17-002201 Town Of Hillsboro Beach vs. City Of Boca Raton And Department Of Environmental Protection Status: Closed Recommended Order on Monday, December 11, 2017.

Summary: The City proved its entitlement to the proposed modification of its joint coastal permit. The Department did not adopt the Strategic Beach Management Plan as a rule and, therefore, cannot require the modification to be consistent with the plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF HILLSBORO BEACH,

Petitioner,

vs. Case No. 17 - 2201

CITY OF BOCA RATON AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was held on October 4 and 5,

2017, in Boca Raton, Fl orida, before Bram D.E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner, Town of Hillsboro Beach:

Ken G. Oertel, Esquire

Timothy J. Perry, Esquire

Oertel, Fernandez, Bryant

& Adkinson, P . A .

Post Office Box 1110

Tallahassee, Florida 32302

For Respondent, City of Boca Raton:

Kevin S. Hennessy, Esquire

Richard P. Green, Esquire

Lewis, L ongman & Walker, P.A.

101 Riverfront Boulevard, Suite 620

Bradenton, Florida 34205

For Respondent, Department of Environmental Protection:

Marianna Sarkisyan, Esquire

Bradley Butler, Jr., Esquire

Office of the General Counsel

Department of Env ironmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be decided in this case is whether the City of

Boca Raton (ÐCityÑ) is entitled to the requested modification of

its Joint C oastal Permit.

PRELIMINARY STATEMENT

On January 30, 2017, the Department of Environmental

Protection (ÐDepartmentÑ) issued proposed Permit Modification

No. 0261499 - 010 - JN (Ðproposed modificationÑ) to the City, which

would authorize the City to dredge 70,00 0 cubic yards of sand

from the Boca Raton Inlet ebb shoal (Ðebb shoalÑ) and place it on

beaches north of the inlet. On February 9, the Town of Hillsboro

Beach (ÐTownÑ) filed a petition for hearing to challenge the

proposed modification. The Department di smissed the petition

with leave to amend, determining that the Town had failed to

allege an injury sufficient for standing and had failed to

include specific facts or an explanation of how the law require s

reversal of the agency action. On February 23, th e Town filed an

amended petition. The Department dismissed the amended petition

for failure to identify an injury sufficient for standing. The

Department also determined that the TownÓs claim of standing

under section 403.412, Florida Statutes, was legal ly deficient

because it was not verified.

The Town filed an appeal of the DepartmentÓs dismissal of

its amended petition, but later dismissed the appeal . On

Mar ch 29, the Town filed a verified Second Amended Petition for

Formal Administrative Hearing unde r section 403.412. The

Department then referred the petition to DOAH.

On August 11, Respondents filed a Joint Notice of the

revision of the proposed modification.

Following a pre - hearing conference held on September 26, an

Order was issued, which ruled t hat section 120.569(2)(p), Florida

Statutes, is applicable to all issues raised in the second

amended petition, and the issues of fact must arise out of

different acti vities, conditions, and effects than those issues

addressed in the original permit.

At t he final hearing held on October 4 and 5, Joint

Exhibits 1 through 39, 41, and 43 were accepted into evidence.

Respondents presented the testimony of Michael Jenkins, Ph.D.,

P.E., an expert in coastal engineering; Ellen Edwards, Ph.D.,

program administrat or with the DepartmentÓs Beaches, Inlets and

Ports Program; and Robert Brantly, Jr., P.E., program

administrator with the DepartmentÓs Engineering, Hydrology, and

Geology Program, an expert in coastal engineering. The CityÓs

Exhibit 1 was admi tted into ev idence. Petitioner presented the

testimony of William Dally, Ph.D., P.E., an expert in coastal

engineering; and Dr. Jenkins. PetitionerÓs Exhibit 1 was

admitted into evidence.

The Transcript of the final hearing was filed with DOAH on

November 13 . The parties submitted proposed recommended orders

that were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. The Town of Hillsboro Beach is a municipality in Broward

County. The TownÓs eastern boundary includes shore line along the

Atlantic Ocean.

