08-001086 Jim And Nancy Buntin, Penelope And Paul Stovall vs. Department Of Environmental Protection Status: Closed Recommended Order on Monday, November 30, 2009.

Summary: Hesco Basket Structure on Walton County beach qualifies for a Coastal Construction Control Line permit provided it meets conditions for the protection of sea turtles, their nests, and hatchlings.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM AND NANCY BUNTIN, PENELOPE )

AND PAUL STOVALL, )

)

Petitioners, )

)

vs. ) Case No. 08-1086

)

DEPARTMENT OF ENVIRONMENTAL PROTECTION, )

)

)

Respondent, )

)

and )

)

FLORIDA FISH AND WILDLIFE )

CONSERVATION COMMISSION, )

)

Intervenor. )

)

RECOMMENDED ORDER

This case was heard by David Maloney, Administrative Law

Judge of the Division of Administrative Hearings, on August 26

and 27, 2009, in Santa Rosa Beach, Florida.

APPEARANCES

For Petitioners: Ong-In Shin, P.E.

Qualified Representative

Florida Coastal Development

Consulting, Inc.

4654 East Highway 20

Niceville, Florida 32758

For Respondent: Kelly L. Russell, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenors: Stanley M. Warden, Esquire

Florida Fish and Wildlife

Conservation Commission

Bryant Building, Room 108

620 South Meridian Street

Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUES

Whether the Buntins and the Stovalls should receive an

after-the-fact coastal construction control line (CCCL) permit

to allow a sand-filled HESCO Basket System constructed in the

aftermath of Hurricane Dennis in 2005 and that is now primarily

a vegetated dune to remain as a permanent structure in Walton

County?

PRELIMINARY STATEMENT

On February 29, 2008, The Division of Administrative

Hearings (DOAH) received a request (the Request) from the

Department of Environmental Protection ("DEP" or "the

Department"). The Request notified DOAH of a petition for

hearing from Jim and Nancy Buntin, Janie B. Ketchum, and

Penelope and Paul Stovall ("Petitioners" or the "Buntins and the

Stovalls").

The case was assigned Case No. 08-1086 by DOAH. Bram D. E.

Canter was designated as the administrative law judge to conduct

the proceedings and an Initial Order was issued the same day.

The parties responded to the order on March 11, 2008. Pursuant

to the response, a Notice of Hearing was issued that set the

final hearing for June 17 and 18, 2008, in Santa Rosa Beach,

Florida.

The case was continued, held in abeyance and then set for

final hearing to commence June 10, 2009, in Santa Rosa Beach,

Florida. In the meantime, Ong-In Shin was approved as a

Qualified Representative to represent the Buntins and the

Stovalls and the case was transferred to the undersigned.

The case was continued again and ultimately set for final

hearing on August 26 and 27, 2009, in Santa Rosa Beach. Two

months before the new date set for the hearing, the Florida Fish

and Wildlife Conservation Commission petitioned to intervene in

the proceeding. The petition was granted on July 16, 2009. One

week before the hearing, Petitioners filed a Motion for

Voluntary Withdrawal related to Petitioner Ketchum. Shortly

thereafter an order was entered removing Ms. Ketchum as a

Petitioner.

The final hearing began the morning of August 26, 2009 and

concluded on August 28, 2009. As applicants for the after-the-

fact permit, Petitioners proceeded first. They presented the

testimony of Paul Graham Stovall; James Earl Buntin; Quintin

Smith, Senior Right-of-Way Specialist for Walton County; Jim

Martinello, Environmental Manager for the Bureau of Beaches and

Coastal Systems with the Department; Reginald Dwayne Bradley,

Engineering Specialist with the Department; Michael Allan Jones,

General Contractor licensed in Georgia at the time the HESCO

Basket System was constructed; Tony McNeal, Program

Administrator for the Coastal Construction Control Line Program

in the Bureau of Beaches and Coastal Systems in the Department;

Michael Robert Barnett, Chief of the Bureau of Beaches and

Coastal Systems in the Department; Ong-In Shin, the Petitioners'

Qualified Representative; Craig Martin, accepted as an expert in

coastal habitat including sea turtle habitat and coastal

ecology; and, Penelope Stovall.

Petitioners offered into evidence fourteen exhibits, 1, 2,

4, 5, 11-17, 29, 30 and 31; all were admitted into evidence.

Following Petitioners' case-in-chief, the Department

presented its case in support of its denial of the application.

It re-called Jim Martinello, Michael Barnett, and Tony McNeal as

its own witnesses. It also presented the testimony of Eugene

Chalecki, Program Administrator for the Bureau of Beaches and

Coastal Systems; and, Mark Edward Leadon, Program Director of

the Beaches and Shores Resource Center at Florida State

University. In the midst of the presentation of the

Department's case-in-chief, the Commission presented the

testimony of Blair Ernest Witherington, Ph.D., Associate

Research Scientist with the Florida Fish and Wildlife

Conservation Commission. Dr. Witherington was accepted as an

expert in sea turtles and sea turtle nesting.

The Department offered 16 exhibits. They are marked for

identification as Department Exhibits 3, 4, 7 (P85 and P86), 7

(page 1 of 4), 8-13, 16, 18, 20-22 and 25. All were admitted

into evidence. The Commission offered three exhibits. Marked

for identification as Department and Commission Joint Exhibit 5,

17 and 19, the three were admitted into evidence.

The four-volume Transcript of the final hearing was filed

at DOAH on September 29, 2009. Under the agreement of the

parties stated at the conclusion of the hearing, proposed

recommended orders were due to be filed on October 13, 2009, 14

days after the filing of the transcript. On October 13, 2009,

the Department filed an unopposed motion for extension of time

for the submission of proposed recommended orders. An extension

was entered allowing proposed orders to be filed by Friday,

October 23, 2009. Proposed orders were timely filed. This

Recommended Order follows.

FINDINGS OF FACT

Sea Turtle Nesting Habitat on a Hurricane-battered Coast

1. Along the northernmost reaches of the Gulf of Mexico,

roughly in the center of the Florida Panhandle coast, the

beaches and shores of Walton County have been subject to the

many vicissitudes of coastal climate over the years. So have

marine turtles, several species of which have relied through the

ages on Florida beaches and shores, including those in Walton

County for nesting habitat.

2. Survivors of shifting circumstances brought by weather,

sea turtles are now imperiled by exposure to man-made dangers.

Anthropogenic turtle hazards on populated beaches are numerous

and, without educational efforts of the Department and the

Commission, not likely to be recognized by beach-goers

interested in the enjoyment of surf and sun.

3. Folding beach chairs and canopies, board walks designed

to protect the dune system, and other seemingly-harmless by-

products of human beach activity, even holes dug by children

building sand castles, can contribute to sea turtle injury and

cause sea turtle fatality.

4. While sea turtles in recent times have made their way

across the Walton County beach toward their nests through

obstacles set up by human beings and hatchlings have scurried

toward the sea through these same impediments, owners of

beachfront property have had to contend with powerful tropical

storms, particularly in the relatively recent past. Especially

damaging to property along the Walton County Coastline have been

three hurricanes that hit in the span of a decade: Opal in

1995, Ivan in 2004 and Dennis in 2005.

