction over the project, which stated that the project does not contravene local setback requirements, or zoning and building codes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection issue Permit Number BE-760 to the 5500 North Corporation, subject to the conditions proposed in the proposed Final Order. DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 24th day of March, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioners' Proposed Findings of Fact Accepted in substance: paragraphs 1 (in part) 2, 3 (in part), 4, 5, 6, 7, 8 (in part), 10, 12 (in part), 13, 16 (in part), 17, 18, 19, 23 (in part), 24 (in part), 26 (in part), 27 (in part), 29 (in part), 31 (in part), 38 (in part), 49, 51, 63, 68 (in part), 69, 70, 71, 73 (in part). Rejected as against the greater weight of evidence: paragraphs 15 (in part), 16 (in part), 27 (in part), 46, 50 (in part), 82 (in part). Rejected as subsumed, argument or Conclusions of law: paragraphs 1 (in part), 14, 15 (in part), 16 (in part), 21, 23 (in part), 25, 26 (in part), 27 (in part), 28, 29 (in part), 30, 31 (in part), 32, 33, 34 (in part), 35, 36, 37 (in part), 38 (in part), 39, 40, 41, 42, 43, 44, 45, 47, 48, 50 (in part), 52, 56, 57, 58 (in part), 59 (in part), 61, 62, 64, 65, 66, 67, 68 (in part), 72 (in part), 73 (in part), 76, 77, 78, 79, 80, 81, 82 (in part), 83, 84. Rejected as irrelevant or immaterial: paragraphs 3 (in part), 5, 8 (in part), 9, 11, 12 (in part), 20, 22, 24 (in part), 34 (in part), 53, 54, 55, 58 (in part), 59 (in part), 60, 72 (in part), 74, 75. Respondent's Proposed Findings of Fact: Accepted in Substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (in part), 17, 18, 19, 20, 22, 23, 24, 25, 27, 29, 30, 35, 36 (in part), 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 92, 93 (in part) 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118. Rejected as against the greater weight of evidence: paragraph 16 (in part). Rejected as subsumed, argument or irrelevant and immaterial: paragraphs 21, 26, 28, 31, 32, 33, 34, 36 (in part), 61, 87, 88, 89, 90, 91, 93 (in part), 103. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Hugh and Cora Harris (pro se) 208 Young Avenue Cocoa Beach, Florida 32931 Howard and Martha Crusey (pro se) 430 Johnson Avenue, Apartment #304 Cape Canaveral, Florida 32920 Carole Pope (pro se) 715 Rockledge Drive Rockledge, Florida 32955 Patricia and Eugene Wojewoda 830 North Atlantic Avenue Cocoa Beach, Florida 32931 Dana M. Wiehle, Esquire Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road, MS-35 Tallahassee, Florida 32399 Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Taylor, Brion, Buker & Greene 225 South Adams Street, Suite 250 Tallahassee, Florida 32301
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 27th day of April, 1989.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue Coastal Construction Control Line (CCCL) Permit ES-540 to Bobby L. Warner, Joseph W. and Helen Belanger, and Donald Ray Stephens (Applicants) for structures seaward of the CCCL on Perdido Key in Escambia County, Florida.
Findings Of Fact Undisputed Facts Petitioners stated in the Pre-Hearing Stipulation and confirmed at the hearing that adverse impacts to marine turtles are not at issue in this proceeding. The Petition did not allege that the structures authorized by the Final Order are or would be seaward of the seasonal high-water line now or within thirty (30) years of October 2004. The Petition did not allege that the structures would interfere with public access. Project Description Applicants own two parcels of property comprising 1.19 acres on Perdido Key, Escambia County, Florida, between DEP monuments R-1 and R-2 (the Property). The DEP permit file indicates that the eastern parcel is owned by Bobby Warner and the western parcel is owned by Joseph and Helen Belanger. Portions of the Property extend from the south right-of-way of Perdido Key Drive on the north to the mean high-water line (MHWL) of the Gulf of Mexico on the south. There are two existing multi-family dwellings on the Property. The dwelling on the western parcel owned by the Belangers has two units, while the dwelling on the eastern parcel owned by Ms. Warner has four units. Their overall dimensions are approximately 51.2 feet by 54.4 feet for the easterly structure and 44.1 feet by 31 feet for westerly structure, not including decks or stairs. The seaward limits of the structures are approximately 285 feet and 303 feet landward of the MHWL. Applicants propose to demolish the two existing multi-family structures and construct a 15-unit, multi-family dwelling (the Dwelling) measuring 70 feet in the shore normal direction by 80 feet in the shore-parallel direction on piles with understructure parking, a 38.1-foot by 33.3-foot swimming pool on the seaward side of the Dwelling, a deck, a five foot wide dune crossover seaward of the Dwelling, a driveway and parking area of concrete pavers, and a dune enhancement project (Project). The Project, known as BellaVista, would extend as much as 193 feet seaward of the current (the 1986) CCCL. The Dwelling will be constructed in conformance with the structural requirements of the Florida Building Code (FBC), which are applicable to structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic and hydrodynamic forces acting simultaneously with typical dead loads. Its lowest horizontal structural member will be elevated above the 100-year storm elevation as determined by DEP in the report entitled “One-Hundred Year Storm Elevation Requirements for Major Habitable Structures Located Seaward of a Coastal Construction Control Line.” The 100-year storm elevation requirement for the Dwelling is +15.4 feet NGVD,2 while the elevation for the lowest structural member of the Dwelling is +28 feet NGVD, 13.4 feet above the elevation requirements of the FBC. The most seaward point of the foundation of the Dwelling is located 18 feet landward of the most seaward point of the foundation of the existing structure on the eastern parcel and is landward of the seaward side of both of the existing dwellings. The proposed pool and pool deck, which extends seaward of the Dwelling's foundation, also are located landward of the seaward side of the existing dwelling on the eastern parcel and approximately in the same location as all but the extreme eastern part of the existing building on the western parcel, which extends a few more feet seaward. The seaward side of the Dwelling is 306 feet landward of the MHWL. DEP very commonly issues permits for structures closer to the MHWL (i.e., more seaward) than the Project. Many structures are permitted within 100 to 150 feet of the MHWL, and some within 60 feet. Property Description Before Hurricane Ivan struck in mid-September 2004, there was an extensive, well-established, healthy, growing and well-vegetated dune system on the Property seaward of the Project that extended to the east and west in front of and beyond the Atlantis and Spanish Key condominiums. This continuous dune system consisted of numerous mounds of sand ranging in height from 6 or 7 to 11 feet above MHWL, and established a dune line seaward of the existing structures on the Property and the Project. The more seaward of these dunes were the frontal dunes. Before Ivan, the vegetation line was approximately 150 feet seaward of the existing structures on the Property. Petitioners argue that there is a definite and unique primary dune line running straight between points where historic survey data indicate that a primary dune existed approximately 223 feet seaward of DEP range monument R-1 and 270 feet seaward of monument R-2. If there were such a dune line, the line would run through the BellaVista Project. But the evidence does not support an inference that such a primary dune line existed between those two points. Rather, the more persuasive evidence was that the dune system on Perdido Key consisted of dune mounds with an irregular pattern, not a continuous dune line or bluff. At the time Ivan struck Perdido Key and the Property, there was no primary dune or other dune beneath or landward of the two existing structures on the Property. Probably, the structures eliminated and then prevented the re- formation of dunes at that location. Ivan was a major magnitude storm with a storm surge of 15-20 feet, which exceeded the predicted storm surge of a 100-year storm in Escambia County. The existing dwellings on the Property survived the storm but were severely damaged. Ivan destroyed all of the vegetation that existed on the Property and on the beach dune system to the east and west. Ivan also destroyed all of the dunes on the Property and on the beaches to the east and west of the Property. Towards the end of March 2005, Escambia County placed a sand berm on the beach in front of the existing structures on the Property and along the beach to the east and west of the Property. The placement of the sand was partially funded by the Federal Emergency Management Agency (FEMA) and is meant to provide some immediate protection for upland structures, especially those that have been damaged or are vulnerable to damage, from higher-frequency storms. Initially, it would provide less protection from lower- frequency storms and, obviously, would be destroyed by a storm like Ivan. However, depending on future storm events, it would provide some protection and could contribute to recovery of the beach and dune system over time. The FEMA berm is located just seaward of the BellaVista Project site. It is located more landward to the east and west of the BellaVista Property and bends seaward around the existing buildings on the Project site. Moving from east to west, the berm begins to bend seaward at about the middle of the Spanish Key building and then, after crossing close in front of the existing buildings on the BellaVista site, bends back landward again at about the middle of the Mediterra building, which is adjacent to and west of the Atlantis building. The bowed-out segment of the FEMA berm in front of the existing buildings on the BellaVista site will be more susceptible to storm erosion than the segments to the east and west that are more landward. Petitioners argue that the FEMA berm was designed and intended to follow the supposed historic primary dune line but had to bend around the existing buildings on the BellaVista site because those buildings straddled the line. But, again, the suggested inference of a historic primary dune line is not supported by the evidence. In addition, the evidence does not support the inference that the placement of the FEMA berm followed a pre-selected line, but rather suggests that its placement was dictated by its purpose to provide some protection for damaged and vulnerable structures and properties. The top of the FEMA berm has an approximate height of 13 feet NGVD, or about 6 feet above grade, which is comparable in height to the dunes that existed before Ivan. From the landward toe, the berm rises approximately 6 feet at a slope of 2:1. The crest or top of the berm is 8 feet wide. The berm then slopes approximately 40 feet downward to its seaward toe. The overall width of the berm is 58 feet in the north-south direction. The FEMA berm is a mound of loose, sand-sized sediment which lies upland of the beach and was deposited by an artificial mechanism. It is subject to fluctuations in configuration and location. As such, the sand berm is a dune, as defined by Florida Administrative Code Rule 62B-33.002(17). See Conclusion of Law 48, infra. The FEMA dune is now the only dune on the Property or adjacent properties. The crest of the FEMA dune is approximately 30 feet seaward of the Project’s pool and deck. As such, the entire Project is landward of the toe of the FEMA dune. (Applicants modified their application to reflect the FEMA dune through admission of Applicants' Exhibits 9 and 10 into evidence.) The dune enhancement project proposed by the Applicants and required by the Final Order is located partially landward of the FEMA dune and partially atop the landward slope of that dune. The dune enhancement project will enhance the FEMA dune and expand the width of the dune approximately 10-15 feet on the landward side, making the crest of the new dune on the Property 25 feet wide at an elevation of 13 feet. The dry sandy beach on the Property and in the area to the east and west remains wide even after Ivan. The existing structures on the Property are now approximately 288 feet landward of the MHWL. Survey data taken at monuments R-1 and R-2 show that the shoreline at these monuments has historically accreted from the 1860s to the present. The rate of accretion increased from 1974 to 1996. Between 1985 and 1996, the MHWL at R-2 moved 100 feet seaward, a rate of approximately 6 feet/year. Similarly, between 1985 and 1996, the MHWL at R-1 advanced 80 feet, a rate of approximately 7 feet per year. Even if the data in the vicinity of these monuments indicate deceptively high rates of accretion because there were no data points in Alabama to include in the averaging, the accretional trend is clear from the evidence. The Project will not affect this accretional trend. Along with accretion, the dune system in the area of the Property also was growing prior to Ivan, and dune recovery seaward of the new FEMA dune is expected. The primary dunes that existed pre-Ivan on the adjacent properties immediately seaward of the Spanish Key and Atlantis condominiums, which included dunes with elevations of 16-17 feet, will take 25-50 years to rebuild through natural processes, such as aeolian (wind-driven) transport. Some may never recover to previous elevations. The lower dunes, such as those that existed on the Property, may recover in ten years. Since the Project is located landward of the FEMA dune, it will not interfere with post-storm recovery of the dune system. Line of Construction Petitioners contend that there is a reasonably continuous and uniform construction line seaward of the current (the 1986) CCCL "in the immediate contiguous or adjacent area" and landward of the proposed Project--namely, along the line of the former (the 1975) CCCL. In fact, such a line of construction exists extending approximately 500 feet west, and approximately 1,500 feet east, of the proposed Project, but no farther, as there are structures more seaward beyond those points. In addition, in making their "line of construction" argument, Petitioners ignore the existing structures on the proposed Project site. The line of construction is not a prohibition in and of itself. Rather, it is only one of several criteria that must be balanced in determining whether or not to approve a CCCL permit application. The line of construction is a factor for new construction but not for rebuilding or relocation of a building landward. It is the position of DEP and Applicants that the Project qualifies as a rebuilding or relocation and that "line of construction" does not apply. Regardless whether the "line of construction" applies, it must be considered, weighed, and balanced against all of the other application processing factors. See Conclusion of Law 56, infra. Applicants contend that protection of the beach dune system through application of the line of construction provisions is not supported by the Petitioners’ own testimony. They argue that Susan Long, testifying on behalf of and as an agent of Spanish Key, admitted that Spanish Key would not oppose the project at its proposed location were it only two stories tall and would not oppose the repair of the existing structures. Likewise, they argue Boyd Bond, testifying on behalf of and as an agent of Atlantis, stated that Atlantis would not oppose the repair of the two existing multi-family dwellings of the Property. Actually, both testified that they would not oppose those undertakings if Applicants were entitled to permits for them. Significant Adverse Impacts Florida Administrative Code Rule 62B-33.002(31) defines various degrees and kinds of impacts for purposes of CCCL permitting: "Impacts" are those effects, whether direct or indirect, short or long term, which are expected to occur as a result of construction and are defined as follows: "Adverse Impacts" are impacts to the coastal system that may cause a measurable interference with