02-003252 Richard Barnett And Stephen Hanlon vs. Daniel G. Wentz, Doris Wentz, And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, June 5, 2003.

Summary: Applicant/Respondent failed to show that artificial dune would be protective of upland property and thus a Coastal Permit could not be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD BARNETT AND STEPHEN )

HANLON, )

)

Petitioners, )

)

vs. ) Case No. 02 - 3252

)

DANIEL G. WENTZ, DORIS WENTZ, )

AND DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings. A formal hearing

was held Decemb er 2, 3 and 4, 2002, in Tallahassee, Florida.

The appearances were as follows:

APPEARANCES

For Petitioners: Kenneth G. Oertel, Esquire

Patricia A. Renovitch, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

301 S. Bronough Street, F ifth Floor

Tallahassee, Florida 32301

For Respondents: Charles T. Collette, Esquire

Department of Environmental Protection

Office of the Attorney General

3900 Commonwealth Boulevard, Mail Stop - 35

Tallahassee, Florida 32399 - 3000

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern whether

the Respondents, the permit applicants, Daniel and D oris Wentz,

are entitled to a Coastal Construction Control Line Permit

allowing them to build a single - family home seaward of the

coastal construction control line on Cape San Blas in Gulf

County, Florida.

PRELIMINARY STATEMENT

This cause arose when the a pplicants the Wentzes, filed an

application seeking a Coastal Construction Control Line Permit

to build a single family dwelling in Gulf County, Florida, on

parcel number 6268 - 076R (the property). The application was

filed on February 9, 2000. On July 3, 2002, the Department

issued "Final Order," also known as permit GU - 305, which was

proposed final agency action purporting to authorize the

applicants to construct a single - family dwelling and ancillary

structures or facilities. The Petitioners filed a ti mely

petition for formal hearing and the matter was referred to the

Division of Administrative Hearings on August 16, 2002, and

assigned to Administrative Law Judge, Charles A. Stampelos, on

August 21, 2002. The cause was later assigned by transfe r to P.

Michael Ruff, Administrative Law Judge. On September 11, 2002,

a notice of hearing was issued setting the hearing for

December 2 - 4, 2002, in Tallahassee, Florida.

On October 15, 2002, the Petitioners filed a Motion to

Amend the Petition and an Am ended Petition for Formal Hearing.

That motion to amend was granted by order of October 25, 2002,

subject to certain limitations set forth in the Order of that

date by the Administrative Law Judge.

The Petitioners own a townhouse on a lot immediately

adj acent to the property in question where the proposed dwelling

would be built by the permit applicants. They asserted in their

petition, in essence, that the Department (DEP) lacks authority

to issue the permit because the proposed dwelling is seaward of

t he 30 - year "erosion control line" and on the frontal dune,

because it would result in a "take" of marine turtles or turtle

habitat, and that it otherwise fails to comply with Sections

161.053 and 370.12(1)(c)(1), Florida Statutes, and Rule 62B -

33.005, Flor ida Administrative Code.

The cause came on for hearing as noticed. The Petitioners

presented the testimony of five witnesses one of whom was an

expert witness. Twenty - five of the Petitioners exhibits were

admitted into evidence. The applicants presente d the testimony

of four witnesses, two of whom were experts. Fourteen of the

applicants' exhibits were admitted. The Department presented

the testimony of one witness and twelve Department exhibits were

admitted into evidence.

The parties ordered a tr anscript of the proceedings and

requested a 45 - day period after the filing date of the

transcripts during which to submit proposed recommended orders.

The proposed recommended orders were timely filed and have been

considered in the rendition of this Reco mmended Order.

FINDINGS OF FACT

1. Daniel G. and Doris Wentz (Applicants) own property on

Cape San Blas, Gulf County, Florida, between department

monuments R - 93 and R - 94. The property is 65 feet wide and

extends to the mean high water line of the Gulf o f Mexico. When

it was plated in 1980, the property was some 350 feet deep

between the landward eastern - most boundary and the waterward or

western - most boundary, which is at the mean high water line

(MHWL) of the Gulf. About 47 percent of the property's t otal

depth has eroded since that time, such that some 90 feet of the

property, by 65 feet wide, lies landward of the crest of the

artificial berm at issue. The proposed house will be built 20

feet from the landward rear property boundary (east boundary).

2. The applicants propose to construct a pile - supported,

single - family dwelling on that property with a wooden deck,

pervious parking area, landward of the dwelling, a concrete slab

under the dwelling and a septic tank and drain field to the

southeast si de of the dwelling. All these structures and

improvements are seaward of the coastal construction control

line established for Gulf County.

3. The landward side of the dwelling to be located 20 feet

seaward of the eastward or landward boundary of the pr operty,

cannot be located more landward or eastward due to local

government set - back line requirements. The dwelling complies

with all applicable department structural requirements. It is

piling - supported and the lowest structural member is located

above the department's design elevation. It meets all

applicable wind load, wave, hydro - static and hydro - dynamic load

requirements associated with a "100 year storm" event. The

proposed dwelling would comply with all pertinent local set - back

requirements, bui lding code requirements and Gulf County growth

management plan requirements. A permit has been issued

authorizing construction of the septic tank and drain field, by

Gulf County.

"Freedom" Procedural Background

4. This controversy originally arose when a prior owner of

the property, Richard Price, submitted an application for a

Coastal Construction Control Line Permit authorizing

construction of a single family dwelling on the above - referenced

parcel of property. That application was submitted on

Dece mber 20, 1999, and on February 9, 2000, the new owners of

the property, the Wentzes, submitted a similar application.