2. The Department is the administrative agency of the State

of Florida having the power and duty to protect Florida's air

and water resources and to administer and enforce the provisions

of chapters 161 and 373, Florida Sta tutes, and the rules

promulgated thereunder in Florida Administrative Code, which

pertain to the permitting of construction activities in the

coastal zone. The Department also acts as staff to the Board of

Trustees of the Internal Improvement Trust Fund ( ÐBoard of

TrusteesÑ).

3. The City of Boca Raton is a Florida municipality in Palm

Beach County. The City has a shoreline along the Atlantic Ocean.

The City is responsible for the management of the Boca Raton

Inlet and the ebb shoal that is just east of the inlet.

Background

4. Natural sand drift along FloridaÓs Atlantic coastline

can move both north and south, depending on winds, waves, tides,

and storms. In this particular area, about 80 percent of the

sand drift is to the south.

5. Inlets inter rupt or alter the natural drift of beach -

quality sand, which causes beach erosion. See § 161.142, Fla.

Stat.

6. The Department developed a Strategic Beach Management

Plan (ÐSBMPÑ), which provides an inventory of FloridaÓ s

critically eroded beaches and a n inventory of FloridaÓs 66

coastal barrier tidal inlets. The SBMP incorporates by reference

the individual inlet management plans (ÐIMPsÑ), which describe

strategies for addressing beach erosion caused by the inlets.

The SBMP was last updated in 2015.

7. A Boca Raton IMP was approved in 1997 and portions of it

have been incorporated into the SBMP. The Boca Raton IMP called

for a minimum of 71 ,000 cubic yards of sand per yea r (Ðcy/yÑ), as

an annual average, to be placed on beaches south of the inlet to

account for the inletÓs interference with sand drift. The more

recent SBMP revised the ÐbypassÑ objective to 83,000 cy/y.

8 . The beaches of Boca Raton, from Range Monument 204 to

Range Monument 227.9 in Palm Beach County, are designated by the

SBMP as critically eroded beaches.

9. South of Boca Raton is the shoreline of the City of

Deerfield Beach. In 1958, rock groins were constructed

perpendicular to the shoreline of Deerfield Beach to capture sand

and prevent further erosion. Sand has buried most of the

northerly rock groins at Deerfield Beach, but about 15 of the

most southern rock groins are exposed. The Deerfield Beach

Ðgroin fieldÑ is t he single - most important cause of erosion to

the TownÓs beaches, which are immediately south of Deerfield

Be ach.

10 . About 3.2 miles of the TownÓs beaches, from Range

Monument 6 to Range Monument 23, are designated in the SBMP as

critically eroded beaches. The Town has conducted several

renourishment projects to address the erosion.

11. The long - term beach nourishment projects within Boca

Raton are managed through three permits. The permit for the

North Boca Raton Beach Nourishment Project authorizes the City to

periodically nourish 2.8 miles of beach north of the Boca Raton

I nlet, using sand from three off shore borrow areas.

12. There is a Boca Raton Inlet Sand Bypassing Permit,

which authorizes the City to periodically dredge sand from the

Boca Raton Inlet and place it on the CityÓs beaches south of the

inlet.

13. Another related permit is for the Sout h Boca Raton

Beach Nourishment Project, which authorizes the City to

periodically dredge sand from the ebb shoal and place the sand on

the CityÓs beaches south of the inlet.

The Proposed Modification

14. The proposed modification at issue in this case i s

related to Joint Coastal Permit No. 0261499 - 004 - JM for the North

Boca Raton Beach Nourishment Project. The modification would

authorize a Ðone - timeÑ use of the ebb shoal as a source of sand

to be placed on the CityÓs beaches north of the Boca Raton Inle t.

15. The proposed modification would allow the City to

dredge 70,000 cubic yards of sand from the ebb shoal and place it

into the template north of the inlet. A template is a three -

dimensional target profile for the beach being renourished.