5. The intense storm surge of Hurricane Opal destroyed

much of the dune system along the stretch of Seagrove Beach in

Walton County that is the subject of the aerial photography

introduced into evidence in this case. Ivan, which made

landfall just west of Gulf Shores, Alabama, as a Category 3

Hurricane on September 16, 2004, caused heavy damage to the

Walton County coastline and areas west. Of the three, though,

the damage done by Dennis is the sine qua non of this proceeding

brought by Petitioners to preserve and protect their property.

The Stovall and Buntin Property

6. When Hurricane Dennis hit, the Stovalls had owned the

property located at 711 Eastern Lake Road, Santa Rosa Beach,

Walton County, for some time.

7. Purchased by both Mr. and Mrs. Stovall and in both

their names at the time the petition was filed, by the time of

hearing, the property had been transferred into Mrs. Stovall's

name only.

8. The Stovalls bought the lot around 1997 give or take a

year. "[T]he house itself is about 11 years old," tr. 17, built

in 1998 or thereabouts.

9. Seaward of the CCCL established on December 29, 1982,

construction of the house required a CCCL permit from the

Department. In the words of Mr. Stovall, the permitting process

required "hundreds of hoops to jump through." Tr. 18. The lot

had been in foreclosure and the permit was obtained through the

services of a reputable architectural firm. The house,

therefore, was designed and constructed to survive a major

hurricane, a requirement of the permit.

10. The house was built on pilings sturdy enough to

support the house in the event of a major hurricane. High

enough to allow the bottom floor of the house to be above storm

surge, the pilings' height and house elevation also allowed

ample parking for vehicles beneath the house.

11. At the time the Stovall house was built, despite the

damage done by Opal, there remained a good natural dune system

seaward of the house, one that was "beautiful . . . wonderful,"

tr. 19, in the words of Mr. Stovall.

12. After the house was constructed, Mrs. Stovall took

particular pleasure in the dune system and worked to preserve

and cultivate sea oats in its support. She also was thrilled by

the presence of two turtle nests not long after the purchase of

the lot, one nest found in 1998 and the other discovered on

July 22, 1999.

13. After the discoveries, Sharon Maxwell, the County-

authorized "local turtle coordinator," tr. 295, and "the only

person in the County permitted to touch . . . turtles," tr. 296

was contacted. Ms. Maxwell measured the nests from points

related to the Stovall house. They were at least 20 feet

seaward of the toe of the most seaward dune. Because the nests

were on a busy stretch of the beach, protective measures were

implemented.

14. Among the protective measures were actions by

Mrs. Stovall. In addition to working with the local turtle

coordinator, Mrs. Stovall became involved in circulation of

information to neighbors about sea turtle conservation. She was

part of an effort to encourage the information to be placed in

rental units in the neighborhood. The information recommended

turning out lights on the beach that interfered with turtle

nesting, "brought out the importance of a single . . . beach

chair [that] can misdirect and kill over hundreds of endangered

hatchlings . . . [and] umbrellas . . . left overnight [that] can

interfere with nesting." Tr. 293. She called local government

commissioners and attended commission meetings where she

advocated beach removal of items hazardous to sea turtles, their

nests and their offspring. Her efforts have extended off-shore

as well. As a scuba diver, she learned how to respect sea

turtles and their marine habitat and "encouraged others to stay

away and not harass the turtles, which many divers do." Tr.

195.

15 . The Buntin property, located at 701 Eastern Lake

Drive, is adjacent to the Stovall property on the east side.

Owned by the Buntins since 1990, the house on the lot was built

in 1991 or early 1992. Like the Stovall house, the Buntin house

is seaward of the CCCL and built to withstand the forces of

major tropical storms.

16. The Buntins, similar to the Stovalls, care about the

beaches and shores of Walton County and particularly the beach

adjacent to their property. Their intent with regard to the

coastal environment is to protect it.

17. There have been times over the past two decades when

the Buntins greatly enjoyed their property. Their relationship

to it, however, has changed. As Mr. Buntin put it at hearing,

"[I]t's a situation we put ourselves in [but] I wish we didn't

have any beach property. And I imagine there's a lot of other

folks that wish that, too,. . ." Tr. 54. A major factor in

Mr. Buntin's change-of-attitude is damage done by Hurricane

Dennis.

Hurricane Dennis

18. Hurricane Dennis made landfall near Navarre Beach not

far west of the Stovall and Buntin Properties on July 10, 2005,

having struck the tip of peninsular Florida the day before.

Classified according to the Saffir-Simpson Scale as a Category 4

Hurricane at moments in its journey through the Caribbean and

the Gulf of Mexico, it came ashore in the northern Gulf as a

Category 3 hurricane. Some of the worst damage it caused was

along the panhandle coast. One of its damaging effects was

enormous erosion of the beaches and shores along the coastline

where the Stovall and Buntin property is located. That stretch

of beach remains classified as a "critically eroding beach."

After the storm, there was nothing left of the dunes seaward of

the Stovall and Buntin houses.

19. The Stovall house, itself, was not structurally

damaged; there was not "a crack in the Sheetrock. The house

stood solid." Tr. 30. It had lost its bottom deck and the deck

on its western side but true to the CCCL permitting criteria,

the house, perched on pilings about the storm surge, had also

withstood the Category 3 force winds of the hurricane. Dennis

had caused more damage to the property, however, than just the

loss of a few decks. It had eroded the beach as far up as

landward of the Stovall's house. At hearing, Mr. Stovall

described his first view of the property post-Dennis:

[T]he water was lapping back . . . behind

the house. And if anybody walked up to

where it was, it would just cave in. I

fully believed that if that storm would've

gone on another two hours, it would have

been in the man's house behind me[.] . . .

[W]e had no access to the front door and one

of the neighbors down the street brought in

a ladder . . . It would have taken a 20 or

21-foot ladder to have gotten up to [the]

first deck level . . . .

Tr. 25. Without a ladder, the house was not accessible. Most

pertinent to the Stovall's persistence in bringing this

proceeding, there was nowhere to park their vehicles. The

parking area under the house had been scoured out.

20. The Buntin property likewise suffered the impact of

the hurricane's scour. Mr. Buntin was contacted by a neighbor

and told that the scouring under his house was so bad that the

air-conditioners midway between the seaward and landward sides

of the house were "hanging over a 20-foot drop-off." Tr. 45.

Mr. Buntin did not give the report much credibility at first

but, to his dismay, found it true when he visited the property

shortly after the storm. Just as in the case of the Stovall

property, a car could not be parked under the house in the space

that had served as the parking area prior to Dennis. Half of a

car could be parked under the house but the rest of the sand-

based parking area was gone. In its place was a steep

embankment that "dropped off 20 feet." Tr. 46.

A Serious Parking Problem

21. Eastern Lake Road runs roughly east-west just north of

the Stovall and Buntin properties. The roadbed lies in a

roadway and utility easement. Because of the easement, property

owners along the roadway are not allowed to use it for permanent

parking. The restriction includes the entire right-of-way that

extends beyond the roadbed.