5. The Department's Division of Water Resource Management

and Office of Beaches and Coastal Systems requested the Florida

Fish and Wildli fe Conservation Commission (Commission) through

its office of Environmental Services, to review the applicants'

plans for the proposed house with a view to deciding whether the

project would result in a take of marine turtles due to habitat

destruction or similar considerations. The DEP, by policy, will

not issue a coastal construction control line permit in the

absence of such review or if commission review determines the

project would result in a "take" with regard to marine turtles.

6. On March 14, 2 000, Bradley Hartman of the Commission's

office of Environmental Services responded to the Department's

request by stating that the project would result in a take of

marine turtles through interference with breeding behaviors, as

envisioned in Section 370. 12(1)(c), Florida Statutes, and that

therefore the application should be denied.

7. On May 25, 2000, Director Hartman again wrote to DEP

responding to a request for commission review of revised plans

by the applicant, which showed that the dwelling would be

proposed be located approximately 25 feet landward on the

"frontal dune". The Commission again took the position that the

revised project would constitute a "take" of marine turtles as

well.

8. Thereafter on May 30, 2000, the administrator of DEP's

bureau of Beaches and Wetland Resources issued an assessment

recommending denial of the applicants' application because it

would constitute a "take" of marine turtles. The Department's

position to initially choose to deny the permit application was

also b ased on the fact that it believed that the proposed

dwelling would be built upon the frontal dune on the property

and beach system.

9. Thereafter, on July 18, 2000, Director Hartman of the

Commission notified DEP that the applicant had presented a plan

to restore a dune on the property and moved the proposed

dwelling to a more landward location. Director Hartman's letter

thus stated that if both of these events occurred there would be

no "take" of marine turtles.

10. On June 27, 2002, DEP Administrator A nthony McNeil

prepared an amended assessment of the applicants' pending

project wherein he recommended granting the permit. The change

in recommendation was based upon a March 2002 survey showing

that a man - made dune had been constructed on the property

" approximately 20 feet wide between he seaward and landward toes

and has a crest elevation of plus 16.0 feet (NGVD)" or (National

Geodetic Vertical Datum).

11. The Department noticed issuance of the coastal

construction control line permit (permit) on July 3, 2002. It

had changed its position to a grant posture because the

Department decided that the man - made dune satisfied the

requirements so as to be considered a "frontal dune." If it

were not considered a frontal dune (by complying with the

relevant st atutory qualities a frontal dune must have) the

Department would be denying issuance of a permit, in accordance

with Section 161.053, Florida Statutes.

Description of Subject Property

12. Five aerial photographs showed the applicants' two

lots and the ad jacent, upland, five - unit complex. The

Petitioners own and reside in the northern - most unit, which is

the unit appearing on the left side of their condominium

building in the aerial photographs in Petitioners' exhibit

three. The lot which is the subject of the proceeding is the

northern - most lot of the applicants' two adjacent lots. It is

immediately seaward of the Petitioners' condominium or townhouse

unit. See Petitioners' Exhibit Three in evidence.

13. The Northern boundary of the property is the b oardwalk

shown on the aerials. The only densely vegetated area, which

includes woody species on the property, is where the proposed

home would be built. That is the highest point on the subject

property or approximately 14 to 15 feet NGVD. A second heav ily

vegetated area shown on the area photographs is not on the

subject project and not at issue.

14. The eastern - most portion of the proposed dwelling is

20 feet from the eastern most or landward property line of the

applicants' lot. The roof provides a n overhang for the entire

house including the porch and the septic tank and drain field

would be located southeast of the house on the same lot.

15. An artificial berm or man - made dune was constructed on

the property by the applicant on or about March 18 , 2002. The

property extends to about 90 feet behind or landward of the

artificial berm or dune and the property is 65 feet wide. The

house would be placed 20 feet seaward from the eastern - most or

landward boundary of the subject lot, based upon requirem ents of

the local government set - back from the easement along the

eastern boundary of the property.

Erosion of Beach and Dunes

16. DEP survey monument, R - 94, is about 150 feet from the

property. The property is thus close enough from an engineering

pers pective that it is essentially subject to the same

physiographic changes which are occurring in the vicinity of

monument R - 94. Survey data gathered by the State at the

monument since 1973 creates an historical profile of the

shoreline and the immediate vi cinity of the property, including

the subject property.

17. Because of the progressive erosion of the local beach

system since 1973, the DEP has been forced to relocate monument

R - 94 three times. All survey data at the monument has been

adjusted so that it can be reliably compared over the period of

record. The historical survey data at R - 94 allows for reliable

engineering estimates of shoreline change at this location.

18. The shoreline of the property has exhibited an

extremely high erosion rate ove r the years as to both the MHWL

and the upland dune. On an eroding beach such as this one,

dunes do not build up, but rather are lost as the MHWL recedes

in a landward direction.

19. A 1993 DEP aerial photo shows a home in the immediate

vicinity of mon ument R - 94 and seaward of the subject property.

See Petitioner's Exhibit 15 in evidence. A 1998 aerial of that

same area reveals that the house is no longer there. It was

destroyed by Hurricane Opal in 1996 and ensuing erosion. If it

were still there t he house would be seaward of the present day

MHWL. During the five year period from 1993 to 1998 the MHWL at

R - 94 monument receded 120 feet landward. From January 1998 to

October 2002, the MHWL has receded another 50 feet.

20. The shoreline in the vici nity of and including the

subject property has eroded over a long period of time at a

rapid rate such that it has actually eroded back into the piney

flat woods ecological zone. There are numerous pine tree stumps

on the active beach and surf zone. Indee d the whole Cape San

Blas land form is retreating and rotating to the eastward. The

seaward - most dune formations presently have mature pines growing

on them, indicating a shoreline receding at such a rapid rate

that it has progressed well into different v egetative eco -

systems.