16. The CityÓs purpose in seeking the modification is to

alleviate a navigational hazard to vessels using the Boca Raton

Inlet caused by the accretion of sand to the ebb shoal, which

shallows the navigation channel. The ebb shoal is subject to

continuous accretio n and requires periodic dredging to maintain

the depth and width of the navigation channel for safe

navigation.

17. The template for the South Boca Raton Beach Nourishment

Project is now full and cannot receive more sand without risking

damage to the nea rshore hard bottom environment. Sand dredged

from the ebb shoal to address navigation safety cannot be placed

on the CityÓs beaches south of the inlet.

18. For that reason, the City seeks to place the sand north

of the inlet where the template is not fu ll. To do that, the

permit for the North Boca Raton Beach Nourishment Project must be

modified because currently it only authorizes sand to be taken

from offshore areas. The proposed modification allows the ebb

shoal to be used as a Ðone - timeÑ source of sand to be placed

north of the inlet.

19. When the Town challenged the proposed modification, the

City was unable to use the dredge contractor that was scheduled

to be on - site in conjunction with other dredging activity as the

City had planned. Therefor e, the proposed modification was

revised to delete references to the Ðplanned 2017 nourishment

eventÑ and to refer instead to a Ðone - time event during the life

of the permit.Ñ

Minor Modification

20. The Town contends the Department erroneously reviewed

the proposed modification as a minor modification and, as a

result, all applicable permitting criteria were not considered by

the Department.

21. The DepartmentÓs determination , whether a proposed

change is a minor modification or a major modification , i s based

on its view of whether the proposed change has the potential to

result in additional adverse impacts beyond the impacts

previously addressed as part of the original permit. The

Department determined that the CityÓs proposed modification was a

mino r one because the original permit authorizes periodic beach

nourishment of the same area where the sand from the ebb shoal

would be placed, and the ebb shoal is already an authorized

source for sand.

22. This minor/major modification question is of no

co nsequence because b oth minor and major modifications require

the Department to consider all of the criteria for issuance of a

joint coastal permit.

Consistency with the SBMP and Boca Raton IMP

23. Much evidence and argument in this case was directed

to the issue of whether the proposed modification is consistent

with the SBMP and Boca Raton IMP. As discussed in the

Conclusions of Law, this was an error because the plans have not

been adopted as rules. Because the plans are not rules, a

permit applicant does not have to demonstrate that a proposed

activity is consistent with the plans as a condition for

obtaining the permit. However, because the partiesÓ evidence on

the consistency issue was admitted into the record, findings on

that issue are made belo w.

24 . The Town contends the proposed modification is

inconsistent with the SBMP and Boca Raton IMP because the plans

refer to Ðnourishment of downdrift beaches using the inlet ebb

shoal as a borrow source.Ñ The Town interprets these provisions

as prohi biting the removal of sand from the ebb shoal for

placement on the CityÓs ÐupdriftÑ beaches north of the inlet.

Th e Department asserts that the Town is reading the plans too

strictly because they do not expressly prohibit use of ebb shoal

sand for nourish ment of City beaches north of the inlet.

25. The Department approved a 2006 City project that

removed 340,000 c ubic yards of sand from the ebb shoal and placed

it north of the inlet. In reviewing and approving this project,

the Department expressly cons idered the projectÓs consistency

with the Boca Raton IMP. When the SBMP was updated after the

2006 project, it added a reference to the project.

26. The Department contends that meeting the bypass volume

of 83,000 cy/y is the overarching objective of th e SBMP and the

proposed modification is consistent with the SBMP and the Boca

Raton IMP , because the removal of 70,000 c ubic yards of sand

from the ebb shoal would not interfere with achievement of this

objective. The City has been exceeding the sand bypa ss

objective, bypassing an average of 87,100 cy/y.

27. The bypass volume of 83,000 cy/y was derived from a

sediment budget which looked at all mechanisms, both natural and

artificial, that move sand in the coastal system. Beach profile

monitoring data s hows the bypassing has resulted in net volume

accumulations south of the inlet.