22. As a combination of the easement and the parking

restriction, under-story parking is the only permanent parking

place that can serve the properties.

23. Aware that their properties were seaward of the CCCL,

the Stovalls and Buntins sought guidance as to how to re-

establish parking for their beach front property. They turned

both to local government and to DEP.

DEP's Emergency Order

24. On the same day that Hurricane Dennis hit South

Florida (the day before it made landfall on the panhandle

coast), the Department issued an Emergency Final Order (the

"Emergency Final Order." Styled, In re: EMERGENCY

AUTHORIZATION FOR REPAIRS, REPLACEMENT, RESTORATION AND CERTAIN

OTHER MEASURES MADE NECESSARY BY HURRICANE DENNIS and dated

July 9, 2005, the Emergency Final Order followed a declaration

by Governor Jeb Bush of a state-wide emergency.

By State of Florida Executive Order No. 05-

139, the Governor declared that a state of

emergency exists throughout the State of

Florida, based upon the serious threat to

the public health, safety and welfare posed

by the Hurricane.

Department Exhibit 9, paragraph 2., at 1. The Department's

Emergency Order, therefore, had state-wide application and

applied to Walton County even though Dennis had not yet come

ashore onto the panhandle coast.

25. The Final Emergency Order made the following findings:

3. The Department finds that the Hurricane

has created a state of emergency threatening

the public health, safety, welfare and

property throughout the Emergency Area. As

a result of the emergency, immediate action

by Florida's citizens and government is

necessary to repair, replace, and restore

structures, equipment, surface water

management systems, works, and operations

damaged by the Hurricane.

4. The Department finds that an emergency

authorization is required to address the

need for immediate action because the normal

procedures for obtaining the necessary

authorizations would not result in

sufficiently timely action to address the

emergency.

5. The Department finds that immediate,

strict compliance with the provisions of the

statutes, rules, or orders noted within this

Order would prevent, hinder, or delay

necessary action in coping with the

emergency, and that the actions authorized

under this order are narrowly tailored to

address the immediate need for action and

are procedurally fair under the

circumstances.

Department Exhibit 9, at 2.

26. With regard to "Coastal Construction Control Line

Activities," Section 3., of the order was clear. It did not

"authorize the construction of structures that did not exist

prior to the emergency . . . ." Id. at 17.

27. The Final Emergency Order contained a provision,

however, that may have related directly to the predicament of

the Stovalls and the Buntins. Paragraph 3.b., entitled

"Activities Requiring Local Authorization," opens with an

introductory statement with regard to certain activities and

then lists those activities as follows:

Local governments are authorized to issue

permits in lieu of Department permits to

private and public property owners for the

activities listed below.

* * *

(4) Return of sand to the beach dune system

which has been deposited upland by the

Hurricanes.

Id. (emphasis added).

28. The activity of returning sand to the beach dune

system is subject to a section of the Final Emergency Order

dedicated to "General Conditions." Id. at paragraph 4., pp. 20-

23. In addition to the requirement that the activities "be

performed using appropriate best management practices" id. at

20, in accord with the Florida Land Development Manual, the

General Conditions section contained explicit provisions with

regard to sea turtles:

d. The nature, timing, and sequence of

construction activities authorized under

this Order shall be conducted in such a

manner as to provide protection to, and so

as to not disturb . . . listed species and

their habitat, including threatened or

endangered sea turtles . . . . If

activities under C.3 of this Order occur

during the marine turtle nesting season

(March 1 through October 31 in Brevard and

Broward County, May 1 in all other coastal

counties), such activities must be

coordinated with the Florida Fish and

Wildlife Conservation Commission's Imperiled

Species Management Section to ensure that

all activities comply with state and federal

requirements for the protection of seat

turtles, their nests, hatchlings, and

nesting habitat.

e. Nothing in this order authorizes the

taking, attempted taking, pursuing,

harassing, capturing or killing of any

species (or the nests or eggs of any

species) listed under Rule 68A-27 of the

Florida Administrative Code or under the

Federal Endangered Species Act.

Id. at 21-22.

29. Under Section D., "GENERAL PROVISIONS," of the

Emergency Final Order, the order cautioned, "[u]nder no

circumstances shall anything contained in this Order be

construed to authorize the repair, replacement, or

reconstruction of any type of unauthorized or illegal structure,

habitable or otherwise." Id. at 27, 28.

30. The Emergency Final Order declared its effectiveness

for 60 days following its execution on July 9, 2005, by the

Secretary of the Department. Expressly set to expire on

September 7, 2005, therefore, it promised in the meantime, "to

act on requests for field authorizations in a timely and

expeditious manner." Id. at 28.

The Field Permit

ue to its word, the Department issued a field permit

to Mr. Stovall on August 16, 2005. See Department Exhibit 10.

The project is described in the field permit as repair and

replacement of wooden decks and "repair/replace understructure

concrete/brick paver parking area to original condition." Id.

The repairs included electrical, plumbing and HVAC work and

replenishment of approximately 1800 yards of sand for foundation

pilings. The permit stressed, "[n]o other activity is

authorized." Id. And, as part of its special conditions, the

permit listed, "all construction shall comply with attached

marine turtle conditions." Id.

32. In the attempt to return the understory parking to its

original condition, simply replacing sand did not work. "[I]t

became pretty obvious to us as we put the sand in there,"

Mr. Stovall testified at hearing, "the sand was running out."

Tr. 31.

33. The Buntins were experiencing much of the same

difficulties. Mr. Buntin compared the situation right after the

hurricane to four years later at the hearing:

There was so much confusion going on

. . . we are so far after the fact now

[August of 2009]. It's kind of hard to put

yourself back in the position we were in at

the time [summer of 2005] because there were

an awful lot of questions and very few

answers . You would get referred . . . this

is what the regulations say. Well, you read

the regulation and it is left to

interpretation . . . the written word is

. . . wonderful, but if you've got three

people reading it, it's kind of hard to

figure out exactly what it means. Now

[August of 2009], after the fact . . ., we

[have] answers . . . we didn't have at the

time.

Tr. 51 (emphasis added). Mr. Buntin knew one thing for sure:

placing sand under the house would not be enough, "you've got to

have some way to keep it underneath . . . because you're going

to have to build a parking pad on top of it." Tr. 47. Neither

an expert in CCCL regulations nor a coastal engineer, Mr. Buntin

had no doubt "[y]ou can't just pile up sand and park the car on

sand." Tr. 48. Mr. Buntin knew that in a coastal environment

the understory parking would require a base of sand and a means

of retaining the sand base under the house. The answer to the

quandary was presented by Mike Jones, a contractor hired

initially by the Stovalls and eventually by the Buntins, too.

Mr. Jones suggested a HESCO Basket System.

The HESCO Basket System

34. In the aftermath of the storm, it was difficult to get

assistance from repair companies. Mr. Stovall described the

difficulty at hearing: "That was a tough job because everybody

along the beach had damage, too, and getting someone to even

come out there and give you a bid on it was like pulling eye

teeth." Tr. 30.

35. Eventually, through his brother, Mr. Stovall learned

about Michael Alan Jones ("Mike Jones"), a general contractor

licensed in Georgia. Mr. Jones agreed to look at the property.