21. The Cape San Blas spit has a north - south orientation

of its shoreline, unlike any other orientation along most of the

northern Gulf Coast mainland or barrier island land forms, which

generally lie in a more east and west orien tation. This

orientation of Cape San Blas spit makes the shoreline more

susceptible to wave energy and recession from being struck by

waves at an angle rather than head - on or at a near perpendicular

approach. Thus the Cape San Blas spit is more highly er osional.

22. The beach in the vicinity of and including the subject

property is moving backward and through the historical upland

dune ridges. These historical dune ridges are not parallel to

the present day shoreline orientation, but rather are at an

angle, or more or less diagonal to the present day shoreline.

Resultingly, there are sections of historical dunes which are on

the existing beach front with gaps between them because they

each represent the ends, on the beach, of separate historic dune

ri dges.

The Frontal Dune

23. A frontal dune is defined in Section 161.053(6)(a)(1),

Florida Statutes, to be "the first natural or man - made mound or

bluff of sand which is located landward of the beach and which

has sufficient vegetation, height, continuit y and configuration

to offer protective value." There is no dispute that a frontal

dune must provide protective value to upland property.

24. The most densely vegetated area on the property, which

includes woody species, is part of the natural frontal d une.

That is, the dune existing at approximately a height of 14 feet

NGVD upon which the subject house is proposed to be built.

25. The property is extremely prone to erosion by any

source of elevated wave energy and, in particular, that

associated with tropical depressions or storms moving through

the Gulf. The destruction of one - half of the man - made dune on

the applicants' property about six months after its

construction, by Tropical Storm Isadore in late September 2002,

illustrates this point. That storm actually made landfall in

the vicinity of Biloxi, Mississippi, approximately 200 miles

west of the subject property. The storm, however, eroded a

total of about 30 feet of beach at the property. The annual

storm activity in the area of monument R - 9 4 has sufficient wave

energy to cause significant beach erosion at the property.

26. According to DEP, when the artificial dune was

constructed it was about 20 feet wide from the landward toe to

the seaward toe and crested at approximately 16 feet in he ight.

On September 12, 2002, the peak was about 15 feet. After

Tropical Storm Isadore, the berm was half as wide. The entire

forward or waterward slope of the original man - made dune had

mostly eroded away leaving a sheer scarp or bluff. After

Tropical Storm Isadore the dune crested at about nine to 14

feet. The return frequency of storm effects from distant

storms, like those of Isadore at the subject property is about

one to two - year frequency. This means that during an average

year the remainder of the man - made dune at this location likely

will be obliterated.

27. The shoreline at the property as measured at monument

R - 94 has progressively receded landward since 1973. There is no

history of episodic accretion or expansion of the shoreline;

instead , the survey data uniformly indicates, for R - 94, that

there is a constant landward recession of the beach and dune

face, due to continuous erosion. The seaward - most dune bluff in

existence at hearing was the eroded face of the man - made dune.

Half of that berm has disappeared due to erosion only short few

months after it was constructed and in March 2002.

28. The duration of the man - made dune on the property can

be determined by calculating the documented recession rate of

the dune formation historically located in the vicinity of the

property. Application of this recession rate will reveal the

likely life of the man - made dune and determine its potential

protective value. Mr. Walther, the engineer who designed the

berm, acknowledged that, indeed, the be rm will eventually be

eroded by storm events and might be obliterated within a year.

29. Measurement by survey of the dunes at R - 94 indicates

that they have historically receded at a far greater rate than

the MHWL. This is because the sand eroded from the dune line

served to nourish the active beach face where the MHWL is

located, so that it recedes landward at a slower rate than the

dune line itself. Using the survey data for DEP monument R - 94,

the MHWL recession rate was calculated at seven feet per year.

The dune recession rate landward at R - 94 however is

approximately 13 feet per year. The width of the remaining man -

made dune is about 10 to 15 feet. Therefore, the dune recession

rate calculated and in evidence, shown by witness Olson,

illustrate s that the remaining portion of the man - made dune will

likely be lost to erosion in a year or a little more. That

calculation and opinion is more persuasive and is accepted.

30. The dune recession at R - 94 was estimated using a 10

foot contour line. Any contour elevation number that reasonably

represents the face of the eroding bluff of the artificial dune

could be used. The result would be basically the same, that

the house proposed to be constructed by the applicants' will be

intercepted by the bluff line in less than three years, since

the proposed dwelling is set back 31 feet from the seaward face

of the artificial dune.

31. Given a dune recession rate of 13 feet per year and

taking into account that the man - made dune was constructed in

March of 2002, it has been shown that the proposed dwelling will

be most likely located on the active beach within five years.

It will be subject to wave action on almost a daily basis. In

ten years the limits of erosion would exceed the home and will

reach the townhouses, including the Petitioners' townhouse,

landward of the proposed dwelling. The applicants' proposed

dwelling will be then totally stranded on the beach or

destroyed, as shown by the testimony of expert engineer Eric

Olson, which was unrefuted an d is accepted.

32. The seasonal high waterline (SHWL) will be at the

proposed home in about 6.6 years from October of 2002. This

finding is calculated by dividing the distance the house lies

from the 2002 seasonal high waterline (46 feet) by seven feet

per year, the erosion rate. That will mean that waves will run

under the house on a daily basis within five years from October

2002. By that time there will be a sandy beach under the house

back to the ten foot contour line.

