95-004045 Michael Walther And Adele Clemens vs. Indian River County And Department Of Environmental Protection Status: Closed Recommended Order on Friday, February 16, 1996.

Summary: County entitled to experimental permit as met all criteria at issue; Petitioners failed to establish they will be adversely impacted by project.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL WALTHER and )

ADELE CLEMENS, )

)

Petitioners, )

)

vs. ) CASE NO. 95-4045

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and INDIAN )

RIVER COUNTY, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its

designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the

above-styled case on December 19-21, 1995, in Vero Beach, Florida.

APPEARANCES

For Petitioners: Michael P. Walther, P.E., pro se

1725 36th Avenue

Vero Beach, Florida 32960

and

Adele Clemens, pro se

3747 Ocean Drive

Vero Beach, Florida 32963

For Respondents: Dana M. Wiehle, Esquire

Thomas I. Mayton, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Steve Lewis, Esquire

Kevin S. Hennessy, Esquire

John W. Forehand, Esquire

Lewis, Longman & Walker, P.A.

Post Office Box 10788

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The central issue in this case is whether the Department of Environmental

Protection (Department) should approve a permit for the applicant, Indian River

County (County), to install a prefabricated erosion prevention reef (PEP reef)

off the coast of Vero Beach, Florida.

PRELIMINARY STATEMENT

This case began on June 21, 1995, when the Department issued a permit to

the County to allow the installation of a PEP reef below the mean high water

line on sovereign lands of the State of Florida, in Indian River County,

Florida, as more particularly set forth in permit number DBS9A0342 IR. The

Petitioners, Michael Walther and Adele Clemens, opposed the installation

proposed by the county and timely filed a petition for formal administrative

hearing. The matter was forwarded to the Division of Administrative Hearings

for formal proceedings on August 14, 1995.

At the hearing the County presented the testimony of the following

witnesses in support of the permit approval: Don Donaldson, employed as the

County's coastal engineer; Jeremy Craft, the director of the Department's

environmental resource permitting division; Dr. Walter G. Nelson, accepted as an

expert in biological oceanography; Fran Adams, a county commissioner; John R.

Fletemeyer, accepted as an expert in marine turtles; Gary Zarillo, accepted as

an expert in physical oceanography; Ken Echternacht, accepted as an expert in

hydrology; and Beth Mitchell, the vice president and director of operations for

American Coastal Engineering. The County's exhibits numbered 1 through 38, and

43 through 48 were admitted into evidence. The County's exhibits numbered 39

through 42 were not received but have been proffered for the record.

The Department adopted as its case the questions asked during the County's

presentation, including the testimony of Jeremy Craft. No additional exhibits

were offered by the Department.

Petitioner, Michael Walther, presented the testimony of Jeremy Craft;

Paden E. Woodruff, a senior engineer employed by the Department's environmental

resource permitting division; and Dr. Robert G. Dean, a professor at the

University of Florida accepted as an expert in coastal engineering. Petitioner

Walther's exhibits numbered 1 through 8 were received into evidence.

Petitioner, Adele Clemens, presented no evidence in connection with this

matter.

Findings of fact and stipulations as to the applicable law from the

parties' prehearing statement are incorporated below where relevant.

Additionally, the parties requested a view of the project site which was taken

on the final date of hearing. The view map is included in the record and marked

as Joint Exhibit A.

The transcript of the proceedings was filed on January 11, 1996. Rulings

on the proposed findings of fact submitted by the parties are included in the

appendix at the conclusion of this order.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of

reviewing and approving permits such as the one at issue.

2. The County is a governmental entity and is the applicant which has

requested a permit for an experimental project to be located in Vero Beach,

Florida.

3. The Petitioners oppose the proposed project.

4. The project at issue is the installation of a PEP reef system to be

located between approximately 300 feet south of reference monument R-80 to

approximately 300 feet south of reference monument R-83, in Indian River County,

Florida.

5. Because of the uncertainty as to the performance of the proposed

project and the potential that it may cause adverse impacts to the coastal

system, the Department classified the project as experimental pursuant to

Chapter 89-175, Section 27, Laws of Florida.

6. In making its preliminary approval for the permit, the Department

required special permit conditions to safeguard the coastal system and marine

turtles. Additionally, the Department specified both preconstruction and post

installation monitoring and testing.

7. The term of the permit is limited to five years, including three years

to monitor the project's impacts.

8. A PEP reef is a prefabricated erosion prevention product installed as a

breakwater off the shore. In this case, the product measures approximately

twelve feet long and six feet high. The base of the product (which is conically

shaped) is approximately 15 feet tapering to a one foot crest at the top.

9. The PEP unit is a proprietary product of a company called American

Coastal Engineering (ACE). The County proposes to contract with ACE for the

manufacture and installation of the units.

10. It is proposed that the PEP units would be installed in an alignment

parallel to the beach for a total, though not continuous, length of 3000 feet.

11. The proposed location for the PEP reef in Vero Beach is in an erosion

area as identified by the Department's Beach Restoration Management Plan.

12. Historically, the subject beach has experienced a steady and

continuous erosion which has been exacerbated during storm conditions.

13. The proposed site is suitable for the experimental nature of this

project.

14. At least one past storm event caused substantial damage to the beach

front at the project site. Walkways, utilities, and other public improvements

were substantially damaged.