At hearing, he recalled his initial assessment of the Stovall

and Buntin repair jobs:

[T]here was a crater below the residences.

We had to use an extension ladder to gain

access to the Stovall property and we had to

use some unique engineering to be able to

access Mr. Buntin's property. There was no

place to park.

I noted on the Stovall property that

. . . a paver system . . . was used for his

parking area and the end of Eastern Lake

Road as well, and the majority of that

system was either currently

. . . in the ocean or was in various stages

of disrepair. It was falling apart. It was

sagging one foot, 18 inches in many areas.

It appeared . . . unsafe.

* * *

Some of . . . the pressurized [water] lines

had been broken. The drain lines that lead

into the septic or the county sewer were

broken . . . the same on both properties.

The air conditioning units were hanging by

the power cables [I'd guess] 15 to 20 feet

in the air, which, of course, poses a

serious threat to anybody that walks . . .

underneath them when the cable . . .

unhook[s] itself from whatever connector or

breaks.

I noted at Mr. Stovall's, the whole bottom

level of his deck was missing.

* * *

Mr. Buntin's dune walkover and much of his

deck were sagging and unsafe [with] pieces

missing. There was no . . . foundation on

which to place a vehicle or anything for

that matter underneath . . . the houses.

I also noted . . . several onlookers

. . . were using the area underneath the

Stovalls' and Buntins' houses to access the

beach, which was, in my opinion, extremely

unsafe . . . [because of] falling five pound

bricks and air conditioners hanging and wood

falling off the side of the house.

Tr. 82-83. The "crater" under the houses was not just a parking

problem. Before the necessary repairs could be started, the

understory had to be shored up. In the meantime, efforts were

made to keep "onlookers" from using the area under the houses

but they were not completely successful. Every morning that Mr.

Jones visited the site at the beginning of his efforts, there

was evidence left behind by people under the house the night

before.

36. Mr. Jones was of the same opinion as the Stovalls and

the Buntins. For replacement of sand to work, there had to be a

system for retaining the sand under the house. For several

weeks, he conducted research by traveling up and down the beach

discussing the issue with other contractors. Ultimately, Mr.

Jones reached the conclusion that "the least invasive, most

efficient . . . , environmentally friendly" system was a HESCO

Basket System.

HESCO Baskets

37. HESCO Baskets are wire-framed open cell structures.

One cell consists of four flat panels of wires of the same

gauge. The "top" of the cell or basket is completely open as is

the "bottom." Each of the four sides consist of horizontal wire

rods spaced equally apart and welded to four similar-sized rods

in a vertical position to form a panel of squares framed by the

rods but which are mostly open space. The fours sides are bound

together by a coil of wire of a gauge identical to the wire used

in the rest of the structure. Attached to the sides on the

inside of the cells is felt-like material that is water-

permeable. Two baskets are created by joining three wire panels

to an existing basket. Only seven panels, therefore, are needed

to create two baskets since one of the panels is shared.

38. Used in military applications to create revetment

structures to protect aircraft and personnel and in river

settings for flood control in places as diverse as Alaska and

the Middle East, HESCO baskets also have commercial

applications. These were investigated by Mr. Jones as he talked

to other contractors in the area. Ultimately, he viewed the

process of installation of HESCO baskets locally, obtained a

list of installers from a HESCO basket distributor and picked

Robert Klemen, an installer who worked in the area of the

Stovall and Buntin properties to hire as a subcontractor under

his supervision. Before installation, however, a permit was

required.

39. Under the DEP Final Emergency Order authorizing local

governments to issue permits for temporary emergency protection

seaward of the CCCL, separate permits for the Stovall and Buntin

properties were issued by Walton County.

The Walton County Permits

40. On October 28, 2005, Billy Bearden, Building Official

for Walton County, issued two building permits to Robert Klemen.

The first, Permit No. SW398Dennis, (the "County Stovall Permit")

was for 711 Eastern Lake Dr., the Stovall Property. The second,

SW400Dennis, (the "County Buntin Permit") was for 701 Eastern

Lake Dr., the Buntin Property.

41. The County Stovall Permit gives Mr. Kleman permission

for "TEMP SEAWALL STABLILIZING BASKETS ." Department Exhibit 8.

Similarly, the County Buntin Permit gives Mr. Kleman permission

for "TEMP Stabilizing BASKETS ."

42. Each permit recited that "[t]he Florida Department of

Environmental Protection in Hurricane Dennis Emergency Final

Order 05-1700 is attached," and warned that "[p]ursuant to the

FDEP emergency order, care must be taken for the protection of

sea turtles, their nests, hatchlings and nesting habitat."

Department Exhibit 8, the 7th and 15th pages of fifteen un-

numbered pages.

43. The two permits also recited the following:

All temporary retaining walls (or other

types of beach armoring), permitted as an

emergency measure as a result of Hurricane

Dennis and Katrina, must be removed within

60 days of completion or applied to be

permitted through DEP as a permanent

structure .

* * *

For ease in monitoring and control, Walton

County will consider all temporary

restraining walls complete no later than

October 28, 2005 and therefore must be

removed within (sic) 60 days of completion

or by December 27, 2005, whichever is sooner

(unless complete application made to DEP).

Department Exhibit 8 (emphasis added.)

44. Each permit contained a drawing of the permitted

activity. The County Stovall Permit drawing depicts a system

consisting of three rows of baskets, two on bottom and one on

top, that runs for 70 feet seaward of the Stovall House and then

in an "L-fashion" 30 feet to the west of the house. The baskets

are shown to be 3 feet wide each so that the bottom row is 6

feet wide. The height of each basket is depicted as 4 feet so

that the height of the structure would be 8 feet. The drawing

is consistent with the representation at hearing that each

basket within the vegetated dune the structure now supports is 3

feet by 3 feet by 4 feet. The drawing also shows a connection

to the Buntin system to be installed to the east.

45. The County Buntin Permit shows the same type of

structure with three rows of baskets, two on bottom and one on

top. The structure extends 60 feet to the east of the Stovall

structure seaward of the Buntin house.

46. Prior to construction, it was made clear to Mr. Jones

that the "system needed to be as much within the footprint of

the house," tr. 93, as possible. The information was

communicated from both county representative who conducted

inspections and DEP representatives who "were around the

property during the process of doing the beach walkovers, as

well as the HESCO systems . . .". Id.

47. The HESCO Basket System was not designed to meet

coastal armoring standards. Nor was it designed to minimize

impacts to sea turtles.

Installation

48. Pursuant to the County permits, the Hesco Basket

Container Systems were installed on the Stovall and Buntin

properties over the course of several weeks. The official CCCL

location of the installation is approximately 285 to 399 feet

east of DEP's reference monument R-93 in Walton County with a

project address of 701 and 711 Eastern Lake Road, Santa Rosa

Beach. The purpose of the installation of the man-made

structures, consistent with their design, is to assist the

retention of sand beneath the understory parking area of the two

houses.

49. As depicted on the permit drawings, the Stovall and

Buntin systems were unified into one structure, that is,

connected so that the structure ran without a break seaward of

the Stovall and Buntin houses.