33. The dune recession rate provides a more reliable

estimate of the maximum erosion limits at the property than does

the SHWL. SHWL is intended to define the back portion of the

day to day dynamic beach for most beaches in Florida. However,

for Gulf County where this property is located, the elevation of

the SHWL is not as good an indicator of the back portion of the

beach because the local tides are mixed, i.e., two equal or near

equal tides do not occur at this location on a daily basis and

accordingly the elevation of mean high water or MHW, upon which

the SHWL is based, is lower than the actual high water

experienced. A more realistic indicator of erosion for this

site is therefore the documented dune recession rate which was

used to calculate the expected life of the man - made dune.

34. The residential structure proposed will thus be

completely on the active beach in a little over five years.

That is, substantially before the 30 - year period which

statutorily defines the erosion line beyond which or seaward of

which most cons truction is prohibited, except for single family

residences under the exceptional circumstances provided in the

statutes and rules addressed and at issue herein. Ten years

hence, the SHWL will be under two - thirds of the home and the

ground level of the ho use at the SHWL will be about plus 2.8

feet above sea level.

Artificial Dune Characteristics

35. The man - made dune lacks continuity. It is most

vulnerable to wave and water penetration at its northerly

terminus where it ends near the boardwalk and near the property

line. It is not part of a contiguous dune system. The berm's

flank or end - point will be the focal point of waive penetration

and accelerated erosion due to the low elevation above the MHWL

or SHWL, as the case may be, at that point. Due to the lack of

continuity of the artificial dune, it will tend to collapse from

its northerly end. There is not a dip in the dunes system

between the property and the adjacent lot to the north which

would still render it a continuous dune system. Instead t here

is no dune at all at that point. There is a gap in the system

which has been caused over time by waves or tides, as well as

the fact that the beach had eroded into the remnant dunes

located in the piney flat woods area of Cape San Blas at the

vicinit y of and on the property.

36. The shorter the dune is the easier it is for water to

get around it and for wave action to destroy it. The man - made

dune is 65 feet long. The short length of the artificial dune

means it can not provide much protective val ue. Its expected

effective life will be short, as demonstrated by Mr. Olson's

opinions which are accepted.

37. Prior to the construction of the man - made dune, as

shown in the original site profile in the application, there was

a natural grade from the w ater to the natural frontal dune. As

a result of Tropical Storm Isadore the man - made dune has sharp

escarpment on its waterward side and less height.

38. Due to Tropical Storm Isadore, the man - made dune lost

half its planted vegetation. The October 2 002 aerial

photographs contained in Petitioner's Exhibits 3 and 12A reveal

that the remaining berm vegetation is sparse.

39. Before Hurricane Opal struck in 1996 there was a large

continuous dune formation, including a 15 - foot high dune on the

property near where the remainder of the man - made dune is now

located. Hurricane Opal totally eroded that dune. It has not

since rebuilt or restored. After Opal, and before the applicant

constructed the man - made dune, the beach gently sloped to the

naturally he avily vegetated dune on the 14 - foot contour line.

Opal had completely destroyed the more seaward dune that was on

the property leaving no discernible mound of sand in that

location.

40. The heavily vegetated dune that still exists at the

rear portion of the property is what protected the townhouses

during Hurricane Opal. This is presently the only dune remnant

on the property providing protective value to upland properties

and structures. It is the natural frontal dune upon which the

proposed home is proposed to be built. The proposed home will

not be landward of that natural frontal dune. It will be built

on top of that dune and its construction will somewhat lower the

elevation of that dune by excavation to place the concrete slab

and parking area which will exist under and landward of the

house. This natural frontal dune crests at the present time, at

about 14 - 15 feet and continues across the property and onto

adjacent lots.

41. The project when originally proposed in early 2002

could not be ap proved by the Department because the dwelling was

to be situated on the frontal dune (the natural frontal dune).

This view was memorialized in the DEP memo of January 8, 2002,

in evidence as Petitioners' Exhibit 22 wherein it was provided:

"staff advised the applicant representatives that review of its

recent submittals it still considered the proposed structure as

being not landward of the frontal dune, and therefore ineligible

for a permit." In order to attempt to comply with the statutory

requirements that the proposed dwelling be sited landward of the

frontal dune, the applicant constructed the man - made dune

seaward of the natural frontal dune, at the suggestion of the

DEP administrator and ultimately with a DEP permit authorizing

such construction.

" Significant Adverse Impact" Assessment

Rule 62B - 33.005(3)(A), Florida Administrative Code

42. The location of the proposed house appears to be an

elevation of 12 to 13 feet above sea level. In 10 years when

the proposed structure will be completely st randed in the water

with no dune under it, 10 feet of the sand supporting the

pilings will be gone. That will adversely affect the structural

integrity of the house and the septic system will inoperable and

exposed, possibly contaminating the surrounding beach - dune

system.

Vegetation Issue Rule 62B - 33.005(4)(A),

Florida Administrative Code

43. Construction of the house will require removal of most

of the dense vegetation atop the true frontal dune to make way

for a concrete slab which will provide a par king area under the

proposed home. The vegetation presently deters wind - borne

erosion. A loss of vegetation and displacement of part of the

dune by grading for the slab and the house will tend to

destabilize the dune and diminish its protective ability f or

adjacent upland structures and property, including the

Petitioners' property and residence.

44. The natural frontal dune and related vegetation is

what protected the Petitioners' townhouse during Hurricane Opal.

Because construction of the proposed h ouse will remove

substantial vegetation and sand to make way for the slab, even

if the sand is retained on the project site, in order to provide

for under story parking, the protection presently afforded by

the natural frontal dune will be diminished.