15. Past efforts to curb the erosion have proved unsuccessful. Such

efforts included beach renourishment, and the installation of seawalls or

bulkheads.

16. Future beach renourishment is undesirable for the project site due to

the lack of compatible sand, and its high cost. More important, however, are

concerns over the negative environmental impacts to nearshore reefs which could

result from a large scale renourishment project.

17. For over ten years the County has sought a solution to the erosion

that has plagued the project site. To that end, the County established a

special committee, the Beach and Shore Preservation Advisory Committee, to

review options available and to recommend long-term solutions to the County.

18. In June, 1993, the County contracted with Petitioner Walther to

prepare a map of the nearshore hardbottom reef and to evaluate alternatives for

beach restoration at the project site. Such work was completed, and

recommendations from Mr. Walther were not incompatible with the installation of

the proposed reef.

19. The proposed installation should not adversely affect the hardbottom

reefs which are in the vicinity of the PEP units. Such hardbottom is considered

environmentally sensitive; however, no PEP unit will be placed on the hardbottom

or so close to it that it will disturb the organisms located within the

hardbottom community.

20. In December, 1993, the County submitted an application for an

experimental coastal construction permit to install the PEP reef which is at

issue.

21. The PEP units are to be placed in seven to ten feet of water.

22. The PEP reef is designed to reduce wave heights, particularly during a

storm event, which should reduce the wave energy and currents in the lee of the

structure.

23. While it is hoped the units will deter erosion, they may also cause

some accretion to the beach. Whether such accretion would be temporary or long-

term is uncertain.

24. As a result of studies performed by the University of Florida under

the direction of Dr. Dean, and supported by the County's coastal engineer Mr.

Donaldson, it was determined that the PEP units should be installed in shorter

lengths (than originally designed) with gaps between each segment.

Consequently, the installation proposed by the County is not continuous but is

staggered and gapped.

25. The installation proposed by the County is unique in that the coastal

characteristics of the area and the proposed design should produce results

different from past installations of reef structures in Palm Beach County,

Florida. As a result, studies performed by Dr. Dean in connection with a reef

installed in Palm Beach County have been discounted as dissimilar to the one

proposed in this case.

26. In reviewing the subject permit application, the Department requested

additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo

performed numerical modeling for the proposed reef system.

27. Based upon Dr. Zarillo's work it is expected that the PEP reef system

will have a positive benefit in that wave height and energy is likely to be

reduced by the installation of the units.

28. The site for the installation is suited for the proposal and is not

within an area that is considered environmentally sensitive.

29. Moreover, the PEP reef itself will add to the development of species

since it should develop into a nursery habitat for young fish and other marine

organisms.

30. The installation of PEP reefs at other locations have proven to be

both successful and unsuccessful. Having considered the studies performed by

Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal

processes, it is likely that the proposed project will be similar enough in

design to installations reviewed by Dr. Bruno to allow the proposed project to

be compared.

31. Dr. Bruno has monitored three installations at three different sites

in New Jersey. Each site had different results based upon conditions of each

location. One site, expected to be most like the proposed site in Vero Beach,

has experienced a reduced rate of erosion.

32. Based upon Dr. Bruno's "real life" experience it is expected that the

proposed installation will result in a reduction of wave height on the order of

10 percent to 20 percent. Consequently, the proposed installation should

provide a benefit to the control of erosion. The reduction of wave height leads

to a reduction in the erosive power of the wave field. Therefore, it is

expected to result in a reduced erosion rate behind the PEP reefs.

33. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work

suggests that "in theory" the proposed site should experience a reduction in

wave height as a result of the proposed installation.

34. As a result, both scientific methods support the proposed project.

35. No scientific study can, however, assure the success of this project.

In fact, success may be derived from the value of the data which will be

gathered during the monitoring period. Such data may assist in the future

design of structures to reduce wave energy.

36. The County's proposed monitoring plan contains detailed and adequate

performance criteria to assure that the PEP reef system will be fully evaluated.

37. The County has provided adequate assurance that it will comply with

the permit conditions, including the modification or removal of the reef system

if directed by the Department.

38. All installation and monitoring as well as removal is to be performed

at the County's expense.

39. The PEP reef system will have no appreciable adverse impact on marine

turtles. Construction is prohibited during nesting season under the terms of

the permit.

40. The PEP reef system will have no adverse impact on swimmers or

boaters. The units are to be clearly marked and identified under the terms of

the permit.

41. No adverse impacts to Petitioners Walther and Clemens should be

incurred as a result of the installation of the proposed project.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

43. The County bears the burden of proof in this proceeding to establish

it is entitled to the permit requested.

44. The permit at issue is governed by Chapter 89-175, Section 27, Laws of

Florida, which provides:

(1)(a) It is the intent of the Florida

Legislature to encourage the development of

new and innovative methods for dealing with

the coastal shoreline erosion problem being

experienced by the state.

(b) The department may authorize the const-

ruction of pilot projects using alternative

coastal shoreline erosion control methods upon

receipt of an application from a riparian

property owner or governmental entity and upon

consideration of the facts and circumstances,

including, but not limited to:

1. The area for which the activity is being

proposed has been identified in the beach

management plan as an eroded sandy beach resource.

2. A determination has been made by the

department that the proposed project site is

properly suited for analysis of the results

of the proposed activity.