50. During the construction process, Mr. Jones saw and

conversed with several DEP representatives who were taking

pictures along the beach. Although Mr. Jones "acted firmly in

the belief that there would be no problem getting a permanent

permit for [the HESCO] structure," tr. 96, he was never told by

any DEP representatives, either on site or in phone

conversations with Department employees in Tallahassee, that the

structure would be permitted permanently by the Department. He

was not told that such a permit application would be denied,

either, he simply "was never able to get an actual answer

. . .". Id.

51. The structure on the Buntin property was constructed

as depicted on the permit drawing. There were two rows

installed on the bottom and one row on top for a total height of

8 feet. The structure installed on the Stovall property,

however, was more elaborate than what was shown on the permit

drawing. "[T]he Stovall property has three on the bottom, then

two in the middle and then one on the top stacked pyramid

style." Tr. 97. Twelve feet tall, the HESCO structure

installed on the Stovall property was four feet higher than

specified by the County permit.

52. The structures were covered with sand in order to

"rebuild the dune," tr. 109, in other words, the HESCO Baskets

were installed in such a way as to serve as the core of a

restored dune feature. The purpose of the installation was to

provide a means of stabilizing the sand under the houses to

restore the under-story parking. The installation was complete

on November 4, 2005. The sand wall installed by Mr. Jones and

his crew was then plugged with sea oats that were watered in the

hope that their establishment would encourage the creation of a

dune.

A Vegetated Dune

53. Pictures introduced into evidence reveal that the

HESCO structure installed by the Stovalls and the Buntins, the

sand installed on top and around it and the planting of the sea

oats has resulted in a well-vegetated dune. As Mrs. Stovall put

it at hearing, "y'all have got to admits that's the prettiest

set of sea oats y'all [have] ever seen in your lives." Tr. 296.

54. By the time of hearing, the dune had been maintained

for nearly four years without any more sand imported by human

hands. There has occurred, however, some exposure of wires of

the HESCO system. A corner of one of the baskets in front of

the Stovall house was exposed at the time of hearing and a

picture introduced into evidence showed exposure of the top of

several baskets in 2007. Mrs. Stovall expressed a desire to add

more sand and ultimately to restore the dune to its pre-Opal

status which "would add five-and-a half feet and make [the dune]

level with the deck." Tr. 298. No sand has been added since

the installation in November of 2005, however, because of the

uncertain outcome of this proceeding.

55. The exposure to date of the HESCO Baskets is in all

likelihood the result of wind. Wave action, should it reach the

system and be strong enough, will cause even more exposure. In

fact, the HESCO Basket dune is not likely to be able to

withstand wave action from 15 and 25-year return storms and a

storms of such strength could expose the entire HESCO Basket

structure leaving a jumble and tangle of wires on the beach.

56. A recent series of aerial photographs from 2004 to

2007 show that the dune position to the west of the

Buntin/Stovall property is approximately 30-to-50 feet further

landward. The dune created by the HESCO baskets, therefore, is

more seaward and more interactive with coastal processes than

the dune to the west making the HESCO basket dune less likely to

survive wave action than the dunes to its west. Nonetheless, as

of the time of hearing, the system has maintained its integrity

since installation.

57. After the installation, the Stovalls and the Buntins

were under no illusion that they had done all that was required

in the way of governmental permitting. They knew that the

County permits were good for only 60 days. They knew that they

needed a CCCL permit from the Department if the structure were

to achieve permanent permitting status. For that, they turned

to their Qualified Representative in this proceedings, Ong-In

Shin. Mr. Shin duly filed a CCCL permit application.

The Application and Action by DEP

58. On June 28, 2006, the Department received two

applications for permits for construction seaward of the CCCL.

Both were filed by Mr. Shin. One was filed on behalf of the

Stovalls, the other on behalf of the Buntins. Section 4., of

the applications, which called for "[a] brief description of the

proposed work, activity or construction," contains the

description: "Coastal Armoring."

59. By letter dated July 11, 2006, the Department

requested additional information related to the application.

Among the eight separate requests was a request for a

description of the proposed activity: " Please describe the work

done at the subject property for which this After-the-Fact

application has been submitted." Department Exhibit 7, at 80.

60. In the notes of the request for additional information

there appears the following:

1. Please be advised that structures to be

protected must be eligible and vulnerable as

per Rule 62B-33.051, F.A.C.

* * *

2. DEP has been notified by the Florid

(sic) Fish and Wildlife Conservation

Commission that Hesco box structures require

an incidental take permit from the U.S. Fish

and Wildlife service.

Id. at 82.

61. The application was deemed incomplete a number of

times and specific information was requested for it to be deemed

complete. During the course of DEP's correspondence and

additional submittals by Mr. Shin on behalf of the Stovalls and

the Buntins, the Commission wrote to the Department on May 10,

2007, about its concern with regard to sea turtles. Based on

Mr. Shin's representation that HESCO boxes are designed to

collapse if subject to wave attack, Robin Trindell, Ph.D., wrote

on behalf of the Commission to DEP, "Sea turtles attempting to

nest or hatchlings in an area with HESCO containers could become

entangled in these collapsible structures. Therefore, we do not

recommend that these blocks be installed in sea turtle nesting

habitat." Id. at 49.

62. The application was deemed complete on August 30,

2007. On November 28, 2007, the Department issued a notice of

denial that was received by Mr. Shin on December 4, 2007. While

the HESCO Box System was found to meet applicable siting

requirements, it was found to have failed to meet coastal

armoring criteria related to eligibility, vulnerability, and

design. Furthermore, the Department concluded that "the

construction of the HESCO Box Container System does not meet the

Department requirements for . . . absence of significant adverse

impact to marine turtles." Id. at 9.

63. A December 17, 2008, memorandum from Mr. Shin,

received by the Department on December 24, 2007, put DEP on

notice of his clients' intent to appeal the denial of the

permit. The memorandum requested a 60-day extension of time to

research the issues associated with the denial before beginning

the "formal appeal process." Id. at 2.

64. Mr. Shin filed the Petition for Formal Administrative

Hearing with DEP on February 15, 2008. It initiated this

proceeding at DOAH when the Department on February 29, 2008,

requested assignment of an administrative law judge to conduct

the proceedings. The issues in this case fall under two broad

categories: Coastal Armoring and impacts to marine turtles.

Coastal Armoring

65. "Armoring" is defined by Florida Administrative Code

Rule 59C-33.001(5):

"Armoring" is a manmade structure designed

to either prevent erosion of the upland

property or protect eligible structures from

the effects of coastal wave and current

action. Armoring includes certain rigid

coastal structures such as geotextile bags

or tubes, seawalls, revetments, bulkheads,

retaining walls, or similar structures but

it does not include jetties, groins, or

other construction whose purpose is to add

sand to the beach and dune system , alter the

natural coast currents or stabilize the

mouths of inlets.

(emphasis added). There is no question that the Stovall/Buntin

Hesco Basket System is a manmade structure. Its purpose is to

retain the sand under the Stovall and Buntin houses. At the

same time, its construction resulted in sand added to the beach

and dune system. One thing is clear: the HESCO Basket System

is not conventional coastal armoring. Unlike "seawalls,

revetments, bulkheads, retaining walls or similar structures"

listed in the rule as examples of coastal armoring, the

construction of the HESCO System led to a vegetated dune.