Dist urbance Of In Situ Sandy Soils

Rule 62B - 33.005(4)(B)(C),

Florida Administrative Code

45. The proposed house will be built on the highest point

on the property which is presently at about 14 to 15 feet above

sea level. Construction of the home will prov ide displacement

or excavation of a portion of the sand atop the natural frontal

dune in order to make way for the parking garage concrete slab

under the home.

Structure - Induced Scour Rule 62B - 33.005(4)(D),

Florida Administrative Code

46. Subsequent to the recession of the shoreline the house

may act similar to a groin feature, thereby somewhat

accelerating localized erosion, particular upon the dune upon

which it will be built. As the slab under the house is

undermined its debris will increase the ero sive impact of wave

action on the beach system and nearby upland structures.

Wind And Water - Borne - Missiles

Rule 62B - 33.005(4)(E),

Florida Administrative Code

47. When the existing shoreline recedes and the proposed

home is on the active beach, it will po se a risk to upland

structures, including the Petitioners' townhomes. The proposed

home will then be only about 50 or 60 feet from the Petitioners'

upland townhomes. The dune upon which the house would be built

is the only natural feature which presently provides protection

to the Petitioners' homes.

48. During storms, portions of the structured part of the

proposed home could be blown into upland structures. The air -

borne missiles will include such things as stairways, garage

doors and lower walls al l of which are designed to be

expendable.

49. The proposed home was certified to withstand a 100

year storm. Consequently, that might dictate that with the wind

loading it is certified to withstand, wind - borne missiles might

be unlikely. However, the 100 - year storm certification assumed

that the home would be located on the upland at or above

elevations of plus 10 feet and not on the active beach. The

forces of the 100 - year storm would be exaggerated when the dune

is eroded away and the house is on t he active beach. As the

shoreline of the property recedes, deeper water will be below

the proposed home, thereby creating a greater freeboard for

storm surge elevation and more damage to the home from the

higher waves. The size of a storm wave is proport ional to the

depth of water below the structure during the 100 - year storm

event.

50. During and after Hurricane Opal in 1996, debris from

the house that formerly was 200 to 300 feet seaward of the

applicants' proposed home damaged the Petitioners' townho me and

other units in that complex. The Petitioners' have had to pick

up debris from that home for six to seven years following

Hurricane Opal. The same thing will happen with projectiles or

parts from the applicants' proposed home, but even more damage

is likely since the home will be constructed only 50 to 60 feet

away from the Petitioner's townhomes and directly seaward of

them.

Line Of Construction Rule 62B - 33.005(7),

Florida Administrative Code

51. There is not a uniform and continuous line of

co nstruction associated with the siting of the proposed home.

Impact To Marine Turtles Issue

52. Adult female loggerhead and green turtles nest on the

beaches of Cape San Blas. The vast majority of nesting adults

are loggerheads.

53. The marine turtl e nesting season begins about May 1st

of each year and ends October 31st. Female turtles come on the

beach between the beginning of May and the middle of August to

lay eggs. The eggs hatch between July and October.

54. The Department approved the light ing plan for the

Wentz dwelling designed to protect against adverse effects on

marine turtles when they are nesting at night. That plan meets

applicable rule requirements. Exterior lighting associated with

the dwelling will not adversely affect marine tu rtles.

55. The area where the dwelling will be located is not

precisely marine turtle nesting habitat. There is no evidence

that the area landward of the location of the present artificial

dune has been used for nesting. Nesting data for the 2000,

2001 , and 2002, nesting seasons for a six - mile beach segment,

including the beach adjacent to the subject property, indicates

that only one nest (nest number 51) was laid immediately

adjacent to the property over that three - year period (not

directly on the pro perty). It was laid seaward and near the

western end of the man - made dune.

56. It is highly unlikely that a turtle would nest in the

area of the dwelling. The area landward of the scarp of the

man - made dune, which includes the location of the dwellin g, is

not viable marine turtle nesting habitat. This is primarily

because it is currently a vegetative area and turtles do not

typically venture to any extent into a vegetative area to dig

their nest and lay eggs. It is landward of the scarp or bluff

on the man - made dune, which is difficult for turtles to climb

over. The scarp on the seaward face of the man - made dune varies

between 9 and 14 feet in height, dropping off to essentially no

scarp or one and one - half feet on its northward end. It would

large ly prevent marine turtles climbing over and nesting

landward of the man - made dune scarp with the possible exception

of the gap, referenced above, at the northward end of the man -

made dune on or about the property boundary. The boardwalk

which goes seaward from the Petitioners' townhomes at that

point, would, however, to a great extent prevent sea turtles

from migrating landward of the line of the artificial dune

scarp.

57. Based on the 2000 - 2002 nesting data for Cape San Blas,

the vast majority of Marine turtle nests are laid waterward of

the vegetation line. More specifically, 48.4 percent of the

nest were laid within the area 10 seaward of the vegetation line

near the toe of the frontal dune, while another 37.5 percent

were laid further waterward of th e frontal dune. Thus

approximately 85 percent of the nests are waterward of the

vegetation line. Consequently, the vast majority of any nests

that might be laid on the property in question would be seaward

of the vegetation line and the toe of the man - ma de dune (or

scarp - face) and not in the upland vegetated area of the dune

system where the house would be located. The dwelling is well

landward of that vegetation line.

58. In terms of survival, the best place and the location

preferred by marine turt les, for the placement of eggs is at or

near the toe of the frontal dune. The survivorship of nests

landward of the vegetation line is low, due in part to

predation. The likelihood that a marine turtle will nest within

the 65 - foot wide property is very l ow. Based on nesting density

data for Cape San Blas and the width of this property, only 0.52

nests within the 65 - foot wide property would be expected on a

yearly basis. That translates to about one nest every two

years.