3. Any applicant applying for a permit for

such an activity, be required to establish a

monitoring plan upon which an analysis of the

project's performance may be determined.

4. Submission of adequate engineering design

and theory to support the proposed activity.

5. A determination has been made by the

department that the proposed project site is

not situated in an environmentally sensitive

area which may damage marine resources.

(c) The department shall, as a condition to

the granting of a permit under this section,

require mitigation, financial or other

assurances acceptable to the department as

may be necessary to assure performance of

conditions of the permit or enter into con-

tractual agreements to best assure compliance

with any permit conditions.

(d) The department shall require the applicant,

its successors and assigns, to commit, to the

satisfaction of the department, to remove any

structure, object or installation relating to

the pilot project where the department deter-

mines that the pilot project is having an

adverse impact on the beach and dune system

and to correct the adverse impact.

(e) The Department of Natural Resources

shall evaluate the monitoring program 3 years

from the date of installation to determine the

effectiveness of the pilot project. If the

project is deemed effective, the department

shall release the property owner from the

financial assurance required pursuant to

paragraph (c) of this section. Additionally,

the evaluation shall determine the feasibility

of continued implementation of the pilot project.

45. Additionally, Rule 62B-41.0075, Florida Administrative Code, provides

the following criteria which remain at issue in this cause (the parties have

stipulated all other requirements have been met):

(1) Permit applications for experimental

coastal construction involving new technologies

shall be reviewed in accordance with all appli-

cable provisions of this Chapter and the

following special criteria:

* * *

(b) The proposed location must be properly

suited for a non-biased comprehensive analysis

of the results of the proposed coastal construc-

tion and must include sufficient control sites

where comparative monitoring data can be

obtained which is not influenced by the pro-

posed new technology.

(c) The proposed location must be situated

in an area which is not considered to be an

environmentally sensitive area by the Department.

(d) The project must be supported by adequate

scientific, engineering and design theory or

experimental data demonstrating that it has the

potential to provide a positive benefit to the

coastal system and is not expected to result in

a significant adverse impact. The size and

scope of the field test shall not exceed that

necessary to adequately address the test plan

objective. The requirement for supporting

experimental data shall be waived by the

Department if it finds that the proposed pro-

ject has minimal potential for adverse impact.

* * *

(3) The applicant shall present a test plan

to the Department for review. Such plan shall

include a periodic monitoring schedule and

periodic progress reporting schedule with, at

a minimum, annual reporting after the test

phase begins. The periodic reporting shall

include project performance monitoring assess-

ments and survey data and analysis. The test

plan shall also include:

(a) The objectives and nature of the experiment;

(b) The effectiveness measures;

(c) The measures of impacts to the coastal

system, marine turtles, nests and their habitat,

and such other measures as may be required to

assess attainment of the objectives;

(d) The procedures to be followed;

(e) The time sequence;

(f) The data to be collected;

(g) The test equipment to be used;

(h) The names and technical qualifications of

the individuals performing the tests and analyzing

the results;

(i) Contingency plans; and

(j) Such other components as may be necessary

to assess the impacts and performance of the project

as determined by the Department.

46. The County's application satisfies all of the criteria established by

Chapter 89-175, Section 27, Laws of Florida, and Rule 62B-41.0075, Florida

Administrative Code. In particular, the County has satisfied the areas of

dispute in this proceeding.

47. The County argues that, in addition to providing evidence of having

met the criteria applicable to this case, Petitioners have failed to prove that

they have standing to challenge the permit at issue. More specifically, the

County argues that the Petitioners have failed to establish that they will be

adversely impacted by the installation of the PEP reef.

48. The petition alleged that Mr. Walther would be adversely affected

since the beach and dune system would be eroded, and since the submerged

breakwater would pose a hidden hazard to boaters, swimmers, and marine turtles.

Petitioner Walther has failed to establish the accuracy of these alleged

negative impacts. The beach and dune system are already under stresses from

erosion in the area of the permit site. While the proposed PEP reef system may

not stop erosion it should not accelerate the reduction of beach. It may cause

an accretion of beach.

49. With regard to the other alleged negative impacts, it is unlikely

Petitioner Walther as a boater or swimmer will be adversely impacted by the PEP

reef system as he is imminently aware of its proposed location and as the

County's proposals to mark and delineate the location of the reefs will be

adequate to place the public on notice of its existence. Any impact to turtles

should be minimal.

50. As to the standing of Petitioner Clemens, the petition in this cause

alleged that she owns property approximately 1000 feet north of the proposed

site and that the PEP reef will adversely affect her property by causing erosion

and damages to her property. Moreover, the petition alleged that Petitioner

Clemens' family and guests who enjoy the surrounding beaches for swimming and

recreational use would be impacted. As indicated above, such allegations are

not supported by the weight of the evidence in this case. Mrs. Clemems'

property is not likely to suffer any additional erosion as a result of the reef

system. It would be more likely, based upon the evidence presented, that her

beach could incur (at least initially) some accretion of beach.

51. As to the likelihood that Mrs. Clemens' family or guests would be

unable to enjoy the beach for swimming and recreational use, such allegation is

not supported by the record in this cause. For the reasons set forth above, the

reef system (which will be clearly marked) should not pose a hazard to boaters,

swimmers or others using the shore in the vicinity of Mrs. Clemens' home.