66. Coastal armoring is closely regulated under Chapter

161 of the Florida Statutes by the Department and its Bureau of

Beaches and Shores because that chapter is "all about protection

of the beach dune system." Tr. 337. Coastal armoring usually

contravenes such protection. "Coastal armoring does not protect

the beach dune system. It's purpose . . . is to protect upland

development." Id. While the purpose of the HESCO Basket System

is to protect upland development unlike typical coastal

armoring, it has added not only sand to the beach but has

resulted in the creation and presence of a well-vegetated dune.

67. Prior to 1995, "coastal armoring was only authorized

as a last case possibility . . . ." Tr. 337-338. And it was

only authorized when approval was given at the highest level of

the state executive branch of government, the Governor and

Cabinet.

68. But the law was changed in 1995 in recognition that

property owners have a right to protect their property. The

Coastal Armoring Rule was amended to set up eligibility,

vulnerability, siting and design criteria that would strike a

reasonable balance between protection of the beach dune system

and a property owner's right to protect his or her property.

The law was amended again in 2006 to incorporate a new

technology for dune restoration: geotextile systems. HESCO

Basket Systems use in coastal armoring is also a new technology

when it comes to Florida's beaches and shores. Use of HESCO

baskets was described at hearing as "very new", tr. 344,

relative to the time of the filing of Stovall and Buntin

application.

69. If the HESCO Basket System constructed on the Stovall

and Buntin properties constitutes "armoring," then it must meet

the requirements of Florida Administrative Code Rule 62B-33.051

which govern "Coastal Armoring and Related Structures" (the

"Coastal Armoring Rule"). These requirements include conditions

related to "eligibility", "vulnerability", and "design," some of

the bases upon which the Department's denial of the after-the-

fact permit rests. See Fla. Admin. Code R. 62B-33.0051(1)(a)

and (2).

70. Mr. McNeal's testimony established that the HESCO

Basket System does not meet the "eligibility," "vulnerability,"

and "design," criteria for coastal armoring.

71. But the Coastal Armoring Rule also encourages

applicants for coastal armoring to "be aware that armoring may

not be the only option for providing protection." Fla. Admin.

Code R. 62B-33.0051(1). To that end, applicants for would-be

armoring "are encouraged to evaluate other protection methods

. . . such as dune restoration." Id. The HESCO Basket System

installed by the Stovalls and Buntins follows the encouragement

of the rule: it is a protection method that has resulted in

dune restoration.

CCCL Permit General Criteria

72. Regardless of whether the HESCO Basket System and the

vegetated dune it now supports constitutes coastal armoring, the

structure on the Stovall and Buntin property must meet the

General Criteria contained in Florida Administrative Code Rule

62B-33.005 for issuance of CCCL permits. Applications for those

permits must be denied "for an activity which . . . would result

in a significant adverse impact . . .". Fla. Admin. Code R.

62B-33.005(3)(a). Impact assessments conducted by the

Department "shall include the anticipated effects of the

construction on . . . marine turtles." Id.

Marine Turtle Behavior

73. Marine turtles spend most of their lives at sea often

foraging hundreds of miles from their nesting habitat. Adult

females migrate from feeding grounds and their foraging areas

and aggregate off shore beginning in May of nesting season,

generally from May through August. Off shore, the female

turtles wait for nightfall to swim ashore and crawl landward in

search of a spot to nest.

74. Four species of marine turtles typically nest in

Walton County: the Loggerhead, the green turtle, the

Leatherback and Kemp's Ridley. Because the Loggerhead and green

turtle are by far the most prevalent on Walton County beaches,

the Commission focused on their specific behavior when it

presented the testimony of Dr. Witherington.

75. The mechanics of crawling differ between Loggerhead

and green turtles. Loggerheads use an alternating gait while

green turtles have simultaneous butterfly-style strokes. Both

species drag the plastron or "belly shell" using all four

flippers. Their crawls enable them to scale slopes and

penetrate dune vegetation but they are not able to crawl

backward. They are capable of crawling up a slope that is

steeper than one to one.

76. At a location between the recent high water mark,

often observable by a wrack line (floating seaweed washed

ashore) and the crest of the primary dune, the female selects a

spot. The female creates a pit that she can slide her body into

it. Loggerheads do so by scraping sand from the front with

their front flippers and by gathering sand from beneath at the

posterior to push it behind. This behavior referred to as "body

pitting" tr. 474, results in a pit that the turtle eases into at

a slight angle posterior end-downward at the deepest part of the

pit.

77. Green turtles have similar body-pitting behavior but

it is more elaborate. "A green turtle will . . . blast the sand

out in front of it, dig an enormous pit . . . two or more feet

deep and create a very large mound." Tr. 475.

78. Beneath the body pit, the turtle digs an egg chamber.

For Loggerheads the depth of the egg chamber is "a little over

two feet . . . say 26 inches or so," tr. 482 from the surface of

the sand. For a green turtle, the depth is closer to 3 feet.

79. On average, clutch size for a Loggerhead is 115 eggs.

The range is from 70-to-170 eggs per clutch. Average clutch

size for green turtles in Florida is roughly 128 with a range

from 70 to 200.

Turtles and the Stovall/Buntin Property

80. Assuming no obstacles such as an exposed HESCO Basket,

a sea turtle would have no trouble making its way to the crest

of the HESCO Basket dune on the Stovall/Buntin property. The

Stovall/Buntin dune supported by HESCO baskets is mostly

vegetated with sea oats. There is Seaside Evening Primrose and

some Beach Morning Glory, too. As long as the turtles are not

interfered with by the HESCO baskets, a sea turtle would have no

problem nesting amidst the vegetation on the Stoval/Buntin dune.

81. Heavily eroded beaches do not discourage sea turtle

nesting behaviors. But where sea turtles choose to nest on a

heavily eroded beach is altered by the erosion.

Dr. Witherington explained:

[F]ollowing a severe erosion event,

. . . [t]he beach tends to be flatter and in

some cases broader and with escarpment from

erosion that has occurred. And almost

invariably following severe erosion events

. . ., sea turtles aim for the high ground.

In part, because that is the only dry sand

remaining on the beach, . . . [a]nd they're

choosing the safest sites on the beach to

nest.

Tr. 485. Thus, the erosion that has occurred on the

Stovall/Buntin property is not likely to deter sea turtles from

nesting there. Almost all of the area seaward of the Stovall

and Buntin houses is nesting habitat, but if a sea turtle

chooses to nest there, the most likely place is somewhere on the

dune created by the HESCO Baskets.

Threats to Sea Turtles

82. Sea turtles encounter numerous threats, impediments

and hazards when they are attempting to nest on beaches visited

by human beings as much as the beaches of Walton County

currently.

83. Coastal armoring is commonly recognized as a threat to

sea turtle nesting because it serves as a barrier to sea turtle

nesting habitat -- precisely the opposite of the Stovall/Buntin

HESCO Basket-supported dune which is an appealing place along a

severely eroded beach in which to nest.