28. The Town contends the Department has also ignored the

Boca Raton IMPÓs characterization of the bypass volume as Ða

minimum.Ñ However, the proposed modification does not prevent

the bypass objective from being exceeded.

29 . The SBMP includes the statement, ÐNothing in the SBMP

precludes the evaluation of other alternative strategies which

are consistent with Chapter 161, Florida Statutes. Ñ

30. The TownÓs argument that t he plans prohibit the

proposed modification is unpersuasive. The DepartmentÓs

determination that the proposed modification is consistent with

the SBMP and Boca Raton IMP is reasonable.

Adverse Impacts

31. Section 161.142 requires the Department to ensure

that, Ðon an annual average basis, a quantity of beach - quality

sand is placed on the adjacent eroding beaches which is equal to

the natural net annual longshore sediment transport.Ñ The

preponderance of the evidence shows that 83,000 cy/y meets this

stat utory requirement.

32. The Department determined that authorizing a one - time

placement of sand from the ebb shoal onto the beaches north of

the inlet would not cause an adverse impact on the inlet system

or result in a deficit of sand bypassing to the be aches south of

the inlet.

33. Greater weight is given to the opinions of

Respondents Ó experts that the proposed modification will not

interfere with meeting the annual longshore sediment transport

objective or cause adverse impacts to the TownÓs beaches. The

opinions of the TownÓs expert coastal engineer were based in

large part on assumptions that were shown to be mistaken.

34. For example, the TownÓs expert believed that the 2006

dredging of 340,000 cubic yards of sand from the ebb shoal and

its placem ent north of the Boca Raton Inlet led directly to the

TownÓs need to renourish its beaches in 2011. However, it was

shown that the TownÓs renourishment project was planned in 2005,

which means the Town was addressing an erosion problem that

existed before the 2006 dredging of the ebb shoal.

35. The TownÓs expert believed that the sediment budget

was flawed because the beach profile data used for the analysis

was from the period 2005 to 2015, but the wave data (Ðclimate

dataÑ) was from the period 1997 to 2 007. Because these data

periods were not the same, he thought it made the conclusions of

the sediment budget unreliable. However, the wave data that was

used for the sediment budget was from the period 2005 to 2014,

which is a good match with the beach p rofile data.

36. The TownÓs expert also express ed concern about the

sensitivity of the sediment budgetÓs parameter for ebb shoal

growth rate. However, the sensitivity for this parameter is not

significant because, even at the highest potential deviation, it

would only reduce the estimated total downdrift volume by about

10,000 cubic yards, which is a relatively small amount in the

system as a whole. Furthermore, the sediment budget produced

for the proposed modification is consistent with sediment

budget s previously produced, including a sediment budget

developed by the Town.

37. Finally, the opinions of the TownÓs expert are given

less weight because he conducted no comparable studies of his

own.

38. The TownÓs assertion that taking sand from the ebb

s hoal reduces the amount of sand available for natural bypassing

may indicate its belief that the calculated bypass volume of

83,000 cy/y does not account for natural bypass. If so, that

belief is contrary to the more persuasive evidence. The

sediment bud get shows that bypassing 83,000 cy/y fully mitigates

the effects of the Boca Raton inlet on downdrift south of Boca

Raton.

39. The Town notes the estimate of natural sand bypass of

40,000 to 76,600 c y/y and leaps to the unproven allegation that

removing 7 0,000 cubic yards of sand from the ebb shoal will

Ðeliminate and deprive beaches to the south of such sand for an

entire year.Ñ The preponderance of the evidence shows this

system does not work in such a simplistic manner, where each

cubic yard of sand dr edged from the ebb shoal will be a net loss

of a cubic yard of sand that would have reached beaches to the

south.

40. In addition to the conclusions of the sediment budget,

it is credited that: (a) sand travels in the beach system, not

offshore; (b) sand placed on beaches north of the inlet is still

in the system and contributes to downdrift; (c) the ebb shoal

grows relatively rapidly; (d) the template for the CityÓs

beaches south of the inlet is full, which means their

contribution to downdrift is maximi zed; (e) the beaches of

Deerfield Beach are stable or accreting; a nd (f) the historical

beach profile data indicate that the downdrift influence of the

Boca Raton Inlet does not extend to the TownÓs beaches.