52. Significantly, the cost of the proposed project is not a criteria of

the law or rule governing this proceeding. As a result, Petitioners' difference

of opinion as to the merit of investing in this project cannot serve as a basis

for its denial. Whether it will prove to be a prudent investment of public

funds cannot be considered. Although unsupported by the weight of the evidence,

Petitioners objections to the subject permit do not establish an improper

purpose for which an award of attorneys fees and costs will be entered.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Department of Environmental Protection enter a final order

approving the permit requested by the County.

DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon

County, Florida.

___________________________________

JOYOUS D. PARRISH, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045

Rulings on the proposed findings of fact submitted by the Petitioner Walther:

1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47,

50, 51, 59, and 60 are accepted.

2. With regard to paragraph 2, the allegation is hearsay as it relates to

the record cited; however, although not stipulated, the record most likely

supports the paragraph in substance.

3. Paragraph 5 is rejected as irrelevant. There is no evidence to support

the factual conclusion that because another permit holder has failed to remove a

reef that the County will similarly default on its obligation to do should the

agency order the PEP reef removal.

4. Paragraph 11 is rejected as irrelevant.

5. Paragraph 14 is rejected as irrelevant if it purports to suggest the

contracting was improper; this proceeding does not consider the propriety of the

contracting process.

6. With the deletion of any emphasis and the last sentence which are

rejected as argument, paragraph 15 is accepted.

7. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the

weight of credible evidence.

8. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens

opposed the permit and requested a hearing.

9. Paragraph 27 is rejected as an incomplete statement and therefore not

supported by the total weight of credible evidence.

10. Paragraph 28 is rejected as irrelevant or contrary to the weight of

credible evidence.

11. Paragraphs 30 through 33 are rejected as law not statements of fact.

12. Paragraph 34 is accepted in general terms but not as to the specific

measurements cited.

13. Paragraphs 35 through 38 are rejected as contrary to the weight of all

credible evidence. It is determined that the site is suitable for a non-biased,

comprehensive analysis of the project.

14. Paragraphs 39 through 41 are rejected as contrary to the weight of all

credible evidence.

15. Paragraph 43 is rejected as irrelevant.

16. With regard to paragraph 45, it is accepted the reefs may settle but

such is expected to be unlikely to impair the overall performance of the

structure; therefore, the paragraph, as drafted, must be rejected as contrary to

the weight of all credible evidence.

17. Paragraph 46 is rejected as argument or contrary to the weight of all

credible evidence.

18. Paragraph 48 is rejected as argument or contrary to the weight of all

credible evidence.

19. Paragraph 49 is rejected as unclear or incomplete to stand as a

finding of fact or contrary to the weight of all credible evidence.

20. Paragraph 52 is rejected as irrelevant.

21. Paragraph 53 is rejected as incomplete to stand as a finding of fact

or contrary to the weight of all credible evidence.

22. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the

weight of all credible evidence.

23. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a

current being created that would run parallel to the shoreline as a result of

the reef installation but otherwise rejected as irrelevant or contrary to the

weight of all credible evidence.

24. With regard to paragraph 62, such statement is generally true;

however, Dr. Dean did not conduct any sediment transportation test to verify

that the structure in an open setting (as opposed to the experimental tank)

would transport sediment as inferred.

25. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the

weight of credible evidence.

26. Paragraph 68 is accepted as accurate but the agency did not express,

and the record does not establish, that there is a concern that the County may

not honor its agreement to remove the PEP reef if directed to do so.

27. Paragraph 69 is rejected as irrelevant.

Rulings on the proposed findings of fact submitted by the Petitioner Clemens:

1. None submitted.

Rulings on the proposed findings of fact submitted by the Respondent Department:

1. All proposed findings of fact adopted by the Department as listed are

accepted. See comments below as to rulings on the proposed findings of fact

submitted by the County.

Rulings on the proposed findings of fact submitted by the Respondent County:

1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27

through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted.

2. With regard to paragraph 6, it is accepted that an extensive

renourishment program might damage the sensitive nearshore hardbottom community;

otherwise rejected as irrelevant.

3. With regard to paragraph 16, with the deletion of the word

"significantly" in the second sentence and the last sentence which are rejected

as irrelevant, editorial comment, argument or not supported by the total weight

of credible evidence, it is accepted.

4. With regard to paragraph 18, the first sentence is accepted. As to the

balance of the paragraph, with the deletion of the word "significantly" and the

substitution of "might" for "could", the paragraph is accepted. Otherwise

rejected as an inaccurate characterization of the weight of the record.

5. With regard to paragraph 19, the first sentence is accepted. The

remainder of the paragraph is rejected as irrelevant.

6. Paragraph 22 is rejected as a compound statement of proposed fact some

of which are accurate but which taken in whole constitute argument, unnecessary,

irrelevant or not supported by the weight of the credible evidence.

7. Paragraph 25 is rejected as unnecessary or irrelevant.

8. With regard to paragraph 31, with the deletion of the word

"significant" in sentence three, the paragraph is accepted.

9. With regard to paragraph 32, with the deletion of the word

"significant" in sentence two, the paragraph is accepted.

10. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant.

11. With regard to paragraph 35, the first sentence is accepted. The

remainder of the paragraph is rejected as unnecessary, comment, argument, or

irrelevant.