84. Man-made debris is a threat to sea turtles. There are

numerous types of debris: monofilament line is one example.

Holes in the sand dug by beachgoers, beach furniture and

walkways are either barriers or can cause entanglement that can

lead to sea turtle injury or death. If a turtle gets up on a

sea wall and falls, the fall can seriously injure the turtle or

result in death. Artificial lighting is a particularly

dangerous and prevalent threat. The lighting can disorient both

nesting turtle and hatchlings causing them to move away from the

ocean or gulf. Death can result from dehydration in the morning

sun, wandering inland and falling prey to predators, or ending

up on highways and being struck by cars.

85. In addition, there are natural threats to sea turtles.

A variety of predators dig into sea turtle nest for the eggs.

The eggs may be swept away when the sediment around the clutch

is washed away. Inundation, as well, if over too long a period

can destroy the eggs.

86. Exposed HESCO baskets are a threat to sea turtles and

their hatchling in multiple ways. The ways in which they could

injure or kill a turtle were described by Dr. Witherington:

HESCO baskets accessible to sea turtles

would act as a barrier to a sea turtle

reaching an appropriate nesting habitat. An

open HESCO basket . . . could act as a trap,

. . . [for] turtles that might end up inside

the top of the basket itself, and then

there's an entanglement effect that would

probably be of very little concern for HESCO

baskets that were not exposed, but when they

do become exposed, the entrapment effect

would be much . . . larger . . .

Tr. 502. Dr. Witherington also described three problems that

could be posed by an exposed HESCO basket shown in a photograph

taken on the Stovall property and attached to a Site Inspection

Report date November 19, 2007. See Department Exhibit 16P,

at 9. These were first, "the pitfall hazard," tr. 504, second,

a vertical fall that the turtle might take from atop an exposed

basket, and, third, entrapment. As for entrapment, Dr.

Witherington opined, "it may look to many that the open HESCO

baskets don't leave much opportunit[y] for the sea turtle to

become entrapped, but one thing we learned is that sea turtles

often make their own traps," id. , when presented with situation

similar to that of an exposed HESCO basket.

87. There is another hazard to sea turtles posed by a

HESCO basket if the baskets were buried beneath where a nesting

turtle was digging its nest. If the turtle were to dig into the

basket and strike it, it could cause the turtle to abandon the

site and return to the sea.

88. If the dune that the HESCO Baskets support were to be

washed away in a storm and the basket structure were to fail,

the debris left would be a "particularly pernicious tangle of

wire and mesh that would very much have the potential to ensnare

sea turtles." Tr. 507.

A Sea Turtle Take

89. In Dr. Witherington's opinion, HESCO baskets

constitute significant habitat modification or degradation that

could significantly impair the essential behavioral pattern of

breeding. If HESCO baskets killed or injured a marine turtle,

therefore, they would constitute a "Take," as defined by Section

373.2431(1)(c)2., Florida Statues: "'Take' means an act that

actually kills or injures marine turtles, and includes

significant habitat modification or degradation that kills or

injures marine turtles by significantly impairing essential

behavioral patterns, such as breeding, feeding, or sheltering."

90. "Any person . . . that illegally takes . . . any

marine turtle species, or the eggs or nest of any marine turtle

species . . . commits a third degree felony, punishable as

provided [by law.]" § 379.2431(1)(e)5., Fla. Stat.

CONCLUSIONS OF LAW

91. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to Sections 120.569 and 120.57, Florida

Statutes.

92. In the Beach and Shore Preservation Act (Parts I and

II of Chapter 161, Florida Statutes), the Legislature recognized

that the beaches in this state and the coastal barrier dunes

adjacent to them, "by their nature, are subject to frequent and

severe fluctuations and represent one of the most valuable

resources of Florida . . .". § 161.053(1)(a), Fla. Stat. In

support of that recognition, the Legislature instituted the

establishment of coastal construction control lines under

Section 161.053(2)(a), Florida Statutes.

93. Section 161.053(5)(a)3., Florida Statutes, authorizes

the Department to issue permits when "[p]otential impacts of the

location of such structures or activities including potential

cumulative effects of any proposed structures or activities upon

such beach-dune system, which, in the opinion of the Department

clearly justify such a permit."

94. Ordinarily, applicants for permits in administrative

proceedings in Florida bear the burden of proving by a

preponderance of the evidence that their permit application be

approved. Fla. Dep't of Transp. v. J.W.C., Inc. , 396 So. 2d 778

(Fla. 1st DCA 1981). The burden on the Stovalls and Buntins is

further refined by the General Criteria found in Florida

Administrative Code Rule 62B-33.005(4) applicable to CCCL

permits:

The Department shall issue a permit for

construction [seaward of the CCCL] which an

applicant has shown to be clearly justified

by demonstrating that all standards,

guidelines and other requirements set forth

in the applicable provisions of Part I,

Chapter 161, F.S., and this rule chapter are

met . . .

(emphasis added)

95. In addition to the General Criteria, specific criteria

related to coastal armoring and related structures are found in

Florida Administrative Code Rule 62B-33.0051.

Coastal Armoring

96. Certainly, the Department is to be given deference in

its interpretation and application of its own rules and

statutes. Dep't of Envtl. Reg. v. Goldring , 477 So. 2d 532

(Fla. 1985). If the Department is right that the HESCO Basket

System and the dune that it supports is coastal armoring then

the Stovall/Buntin permit application should be denied because

it does not meet "vulnerability," "eligibility" and "design"

criteria as explained by Mr. McNeal at hearing. The system does

not protect eligible structures in that the Buntin and Stovall

houses are conforming structures. The structures, therefore,

cannot be "vulnerable" as defined by Florida Administrative Code

Rule 62B-33.002(64). The understory parking, moreover, is a

minor structure, in the Department's view, not an expendable

major structure.

97. But the Department's interpretation of the definition

of "armoring" in Florida Administrative Code Rule 59C-33.001(5)

so as to declare the HESCO Basket System installed by the

Stovalls and Buntins to be "armoring" is not entirely reasonable

under the circumstances of this case.

98. The HESCO Basket System, no doubt, is a "manmade

structure." It was designed to retain the sand in the

understory parking areas of the house and keep it from slipping

away. While there is no contention that the HESCO Basket System

would add sand to the beach and dune system in the manner that a

jetty or a groin might, the system is unquestionably "other

construction" that adds sand to the beach and dune system. In

fact, the ultimate result of the construction of the HESCO

Basket System is dune restoration in the form of a vegetated

dune.

99. Once the construction is understood as resulting in a

vegetated dune, it must be viewed as more than just a manmade

structure. The structure ultimately is a dune that is supported

not only by the manmade structure of the HESCO Baskets at its

core, but also by natural systems such as the vegetation

composed of seaoats, Seaside Evening Primrose and Beach Morning

Glory. Thus, the ultimate result is a structure that is both

manmade and the result of natural coastal processes.

100. The fact that the application submitted by Mr. Shin

described the project as "coastal armoring," in the application

for the after-the-fact CCCL Permit does not render the

Department's interpretation reasonable. Words on the page of a

permit application cannot alter the physical reality on the site

of the Stovall/Buntin property.