41. The TownÓs allegation that the proposed mod ification

would be detrimental to nesting sea turtles is based on its

claim that the proposed modification would cause erosion of the

TownÓs beaches. The Respondents Ó rebuttal of the TownÓs claim

of erosion also rebuts the claim of adverse impacts to sea

turtles.

42. The TownÓs concern about the erosion of its beaches

and whether the proposed modification could exacerbate the

erosion is reasonable, but the TownÓs evidence was not

sufficient to prove it would be injured. The preponderance of

the evidence supports the DepartmentÓs determination that the

proposed modification would not cause erosion of the TownÓs

beaches.

Cumulative Impacts

43. The Town argues that the DepartmentÓs characterization

of the proposed modification as a Ðone - timeÑ event is mis leading

because there is no prohibition against the City applying in the

future to do the same thing. However, the term Ðone - timeÑ

merely means that the joint coastal permit for the North Boca

Raton Beach Renourishment Project would only authorize the

dre dging of 70,000 cubic yards of sand from the ebb shoal one

time during the life of the permit. In contrast, the joint

coastal permits for this area allow other dredging and

nourishment activities to be repeated during the life of the

permits.

44. The De partment understands that the City is not

prevented from applying again to dredge sand from the ebb shoal

and place it north of the inlet. However, if the City were to

make another such application, the Department would consider the

best available data, i ncluding new data, and apply all

applicable regulatory criteria to determine if the project would

cause any adverse impacts.

45. Because the preponderance of the evidence supports the

DepartmentÓs determination that the proposed project would have

no adv erse impacts, and a future project of the same type would

not be permitted if it causes adverse impacts, it follows that

approving the proposed modification would cause no cumulative

adverse impacts.

Other Regulatory Criteria

46. Florida Administrative Code R ule 62B - 41.005 requires

an applicant to demonstrate that proposed coastal construction

will have a net positive benefit to the coastal system, based on

adequate engineering data concerning the existing coastal

system, design features of the proposed activities, and such

other specific information or calculations as are necessary for

the evaluation of the application.

47. The City satisfied these criteria by providing the

Department with sufficent data pertaining to the project to

demonstrate a net p ostitive benefit to the coastal system by

placing sand in an authorized beach nourishment template and

aleviating a navigational hazard.

48. Because sand from the ebb shoal has already been used

several times for the South Boca Raton Beach Nourishment Pr oject

and has been previously used for the North Boca Raton Beach

Nourishment Project, the Department already has data and

reasonable assurance that sand from the ebb shoal is suitable for

placement on the beaches north of the inlet, as required by rule

62 B - 41.007.

49. The Town points out that the CityÓs Quality

Assurance/Quality Control Plan provides for sampling and analysis

of sand in the ebb shoal and does not allow the project to

continue if the analysis shows the sand is not beach compatible.

The T own argues that the Department cannot approve the proposed

modification before it knows whether the sand is beach

compatible.

50. However, the DepartmentÓs reasonable assurance that the

sand is compatible is based on previous analysis and uses of sand

fr om the ebb shoal for renourishment north and south of the

inlet. The TownÓs allegation that the sand Ðmay be vastly

differentÑ now is speculation because it is not supported by

competent evidence. The permit condition to check the

compatibility of the sa nd does not amount to approving the

proposed modification without reasonable assurances.

51. Rule 62B - 41.008(1) sets forth application requirements

for joint coastal permits, including topographic and bathymetric

information. The City satisfied the appli cation requirements

for the proposed modification by submitting signed and sealed

bathymetric and topographic plans for the ebb shoal borrow area

and the 2016 Sediment Budget Report.

52. The proposed modification must not be contrary to the

public intere st when considering the seven factors of the Ðpublic

interest testÑ in section 373.414(1), Florida Statutes. The

proposed modification would have a public benefit of nourishing

an eroded beach , would alleviat e a navigation hazard , and would

have no advers e impacts to inlet management or the coastal

system. Therefore, the proposed project is not contrary to the

public interest.