the natural functioning of the system. "Significant Adverse Impacts" are adverse impacts of such magnitude that they may: Alter the coastal system by: Measurably affecting the existing shoreline change rate; Significantly interfering with its ability to recover from a coastal storm; Disturbing topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure or the protective value of the dune system is significantly lowered; or Cause a take, as defined in Section 370.12(1), F.S., unless the take is incidental pursuant to Section 370.12(1)(f), F.S. "Minor Impacts" are impacts associated with construction which are not adverse impacts due to their magnitude or temporary nature. "Other Impacts" are impacts associated with construction which may result in damage to existing structures or property or interference with lateral beach access. (Other applicable rule definitions are set out in Conclusion of Law 48, infra.) Only "significant adverse impacts" (not all impacts or even all adverse impacts) have to be eliminated before DEP may issue a CCCL permit. Vegetation Vegetation on the Property itself was limited pre- Ivan due to development, and Ivan largely destroyed what vegetation there was on the Property. As a result, any disturbance of any existing vegetation during construction will be de minimis. In addition, since there no longer are any dunes on the Project site, no destabilization of any dune or any "significant adverse impact" to the beach and dune system due to increased erosion by wind or water will result from construction of the Project. To the contrary, Applicants have submitted a dune enhancement plan tailored for site conditions as they now exist post-Ivan. Special Condition 9 of the proposed Permit requires that Applicants plant soil-stabilizing native grasses throughout the dune enhancement area in staggered rows 18 inches apart and also requires the achievement of a given survival rate. The dune enhancement plan includes planting which constitutes a significant improvement to the native vegetation situation on the site. The Project will not interfere with the re-emergence of vegetation seaward of the Project. Disturbance of In Situ Sandy Soils Construction of the Project will not result in the removal or disturbance of in situ sandy soils of the beach and dune system to such a degree that a "significant adverse impact" to the beach and dune system would result from either reducing the existing ability of the system to resist erosion during a storm or lowering existing levels of storm protection to upland properties and structures. The only excavation will be for foundation pilings and the swimming pool. Obviously, excavation for the foundation will be filled with the pilings, and none of the sand excavated for that purpose will be removed from the site. All the sandy material excavated for the pool will be placed on site seaward of the structures and the CCCL within the dune enhancement area and in the immediate area of the construction. In addition, the Project will result in the net addition of 658 cubic yards of sand to the beach dune system seaward of the CCCL as part of required beach enhancement. The additional sand to be placed as part of the dune enhancement plan will, in fact, enhance the ability of the system to resist erosion during a storm and will raise existing levels of storm protection to upland properties and structures. Structure-Induced Scour Construction of the Project will not cause an increase in structure-induced scour of such magnitude during a storm that the structure-induced scour would result in a "significant adverse impact." Scouring around piles in a storm is very localized and miniscule and would extend no more than two feet away from the piles and will not reach adjacent properties. Any storm-induced scour will be less than 0.02% of the erosion caused by a 100-year storm event. Scour from the proposed structures will not measurably affect shoreline change rates. Scour caused by the proposed structures will not significantly interfere with beach dune system's ability to recover from a coastal storm. The minimal scour caused by the Project will not disturb topography or vegetation such that the dune system becomes unstable or suffers catastrophic failure. Missiles The Project has been designed to minimize the potential for wind and waterborne missiles during a storm. The Dwelling will be constructed in conformance with the structural requirements of the FBC for structures located seaward of the CCCL, as set forth in Section 3107, FBC. The Dwelling will be elevated on and anchored to a pile foundation which will withstand all reasonably anticipated erosion, scour, and loads resulting from a 100-year storm, including wind, wave, hydrostatic, and hydrodynamic forces acting simultaneously with typical dead loads. As designed, it will not interact with the beach/dune system in storm events and will allow the free movement of sand, water, storm surge, and waves under the building. In the event of another hurricane, storm surge and waves would pass under the Dwelling and not impede such natural processes. Conformance with the FBC minimizes missile potential. Petitioners' coastal engineering expert witness conceded that he did not anticipate missiles would adversely affect the Petitioners’ property or structures. No evidence was offered to show that missiles would adversely affect Petitioners’ property or structures or that the Project would not comply with the applicable FBC structural requirements. Reflective wave energy from the Project will not impact the Petitioners’ property or structures and would not cause a significant adverse impact. There was no evidence of missile damage to Petitioners’ properties from the existing structures even during Hurricane Ivan. To the extent that any threat of missile damage to Petitioners’ structures exists, a more landward location of the Project would increase the threat. Minimization and Mitigation Initially, Applicants proposed a larger and more seaward project. Through negotiations, Applicants agreed to reduce the size of the project and move it more landward. DEP and the Applicants characterize this as minimizing the adverse impacts of the Project. However, "minimization" of this kind can be illusory if an applicant attempts to manipulate it by making a "throw-away" first proposal (not to imply that Applicants manipulated minimization in this case, which cannot be determined from the record). Siting and design criteria have minimized adverse impact. These include construction of the Dwelling: (a) on piles with a design elevation above the storm-surge and storm wave elevations; (b) 306 feet landward of the MHWL and the active beach; (c) behind the new FEMA dune; (d) as far landward as possible for the design; and (e) 18 feet landward of the existing structures on the Property. Placing material excavated for the pool in front of the pool and in the immediate area of construction has minimized the impacts of the pool. No evidence was offered to show that the impacts of the pool have not been minimized. The Permit has been conditioned to require dune enhancement, planting of native, salt-tolerant vegetation, and maintenance of such vegetation as mitigation against adverse impacts associated with the Project. Beach Dune Stability and Natural Recovery The Project is located a sufficient distance landward to permit natural shoreline fluctuations, to preserve and protect beach and dune system stability, and to allow natural recovery to occur following storm-induced erosion. It is located landward of the frontal dunes that existed before Ivan and landward of the frontal dune that now exists (the FEMA dune). The Project will not affect existing shoreline change rates. The Project is landward of where an extensive dune system existed before Ivan and that landward location means it will not interfere with the recovery of those dunes. There is a great expanse of area for dune recovery. It is anticipated that vegetation seaward of the Project will re- emerge by this coming summer. Construction of the Project will not prevent the dune system from recovering and providing protection. Petitioners' primary argument against the Permit, other than its "line of construction" argument, is that dunes will not recover under the footprint of the Dwelling, where they otherwise "want to" and would be expected to recover to some extent, providing some additional dune stability and protection, all other things being equal (i.e., if minimization and mitigation were the same), if the Permit were to be denied and Applicants forced to propose a smaller, more landward project. Cumulative Impacts The Project will not have an unacceptable cumulative impact. No evidence was offered to show that an unacceptable adverse cumulative impact in terms of existing or other proposed projects will result. Positive Benefits of Project The Project will have a net positive benefit on the beach-dune system and adjacent properties and improves existing conditons. Demolition of the two existing structures on the Property will decrease the likelihood of wind and waterborne missiles since the new Dwelling will comply with the structural wind and water load requirements of the FBC. All of the structures to be constructed under the Permit will be landward of the seaward portions of the existing structures. The new Dwelling will be 18 feet landward of the seaward-most point of the existing structures. This landward relocation will allow for more dune recovery seaward of the Project than could occur under existing conditions and mean that the Project will have less impact than the existing structures. Since the beach is an accretional beach and the shoreline has historically advanced seaward, it is expected that the seagrasses and dunes will recover in the area. The area of the Dwelling seaward of the old CCCL is less than the area of the existing structures. The Applicants will implement a dune enhancement plan that includes the placement of 658 cubic yards of sand on the beach and the successful planting of native vegetation on the dune. This dune enhancement plan will benefit the beach dune system, will benefit the new dune, and will increase protection to upland properties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing CCCL Permit ES-540, as modified by Applicants' Exhibits 9 and 10. DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2005.
The Issue Whether the Sherry Petitioners have standing to initiate the proceeding in Case No. 10-0515? Whether the Oceania Petitioners have standing to initiate the proceeding in Case No. 10-0516? Whether the MACLA Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP, the Variance and the SSL Authorization?
Findings Of Fact Setting and Preliminary Identification of the Parties These consolidated cases are set in Okaloosa County. They concern the Consolidated NOI issued by the Department to the County that indicate the Department's intent to issue state authorizations to allow the restoration of a stretch of beach known as the Western Destin Beach Restoration Project (the "Western Destin Project" or the "Project"). In addition to the Western Destin Project, there are other beach restoration efforts (the "Other Beach Restorations") which concern the Gulf of Mexico coastal system along the shores of the Florida Panhandle and about which the parties presented evidence in this proceeding. The applicants for the authorizations in the Other Beach Restorations efforts are either Okaloosa County or Walton County, the coastal county immediately to the County's east, and concern Okaloosa and Walton County property or are on federal property used by Eglin Air Force Base (the "Eglin Projects" or "A-3" or "A-13"). The Eglin Projects have been completed. The source of the sand use in the Eglin Projects is a borrow area designated by the County and its agent, Taylor Engineering, as "OK-A" ("OK-A" or the "OK-A Borrow Area"). The County intends that the OK-A Borrow Area be the source of sand for the Western Destin Project. West of East Pass, a passage of water which connects Choctawhatchee Bay and the Gulf of Mexico, the OK-A Borrow Area is between 4,000 and 5,000 feet off the shores of Okaloosa Island. Okaloosa Island is not an island. It is an area of the incorporated municipality of Fort Walton Beach that sits on a coastal barrier island, Santa Rosa Island. Except for the part of the final hearing conducted in Tallahassee, the final hearing in this case took place in Okaloosa Island. As Mr. Clark put it (when he testified in that part of the hearing not in Tallahassee), "I am in Okaloosa Island. [At the same time], I am on Santa Rosa Island." Tr. 521 (emphasis added). Petitioners in Case No. 10-0515, David and Rebecca Sherry and John Donovan (the "Sherry Petitioners") live along a stretch of beach that is in Okaloosa Island. They do not live along the stretch of beach that is within the area subject to the Western Destin Project. The Sherry Petitioners' stretch of beach is the subject of another beach restoration effort by the County (the "Okaloosa Island Beach Restoration Project"). The Okaloosa Island Beach Restoration Project, in turn, is the subject of another case at DOAH, Case No. 10-2468. The OK-A Borrow Area is much closer to the Sherry Petitioners' property than to the beach to be restored by the Western Destin Project. The Sherry Petitioners recognize the need for the restoration of at least some of the beaches in the Western Destin Project. The Sherry Petitioners initiated Case No. 10-0515, not to prevent the Western Destin Project from restoring those beaches, but because they are concerned that the beaches subject to the Okaloosa Island Project (including "their" beach) will suffer impacts from the dredging of the OK-A Borrow Area whether the dredging is done to serve the Western Destin Project or the other Projects the OK-A Borrow Area has served or is intended to serve. In contrast to the Sherry Petitioners, the Petitioners in Case No. 10-0516 (the "Oceania Petitioners") do, in fact, live on beaches in a section of the Western Destin Project that was slated for restoration when the Consolidated NOI was issued. The Oceania Petitioners are opposed to the restoration of the beaches subject to the Western Destin Project. They initiated Case No. 10-0516, therefore, because of that opposition. Walton County applied authorizations from the state for the Walton County/East Destin Project (referred-to elsewhere in this order as the "Walton Project"). The Walton Project, like the Eglin Projects, is completed. Unlike the Eglin Projects, and the intent with regard to the Western Destin Project and the Okaloosa Island Project, the Walton Project did not use the OK-A Borrow Area as its source of sand. The Walton Project used a Borrow Area to the east of OK-A (the "Walton Borrow Area"). The Walton Borrow Area is in an area influenced by the ebb tidal shoal formed by the interaction between East Pass and the Gulf of Mexico. The MACLA Intervenors (all of whom own property deeded to the MHWL of the Gulf in the stretch of beach subject to the Western Destin Project) together with the Sherry Petitioners and the Oceania Petitioners, seek findings in this proceeding concerning the impacts of the Walton Borrow Area to the beaches of Okaloosa County. They hope that findings with regard to Walton Borrow Area beach impacts will undermine the assurances the County and the Department offer for a finding that the Western Destin Project will not cause significant adverse impacts to the beaches of Okaloosa County. The Holiday Isle Intervenors support the Project. They are condominium associations or businesses whose properties are within the Project. Like the Eglin Projects, the Walton Project is complete. The Walton Project was the subject of a challenge at DOAH in Case Nos. 04-2960 and 04-3261. The challenge culminated at the administrative level in a Final Order issued by the Department that issued the state authorizations necessary to restore the Walton Project beaches. The Walton Project Final Order was appealed to the First District Court of Appeal where it was reversed. But it was reinstated in a decision by the Florida Supreme Court. The Florida Supreme Court decision was upheld when the United States Supreme Court issued a unanimous 9-0 decision less than two months before the commencement of the final hearing in these consolidates cases: Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl Prot., 130 S. Ct. 2592 (2010). The Court held in Stop the Beach Renourishment that the Walton County Project was not a regulatory taking of property that demanded compensation to affected property owners under the Fifth Amendment to the United States Constitution. Stop the Beach Renourishment was argued before the United States Supreme Court in December of 2009, shortly before filing of the petitions that initiated these consolidated cases. The final hearing in these cases was not set initially until July 2010 in the hope that the Stop the Beach Renourishment case would be decided, a hope that was realized. In the meantime, another event threatened to affect these consolidated cases: the Deepwater Horizon Oil Spill (the "Oil Spill") in the Gulf of Mexico. The spill began with the explosion of the Deepwater Horizon oil platform in April of 2010 and continued until August of 2010 when the Oil Spill was stopped while these cases were in the midst of final hearing. The Joint Coastal Permit issued by the Department was revised to address impacts of the Oil Spill. No impacts, however, were proven in this proceeding by any of the parties. The Parties The Sherry Petitioners and Their Property David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [ a condominium unit] of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . . . of Okaloosa County, Florida."2/ Their address is 554 Coral Court, #511, Fort Walton Beach, FL 32548. The Sherrys entered the lease for their condominium unit in May of 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," tr. 840, the unit became their permanent residence. They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified: Tr. 841. This particular area we chose because of the beach quality. Quite frankly, . . . I was surprised when I first saw the place . . . the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen. Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the sugar white sand." Tr. 936 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry's routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island. Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed, I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.] Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it: I . . . swim. I surf on the skim board, float out in the water . . . I help Dave fish, we crab, . . . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen. * * * I've always run barefoot. That's the reason [we chose the beach next to the Surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . . [cross the beach] barefoot. Tr. 939. I actually think the project will impact me, at least, as much as my husband, David . . . my husband is . . . involved with . . . being board president of the Surf Dweller[.] I spend at least as much time as he does on the beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm . . . extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in . . . I don't miss my morning walk. Tr. 950. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island,3/ Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium,4/ is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority and recorded in the Official Records of the County at Book 121, Pages 233-250. See County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4.5/ Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas."6/ Part F of the Protective Covenants and Restrictions, provides, in part, Beach Protection * * * The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority . . . One hundred fifty feet inland from the mean water line, in front of all B1 and B2 Areas, will be public beaches. The next 150 ft. inland will be private beaches as set out on subdivision plats . . . County Ex. 13, at page marked "BOOK 121 PAGE 242." The Surf Dweller Condominium property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller condominium property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions. John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN . . . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA."7/ The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, FL 32548. Petitioner Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island: I've . . . got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf. * * * I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks. Tr. 973-4. In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as: A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF SANTA ROSA ISLAND A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is located) is also in Zone B-2 set up by the Protective Covenants and Restrictions. Block 8, just as Block 5, is governed by Part F, Beach Protection, of the Protective Covenants and Restrictions that places the beaches, for at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County Ex. 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium lies between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat that is the last page of County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," Exhibit P-7, last page (un-numbered), landward of the Gulf of Mexico, that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions, landward of the public beach designated by the same provision. Neither the Surf Dweller Condominium Property in which the Sherrys reside, nor the El Matador Condominium Property inhabited by Mr. Donovan abuts or is a part of the area subject to the Western Destin Beach Restoration Project. The two properties in Okaloosa Island are to the west of the Project. The Sherrys and Mr. Donovan did not initiate Case No. 10-0515 because they oppose the restoration of the beach subject to the Project. They initiated the proceeding because of concerns that the borrow area that will serve the Project is so close to Okaloosa Island and situated in such a way that once dredged it will cause adverse impacts to the Okaloosa Island beaches to the detriment of their use and enjoyment of the beaches. The Beach, Post-Hurricane Opal and Other Tropical Storms Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. See his testimony quoted, below. The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its ever-changing nature might have on the width of the beaches declared public and private8/ between the MHWL and the Surf Dweller and El Matador condominium properties, however, there can be no doubt on the state of the record in this proceeding that at the time of hearing there existed a 150 foot-wide stretch of beach water-ward of the two condominiums that the public has the legal right to occupy and use. Indeed, Petitioner David Sherry, when asked about the private beach and public beach governed by the Part F of the Protective Covenants and Restrictions in cross-examination conducted by Mr. Hall on behalf of the County, confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife: Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium? A . . . [N]o, they wouldn't have the right to do that. Q . . . [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium? A In that area, no. In the area south of that [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don't have any problem with that. We let people do it -- Q On [the] public beach[.] A On the public beach they're perfectly free to do that. * * * Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct? A Essentially, from the building to the Gulf of Mexico. * * * Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline? A Correct. Q So, there would be enough room today, based on the language of the restrictive covenants to have . . . 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13] now? A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded], yes. Tr. 891-3, (emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach and its width is at least 150 feet.9/ From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See Tr. 986-87. Mr. Donovan is concerned about the erosion and turbidity impacts the borrow site could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. Turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, a change in the beach and shoreline along the El Matador Condominium property as drastic, in Mr. Donovan's view, as that contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium. The Guidry Petitioners and Their Property Roland Guidry, a retired Colonel in the United States Air Force, is co-trustee of the Guidry Living Trust and the President of the Oceania Owners' Association, a condominium association governed by chapter 718, Florida Statutes. The Guidry Living Trust is the owner of Condominium Unit 605 in the Oceania Condominium, a condominium established under chapter 718, Florida Statutes. The address of the unit is 720 Gulf Shore Drive, Unit 605, Destin, Florida, 32541. In his capacity as co-trustee, Mr. Guidry has the independent power to protect, conserve, sell, lease or encumber, or otherwise to manage and dispose of trust assets, which include Unit 605 in the Oceania Condominium. The Oceania Owners' Association is mandated by the Oceania Declaration of Condominium to "maintain, manage and operate the condominium property." Ex. P-6 at 4. The declaration also declares, "[a]ll unit owners shall automatically become members of the association after completion of closing of the purchase of a unit in Oceania, A Condominium." Id. The Guidry Living Trust, therefore, is a member of Oceania Condominium Association. The powers of the officers and directors of the Oceania Owners' Association are set forth in the Declaration of Condominium that governs Oceania: The officers and directors of the association shall have the powers set forth in this declaration and the association bylaws, and shall, at all times, have a fiduciary relationship to the members of the association and shall operate and manage the association in the best interest of its members. Id. Oceania's Declaration of Condominium, furthermore, prescribes that "[t]he association shall have all powers granted by Chapter[s] 718 and 617, Florida Statutes." Id. at 5. Every member of the Oceania Owners' Association Board of Directors approved the initiation of Case No. 10-0516, according to the testimony of Colonel Guidry, but there was no documentary evidence offered that a vote had been taken of the Board of Directors at a board meeting on the issue of whether to file the petition that initiated Case No. 10-0516 or the outcome of any such vote. As an owner of a unit in Oceania, The Guidry Living Trust owns an undivided share of the Oceania Condominium's common property10/ which "comprise[s] all the real property improvements and facilities to Oceania, A Condominium, including all parts of the building other than the units . . . and . . . [certain] easements . . . ." P-6 at 1, 2. The Oceania Condominium real estate is deeded to the "APPROXIMATE MEAN HIGH WATER LINE OF THE GULF OF MEXICO". P-6, Exhibit "B." The Surveyor's Certificate on the survey of Oceania, A Condominium, attached to the Oceania Declaration of Condominium is dated January 16, 1996. The date is more than two months after Hurricane Opal made landfall and damaged the Okaloosa County coastline in October of 1995. Standing of the Oceania Petitioners Colonel Guidry did not appear at hearing in a personal capacity. He appeared in his capacities as co-trustee of the Guidry Living Trust and President of the Oceania Owners' Association. In contrast to the Sherry Petitioners, therefore, Colonel Guidry did not allege his personal use and enjoyment of the beach as a basis for standing. As to injury and standing of both the Guidry Living Trust and the Oceania Owners' Association, Colonel Guidry asserted a number of interests that he believed will be substantially affected by the Project. They fall into four categories of concern. The first concern is with regard to the action of the sand along the shoreline of the Oceania property after the two reaches of beach to the east and west will have been restored under the revisions to the Draft JCP. After construction activities, sand along the shoreline will equilibrate, that is, the sand will move or be transported so as to stabilize the shoreline. This stabilization or achievement of shoreline equilibrium will tend to move the shoreline along the Oceania property waterward. Colonel Guidry expressed his concern as follows: [The Oceania property] would be sandwiched . . . between two public beaches . . . mother nature will fill in what I call the Oceania Gap. Right now the only line we have on our beach is our southern property line [the MHWL of the Gulf][11] . . . . That's the only line I know of that's on our beach or will be placed on our beach. But if sand fills in, then that creates a cloud of confusion, if the State lays claim to this sand that accumulates in the Oceania Gap, as a result of the construction on both sides of us. Tr. 764, (emphasis added). The second category of concern relates to the location of the property post-construction between "two public beaches." Such a location, in Colonel Guidry's view, would make individual units at the Oceania Condominium less valuable. The third category is that the public would be more likely to trespass on private Oceania property. The fourth concern of Colonel Guidry is that the Project will have undesirable impacts to Oceania property owners' littoral rights to accretion and to touch the water. The first three concerns all stem from a decision made by the Board of County Commissioners after this proceeding was commenced to remove the Oceania property from the Project. Oceania Removed The beach and shore in the southern part of the Oceania condominium property,12/ (the "Oceania Beach Segment of Shoreline" or the "Oceania Gap") were originally subject to the Consolidated NOI for the Western Destin Beach Restoration Project. But on the eve of the date scheduled for the commencement of the final hearing in these cases, the Board of County Commissioners for Okaloosa County voted to remove the Oceania Beach Segment of Shoreline from the application for the Project. Taylor Engineering (the County's Agent) submitted a request to the Department that reads: On behalf of Okaloosa County, Taylor Engineering submits its request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project . . . The applicant has decided to remove the Oceania Condominium Property from the beach fill placement area. The revised project, as described in the enclosed permit drawings, includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R-22.6) and Reach 2 extends from approximately 200 feet east of R-023 (R- 23.2) to R-25.5. The Oceania Property defines the gap between Reach 1 and Reach 1. Additionally, we request the FDEP modify Specific Condition 1 of the Draft Joint Coastal Permit to reflect the modified project area. More specifically, we request that the Mean High Water Line Survey requirement of Specific Condition 1 exclude the Oceania Condominium property. Notice of Filing Request for Modification and Revised, Draft Joint Coastal Permit, Exhibit A. Revisions to the Original Draft JCP In light of the vote and based on the County's request, DEP filed a Revised Notice of Intent on July 26, 2010, which included revision of the Draft JCP (the "First Revised Draft JCP"). The First Revised Draft JCP eliminated the Oceania Beach Segment of Shoreline from the Project and took other action such as requiring the applicant to check for oil in the OK-A Borrow Area prior to construction by both visual inspection and analysis of sand samples because of the ongoing Deepwater Horizon Oil Spill in the Gulf. The revision also included changes to Specific Condition 5 of the Draft JCP.13/ On August 18, 2010, the Department gave notice of another revision of the JCP (the "Second Revised Draft JCP"). The Second Revised Draft JCP changed Specific Condition 1 of the JCP by eliminating the requirement that the County establish a pre-project MHWL prior to undertaking construction activities and instead requires the County to conduct a survey in order to locate an erosion control line ("ECL"). The revisions to the Draft JCP stirred interest in participating in this proceeding among a