101. There are other anomalies with the Department's

interpretation. Florida Administrative Code Rule 62B-33.0051(1)

encourages "dune restoration" as a method of protecting private

structure and public infrastructure. The rule is consistent

with the entire thrust of The Beach and Shore Preservation Act

with which the Department is charged with administering. As the

wording of the Act clearly states and as testimony from the

Department established at hearing, Chapter 161, Florida

Statutes, is "all about protection of the beach dune system."

The Stovalls and Buntins in installing the HESCO Basket System

followed the encouragement of the Rule. If the HESCO Basket

System were to be removed now, it would in all likelihood

destroy the well-vegetated dune that it created. It would not

be reasonable to destroy the dune in order to protect the beach

dune system.

102. Finally, the impact of the HESCO Basket System and

the dune that it supports on marine turtles is a multi-edged

sword. For all the numerous threats that HESCO Baskets in

nesting habitat pose for sea turtles, there is one advantage

that came to light in the Commission's case: on a critically-

eroding beach such as that seaward of the Stovall/Buntin

property, the dune supported by the HESCO Basket System provides

the best place along that stretch of beach for nests for sea

turtles so long as the potential impacts of the baskets can be

avoided.

Sea Turtle Impact

103. HESCO Baskets on the beach whether whole or in a

jumble after encountering a storm are a threat to sea turtles.

HESCO Baskets partially exposed and sticking out of a dune are

also a threat to sea turtles. HESCO Baskets buried under sand

less than three feet are a threat to sea turtles. But HESCO

Baskets that are buried beneath more than three feet of sand and

that remain permanently under more than three feet of sand are

not a threat to sea turtles.

104. Among the requirements for a CCCL Permit to be issued

is one found in Florida Administrative Code Rule 62B-

33.005(4)(h): "The construction will not cause a significant

adverse impact to marine turtles . . . ."

105. The HESCO Basket System as designed and installed

poses the threat of a significant adverse impact to marine

turtles. But it could have been designed to avoid the threat by

calling for more than three feet of sand to separate any point

in the system from the surface of the dune, something Mrs.

Stovall indicated in her testimony that she would like to do if

the HESCO Basket System were permitted.

106. To that end, the Stovalls and the Buntins in their

proposed recommended order suggest that the Department adopt an

approach in permitting their HESCO Basket System that the

Legislature has provided for with regard to dune restoration

incorporating sand-filled geotextile containers or similar

structures proposed as the core of a restored dune feature.

That approach is found in Section 161.085(9), Florida Statutes.

Section 161.085(9)

107. Section 161.085(9), Florida Statutes, (the "Section")

provides in part as follows:

The department may authorize dune

restoration incorporating sand-filled

geotextile containers or similar structures

proposed as the core of a restored dune

feature when the conditions of paragraphs

(a)-(c) and the requirements of s. 161.053

are met.

(a) A permit may be granted by the

department under this subsection for dune

restoration incorporating geotextile

containers or similar structures provided

that such projects:

* * *

2. Are constructed using native or beach-

quality sand and native salt-tolerant

vegetation suitable for dune stabilization

as approved by the department.

3. May include materials other than native

or beach-quality sand such as getotextile

materials that are used to contain beach-

quality sand for the purposes of maintaining

the stability and longevity of the dune

core.

4. Are continuously covered with 3 feet of

native or beach-quality sand and stabilized

with native salt-tolerant vegetation.

5. Are sited as far landward as

practicable, balancing the need to minimize

excavation of the beach-dune system, impacts

to nesting turtles and other nesting state

or federally threatened or endangered

species, and impacts to adjacent properties.

6. Are designed and sited in a manner that

will minimize the potential for erosion.

7. Do not materially impede access by the

public.

8. Are designed to minimize adverse effects

to nesting turtles and turtle hatchlings,

consistent with s. 370.12.

* * *

10. The United States Fish and Wildlife

Service has approved an incidental Take

Permit for marine turtles and other

federally or endangered species pursuant to

s. 7 or s. 10 of the Endangered Species Act

for the placement of the structure if an

incidental Take Permit is required.

(b) The applicant or successive property

owners shall provide financial assurances in

the form of surety or performance bonds or

other financial responsibility mechanisms

that the authorized geotextile containers

will be removed if the requirements of this

subsection and the permit conditions are not

met. The permittee shall file a notice of

formal permit conditions in the public

records of the county where the permitted

activity is located.

(c) The department shall order removal of

the geotextile container if the conditions

of subparagraph (a)4. are not met, if the

project ceases to function due to

irreparable damage, if the project is

determined by the department to have caused

a significant adverse impact to the beach-

dune system, or if the United States Fish

and Wildlife Service revokes the incidental

Take Permit required in subparagraph (a)10.

(emphasis added).

108. The Section does not square perfectly with the

Stovall and Buntin proposal. For example, subparagraph (a)1.,

requires that the dune restoration project provide protection

for an existing major structure or public infrastructure and the

department regards the understory parking areas of the Stovall

and Buntin homes to be minor structures. Several of the

provisions in the section make reference only to geotextile

containers as if they should have no applicability to "similar

structures proposed as the core of a dune feature." But the

intent of the Legislature appears to be clear. Innovative

methods of achieving dune restoration should be allowed provided

protective conditions are met particularly with regard to the

protection of marine turtles.

109. The most important protective measure of the Section

in the context of the facts found in this case with regard to

marine turtles is that the core (the HESCO Baskets) of the

restored dune feature remain continuously covered with 3 feet of

native or beach-quality sand and stabilized with salt-tolerant

vegetation. The Stovall and Buntins have agreed to meet this

condition.

110. In their proposed recommended order, the Stovalls and

Buntins have proposed issuance of the after-the-fact permit

application with the following conditions:

a) Removal of the top layer of HESCO

Baskets and add beach-compatible sand to

ensure a minimum of 3 foot cover over the

system.

b) After a storm event, if any of the

remaining HESCO system is exposed, DEP will

make a determination whether the system

should be removed.

c) Approval pending the issuance of a

United States Fish and Wildlife Service

Incidental Take Permit.

Petitioners' Proposed Recommended Order, at 11.

111. The addition of such conditions to the CCCL Permit

will allow the permit to meet the General Criteria found in

Florida Administrative Code Rule 62B-33.005. The additional

criteria for coastal armoring found in Florida Administrative

Code Rule 62B-33.0051 will not be met by such an approach. But

it is recommended that the Department interpret its definition

of "armoring" to exclude the Stovall/Buntin HESCO Basket System

for the reasons outlined above.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

The Coastal Construction Control Line Permit applied for by

the Stovalls and Buntins be issued with the conditions listed in

paragraph 110, above.

DONE AND ENTERED this 30th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November, 2009.

COPIES FURNISHED :

Stanley M. Warden, Esquire

Florida Fish and Wildlife

Conservation Commission

Bryant Building, Room 108

620 South Meridian Street

Tallahassee, Florida 32399-1600

Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Ong-In Shin

Florida Coastal Development Consulting, Inc.

4654 East Highway 20

Niceville, Florida 32578

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fro the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this cause.