53. The Town contends the CityÓs demonstration of a

navigation hazard was not shown. The Town did not refute the

testimony that the ebb shoal is always growing, it has been

periodically dredged in the past for navigation purposes, and

that the dredged channel immediately begins to fill with

sediment after it is dredged. Although the record evidence of

the current navigation probl em was limited to RespondentsÓ

unspecific references to drawings, monitoring data, statements

from boaters, and newspaper articles, the Town presented no

evidence in rebuttal. The TownÓs allegation that the City

should have taken care of the navigation pr oblem as part of an

earlier dredging project is irrelevant.

54. Respondents demonstrated that the proposed

modification complies with all applicable regulatory criteria.

CONCLUSIONS OF LAW

Jurisdiction

55. DOAH has jurisdiction over the parties and th e subject

matter of this proceeding. § 120.569, Fla. Stat. (2017).

Standing

56. Parties to a chapter 120 proceeding include persons

whose substantial interests will be affected by the proposed

agency action. § 120.52(13 ) (b), Fla. Stat. (2017). The To wn has

a substantial interest in protecting its beaches from erosion.

57. A petitioner does not have to prevail on its claim of

injury in order to have legal standing. If a petitioner had to

prove its claims of injury, every losing petitioner would lack

standing. The injury component of standing is satisfied when

the petitioner presents competent evidence at the final hearing

to show that it could be injured. The presentation of such

evidence satisfies standing , even if it is ultimately determined

that the preponderance of the evidence proves the petitionerÓs

substantial interest would not be adversely affected or that the

adverse effect is allowed under the law. See St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54 So.

3d 1051 (Fla . 5th DCA 2011).

58. Despite the rebuttal of some bases for the opinions of

the TownÓs coastal engineer, he presented competent testimony

that dredging sand from the ebb shoal affects sand drift and

could be injurious to downdrift beaches if not properly an alyzed

and addressed. By presenting this competent evidence, the Town

met the requirements for standing.

Scope of the Proceeding

59. This is a de novo proceeding intended to formulate

final agency action, not to review action taken earlier and

preliminar ily. § 120.57(1 ) (k), Fla. Stat. (2017) ; DepÓt of

Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 785 (Fla. 1st DCA

1981). Whether a permit applicant should have submitted certain

information before the p ermit was approved by the agency, and

whether the agen cy should have considered some regulatory

criterion before approving the permit, are questions of no

consequence if such errors are cured at the final hearing and due

process is afforded.

60. Factual issues that were determined in the initial

permit proce eding cannot be raised in this permit modification

proceeding. See Friends of the Everglades, Inc. v. DepÓt of

Envtl. Reg. , 496 So. 2d 181, 183 (Fla. 1st DCA 1986).

Standard and Burden of Proof

61. The standard of proof in this case is a preponderance

of the evidence. § 120.57(1 ) ( j), Fla. Stat. (2017).

62. Section 120.569(2)(p) applies to any p roceeding

arising under chapter 373. This is a proceeding arising under

chapter 373 because it is created in section 373.427, which

provides for concurrent revie w of activities that require an

environmental resource permit, a coastal construction permit,

and proprietary authorization from the Board of Trustees. Under

section 120.569(2)(p), the petitioner challenging the issuance

of a permit has the burden of ulti mate persuasion.

63. Because the City satisfied its prima facie case for

entitlement to the proposed modification, the Town had the

burden to prove that the City did not provide reasonable

assurance of its compliance with applicable permitting

requirement s. ÐReasonable assurancesÑ means Ða substantial

likelihood that the project will be successfully implemented.Ñ

Metro. Dade C nty . v. Coscan Fla., Inc. , 609 So. 2d 644, 648

(Fla. 3d DCA 1992) .