59. The likelihood that a nes t would be laid within the

property boundaries and landward of the vegetation line is

considerably lower. Based on the same nesting data and the fact

that 86 percent of the nests are laid waterward of the

vegetation line, a nest landward of the vegetation line on the

property would be expected statistically only about once every

13.5 years. Based on nesting data only one green turtle nest

every 100 years would statistically be expected to be on the

property.

60. Even though the northwest end of the man - made dune is

much lower than the remainder of the dune, it is unlikely a

nesting adult would be able to nest in the area of the proposed

dwelling by gaining access through this lower area.

Approximately 91.4 percent emerging nesting adult turtles follow

a straight path up the beach. Thus, turtles emerging on either

side of that low spot would not veer to that low spot to seek a

place to nest. Furthermore the boardwalk is located at the low

spot and would act as a barrier that would prevent turtles from

n esting landward of the man - made dune in the area of the low

spot.

61. The area behind the man - made dune is insignificant in

comparison to the nesting habitat on Cape San Blas generally,

within the nest survey area encompassed by the Petitioners'

witness Martha Pridgeon. There are more than 3,168,000 square

feet of nesting habitat within the Cape San Blas survey area,

while the area on the property behind the man - made dune is

approximately 3,900 square feet, which is well less than 0.1

percent of the nest ing habitat within the survey area.

62. Turtle nesting densities in southeast Florida are 64

times greater than on the beaches of northwest Florida,

including Gulf County. Turtle nesting in northwest Florida is a

relatively minor component of statewide nesting density.

63. In the 1999 nesting season, there was approximately

81,000 loggerhead nests in Florida. Based on average clutch

size, that would mean approximately 9,480,000 eggs were laid in

Florida that year, by loggerheads at least. Given tha t only one

nest would be anticipated on this property every two years, the

number of eggs that might be laid on the property is

inconsequential.

64. Even if a nesting turtle encounters the dwelling, the

encounter may well result in a false crawl. Howe ver,

approximately 48 percent of nesting emergences by turtles result

in false crawls. False crawls do not injure the turtle and are

considered normal behavior. If eggs were deposited near the

dwelling, any alteration of sex ratios in the hatchlings due to

shading of the nest would be inconsequential in view of the

9,000,000 eggs laid in Florida each year. Moreover, if a nest

was deposited near the dwelling it could be relocated to avoid

any potential harm since nests are routinely, successfully moved

to avoid harmful conditions.

65. Adverse impacts to turtle eggs do not play a critical

role in turtle survival. Rather, the nesting female is the

critical link. Egg mortality is naturally very high. The

survival strategy of marine turtles is to lay a la rge number of

eggs. Even if the dwelling caused the loss of one nest every

two years that loss would be insignificant. The loss of nests

due to natural conditions on Cape San Blas is not unexpected or

unusual. For example all remaining nests, at least 2 1, were

destroyed during the 2002 nesting season by Tropical Storm

Isadore. In that same year, at least six nests were destroyed

by predators on Cape San Blas in the area of the subject

property.

66. Construction and use of the dwelling would not

actual ly kill or injure a marine turtle, nor would it impair

essential behavioral patterns of marine turtles. Construction

and use of the dwelling would not impair the feeding or

sheltering of marine turtles. Construction and use of the

dwelling would not impa ir turtle breeding.

67. Construction and use of the dwelling would not cause

significant habitat modification or degradation that would

actually kill or injure a marine turtle. In summary, the

preponderant evidence does not establish that a take of mari ne

turtles caused by significant habitat modification, degradation

or any of the other reasons found above will occur.

CONCLUSIONS OF LAW

68. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of this

proceed ing. Section 120.569 and 120.57(1), Florida Statutes.

69. The applicant bears the burden of establishing

entitlement to the permit at issue. D.O.T. v. JWC Company,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Pursuant to Section

161.053(5)(a)(3), Florida Statutes, and Rule 62B - 33.005(4)(a),

Florida Administrative Code, the applicants must "clearly

justify" that all relevant regulatory conditions are satisfied

in order for the permit to be granted.

70. Section 161.053(6)(b), Florida Statutes, prohibits a

structure like the proposed dwelling from being constructed

seaward of the predicted seasonal high water line within 30

years (also known as the 30 - year erosion control line or 30 - year

erosion projection). That section states pertinently as

follows:

Afte r October 1, 1985, and notwithstanding

any other provision of this part, the

Department, . . . shall not issue any permit

for any structure [subject to exceptions not

relevant to this case] which is proposed for

a location which, based on the Department's

projection of erosion in the area, will be

seaward of the seasonal high - water line

within 30 years after the date of

application for such permit. . .

71. Section 161.053(6)(c), Florida Statutes, then provides

an exception to the construction prohibition quoted above in

Section 161.053(6)(b). This exception in (6)(c) applies only to

single - family dwellings which are seaward of the 30 year erosion

control line, the construction of which satisfies each of the

four condition quoted below. Unless all four s tatutory

conditions are met an applicant is not eligible for a coastal

construction control line permit. Section 161.053(6)(c) states

as follows:

Where the application of paragraph (b) would

preclude the construction of a structure,

the Department may iss ue a permit for a

single - family dwelling for the parcel for so

long as:

(1) The parcel for which the single - family

dwelling is proposed was platted or

subdivided by metes and bounds before the

effective date of this section;

(2) The owner of the parcel for which the

single - family dwelling is proposed does not

own another parcel immediately adjacent to

and landward of the parcel for which the

dwelling is proposed;

(3) The proposed single - family dwelling is

locating landward of the frontal dune

st ructure; and

(4) The proposed single - family dwelling

will be as far landward on its parcel as is

practicable without being located seaward of

or on the frontal dune.