12. Paragraphs 36 through 38 are rejected as unnecessary, comment,

argument, or irrelevant. The proposed PEP reef should not adversely impact the

Vero Beach shoreline.

13. Paragraph 44 is rejected as unnecessary, comment, argument, or

irrelevant.

14. With regard to paragraphs 47 through 53, it is accepted that the

Petitioners did not establish that they will be substantially affected by the

proposed project; however, their conduct does not rise to the level to establish

participation in the administrative process was for an improper purpose.

Consequently, the paragraphs are rejected as argument, irrelevant or contrary to

the weight of the credible evidence.

COPIES FURNISHED:

Steve Lewis, Esquire

John W. Forehand, Esquire

LEWIS, LONGMAN & WALKER, P.A.

215 S. Monroe Street, Suite 702

Post Office Box 10788

Tallahassee, Florida 32302

Kevin S. Hennessy, Esquire

LEWIS, LONGMAN & WALKER, P.A.

2000 Palm Beach Lakes Boulevard

Suite 900

West Palm Beach, Florida 33409

Michael P. Walther

1725 36th Avenue

Vero Beach, Florida 32960

Adele Clemens

3747 Ocean Drive

Vero Beach, Florida 32963

Thomas I. Mayton, Jr.

Dana M. Wiehle

Assistants General Counsel

Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherall

Secretary

Department of Environmental Regulation

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante

General Counsel

Department of Environmental Regulation

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

MICHAEL WALTHER and

ADELE CLEMENS,

Petitioners,

vs. OGC Case No. 95-1598

DOAH Case No. 95-4045

DEPARTMENT OF ENVIRONMENTAL

PROTECTION and INDIAN RIVER

COUNTY,

Respondents.

_____________________________/

FINAL ORDER

On February 16,1996, a Hearing Officer with the Division of Administrative

Hearings (hereinafter "DOAH") submitted her Recommended Order to the Department

of Environmental Protection, (hereinafter "Department"). The Recommended Order

was also served upon the Petitioners, Michael Walther and Adele Clemens,

hereinafter ("Petitioners"), and upon Co-Respondent, Indian River County

(hereinafter" County"). A copy of the Recommended Order is attached as Exhibit

A.

On March 5,1996, Exceptions to Recommended Order were filed with the

Department's Office of General Counsel by Petitioner, Michael Walther. No

exceptions were filed on behalf of Petitioner, Adele Clemens. On March 14,1996,

a joint Response to Petitioner's Exceptions to Recommended Order was filed on

behalf of the Department and the County. The matter is now before the Secretary

of the Department for final agency action.

BACKGROUND

On June 21,1995, the Department issued to the County coastal construction

permit number DB59A0342 IR, subject to various special conditions including a

requirement that no work shall be conducted until the Department issues a notice

to proceed. The permit would authorize the installation of a prefabricated

erosion prevention reef ("PEP reef") 1/ below the mean high water line on

sovereign lands of the State of Florida off the Atlantic coast at Vero Beach in

Indian River County, Florida.

The Petitioners timely filed a petition opposing the PEP reef project and

requesting a formal administrative hearing. The matter was forwarded to DOAH

for formal proceedings and was assigned to DOAH Hearing Officer Joyous D.

Parrish (hereafter "Hearing Officer"). A formal hearing was held before the

Hearing Officer in Vero Beach on December 19-21,1995. The testimony of expert

and lay witnesses was presented by the parties and various exhibits were

admitted into evidence at the hearing.

The Hearing Officer entered a Recommended Order on February 16,1996,

concluding that the County had satisfied its burden of proof that the proposed

PEP reef project would comply with the governing statutory and rule requirements

for pilot or experimental coastal erosion control projects. The Hearing Officer

ultimately recommended that the Department enter a Final Order approving the

County's requested permit.

RULING ON THE MOTION TO STRIKE PETITIONER WALTHER'S EXCEPTIONS

The joint Response to Petitioner's Exceptions to Recommended Order filed on

behalf of the County and the Department contained a Motion to Strike the

Petitioner's Exceptions on the ground that they were not filed within 15 days as

required by Rule 62-103.200(1), Florida Administrative Code. 2/ The

Petitioner's Exceptions, however, specifically cite former Rule 16-5.001,

Florida Administrative Code, as the authority for filing. Former Chapter 16-5,

Florida Administrative Code, was transferred intact to Chapter 62-5, Florida

Administrative Code, effective August 10,1994.

Former Chapter 16-5, Florida Administrative Code, adopted effective August

3, 1978, set forth procedural rules for agency review of a hearing officer's

recommended orders by the former Department of Natural Resources. 3/ It is

undisputed that the subject application for a PEP reef was filed by the County

and reviewed by the Department under the current statutory and rule provisions

previously administered by the former Department of Natural Resources. See

Section 161.041, Florida Statutes (1991); Rules 16B-41.002(17) and 16B-41.0075,

Florida Administrative Code (8-23-92).