group of property owners who do not want the beaches along their properties restored: the MACLA Intervenors. The MACLA Intervenors and Their Properties On September 8, 2010, a petition to intervene (the "MACLA Petition to Intervene") was filed by nine putative intervenors: MACLA LTD II, a Limited Partnership ("MACLA"); H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust ("Hughes Trust"); Kershaw Manufacturing Company, Inc. ("Kershaw"); Kayser Properties LLC ("Kayser"); Destin, LLC ("Destin"); Paul Blake Sherrod, Jr., and Cindy M. Sherrod ("Sherrods"); Blossfolly, LLC ("Blossfolly"); 639 Gulfshore, LLC ("639 Gulfshore"); and Laura Dipuma-Nord ("Nord"), (collectively, the "MACLA Intervenors.") All nine of the MACLA Intervenors own real property in the City of Destin within the Project area that fronts the Gulf of Mexico. All nine properties have the MHWL of the Gulf as their southern boundary. MACLA is a Texas Limited Partnership. Louise Brooker is its president. The address of its property is 620 Gulf Shore Drive. The Hughes Trust owns a one-third interest in real property at the address of 612 Gulf Shore Drive. H. Joseph Hughes is a trustee of the Hughes Trust. Kershaw is an Alabama corporation. The address of its property is 634 Gulf Shore Drive. The address of the Kayser property is 606 Gulf Shore Drive. The address of the Destin property is 624 Gulf Shore Drive. The address of the Sherrods' property is 610 Gulf Shore Drive. The address of the 639 Gulfshore property is 6346 Gulf Shore Drive. The address of the Blossfolly property is 626 Gulf Shore Drive. The address of Ms. Dipuma-Nord is 600 Gulf Shore Drive. The properties owned by the MACLA Intervenors are among 18-single family lots located between a rough mid-point of reference markers R-020 and R-021 and a rough mid-point of reference markers R-022 and R-023. See Ex. P-238. These 18 single-family lots are in the approximate middle of the Project. The Oceania property, eliminated from the Project at the time of the filing of MACLA Petition to Intervene, is just to the east of the 18 single family lots in which the properties of the MACLA Intervernors are located. (Reference marker R-023 is set along the shoreline adjacent to the Oceania property.) The MACLA Intevenors' properties and the Oceania property are within the area from R-020.3 to R-023.3 (the "Middle Segment", see discussion of Critically Eroded Shoreline, below). According to an evaluation conducted by the Department on January 7, 2009, the Middle Segment of the beach is one in which "[u]pland development is not currently threatened." Ex. P-238. Timeliness of the MACLA Petition to Intervene The MACLA Petition to Intervene was filed well after the commencement of the hearing. Under rule 28-106.205, because it was filed later than 20 days before the commencement of the hearing, it could only be accepted upon "good cause shown" or if the time for filing were "otherwise provided by law." The MACLA Petition to Intervene was also filed after the Department had entered an order dismissing petitions for administrative hearings filed by three of the MACLA Intervenors14/ to contest the Second Revised JCP. The order of dismissal with prejudice by the Department dated September 7, 2010, was entered on the following bases: First, the Petitioners had a clear point of entry to challenge the proposed permit after it was publicly noticed on January 9, 2010. The Petitioners failed to timely challenge the proposed permit when given the opportunity to do so. Second, it is well settled that any proposed modifications to a proposed permit made during the course of a de novo proceeding to formulate final agency action do not create a new point of entry. Accordingly, the Petition is dismissed without prejudice to amend. Petition to Intervene, filed September 8, 2010, Ex. A, at 2 of 8. The Department was aware that the Western Destin Project "because of its size, potential effect on the environment, potential effect on the public, controversial nature or location, is likely to have a heightened public concern or is likely to result in a request for administrative proceedings." Consolidated NOI, at 13 of 17. The Department therefore took pains to ensure that parties affected by the Western Destin Project would be provided notice of the Project and have an opportunity to timely assert their rights to challenge the permitting and authorization of the Project. The Consolidated NOI required publication within 30 days in the legal ad section of a newspaper of general circulation in the area a public notice of the Consolidated NOI. It also required proof of publication. The County complied on both counts. A notice was published on January 9, 2010, in the Destin Log, in Okaloosa County. The public notice specifically identified the project location as between reference monuments R-16.6 and R-25.5 in Okaloosa County, which includes the segment of the shoreline adjacent to the MACLA Intervenors Property. The Department also provided a detailed statement of the "Rights of Affected Parties," including their right to petition for an administrative hearing pursuant to sections 120.569 and 120.57 within 14 days of receipt of written notice of the Consolidated NOI. The point of entry into the administrative proceedings to challenge the Consolidated NOI, therefore, in the case of affected parties with notice by virtue of the publication on January 9, 2010, expired on January 23, 2010. The section of the Consolidated NOI that governed the rights of affected parties also warned: Because the administrative hearing process is designed to redetermine final agency action on the application, the filing of a petition for an administrative hearing may result in a modification of the permit or even a denial of the application. * * * The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S. Consolidated NOI, at 14 of 17. The MACLA Intervenors read the Destin Log at least on occasion and communicated with counsel for the Oceania Petitioners. Some believed they were represented by counsel for the Oceania Petitioners and had contributed to legal fees incurred by the Oceania Petitioners. Despite the foregoing, the MACLA Petition to Intervene was granted (subject to proof of standing) on the basis that the MACLA Intervenors had shown good cause for the filing after the deadline imposed by rule 28-106.205. At the time a point of entry into administrative proceedings was provided by the combination of the Consolidated NOI in December of 2009 and publication in the Destin Log of the notice on January 9, 2010, the Draft JCP called for the applicant to provide a survey of a Pre-project MHWL rather than the establishment of an ECL. Neither notice of the Second Revised Draft JCP, filed on July 26, 2010, nor the Second Revised Draft JCP, itself provided a point of entry into formal administrative proceedings to parties whose substantial interest were at stake. A new substantial interest, however, had been injected into the proceedings by the Second Revised JCP. The Second Draft JCP requires the establishment of an ECL as a condition of the permit in lieu of provision of a survey of Pre-project MHWL. The MACLA Intervenors promptly sought a point of entry to contest what is plainly a drastic change in circumstances with significant consequences to the boundary of their properties toward the shoreline with the Gulf of Mexico. The effect of this change and the difficulty of keeping up with beach restoration activities in Okaloosa County, particularly for affected persons whose permanent residence is elsewhere, was demonstrated by the testimony of Louise Brooker, who lives in Amarillo, Texas. When asked "[w]hy did you wait until September of this year [2010] to file the intervention?," she testified: [O]ur group thought that we were being represented by the Oceania group . . . when I did find out [the JCP had been issued], it was after the 30-day period . . . I hadn't been reading the Destin Log every day because it's very difficult to do, and then it changed. * * * Then it made a huge difference between using the mean high water line * * * And then the ECL being established, which was the ECL that I do not agree with, then that was being put in the permit. So that changed things a great deal. (emphasis added). Tr. 1526-7. Once their petitions for formal administrative proceedings had been dismissed with prejudice by the Department (or in the case of the MACLA parties whose petitions for an administrative had not been dismissed yet but appeared likely to meet the same fate), the MACLA Intervenors promptly sought relief through filing the MACLA Petition to Intervene. When the petition to intervene of the MACLA Intervernors was opposed by the County and the Department, the placement of the substantial interest at stake in the proceeding of a fixed ECL as the southern boundary of their property by the Second Revised JCP and the quick action of the MACLA Intervenors in contesting in contesting it was viewed as good cause for the filing of their petition later than required by rule. The Other Parties Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP, the Variances and the SSL Authorization. The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations. The Holiday Isle Intervenors are businesses and condominium associations, all of whose members own real property or conduct businesses along the segment of the beach to be restored by the Project. Their properties (unlike the Oceania property and the MACLA Intervenors' properties in the Project "gap" between R-22.6 and R-23.2) are along shoreline that has been designated by the state as critically eroded.15/ Critically Eroded Shoreline Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline": "Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects. Fla. Admin. Code R. 62B-36.002(4), (the "Critically Eroded Shoreline Rule"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. Consideration of the Project on this basis leads to the Project being broken into three segments: a segment from R-17 at the west end of the Project to roughly R-20.3 (the "Western Segment"); a segment roughly between R-20.3 and R-23.2 (the "Middle Segment"); and a segment roughly between R-23.2 and R-25.5 (the "Eastern Segment"). Mr. Clark described the impact of a 25-year storm event on the Western and Eastern Segments: [T]hose two areas, based on the evaluation and the projection of the impact of a 25-year storm event, which is a high frequency storm event, showed that there would be erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. Tr. 499. As for the Middle Segment, "the same evaluation did not show that the 25-year storm event would provide that same level of threat." Id. The Middle Segment, however, for the purposes of continuity of the management and design integrity, was also designated as Critically Eroded Shoreline and the entire stretch of shoreline, including all three segments, Western, Middle, and Eastern, was originally included in the Project.16/ The Project With the elimination of the Oceania Gap, the Project calls for the placement of 831,000 cubic yards or so17/ of beach- quality sand along 1.7 miles (less the 600 feet of the Oceania Gap) of shoreline within the City of Destin between reference monuments R-16.6 and R-22.6 and between R-23.2 and R-25.5. The Project is designed to restore the shoreline to conditions that existed before Hurricane Opal in 1995. The useful life of the Project is estimated to be eight years. The Project will restore beach along 32 separate parcels of property, 31 of which are privately owned. The exception is a small area of publicly owned beach at the extreme west end of the Project. The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that work zone, there is a lot of heavy equipment that moves the sand around . . . looking at the Project . . . [from] an aerial view, roughly half the sand will be placed seaward and half the sand . . . landward of . . . [the] Mean High Water Line." Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a back berm and a wide variable berm. The dune has an elevation of 8.5 feet and a crest width of 30 feet. The berm has an elevation of 5.5 feet. The width of the construction varies but averages about 200 feet. Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. "That near shore bar acts as a wave break . . . and dissipates wave energy during storms. So having a good healthy bar out there can definitely provide storm protection." Tr. 140. "Using "two to 250 feet a day,"18/ as a "good approximation for the progress . . . [in] constructing the"19/ Project, construction on any particular individual property should take between one or two days "depending on how . . . wide the property is and how fast the construction progresses." Tr. 141. A property along a lengthier segment of the beach, like the 600 feet at the seaward boundary of the Oceania Property had it remained a part of the Project, therefore, would take "two to three days." Tr. 142. Storm erosion models on the construction berm showed that the Project will provide protection from a fifty-year storm. Selection of the Sand Source: Borrow Area OK-A The engineers of the Project, ("Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore" site. The far-shore site is eight miles offshore and about a mile east of East Pass and is designated "OK-B." The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, it is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately 0.9 miles wide north to south, it covers approximately 700 acres. At its landward-most side, it will be dredged to 10 feet into the existing bottom. Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone.20/ Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf."21/ Tr. 513. It is referred as the near- shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site." The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts. Sand quality is "the number one criteri[on]." Tr. 143. It involves grain size, soil and shell content, and sand color. Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand. If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8 miles distance from shore that it would not impact the shoreline in any way. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely.22/ A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distance. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B. Taylor Engineering (and ultimately the County) selected OK-A as the sand source. The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October of 2009. The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13.23/ The selection of OK-A was not upset by Taylor Engineering's OK-A Borrow Area Impact Analysis. Borrow Area Impact Analysis An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July of 2008. Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion. Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents. The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" Tr. 149. The basis was the 100-year storm data from Hurricane Opal. The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it: Tr. 150. When you use . . . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . . . the propagation of distance of the waves is relatively short. And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . . in applications like [Okaloosa County's for the Western Destin Project], you ignore the effects of bottom friction. The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." Tr. 152. In the case of OK-A, it is intended to serve the Eglin Air Force Base Project, the Okaloosa Island Project and the Western Destin Project. These projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling. With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible. Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." Tr. 152. ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area. Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the borrow area would be negligible whether in normal or "storm" conditions. The Application Coastal Construction Permits and CCCL Permits The Application was processed as one for a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit. Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits. The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053 of the CCCL Statute provides as follows in subsection (9): "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 161.041 [the Shore Protection Statute] " The Department interprets section 161.053(9) to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP. b. The "Written Authorization" Provision Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute. Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1) and (2). Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4). Section (1) of rule 62B-41.008 provides, in pertinent part, as follows: A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department . . . The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" . . . is hereby incorporated by reference . . . . The application shall contain the following specific information: * * * (c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida. * * * (n) Written authorization for any duly- authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application. (emphasis added). Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B-41.008(1)(f), (h), (i), (j), (k), (l), or (m), F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (c) or (n). The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). It did not contain written proof of ownership of any property that will be used in carrying out the Project nor did it contain authorization for such use from the property owner upland of mean high-water, information required by paragraph (c). It did not contain written authorization for any duly-authorized member of the Department staff to enter upon any private property to be used in carrying out the Project for the purpose of evaluating the site conditions prior to final processing of the permit application, information detailed in paragraph (n). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the 31 privately-owned properties within the Project area, including the MACLA intervenors. As part of the Application, however, the County requested a waiver of the requirements related to authorizations. A waiver was requested under number 14 of the Application. It provides: Satisfactory evidence demonstrating that the applicant has sufficient control and interest in the riparian upland property, as described in Section 18-21.004(3)(b), Florida Administrative Code. Governmental entities that qualify for the waiver of deferral outlined in this rule must provide supporting documentation in order to be eligible. If the applicant is not the property owner, then authorization from property owner for such use must be provided. Joint Ex. 1, at 3 of 9. The County, through its agent, Taylor Engineering, responded to number 14 of the Application as follows: Response: The applicants request a waiver of the requested information under Rule 18- 21.004(3)(b), which grants an exception to the upland interest requirement for restoration and enhancement (e.g. nourishment) activities conducted by a government agency. According to Rule 18- 21.004(3)(b), satisfactory evidence of sufficient upland interest is not required for the proposed activity, because the proposed offshore borrow area is not riparian to uplands and the beach fill activities will not unreasonably infringe on riparian rights. Joint Ex. 1, Attachment A, at 3rd un-numbered page. Rule chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004(3)(b) ("the Upland Interest and Riparian Rights Rule") provides as follows: (3) Riparian rights. * * * (b) Satisfactory evidence of sufficient upland interest is required for activities on sovereign submerged land riparian to uplands, unless otherwise specified in this chapter. * * * Satisfactory evidence of sufficient upland interest is not required . . . when a governmental entity conducts restoration and enhancement activities, provided that such activities do not unreasonably infringe on riparian rights. (emphasis added). Item number 18 of the Application calls for signatures related to "any proprietary authorizations identified above," such as those identified in item number 14. Consistent with the request for a waiver from providing the requested information with regard to satisfactory evidence demonstrating sufficient control and interest in the riparian upland property, no signatures were provided by the County or its agent. Rule 62B-49.003(3), entitled "Policy" provides: Any application submitted pursuant to this chapter shall not be deemed complete, and the timeframe for approval or denial shall not commence until the Department has received all information required for: a coastal construction permit under Section 161.041, F.S., and Chapter 62B-41, F.A.C.; an environmental resource permit under Part IV of Chapter 373, F.S., and Title 62, F.A.C.; and a proprietary authorization, under Chapter 253, F.S., and Chapters 18-18, 18-20 and 18-21, F.A.C. See the material bound and attached to the Request for Official Recognition filed August 2, 2010, Tab "Chapter 69B-49, F.A.C." The Department deemed the Application complete on December 30, 2009. Amendment of the JCP re: Written Authorizations The petition for formal administrative hearing filed in Case No. 10-0516 challenged the Consolidated NOI on the bases, inter alia, that the Application had failed to "provide 'sufficient evidence of ownership' as defined in rule 62B- 33.008(3)(c), F.A.C., to be a proper applicant for the Permit"24/ and that the County had not "provided satisfactory evidence of sufficient upland interest to be entitled to a letter of consent to use sovereign submerged lands."25/ To support their allegation that the County is not a proper applicant for the JCP, the Oceania Petitioners amended their petition on July 13, 2010, to add the following: The County must provide the Department "[w]ritten evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high-water but not sovereign land of the State of Florida", as required by [paragraph (c) of the JCP Application Specific Information Rule]. The Department must receive "[w]ritten authorization for any duly-authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application", as required by Rule 62B- 41.008)1)(n), F.A.C. The Amendment was made despite the existence in all of the versions of the Draft JCP, the original version and the revised versions, of General Condition Six: This permit does not convey to the Permittee or create in the Permitee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. Joint Ex. III at Tab 9 at 4 of 26. With the filing of the Oceania Petitioners' Second Amended Complaint in Case No. 10-0516, the issues appeared to be fully joined. Before the case proceeded to hearing, however, the County voted to remove the Oceania Property from the Project (see paragraphs 31 and 32, above). The vote led to a formal request from the County to DEP to revise the Project and a revision by the Department of the Project's drawings and the Draft JCP (the "First Revised Draft JCP"), notice of which was filed on July 23, 2010. The revisions to the Draft JCP necessitated by the elimination of the Oceania property from the Project was not the only revision made to the Draft JCP as noticed on July 23, 2010. The Department also revised the Draft JCP's Specific Condition 5. This latter revision prompted the Sherry Petitioners to file a petition for an administrative determination concerning un- adopted rules. DOAH assigned the petition Case No. 10-6205RU. During the final hearing, the Department revised the Draft JCP a second time (the "Second Revised Draft JCP".) The second revision inspired the MACLA Petitioners' petition to intervene. Just as with the Sherry Petitioners, the revision to Specific Condition 5 prompted the MACLA Petitioners to petition for an administrative determination concerning un-adopted rules. DOAH assigned this second un-adopted rule challenge to Specific Condition 5 Case No. 10-8197RU. Case Nos. 10-6205RU and 10-8197RU In general, the revision to the Draft JCP's Specific Condition 5 advised the County that no beach restoration work can be performed on private upland property unless authorization from the owner of the property has been obtained and submitted to the Department ("the Upland Property Authorization Requirement"). The revision also provided an exception to the Upland Property Authorization Requirement: the County could submit an authorization from a court of competent jurisdiction that such an authorization is not required. Case Nos. 10-06205RU and 10-8197RU were heard at the same time as these consolidated cases.26/ A final order was issued with regard to the two cases on November 4, 2010. The final order dismissed the case because the Sherry Petitioners and the MACLA Petitioners had not demonstrated that they would be "substantially affected" by Specific Condition 5 as required by section 120.56(3) for a party to have standing to challenge an agency statement that constitutes a rule which has not been adopted pursuant to the rule-making procedures found in section 120.54(1)(a). Case Nos. 10-6205RU and 10-8197RU were two of three petitions seeking administrative petitions concerning un-adopted rules that were consolidated and heard with the consolidated cases subject to this Recommended Order. The third was a case that had been filed by the Oceania Petitioners earlier in the proceeding: Case No. 10-5384RU. Case No. 10-5384RU Case No. 10-5384RU was filed by the Oceania Petitioners in order to challenge as an un-adopted rule Specific Condition 1 as it appeared in the Original Draft JCP ("Original Specific Condition 1"). Original Specific Condition 1 contained several requirements. In general, it required the County to record a certificate before the commencement of construction associated with the Western Destin Project. The certificate was required to describe all upland properties along the shoreline of the Project. The certificate was also required to be accompanied by a survey of a pre-project mean high water line (the "Pre-project MHWL) along the entire length of the Project's shoreline. The case claimed that the Department had made another statement that constituted an un-adopted rule which violated the rule-making provisions of chapter 120: "that an Erosion Control Line (the 'ECL') is not required to be established pursuant to Section 161.161, Florida Statutes, for a beach restoration project unless 'state funds' are used for the construction (as opposed to just the design) of a beach restoration project." Case No. 10-5384RU, Petition for an Administrative Determination Concerning Unadopted Rules, at 2. During the course of the final hearing, however, the Department filed a notice of a set of revisions to the First Revised Draft JCP. These revisions (the "Second Revised Draft JCP") included a revision of Specific Condition 1. The Second Revised Draft JCP The notice by the Department that alerted the parties to the Second Revised Draft JCP was filed on August 18, 2010. The August 18, 2010, Notice contains two changes to the First Revised Draft JCP. The first change deletes entirely the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5384RU). It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. Thus, the first change noticed by the Department on August 18 deleted the requirement that the County submit a survey of a Pre-project MHWL. It requires, instead, that the county establish an ECL consistent with applicable statutory provisions. The second change was made with respect to Specific Condition 4(c) of the First Revised Draft JCP, which lists items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed (with construction) by the Department. The existing language was deleted in its entirety and the following language was substituted: Id. Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Disposition of Case No. 10-5384RU The same Final Order that disposed of Case Nos. 10- 6205RU and 10-8197RU disposed of Case No. 10-5384RU. The Petitioners in Case No. 10-5384RU were found to lack standing to challenge Original Specific Condition 1 and the petition that initiated the case was dismissed. In addition, the Final Order concluded that had the Petitioners had standing to bring the challenge, the case would still have been decided in favor of the Department. This conclusion was based on the remedy called for by section 120.57(1)(e).27/ That remedy was found to have been achieved when the Department changed Specific Condition 1 to require an ECL rather than a Pre-project MHWL. See Final Order, Case No. 10- 5384RU (DOAH November 4, 2010). In addition to the record made with regard to the three rule challenges during the final hearing on the Sherry and Oceania Petitions, most of the rest of the evidence at the final hearing concerned the application of the regulatory authority of the Department and the Board of Trustees found in the Florida Statutes and the Florida Administrative Code, especially the environmental impacts of the Project as permitted by the Second Revised Draft JCP and as authorized under the Variance and the Sovereign Submerged Lands Use Authorization. Impacts The depth of OK-A should not exceed -49.4 feet, NGVD in an area where the depth of the ocean bottom is roughly -40 feet, NGVD. The excavation of the borrow site is designed in two dredging phases. The first phase, anticipated to provide up to 116 percent of the sand needed by the Project, is designed to a depth of 47.4 feet. "If for some reason, the contractor needs more sand . . ., then he can move into Phase II . . . [at a depth] of minus 47.4 to minus 49.4 feet [NGVD]. . . [,] a two foot deep layer throughout the entire borrow area." Tr. 165. OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area.28/ Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." Tr. 633. Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts. Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally General Wave Dynamics "[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also become involved with diffraction. Shoaling is a growth in height from interaction with the shallow bottom or a shoal. Refraction is a process of alignment of waves with bottom contours. Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features. As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions. Dr. Dally offered the following description of wave changes as they close in on the face of the beach and approach interaction with the shoreline. The description includes the potential impacts of an excavated OK-A on the beaches and shores of Okaloosa Island adjacent to the Surf Dweller and El Matador condominium property: As they pass into the very nearshore . . . they, of course, grow in height. They then break . . . [or] [s]ometimes, as they pass over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation . . . * * * Wave reflection from abrupt bathymetric changes. . . in this case, the landward most . . . notch of the borrow area would be a reflective surface . . . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they will reflect and begin defraction [sic] so that it becomes a . . . complicated wave field . . . . Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport. Sediment Transport "Sand can move along or away from the beach in two ways." Tr. 1141. It can move along the shoreline or it can move offshore. Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, rather than those that break straight onto the beach. The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west. The Sherrys and Mr. Donovan Petitioners own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "[t]hose beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." Tr. 1143. This area of the Okaloosa County's beaches and shores is the area most likely to be affected by an excavated OK- A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site. Borrow Site Impacts Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area. The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," tr. 640, in essence, a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea. The second wave process creates the potential for the waves to become "very, very, complicated." Tr. 640. They could "trip", that is, the notch in the borrow area could break the waves. "[B]rag scattering" (tr. 641) could make the waves deteriorate into shorter period waves. If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport. Just as Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial. The area of shoreline that would be affected by wave impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern . . . increases the size of the shadow zone," tr. 680, to a size much larger "than the actual shadow zone of the . . . borrow area." Id. Along these same lines, if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property. Distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And that's when you can really cause impacts to the beach, both accretive and erosive impacts." Id. (emphasis added). The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that adverse impacts will occur. The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach. In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report. The OK-A Borrow Area Impact Analysis Generally Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report. Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction. The only numerical data analysis specific to the excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report. The Report described its evaluative efforts: [T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes. STWAVE (Steady-State Spectral Wave Model) simulated normal (average) and extreme (100- year (yr) storm) waves propagating over the baseline and post-dredging bathymetries. ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet. County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics. Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data is not measured wave data. Instead, it consists of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data is then placed in a model coded to represent the entire Gulf. The WIS station from which data was collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurement, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurement would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however, If you don't have [field measurement data], then . . . especially over the long-term . . . a year or more [or] if you're analyzing your beach profile data over a 10 year period, you would like to have . . . wave data to accompany that 10 year period. Generally we don’t and that's when we start relying on models to fill in this missing information. Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is . . . limited to [the] deployment period." Tr. 1234. It is not practical to take 10 years' worth of field measurement. As Mr. Trudnak explained: Typically, you would install those gauges for . . . a month or a couple of months . . . you want to use representative conditions . . . you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions. * * * [W]hen you . . . install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you . . . capture representative conditions. Id. (emphasis added). The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data. For its extreme STWAVE modeling, Taylor relied on WIS information generated during Hurricane Opal in 1995. Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County. Criticisms of Taylor's STWAVE Modeling Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction results from its STWAVE models or conduct any sediment transport analysis. Mr. Trudnak offered refutations of the criticisms. For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't . . . feeling the bottom so they're not being affected by the bottom friction." Tr. 1236. The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort. Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling were not sufficient to support an opinion of "no impacts", but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches.29/ See Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models are." Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id. With regard to the modeling used in Taylor's Borrow Area Impact Analysis, Dr. Young summed up: [W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer . . . it's not precisely the right answer, but . . . nobody knows how wrong the answer is. I don't know it, Mr. Trudnak doesn't know and Mr. Clark doesn't know. And that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data. Tr. 1160. In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore Borrow Area Impacts Analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any.30/ Taylor Engineering used STWAVE and not Boussinesq as the model for the Borrow Area Impact Analysis because the Boussinesq Model is typically used where diffraction plays the dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area, making the STWAVE Model, if not more appropriate than the Boussinesq Model, certainly an acceptable model under the Project's circumstances. When asked about the Bousinessq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience (rather than actual testing or modeling the impacts of OK-A as done by Taylor), he was "almost certain," tr. 691, that Bousinessq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion . . . [that is] momentary . . . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial. When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system. Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing. In short, Dr. Dally roundly criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his testimony whether the impacts will be entirely de minimus, see rule 62B-41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County, a system whose ocean bottom, beaches and shores already contain scalloped features. Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project. The Walton Project and Its Borrow Area Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County (East Destin) and western Walton County. Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project. Location and Comparison to the OK-A Borrow Area The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See Ex. P-13. The area between the easternmost point of the OK-A Borrow site and the westernmost point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its easternmost point is roughly one-half mile off-shore. Comparison of the Walton Borrow Area and OK-A shows that OK-A is larger and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water than the Walton Borrow Area. Nonetheless, Petitioners characterize the two borrow sites as similar,31/ mainly because with less than 1.5 miles separating them, they are relatively close to each other. Despite proximity, there are significant differences, however, between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK- A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . . . further offshore . . .[s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." Tr. 306. In addition to distance from shore, the predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . . . and it included the outer flanks of the ebb shoal." Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone. Walton Borrow Area Impact Analysis and Monitoring Taylor Engineering's borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." Tr. 156. The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year. Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach. As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report. Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008. After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend . . . ." Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." Tr. 160. Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier. Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre- construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area. In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area) is having a beneficial impact on the beaches to the west of the project and its borrow area. Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes.32/ In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton Borrow Area which showed erosion early after completion of the Project is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts which are beneficial. Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark. Mr. Clark and The Department's Review of Western Destin Project Borrow Site Impacts Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer. During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water . . . ." Id. He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." Tr. 486. Among his specific duties is the review of "scopes of work and project feasibility studies that are provided . . . by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review of the Western Destin permit application and additional information related to the Project. After review, Mr. Clark reached the conclusion that the "Project is a well designed Beach Restoration Project that's critically needed . . . to restore the beaches of Western Destin to provide needed storm protection, recreational benefits and wildlife habitat." Tr. 488. With regard to his overall conclusion as to the Project's physical impacts, Mr. Clark testified: Id. In my opinion, the placement of 831,000 cubic yards of beach compatible sand fill along Western Destin will provide a positive, beneficial impact to the beach and dune system of Western Destin. The excavation of that material from the proposed borrow area [OK-A], along with the excavation of material for four other fill projects proposed for Santa Rosa Island, three of which have been approved, is not expected to have any adverse impact to the beaches of Santa Rosa Island. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity; extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents. Mr. Clark has reviewed 136 beach restoration projects. Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number" tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas." Id. The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies. Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips. In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project Over his 37 years, Mr. Clark served on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico. Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document" tr. 494, now electronically available to the public on the Department's website. The report prepared by Mr. Clark which led to the designation of the Western Destin Project beach as critically eroded showed that the areas from R-17 to roughly R-20.3 and R- 23.2 to R-25.5 revealed erosion through deflation of the beach profile and recession of the shoreline to such an extent that upland development and infrastructure would be threatened. The report is based on evaluation and projection of the impact of a 25-year storm event. The same report did not conclude that a 25-year storm event would provide the same level of threat to the area between R-20.3 and R-23.2 (the shoreline along the MACLA Intervenors' Property and the Oceania Gap) although that stretch of the beach is "potentially threatened by a 50 to a 100-year storm event." Tr. 499. The "R-20.3 to R-23.2" segment was included in the critically eroded designation for design and integrity of the Project and continuity of management of the coastal system. The designation of the Project area as critically eroded was made in 2006 and was updated by the Department at the request of the County in 2008. The 2008 update indicated no need to change the designation. Although not as threatened as the rest of the shoreline in the Project, the shoreline along the Middle Segment, (including the MACLA Intervernors' Property and the Oceania Gap) is erosional. Data obtained as late as October 19, 2009, indicate that there had been more erosion since a Mean High Water Survey located the MHWL in 2008. The data does not show volumetric change, only that "there is a continued trend of erosion" of the shoreline in the Oceania Gap. Tr. 506. With the Oceania Gap eliminated from the Project, elimination of the rest of the property in the Project's Middle Segment (between R-20.3 and R-23.2) would make the remainder of the Project unstable. It would "isolate a 2,000-foot segment between R-23.2 and R-25.5 [the Eastern Segment] . . . and a 2,000-foot fill segment is not long enough to be a stable fill segment." Tr. 507. Although the elimination of all of the Middle Segment would not hurt "the very far west end" of the Project "very much," tr. 508, the elimination of the entire Middle Segment from the Project would also make the very east end of the Western Segment "relatively unstable." Tr. 508. The Middle Segment, therefore, while not critically eroded, would benefit from beach restoration. Restoration will provide protection from the erosion it is experiencing and from 50-year and 100-year storm events should they occur during the life of the restoration. Restoration will include dune work that will provide protection from storm surge and dissipate the wave energy seaward of any structures in the Middle Segment. Recent storm events have been 50-year and 100-year events. In the area of the Project, "Hurricane Opal was comparable to a 100-year storm event." Tr. 509. In Pensacola Beach, Ivan was a 200-year event. In the Destin area, Ivan "probably dropped to just below a 100-year storm event in terms of its magnitude. Hurricane Dennis was probably comparable to a 50-year storm event." Id. The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. The OK-A Borrow Area is an offshore borrow area. Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island. In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area. Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach . . . ." Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." Tr. 520. If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but to the beach to the west of the borrow area the impact would be accretion. Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores of Okaloosa County. For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering. Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island. Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse impact from a borrow area . . . ." Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id. Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young: [W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And . . . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design. * * * We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated. Tr. 1150-1. When asked the question of whether there is a definition of a failed beach restoration project in the literature or that is generally accepted by the coastal engineering community, see tr. 1152, Dr. Young testified, "I have not seen one." Tr. 1152. He added, " I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." Tr. 1152-3. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts. Variance The "Variance" referenced in the Consolidated NOI concerns two related variances: one from rule 62- 4.242(2)(a)2.b., and the other from rule 62-4.244(5)(c). The northern boundary of the proposed borrow area is within Outstanding Florida Waters ("OFW"). That location led the County to seek a variance from the limitation in rule 62- 4.242(2)(a)2.b. that turbidity can exceed background conditions in OFW during permitted construction activity for no more than 30 days. Section (2) of rule 62-4.242 sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows: (a) no Department permit . . . shall be issued for any proposed activity . . . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that: * * * 2. The proposed activity . . . is clearly in the public interest, and . . . * * * b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity . . . , except on a temporary basis during construction for a period not to exceed thirty days . . . . The County also sought a variance from rule 62- 4.244(5)(c) which governs mixing zones in surface waters and reads: In no case shall the boundary of a dredge and fill mixing zone be more than . . . 150 meters in radius in . . . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants. Section 120.54(2) authorizes an agency to grant a variance as follows: Variances . . . shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or violate principles of fairness. Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150 meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150 meter radius, the County "would have had to almost continually be shutting down . . . .[its hopper] dredge," tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150 meter radius. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the variances for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more down time and conditions [could cause] a cutterhead . . . to stop dredging and go into safe harbor into East Pass." Tr. 173. The variance from rule 62-4.244(5)(c), therefore, was needed because the standard size mixing zone would have created a substantial hardship for the County. In addition to outlining the substantial hardship, the County provided two additional bases in its application to justify the variances: (a) no resources in the area, such as hard bottom or sea-grass beds, would be affected by a turbidity plume and an expanded mixing zone; and (b) citation to the Pensacola Naval Air Station ("NAS") project claimed to be similar in that it involved OFW and had received a variance. Upon receipt of the application for the variances, the Department requested additional information to establish whether OK-A, in fact, would be within OFW and more analysis of the comparability with the Pensacola NAS project. The Department's engineering section determined that the comparability of the Pensacola NAS project was not adequately demonstrated because of a lack of detail about the hydrodynamics and mixing zone sizes of the two sites. Nonetheless, the staff responsible for making the final decision on the variances (and ultimately the Department) determined the County's information justifying the variances to be sufficient. In granting the variances, the Department did not rely on the County's comparison of the Project to the Pensacola NAS project. As explained by Dr. Edwards at hearing, "[H]aving the data . . . from an actual project to back up and . . . calibrate a mixing zone is an added bonus, but we just didn't have it in this particular case." Tr. 420. The Department based its decision, in part, however, on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500- meter mixing zone was determined to be appropriate. Independent of the information provided by the County, the decision, therefore, was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that there was a comparable project in the area (not the Pensacola NAS project) that had been allowed a 1500- meter mixing zone. In applying the standard from section 120.54(2) related to the underlying intent of the rules at issue and the statutes, the Department determined that "[t]he Project in the OFW was clearly in the public interests, according to [section] 373.414 and the minimum Water Quality Standards, even within the mixing zone[,] would still be met." Tr. 421-2. There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI. Petitioners presented no evidence to rebut the testimony elicited by the Department and the County that the purpose of the statute underlying the rules from which the variances are sought will be met by other means and that the application of the rules will create a substantial hardship. Changed Site Conditions 267. Rule 62B-49.005(16) provides: If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 9-day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the County's application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico. No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area. The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See tr. 175. Western Destin Erosion Control Line The requirement for an Erosion Control Line is in section 161.161: Once a project is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to . . . locate an erosion control line. * * * In lieu of conducting a survey, the board of trustees may accept and approve a survey as initiated, conducted, and submitted by the appropriate local government if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. § 161.161(3), Fla. Stat. The Draft JCP as originally issued did not require the establishment of an ECL. It required the establishment of a Pre- project Mean High Water Line instead. The Second Revised Draft JCP dispensed with the requirement of a Pre-project MHWL. It requires that an ECL be established for all properties within the 1.7 miles stretch of beach in the Project area subject to beach restoration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order issuing the Joint Coastal Permit, Variance, and Sovereign Submerged Lands Authorization as revised during the course of these proceedings. DONE AND ENTERED this 29th day of June, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2011.
Findings Of Fact The Applicant. Intervenor, Jacksonville District, United States Army Corps of Engineers (Corps), has applied to Respondents, Department of Natural Resources and the Board of Trustees of the Internal Improvement Trust Fund (the State), for consent to maintenance dredge the federal navigation channel between Gordon Pass and Naples, Florida, and deposit beach-quality sand dredged from the channel on and immediately seaward of beaches south of Gordon Pass on Keewaydin Island (the spoil area). In 1960, Congress enacted Public Law 86-645 authorizing the Corps to dredge and maintain a channel from the Gulf of Mexico through Gordon Pass to the City of Naples. The channel was first dredged by the Corps in 1962. Maintenance dredging was performed in 1967,-1970 and 1979/1980. The City of Naples has been and is the local sponsor of the project. The Corps is authorized to place beach-quality dredged sand material on beaches selected by the local sponsor but only if deemed appropriate by the Corps and if no more costly to the Corps than other appropriate alternatives. The spoil area begins about 500 feet south of Gordon Pass and extends approximately 4,000 feet to the south. Except for the spoil area, Keewaydin Island from Gordon Pass to approximately one mile to the south is privately owned and privately patrolled. However, the spoil area was deeded to the State of Florida by quit claim deed in 1979. The spoil area is therefore publicly owned property and legally is available for use by the public. The only restriction on the public ownership of the spoil area is that the State not permit any use of the spoil area "which may be injurious to the business, person or property" of Key Island, Inc., the Florida Corporation which transferred the spoil area to the State, and that Key Island, Inc., reserves "a perpetual easement over and [sic] such property to the waters of the Gulf of Mexico for its successors, assigns, tenants, guests, and licensees." Petitioners' Standing. Petitioners, John R. Donahue and Rhodora J. Donahue, husband and wife (the Donahues), own the land constituting approximately the western half of the Point of land immediately to the north of Gordon Pass, including approximately 500 feet of beachfront (the Point). The Donahues acquired this property for approximately 2.5 million dollars. The Donahues also own a beachfront residence and lot some distance to the north of the Point worth at least $500,000. To the north of Gordon Pass almost as far as Doctors Pass approximately 6 miles to the north, the sand along the beaches is transported in a net southerly direction. At least some of the sand the Corps plans to remove during its maintenance dredging of the channel at Gordon Pass and deposit in the spoil area came from the beaches to the north of Gordon Pass, including the beaches in front of the Donahues' properties. The net southerly drift of this sand has contributed to the erosion of the beaches adjoining the Donahues' property, as well as the properties themselves. Due to ebb tidal shoals west of Gordon Pass, increased in size by channelization and dredging of Gordon Pass, the net littoral transport immediately and approximately one mile to the south of Gordon Pass reverses to a northerly direction. The net northerly littoral transport of this reversal is at a lower rate than the net southerly littoral transport to the north of Gordon Pass. In addition, a rock jetty along the northern end of Keewaydin Island and extending several hundred feet west into-the Gulf, while not sand tight, slows the transport of sand north into Gordon Pass. Finally, sand that does drift north into Gordon Pass settles at the bottom of the channel and is not carried across the channel to the Point and land to the north, including the Donahues' properties. For these reasons, the Donahues are substantially affected by the maintenance dredging of Gordon Pass and placement of beach quality dredge material in the spoil area so as to have standing as parties Petitioners in this case. Littoral Transport System Near Gordon Pass. Littoral transport is a function of the direction and strength of waves, primarily wind-driven in the Gulf of Mexico in the area of Naples and at highest strength during storms, and the angle at which the waves strike the beach. The angle at which waves strike a beach is a function of the direction of the waves (itself a factor of both the direction of the wind driving the waves and the contour of the ocean bottom) and the direction along which the beach is oriented at the Point of impact. The time of day and season of the year with their impact on tides, also affect littoral transport. Because littoral transport is effected by so many factors, littoral transport changes in both direction and quantity from time to time and at various places along a beach. Average net littoral transport is the result of the combined effect of all these factors over a stretch of beach over a period of time. Although conceptually there is such a thing as average net littoral transport, different Points along the beach have different littoral transport qualities at different times. The presence of inlets or passes is one cause of this phenomenon. The type of inlet or pass - whether natural', or having one or more jetties and/or being dredged - also affects littoral transport in and around an inlet or pass. Both the Naples beaches to the north of Gordon Pass and Keewaydin Island to the south of Gordon Pass show the effects of Gordon Pass on littoral transport. The Point property immediately to the north of Gordon Pass generally has been receding over time in recent years. This is because the increasing tidal prism (or quantity of water having to be transferred in and out of Gordon Pass to fill increasing inland waterways) has been blocked to the south by a jetty along the northern end of Keewaydin Island. As a result, the Point has suffered erosion. In addition, as previously mentioned, sand transported south into the Gordon Pass channel cannot return to the beaches on the Point. Neither does sand from Keewaydin Island get transported across the channel to the Point. In addition, the beach at the Point angles to the southeast, more nearly parallel to the predominant direction of waves striking the beaches at that Point. Sand at the Point is therefore transported more quickly and in larger quantities to the south into Gordon Pass than is sand transported to the south at points further north along the Naples beaches. Finally, seawalls located immediately to the north of the Donahues' property on the Point exacerbate erosion on the Point beaches. The beaches immediately to the south of Gordon Pass, on the other hand, have accreted and are stable. Due to the jetty at the northern end of Keewaydin Island, the average net northerly littoral transport at that location - both of naturally occurring sand and sand placed in the spoil area in previous Corps maintenance dredging of Gordon Pass - have accreted to the northern Keewaydin Island beaches to the extent of the capacity of the jetty to contain the sand being transported. Once capacity is reached, the sand is transported around the jetty to the west into the Gordon Pass channel and through the pervious jetty into the Gordon Pass channel at various times depending upon weather and tide conditions. However, to the south, probably somewhat south of the southern end of the spoil area, the average net northerly littoral transport again reverses. Having escaped the reach of the effect of Gordon Pass, the littoral transport system returns to its average net southerly drift. In the area of this reversal. Point (the precise location of which, of course, varies from time to time), the beaches of Keewaydin Island are subject to rather severe erosion. The beaches in that area are eroded both to the north and to the south and are nourished from neither direction to significant degree. Further south on Keewaydin Island, the beaches are more stable. Near the southern tip of Keewaydin Island, at a natural inlet called Hurricane Pass, the beach is accreting and Keewaydin Island is expanding to the south. The Naples beaches to the north of the Point are generally stable. There has been some accretion near the Naples fishing pier at 12th Avenue South. However, there are some places along the Naples beach which are eroding. These areas include the area of the reversal Point south of Doctors Pass to the north, beaches in front of seawalls, and beaches immediately downdrift of the several groins along the Naples beaches. Public Use of The Beaches. The Naples beaches between approximately 7th Avenue North and 20th Avenue South are readily accessible to the public and are moderately to heavily used by the public, especially on weekends and during the four-month winter tourist season. Access to the Naples beaches south of 20th Avenue South is limited, with only three public access Points along that one to two mile stretch of beach. The property contiguous to the Naples beaches is privately owned. Essentially, as one continues south along the Naples beaches towards the Point, the beaches become less accessible to the public, and, as a practical matter, are used more by the owners of the substantial beachfront residences, their friends and guests. Like the property contiguous to the Naples beaches, Keewaydin Island is almost entirely privately owned. The only exception is the spoil area itself. In addition, like the Naples beaches, the beaches seaward of the mean high water line also are in the public domain. However, legal access to the public portions of Keewaydin Island is only by boat from the Gulf side. In addition, Key Island, Inc., through its representatives, has discouraged public use of even the public portions of Keewaydin Island by claiming that they are part of Key Island, Inc.'s property. As a result, the beaches of Keewaydin Island are virtually unused by the public. The only exception to this is the extreme southern spit of Keewaydin Island where the sand has been accreting and expanding the public beach. Access to the southern spit also is limited to boat, but it is accessible from all three sides of the spit, and the spit is used more by the public for recreational purposes than is the rest of Keewaydin Island. Development Along The Beaches. The Naples beaches are almost fully developed. From the Point north to approximately 4th Avenue North, development is primarily single family residences. From 4th Avenue North north to Doctor's Pass, development is mostly in the form of condominiums or other multi-family development. The residences in Olde Naples from approximately 5th Avenue South to the Point are relatively close to the beach, having previously been constructed seaward of the current coastal setback line. Likewise, several seawalls in the area, including in front of the condominium and other multi-family development to the north also are quite close to the beaches. On the other hand, Keewaydin Island is largely undeveloped. Besides the cluster of structures making up the Key Island Club on the northern tip of the island, there is no other development at all on the property owned by Key Island, Inc. In addition, there are only approximately 10 cottages on the part of the island south of the property owned by Key Island, Inc. Much of the island consists of mangroves and estuaries not suitable for development and not likely to be developed. In fact, Keewaydin Island is under consideration for purchase and preservation by the State under the Conservation and Recreation Lands Trust Fund Program. Need For Maintenance Dredging. Due to the littoral drift previously discussed, Gordon Pass and the channel to Naples needs to be dredged for navigation purposes every five to six years. The channel was last dredged in 1979 or 