72. Rule 62B - 33.00(8), Florida Administrative Code, in

turn provides "in considering applications for single - family

dwellings proposed to be located seaward of the 30 - year erosion

projection pursuant to Section 161.053(6), Florida Statutes, the

Department shall require structures to meet criteria in Section

161.053(6)(c), Florida Statutes , and all other siting and design

criteria established in this chapter" (emphasis supplied).

73. Section 161.053(6)(a)1 defines the term "frontal dune"

referenced in the above cited and quoted statue as follows:

"frontal dune" means the first natural or

man - made mound or bluff of sand which is

located landward of the beach and which has

sufficient vegetation, height, continuity

and configuration to offer protective value

(emphasis supplied).

74. The applicant must establish by preponderant evidence

tha t it satisfies each relevant regulatory requirement. One of

the most significant requirements is that the proposed structure

be landward of the frontal dune as set forth in Section

161.053(6)(c)(3), Florida Statutes. A frontal dune must have

some degree of stability and longevity in order to provide

protection or "protective value." If its life span is very

brief it will have no true protective value. A frontal dune

must have sufficient vegetation height, continuity with

surrounding dune structures and be of a proper configuration to

offer protective value and thus to have some degree of stability

and longevity so that real protection can be provided by it.

75. The preponderant evidence culminating in the above

findings of fact in this regard show that the man - made dune does

not comply in these respects with the definition of "frontal

dune". The record showed that the man - made dune was half

destroyed within six months after it was constructed, by wave

action induced by storm which actually made land - fa ll

approximately 200 miles to the westward. The testimony of

witness Olson, which is accepted, establishes that the dune will

likely not exist at all by the time construction on the proposed

house is finished. In summary for the reasons elicited in the

a bove findings of fact, the artificial dune does not comply with

the definitional characteristics of a frontal dune and it is

concluded that it is not a frontal dune.

76. Section 161.053(6)(c), Florida Statutes, allows

construction of a single - family dwel ling seaward of the 30 - year

erosion control line if four requirements are met. One of these

is that the dwelling be located landward of the frontal dune

structure. Section 161.053(6)(c)(3), Florida Statues. Another

condition is that the "proposed single family dwelling will be

as far landward on its parcel as is practicable without being

located seaward of or on the frontal dune." Section

161.053(6)(c)(4), Florida Statutes.

77. The applicant, as shown in the findings of fact, has

not satisfied Section 161.053(6)(c)(3) and (4), Florida

Statutes, for the following reasons. First, the man - made dune,

half of which Tropical Storm Isadore removed in late September

2002 is not a "frontal dune". Secondly, the proposed dwelling

is on the true frontal dune at the site. Accordingly, the

application is not eligible for further permit consideration

because it fails to meet the conditions in Section

161.053(6)(c)(3), Florida Statutes. Additionally, the proposed

dwelling can not be moved any further landward than its proposed

location because of the county's 20 - foot set - back line;

consequently its location, which is clearly on what is the true

frontal dune, can never satisfy Section 161.053(6)(c)(4),

Florida Statues. The existing natural dune on which the

proposed house would be located, if permitted, is a frontal dune

because it has substantial, even woody vegetation cover, is of

sufficient height and configuration to offer significant

protective value to the upland property landward of it; and

indeed, during an a ctual hurricane in 1996 (Hurricane Opal), it

in fact offered significant protection to the upland property

landward of it. Thus, the natural dune upon which the home is

proposed to be construction is, in essence, the true frontal

dune at the project site.

78. In a similar case, Young v. DEP et. al. , 18 FALR 1738

(DEP 1996), the proposed home in question in that case was

seaward of the 30 - year erosion control line and was not landward

of the natural frontal dune. See Young at 1741 and 1753

(paragraph 74 ). Like the case at hand, the applicant in Young

submitted an application immediately after purchasing the land

in question and did not propose construction of an artificial

dune in the original application. Also, as in the instant case,

a DEP memorandum in the Young case stated that the proposed home

was ineligible for a coastal construction control line permit

because the proposed structure would be sited on the natural

frontal dune. Young at page 1745 (paragraph seven and fifteen).

Petitioner's exhib it 22 in evidence.

79. In order to satisfy the requirements of Section

161.053(6)(c)(3) and (4), Florida Statutes, the applicant in the

Young case, like the applicant in the case at bar, proposed,

over a year after its original application, to create a " dune"

seaward of the natural frontal dune and contended that DEP

should consider this reconstruction to be the "frontal dune."

DEP then proposed to issue the subject permit.

80. The issue in the Young case, like that in this case is

whether the man - made dune met the Section 161.053(6)(a)(1),

Florida Statutes, definition of a frontal dune. The

administrative law judge in the Young case determined that it

did not, finding as follows:

Applicant has failed to prove that the

proposed man - made dune has "suffi cient

vegetation, height, continuity and

configuration to offer protective value."

The proposed man - made dune is to thin,

discontinuous, and short to provide

protective value to protect the property

landward of the proposed dune or, after the

addition of the proposed home, the beach -

dune system and public beach access.

81. The Department adopted the findings and conclusions of

the administrative law judge in toto . In order to satisfy the

statutory definition of a "frontal dune," the applicants' man -

mad e dune must provide protection to upland property and

structures. The preponderant evidence culminating in the above

findings of fact, however, shows that will not be the case. The

man - made dune at issue lacks the height, continuity,

configuration, and s ufficient vegetation to provide any

significant protective value to the upland structures, including

the Petitioners' townhome and the beach - dune system. The

remaining half of the berm not already washed away will not

provide protection to the proposed ho me, because it will be

destroyed by wave action of even a storm of a type which

commonly occurs at least once every two years at the site.