In contrast to Rule 62-103.200(1), present Rule 62-5.001 (formerly Rule 16-

5.001), Florida Administrative Code, provides that within "twenty-five (25) days

from the date the recommended order is served, the parties shall be entitled to

submit written exceptions thereto." The current rule provisions of Rule 62-5.001

appear to be controlling in this administrative proceeding involving the PEP

reef application filed with the Department pursuant to Section 161.041, Florida

Statutes; Chapter 89-175, Section 27, Laws of Florida; Rule 62B-41 .0075,

Florida Administrative Code. Consequently, the Motion to Strike Petitioner

Walther's Exceptions is denied. 4/

RULINGS ON PETITIONER WALTHER'S EXCEPTIONS

Exceptions 1. 2. 3. and 4

These four exceptions take issue with various findings of fact of the

Hearing Officer as set forth in paragraphs 13, 28, 31, and 34 of the Recommended

Order. In these paragraphs, the Hearing Officer finds that the project site is

suitable for this experimental project, is not within an area considered to be

environmentally sensitive, and that the proposed PEP reef project is supported

by the studies of Dr. Bruno and the modeling work of Dr. Zarillo.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may

reject or modify the conclusions of law and interpretations of administrative

rules contained in the recommended order of a hearing officer. These statutory

provisions state, however, that findings of fact of a hearing officer may not be

rejected or modified, unless the agency determines from a review of the complete

record that such findings were not based on competent substantial evidence.

See, e.g., Martuccio v. Dept. of Professional Regulation, 622 So.2d 607, 609

(Fla. 1st DCA 1993); Freeze v. Dept. of Business Regulation, 556 So.2d 1204

(Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d

1122 (Fla. 1st DCA 1987). Thus, if the record of the DOAH proceedings discloses

any competent substantial evidence to support the challenged findings of fact

made by the Hearing Officer, the Department is bound by such factual findings in

this agency review of the Recommended Order. Bradley, supra, at 1123.

At the DOAH formal hearing, the County presented the live or deposition

testimony of six expert witnesses and five factual witnesses in support of

approval of the proposed PEP reef project. 5/ Furthermore, a total of 42

additional exhibits were admitted into evidence at the hearing in support of the

County's requested permit. This extensive expert and factual testimony and

related documentary evidence amply supports approval of the County's proposed

PEP reef project and constitutes "competent substantial evidence" of record upon

which the challenged findings of fact of the Hearing Officer were properly

based. (See, e.g., T. 36-147 [Donaldson]; 297-398 [Zarillo]; 398-223

[Echternacht; Res. Ex. 2 [Baird deposition]; Res. Ex. 3 [Bruno deposition].

Findings of Fact 13, 28, 31, and 34 reflect the weight given and

credibility accorded by the Hearing Officer to the testimony of the various

expert and factual witnesses testifying in support of the County's proposed PEP

reef project. As noted above, Florida law imposes substantial limitations on

the authority of an agency to reject or modify the findings of fact of a hearing

officer. The agency reviewing a recommended order may not reweigh the evidence,

resolve conflicts therein or judge the credibility of witnesses, as those are

evidentiary matters within the province of the Hearing Officer as the trier of

the facts. Martuccio, at 622 So.2d 609; Heifetz v. Dept. of Business

Regulation, 475 So.2d 1277,1281 (Fla. 1st DCA 1985).

A reviewing agency is also not free to modify the findings of fact in a

recommended order to fit a conclusion desired by a party by interpreting the

evidence or drawing inferences therefrom in a manner different from the

interpretations made and inferences drawn by a hearing officer from the evidence

of record. Id. at 1281-1282. The challenged findings of fact of the Hearing

Officer in paragraphs 13, 28, 31, and 34 of the Recommended Order appear to be

reasonable interpretations made and inferences drawn from competent substantial

evidence of record and are adopted in their entirety. Consequently, Petitioner

Walther's exceptions 1, 2, 3, and 4 are denied.

Exception 5

Petitioner Walther's numbered exception 5 disputes the correctness of the

Hearing Officer's legal ruling in Conclusion of Law 46 that the County has

demonstrated that its proposed PEP reef project "satisfied all the criteria

established by Chapter 89- 175, Section 27, Laws of Florida, and Rule 62B-41

.0075, Florida Administrative Code" at issue in this proceeding. This exception

is primarily factually-based and contains repeated statements reflecting

Walther's opinion that the "County offered no competent substantial evidence" at

the DOAH formal hearing to support the Hearing Officer's legal conclusion that

the proposed PEP reef project complies with the above-cited statutory and rule

provisions.

This factually-based exception is without merit for the reasons set forth

in the preceding ruling. Moreover, the Department permitting staff construed

the pertinent provisions of Chapter 89-175, Laws of Florida, and Rule 62B-41

.0075, Florida Administrative Code, and determined that the County's PEP reef

application demonstrated compliance with these statutory and rule requirements.

The case law of Florida holds that great deference should be accorded to

administrative interpretations of statutes and rules that the agency is required

to enforce, and such administrative interpretations should not be overturned

unless clearly erroneous. See, e.g., Falk v. Beard, 614 So.2d 1086,1089 (Fla.

1993); Dept. of Environmental Regulation v. Gold ring, 477 So.2d 532, 534 (Fla.

1985); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991);

Reedy Creek Improvement Dist. v. Dept. of Env. Regulation, 486 So.2d 642, 648

(Fla. 1 st DCA 1986). The extensive expert testimony presented by the County at

the DOAH formal hearing in support of the PEP reef project and the Hearing

Officer's related favorable conclusions of law and recommendation affirming the

position of the Department permitting staff reflect that these administrative

interpretations of the controlling statutory and rule provisions are not clearly

erroneous. Petitioner Walther's numbered exception 5 is denied.