1980. The Corps usually maintenance dredges on a four-to-five year cycle, depending on weather conditions and other factors affecting littoral drift. While weather was relatively mild in the 1970's, weather in the early 1980's has been relatively severe. As a result, the channel now needs maintenance dredging along with the other maintenance dredge projects now taking place in southwest Florida. If the channel is not dredged now, it probably will be overdue for dredging by the time of the next maintenance dredging cycle in approximately 1990. Propriety Of The Spoil Area. At this time, the system of groins north of Gordon Pass are not adequate to contain or significantly slow the flow of sand to the south. The groins are in disrepair, and the terminal groin is approximately 200 feet or more shorter than it needs to be for this purpose. Sand pumped from the dredge north the same distance as sand is planned to be pumped south to the spoil area would make its way back into the Gordon Pass channel within two years. Several studies of the Naples beaches, beginning with a Corps study in 1972 through a "study to end all studies," as former City of Naples Mayor Rolland Anderson put it, by a blue ribbon committee appointed by the City of Naples, all recommended repair of the groin system and the extension of the terminal groin so as to enable the Corps to deposit dredged beach-quality sand material north of Gordon Pass. In 1982, the City of Naples finally took action to apply for State permits and funding of that project, among others, and to fund the City's portion of the cost of the project. However, the City withdrew its application in November 1982 and did not re-commit itself to the project until August 1985. The City now has applications for State funding and permits pending but funding and start of the project cannot be anticipated for another 1 to 2 years. Without an improved groin system and extension of the terminal groin, dredged sand would have to be spread on the Naples beaches to the north starting at least 6,000 feet to the north of Gordon Pass in order to prevent the sand from moving in the Gordon Pass channel within the Corps' normal maintenance dredging cycle. The City was advised as early as 1979 that this option for deposit of beach-quality dredged sand was only available if the city would fund the extra cost of pumping the sand that distance to the north, estimated at the time to be approximately $3-66,000, and would procure all necessary easements and permissions from affected private property owners. The City of Naples has never taken any of the steps necessary to effectuate this option. Given current circumstances, there is no viable alternative to the proposed spoil area. The Corps refuses to fund the extra cost of pumping dredged beach quality sand material an additional 6,000 feet to the north. Neither the City of Naples nor anyone else has agreed to fund the extra cost. Pumping sand an equal distance to the north (i.e., starting at 500' and spreading sand from there 4000' to the north) is inappropriate given the current condition of the groin system on the Point. (Such an option would maximize, not minimize, the need for maintenance dredging.) Given current circumstances, it is not contrary to the public interest to maintenance dredge the Gordon Pass channel to Naples and deposit beach-quality dredged sand in the proposed spoil area. The spoil area is primarily north of the reversal Point to the south of Gordon Pass in the littoral transport system in and around Gordon Pass. For that reason, a substantial portion of the sand deposited in the spoil area can be expected to eventually make its way back into the Gordon Pass channel in the future. The next time the Gordon Pass channel is maintenance dredged, this same sand can be redeposited elsewhere given the right circumstances. From a coastal engineering standpoint, beach quality sand dredged from the Gordon Pass channel should be returned to the place in the littoral transport system from which it came, i.e., some to the north and some to the south. As previously stated, sand cannot be redeposited to the north while minimizing the need for future maintenance dredging without either improving the groin system and extending the terminal groin on the Point or depositing the sand a substantial distance to the north of the Point. Redepositing the sand further to the north would have the additional benefit of maximizing recreational benefit to the largest portion of the public and helping to protect the valuable beachfront private property from storms. But the question whether to take the steps and provide the funding necessary to achieve these benefits is essentially a political question.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondents, Board of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, grant the application of Intervenor, Jacksonville District, United States Army Corps of Engineers, for consent to maintenance dredge the Gordon Pass to Naples channel and deposit beach-quality dredged sand in the proposed spoil area on Keewaydin Island. RECOMMENDED this 18th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee,Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. APPENDIX Rulings On Corps' Proposed Findings Of Fact. The substance of the following Corps' proposed findings of fact are accepted as substantially factually accurate and are incorporated in the findings of fact in the same or a modified form to the extent necessary: 1-3, 5, 7-10, 13, 14, 17, 19 and 21. The Corps' proposed findings of fact 18 would have been included in the paragraph immediately above except that it is unnecessary. The Corps' finding of fact 4 is rejected as argument. The Corps' proposed finding of fact 6 is rejected as argument and conclusion of law. The Corps' proposed finding of fact 11 is rejected as unnecessary. As to Corps' proposed finding of fact 12, the last sentence is rejected to the extent that it applies to the northern end of Keewaydin Island as being contrary to the greater weight of the evidence and/or the findings of fact. Otherwise, the substance of the proposed finding is accepted as substantially factually accurate, but subordinate and unnecessary. The Corps' proposed finding of fact 15 is rejected as argument, subordinate and unnecessary. The Corps' proposed finding of fact 16 would be included in paragraph 1 above except that the last two sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. The Corps' proposed finding of fact 20 would have been included in paragraph 1 above except that the third sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact. Ruling On State's Proposed Findings Of Fact. The substance of the following State's proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or a modified format to the extent necessary: 1-4, 10, 12, 13, 17, 21, 22. The substance of State's proposed findings of fact 5-9 are accepted as substantially factually accurate but are rejected as unnecessary. The substance of State's proposed findings of fact 14-16 are accepted as substantially factually accurate but are rejected as subordinate. State's proposed findings of fact 11, 18, 23, and 24 are rejected as argument. State's proposed findings of fact 19, 20, and 25 are rejected as contrary to the greater weight of the evidence and/or the findings of fact. State's proposed finding of fact 26 is accepted in part and rejected in part, specifically as to sub-paragraphs (b), (c) and (d). State's proposed finding of fact 27 is rejected in part as argument and in part as contrary to the greater weight of the evidence and/or the findings of fact. Rulings On Petitioners' Proposed Findings Of Fact. The substance of the following Petitioners' proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or modified format to the extent necessary: 1, 3-23, 28, 30, 43, 44, 60, 62, 64, 65, 67, 68, 72, 77, 78, 80. Petitioners' proposed finding of fact 2 would be included in paragraph 1 above, except that the evidence was the dredging itself will not cause or exacerbate erosion of Petitioners' property or the public beaches north of Gordon Pass. Petitioners' proposed finding of fact 25 would be included in paragraph 1 above except that the sand will not "soon move on to privately-owned and privately patrolled beaches," depending upon the definition of "soon." The sand will move to the north more slowly than sand north of Gordon Pass will move to the south. Only the sand at the extreme north of the State-owned spoil area will "soon" move on to the 500 foot strip of privately-owned beach between the State-owned property and Gordon Pass. Much of the rest of the sand will gradually move along the rest of the 4,000-foot strip of State-owned property and eventually reach the 500 feet of privately owned-beach. Ultimately, most of this sand will continue around or through the jetty on the northern end of Keewaydin Island and will settle in the Gordon Pass channel. A relatively small portion of the sand will spread to the south of the spoil area, primarily because of a scouring action, will reach the reversal point and will be carried south of the spoil area. Petitioners' proposed finding of fact 26 would be included in paragraph 1 above except that whether dredging sand is the cheapest way to nourish beaches depends upon the distance between the dredging operation and the beaches to be re-nourished. Petitioners' proposed finding of fact 29 would be included in paragraph 1 above with the clarification that "north of Gordon Pass" refers only to the Point. Petitioners' proposed finding of fact 45 would be included in paragraph 1 above except that the length of time in the last sentence are exaggerated and are erroneously assumes that none of the previously dredged sand ever makes it back into the Gordon Pass channel. Petitioners' proposed finding of fact 49 would be included in paragraph 1 above except that "holes large enough to swim through" appears to be an exaggeration or at least an isolated case based on the evidence. Petitioners' proposed finding of fact 61 would be included in paragraph 1 above with the clarification that the Corps' differing positions on placement of sand north of Gordon Pass varied in part depending upon assumptions as to the groin system, in part depending upon assumptions as to the net littoral drift and in part depending upon differences of opinion among members of the Corps. Petitioners' proposed finding of fact 70 would be included in paragraph 1 above with the clarification that the Corps' willingness to place sand on beaches north of Gordon Pass refers to starting sand placement between one-half mile and one mile north of Gordon Pass and spreading it one to two miles north from there. Petitioner's proposed finding of fact 74 would be included in paragraph 1 above with the clarification that DNR has, of course, participated in the Corps' application and in this proceeding. Petitioner's proposed finding of fact 29 would be included in paragraph 1 above except that the Corps is in the maintenance dredging business, not the beach re-nourishment business, and the Corps is legally obligated to place sand in the most economical appropriate spoil area unless sufficient funds are provided to cover the extra cost of more costly alternatives such as beach re-nourishment. The substance of the following Petitioners' proposed findings of fact are accepted as substantially factually accurate but are rejected as subordinate and unnecessary: 31-34, 37-42, 46, 47, 52, 55-57, 63, 66, 69, 71, 73 and 82. Petitioner's proposed finding of fact 35 would be included in paragraph 12 above except to the extent that the second sentence might infer that the wishes of a local sponsor override the Corps' legal obligation to deposit spoil material in the most economical appropriate place. Petitioners' proposed finding of fact 36 would be included in paragraph 12 above except that it is not particularly "noteworthy" in this case that there was no resolution in 1984/86. Petitioners' proposed finding of fact 58 would be included in paragraph 12 above except to the extent that the citations imply that the Corp did not seek the City's input and receive the City's input that the sand should be deposited south of Gordon Pass as it was previously. Petitioners' proposed finding of fact 24 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. As to Petitioners' proposed finding of fact 48, the first clause is accepted but the second clause alleging placement closer than 500 feet is rejected as contrary to the greater weight of the evidence an/or the findings of fact. Petitioners' proposed finding of fact 50 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. Petitioners' proposed finding of fact 51 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. 20. As to Petitioners' proposed finding of fact 53, the fourth, fifth, and sixth sentences are accepted, but the first and third sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. Two-foot overdredge for advance maintenance cannot be considered more than the minimum amount necessary to accomplish the Corps' purpose. There was evidence of shoaling and general filling of the channel. There was no evidence to suggest that certain parts of the channel, particularly the area of Gordon Pass, should not be deeper and wider than other parts of the channel between Gordon Pass and Naples. As to Petitioners' proposed finding of fact 54, the first sentence is accepted, but the second sentence is rejected as contrary to the greater weight of the evidence and the findings of fact. Petitioners' proposed finding of fact 59 is rejected as contrary to the greater-weight of the evidence and/or findings of fact. It is true that there are no survey markers. There is the potential for confusion as to the precise location of the State- owned property. Regarding movement of the sand onto private land up against the jetty, the findings of fact show that natural forces will eventually move the sand onto the private property and around and through the jetty back into Gordon Pass. The Corps is not responsible for, and the State should not consider, the possibility of theft of sand. Regarding Petitioners' proposed finding of fact 75, the second sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact, but the rest is accepted. Petitioners' proposed finding of fact 76 is rejected as contrary to the greater weight of the evidence and/or findings of fact. Petitioners' proposed finding of fact 81 is accepted in part and rejected in part. The proposed finding ignores factors such as the exact distance north the sand would be pumped, the cost of pumping sand that distance, and the condition of the groin system north of Gordon Pass. Regarding Petitioners' proposed finding of fact 83, the Corps' proposal does not "minimize future dredging at Gordon Pass" in the strictest sense, but the question in this case is not what else the Corps could do to minimize maintenance dredging besides the maintenance dredging itself, but rather is whether the maintenance dredging itself is to be conducted in a manner so as to minimize maintenance dredging in the future. Petitioner's proposed findings of fact 84 and 85 are rejected as contrary to the greater weight of the evidence and/or findings of fact. COPIES FURNISHED: Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building Tallahassee, Florida 32303 Jacob D. Yarn, Esquire David S. Dee, Esquire Martha Harrell Hall, Esq. P. 0. Box 190 Tallahassee, Florida 32301 Donald E. Hemke, Esquire P. 0. Box 3239 Tampa, Florida 33601 Spiro T. Kypreos, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building, Suite 1003 Tallahassee, Florida 32303 Harrison D. Ford, District Counsel Steven C. Calvarese, Assistant District Counsel Jacksonville District United States Army Corps of Engineers P. 0. Box 4970 Jacksonville, Florida 32232-0019 ================================================================= CORRECTED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES JOHN F. DONAHUE and RHODORA J. DONAHUE, husband and wife, Petitioners, vs. DOAH Case No.: 85 3829 STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES, and THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Respondents. /
Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings the 20th day of June, 1986.