Consistency with the SBMP and Boca Raton IMP

64. Rule 62B - 41.005(15) requires a permit application for

construction, excavation, or maintenance of a coastal inlet and

related shoals to be consistent with the SBMP. Similarly,

rule 62B - 41.008(13)(b) requires that an application for a joint

coast al permit demonstrate consistency with the ÐadoptedÑ SBMP

and the applicable IMP.

65. However, rules 62B - 41.005(15) and 62B - 41.008(13)(b) do

not adopt the SBMP or the Boca Raton IMP by reference in the

manner required by section 120.55(1).

66. Section 120.57(1)(e) prohibits an agency or an

administrative law judge from basing agency action that

determines the substantia l interests of a party on an un adopted

rule. Any provision of the SBMP or the Boca Raton IMP that the

Department would apply as a crite rion for approving or denying a

permit or permit modification meets the definition of a rule.

See § 120.52(16), Fla. Stat. (2017).

67. Section 161.161 calls for ÐdevelopmentÑ of the SBMP by

the Department and ÐapprovalÑ of IMPs by the Secretary of the

Dep artment. There is no indication in section 161.161 that the

development of the SBMP or the approval of the IMPs is not

subject to the rulemaking requirements of section 120.54 for any

provisions of the plans that meet the definition of a rule.

68. The Ad ministrative Procedure Act presumptively governs

the exercise of all authority statutorily vested in the

executive branch of state government. Gopman v. DepÓt of Educ. ,

908 So. 2d 1118, 1120 (Fla. 1st DCA 2005). Because chapter 120

presumptively governs the exercise of delegated legislative

authority, an agency cannot adopt an agency statement that meets

the definition of a rule without following the rulemaking

requirements of chapter 120 unless the agency has express

statutory authority to do so. The De partment has no express

authority in section 161.161 to develop the SBMP or approve the

IMPs without following the rulemaking requirements of

section 120.54.

69. Strong support for the conclusion that the Department

cannot use a provision in the SBMP or t he IMPs as a permitting

criterion unless the provision has been adopted as a rule is

found in section 161.041(6), which states:

The department may not issue guidelines that

are enforceable as standards for beach

management, inlet management, and other

eros ion control projects without adopting

such guidelines as rules.

The DepartmentÓs use of a guideline in the SBMP or an IMP as a

permit criterion when the guideline was not adopted as a rule

creates clear conflict with section 161.041(6).

70. Because the Department and the Administrative Law

Judge are prohibited by section 120.57(1)(e) from basing agency

action on the proposed modification on consistency with the SBMP

or the Boca Raton IMP, the proposed modification must be judged

on its compliance with th e other rule criteria applicable to

such projects.

Permitting Criteria

71. Respondents proved by a preponderance of the evidence

that the City satisfied all applicable regulatory criteria for

approval of the proposed modification, including submission of

adequate engineering data, a demonstration that no adverse

cumulative impacts would result, and a demonstration that the

project is not contrary to the public interest.

Proprietary Authorization

72. Rule 18 - 21.005(1)(c)8. provides that written

authorizat ion (letter of consent) is required for restoration

and nourishment of naturally occurring sandy beaches, including

borrow areas to be used for five years or less. The

DepartmentÓs determination that the requested use of the ebb

shoal as a borrow source q ualifies for consent to use

sovereignty submerged lands is reasonable and valid.

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 granting the CityÓs proposed modification to

its Joint Coastal Permit.

DONE AND ENTERED this 11th day of December , 2017 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrati ve 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 11th day of December, 2017.

COPIES FURNISHED:

Bradley Stephen Butler, Esquire

Department of Environmental Protection

Office of the General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atk inson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Richard Green, Esquire

Lewis, Longman & Walker, P.A.

Suite 620

101 Riverfront Boulevard

Bradenton, Florida 34205

(eServed)

Kevin S. Hennessy, Esquire

Lewis, Longman & Walker, P.A.

Su ite 620

101 Riverfront Boulevard

Bradenton, Florida 34205

(eServed)

Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Marianna Sarkisyan, Esquire

Department of Envir onmental Protection

Office of the General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(e Served)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns within

15 days from 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 case.