Exception 6

This exception of Petitioner Walther challenges the correctness of the

Hearing Officer's Finding of Fact 41 and her related Conclusion of Law 48. In

these two paragraphs of the Recommended Order, the Hearing Officer finds and

concludes that Petitioners had failed to establish their allegations that they

would be adversely affected by the proposed PEP reef project due to increased

erosion and public safety hazards. 6/ Petitioner Walther did present the

expert testimony of Dr. Robert Dean, who was accepted as an expert in coastal

engineering. Dr. Dean testified to his opinion that the proposed PEP reef would

have a significant adverse impact on the beach due to anticipated accelerated

erosion. As noted above, however, the County presented the live and deposition

testimony of six expert witnesses supporting the proposed PEP reef project.

The decision to accept one expert's testimony over that of another is a

matter within the sound discretion of the Hearing Officer and cannot be altered,

absent a complete lack of competent substantial evidence of record from which

the finding could be reasonably inferred. See, Collier Medical Center v. State

Dept. of HRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); and Florida Chapter of

Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA

1983). Furthermore, the sufficiency of the facts required to form the opinion

of an expert must normally reside with the expert and any purported deficiencies

in such facts relate to the weight of the evidence, a matter also within the

province of the Hearing Officer as the trier of the facts. Gershanik v. Dept.

of Professional Regulation, 458 So.2d 302, 305 (Fla. 3rd DCA 1984), rev. den.

462 So.2d 1106 (Fla. 1985). The cumulative expert testimony presented on behalf

of the County's permit request constitutes competent substantial evidence

supporting the Hearing Officer's factual finding and related legal conclusion

that the proposed PEP reef project will "not be expected to result in a

significant adverse impact" as required by Rule 62B-41 .0075(1 )(d), Florida

Administrative.

In the landmark case of Florida Dept. of Transportation v. J.W.C. Co. Inc.,

396 So.2d 778 (Fla. 1st DCA 1981), the court wrote a seminal opinion dealing

with the respective evidentiary burdens of the permit applicant and permit

challenger in a formal administrative hearing. The court concluded that once

the permit applicant has presented its evidence and has made a preliminary

showing of "reasonable assurances" that applicable Department standards will not

be violated, then the burden shifts to the permit challenger to go forward with

evidence to prove that the applicant is not entitled to the permit. Id. at 789.

The court also observed in the J.W.C. Co. opinion that the permit challenger

must present "contrary evidence of equivalent quality" to that presented by the

permit applicant. Id. at 789.

In this proceeding, the County did go forward and present extensive

testimony of six expert witnesses that the PEP reef has the potential to provide

a positive benefit to the beach and dune system at the proposed project site.

Petitioner Adele Clemens did not present any evidence at the DOAH formal

hearing. Petitioner Walther presented only one expert witness, Dr. Dean, who

testified in opposition to the PEP reef project. A review of the transcript in

this case makes it understandable why the Hearing Officer would be more

impressed with the cumulative weight of expert testimony presented by the County

in support of the permit request than with the sole expert testimony of Dr. Dean

in opposition to the project.

In view of the above, Petitioner Walther's numbered exception 6 is denied.

CONCLUSION

In the year 1989, the Florida Legislature enacted Chapter 89-175, Laws of

Florida. Paragraph (1)(a) of Section 27 of Chapter 89-175 contained the express

intent of the Legislature "to encourage the development of new and innovative

methods for dealing with the coastal shoreline erosion problem being experienced

by the state." It is undisputed that the City of Vero Beach and adjacent coastal

areas in Indian River County have experienced serious beach erosion problems in

recent years. The County's proposed PEP reef appears to be within the purview

of the new and innovative erosion control pilot projects envisioned by the

Legislature.

"Pilot" or "experimental" projects by their very nature carry a risk of

failure. This potential for failure, however, was expressly recognized and

addressed by the Legislature when it provided that the Department "shall require

the applicant ... to remove any structure, object or installation relating to

the pilot project where the Department determines that the pilot project is

having an adverse impact on the beach and dune system and to correct the adverse

impact." See CH. 89-175, Section 27(1)(d), Laws of Florida. Such a removal and

restoration requirement is set forth in Special Condition 2.2 of the Permit

issued to the County on June 21,1995. It is therefore ORDERED:

A. The Motion to Strike Petitioner Walther's Exceptions to Recommended

Order as set forth in the joint Response filed on behalf of the County and the

Department is DENIED.

B. The Recommended Order of the Hearing Officer, as modified herein with

respect to the legal issue of Petitioners' standing to challenge the County's

permit request, is adopted and incorporated herein by reference.

C. Permit No. DB59A0342 lR is ISSUED to the County to construct a PEP reef

in the waters of the Atlantic Ocean at the proposed site off the coast of Vero

Beach, subject to the conditions set forth in the permit previously approved by

the Department on June 21,1995.

Any party to this Order has the right to seek judicial review of the Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, 3900 Commonwealth

Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of

the Notice of Appeal accompanied by the applicable filing fees with the

appropriate District Court of Appeal. The Notice of Appeal must be filed within

30 days from the date of this Order is filed with the clerk of the Department.

DONE AND ORDERED this 27th day of March, 1996, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT FILED, ON THIS

DATE, PURSUANT TO 120.52 FLORIDA

STATUTES, WITH THE DESIGNATED DEPARTMENT

CLERK, RECEIPT OF WHICH IS HEREBY

ACKNOWLEDGED.

_________________ ______________

KATHY C. CARTER 03/29/96

ENDNOTES

1/ A PEP reef consists of units of prefabricated reinforced concrete which are

installed as submerged offshore breakwater structures. In this case, the

proposed project consists of PEP units six feet high and approximately 12 feet

long in the shore-parallel direction and 15 feet long in the shore- normal

direction. The proposed total length of the project is about 3000 feet parallel

to the shore, although the location of the various PEP units would be staggered

rather than continuous.

2/ The Recommended Order was entered on February 16,1996, and Petitioner

Walther's Exceptions to Recommended Order were filed with the Department's

Office of General Counsel on March 5,1996. Thus, the Motion to Strike correctly

notes that these Exceptions were not filed until the sixteenth after the

Recommended Order was entered.

3/ The former Department of Natural Resources and the former Department of

Environmental Regulation were transferred by a type three transfer to a newly

created Department of Environmental Protection effective July 1, 1993. See

Chapter 93-213, Sections 3 and 8, Laws of Florida.

4/ The Motion to Strike also asserts that Petitioner's Exceptions should be

stricken because they were not accompanied by a transcript of the DOAH formal

hearing. The purpose of the requirement that exceptions to a recommended order

disputing a hearing officer's finding of fact must be accompanied by a complete

transcript of the hearing is to provide the Secretary the "complete record"

required by Section 120.57(1)(b)10, Florida Statues, in connection with agency

review of factually-based exceptions. In this case, the original transcript of

the formal hearing was included in the box of hearing exhibits received from

DOAH and was reviewed by the Secretary. Thus, there appears to be no prejudice

to the Department or the County or adverse impact on agency review in this case

due to the failure of the pro se Petitioner to furnish the Secretary an

additional copy of the formal hearing transcript in connection with his

Exceptions to Recommended Order.

5/ The County presented the live testimony of Don Donaldson, employed as the

County's coastal engineer; Jeremy Craft, the director of the Department's

environmental resource permitting division; Dr. Walter G. Nelson, accepted as an

expert in biological oceanography; Fran Adams, a county commissioner; John R.

Fletemeyer, accepted as an expert in marine turtles; Gary Zarillo, accepted as

an expert in physical oceanography; Ken Echternacht, accepted as an expert in

hydrology; and Beth Mitchell, the vice president and director of operations for

American Coastal Engineering. In addition the deposition testimony of Joan

Pope, William Baird, and Dr. Michael Bruno, was admitted into evidence as

County's Exhibits 1, 2, and 3. No objections had been made by Petitioners to

the qualifications of Mr. Baird and Dr. Bruno as experts in the fields of

coastal engineering and modeling of coastal processes. (County's Ex. 2 at p.6;

Ex. 3 at p. 9).

6/ In Conclusions of Law 47-51, the Hearing Officer deals with the issue of

standing of the Petitioners to challenge the County's proposed PEP reef project.

These conclusions of law seem to be based on the premise that standing of a

party to challenge an agency action in a formal administrative proceeding is a

matter to be proven at the final hearing. The failure of parties challenging

permits to ultimately prove their contentions at a formal evidentiary hearing,

however, is not to be confused with their failure to demonstrate the necessary

potential injury to confer standing by sufficient averments in their petitions

or other prehearing pleadings. In the case of Village Park v. State. Dept. of

Business, 506 So.2d 426 (Fla. 1st DCA 1987), the court rendered a lengthy

opinion discussing the holding in Agrico Chemical Co. v. Dept. of Environmental

Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). The court concluded on page 433

of the Village Park opinion that a petitioner can satisfy the injury-in-fact

standard set forth in Agrico by "demonstrating in his petition either: (1) that

he had sustained actual injury in fact at the time of filing his petition; or

(2) that he is immediately in danger of sustaining some direct injury as a

result of the challenged agency's action." (emphasis supplied) Thus, it is the

sufficiency of the allegations in the petitions that determine standing in

administrative proceedings, not the ultimate sufficiency of the evidence at the

formal hearing. This case proceeded to a formal evidentiary hearing on the

merits before the Hearing Officer where the County was required to prove its

entitlement to the requested permit and the Petitioners were afforded the

opportunity to present evidence in opposition to the PEP reef project. Standing

of Petitioners to challenge the County's requested permit was not even listed as

a "Legal Issue in Dispute" in the Prehearing Statement filed by the parties with

DOAH.

CERTIFICATE OF SERVICE

HEREBY CERTIFY that a copy of the foregoing Final Order has been sent via

United States Postal Service to:

Michael P. Walther, P.E., pro se Steve Lewis, Esquire

1725 36th Avenue Kevin S. Hennessy, Esquire

Vero Beach, Florida 32960 John W. Forehand, Esquire

Lewis, Longman & Walker, P. A.

Adele Clemens, pro se Post Office Box 10788

3747 Ocean Drive Tallahassee, Florida 32302

Vero Beach, Florida 32963

Ann Cole, Clerk and

Joyous D. Parrish, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

and by hand delivery to:

Thomas I. Mayton, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

this 29th day of March ,1996.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

________________________________

J. TERRELL WILLIAMS

Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

Telephone [phone]