82. The coastal area in which this berm or dune was

constructed is so highly erosive that the berm will be gone in

zero to two years from the time of the December 2002 hearing.

The 15 - foot natural dune located at the same location as this

man - made dune was washed away in 1996 by Hurricane Opal and

never naturally reconstructed. Dunes along this portion of the

coast o r beach of Cape San Blas typically do not reconstruct

because the erosion rate is constant. There are no intervening

periods of accretion to this portion of the coastline or beach.

The remainder of the artificial berm or dune at issue will have

the same fate.

83. The Department noted in the Young final order that

"strictly speaking, the question is not whether the proposed

man - made dune would qualify as a frontal dune, but whether the

site of the proposed structure would be landward of 'the frontal

dun e.'" Similarly, what is at issue in this case is whether the

proposed house will be on the first frontal dune.

84. The man - made dune is vulnerable to constant erosion

and storm events. The vulnerability was confirmed when the

tropical storm destroyed h alf of the berm just six months after

it was built. Based upon reliable data taken from DEP's

monument R - 94, the erosion and storm events will continue to

impact this beach system such that the man - made dune will soon

wash away. Under these circumstances , the applicant has not

proven that the dune meets the statutory criteria in order to be

classified as a frontal dune.

85. If it were to approve the applicants' permit the

Department would ignore the inevitable erosion and storm events

that will quickly destroy the artificial dune. Given the high

erosion and dune recession rates for this beach - dune system, of

which the property is a part, replication of a dune of

yesteryear is an exercise in futility. The earliest possible

time the applicant could start construction is November 2003,

after the 2003 turtle nesting season. See Section 370.12(1),

Florida Statutes, and Rule 62 - 33B.005(4)(g), Florida

Administrative Code. Coastal engineering projections in

evidence reliably establish that the berm will be go ne before

the construction of the home can be completed.

86. The heavily vegetated dune on which the proposed house

would be constructed protected the townhomes landward of it

during Hurricane Opal in 1996. Only this natural dune meets the

definition of a frontal dune at this site. The proposed home

then is located on the only frontal dune on the property, that

being the natural frontal dune. In addition, the proposed home

is not landward of the natural frontal dune and can not be moved

further landwar d because of the county set - back requirement. In

view of the above, the proposed structure is ineligible to be

considered by the Department for a coastal construction control

line permit because it does not satisfy the mandatory statutory

criteria in Sect ion 161.053(6)(c), Florida Statutes.

87. The precedent established by the Young decision can

not be ignored. That decision compels consideration of what

"protective value" a man - made dune or berm would provide to

upland property and the beach - dune syste m after a house is

built. Young , 18 FALR at 1753 (paragraph 75).

88. Among other things the DEP final order in the Young

case made specific findings adopting the ALJ's recommended

order. Those findings demonstrate that the circumstances in the

Young case were substantially identical to those in the case at

bar. Paragraph 48 of the Recommended Order contained this

specific finding:

There are two major risks to the natural or

man - made dune: constant erosion and storm

events. The proposed man - made dun e would

not offer any protection from constant

erosion.

89. In the following paragraph, the Young Final Order

states:

Using DEP calculations for determining the

location of the ECL, the man - made dune would

be completely eroded in seven years. Using

the more likely and recently erosion rate of

four feet annually, the man - made dune would

be completely eroded in five and one half

years . . . a man - made dune not more than

100 feet long would not resist constant

erosion at this location.

90. It is undispu ted in this case that during average

years, the man - made dune the applicant and DEP have postulated

as the new "frontal dune" will not survive longer than one or

two years at the most. This is insufficient to qualify this

man - made dune as a bona fide fron tal dune, as defined in the

above authority contained in Chapter 161, Florida Statutes.

DEP's Final Order in the Young case rejects the contention that

a man - made dune, which would be completely eroded in five and

one - half years could qualify as being a f rontal dune. If the

man - made dune in the Young case was inadequate with the five and

one - half year expected life, then a predicted life of two years

for the man - made dune or berm in the instant case is even more

inadequate.

91. There can be no doubt, when considering the record in

this case and comparing it to the DEP Final Order in the Young

case, that the man - made dune placed upon the applicants'

property at this location, which is now already one - half eroded

away, cannot qualify to be considered a l egitimate frontal dune

in terms of the definitional qualities or characteristics for a

frontal dune contained in the above - cited and quoted statute.

If it were considered to be a frontal dune under these

circumstances one would have to totally ignore the decision in

the Young case. Thus for these reasons alone the application

must be denied.

Other Beach - Dune System Impacts

92. Another issue relates to the "uniform line" of

continuous construction. There are both statutory and rule

provisions in that re gard; however, neither of these provisions

precludes construction of a dwelling seaward of a reasonably

continuous and uniform construction line, assuming there is one.

See Section 161.053(5)(b), Florida Statutes, which provides, in

part:

(b) If in the i mmediate contiguous or

adjacent area a number of existing

structures have established a reasonably

continuous and uniform construction line

closer to the line of mean high water than

the foregoing, and if the existing

structures have not been unduly affect ed by

erosion, a proposed structure may, at the

discretion of the Department, be permitted

along such line on written authorization

from the Department if such structure is

also approved by the Department. . .

93. In turn, Rule 62B - 33.005, Florida Admi nistrative Code,

states:

(7) If in the immediate area a number of

existing major structures have established a

reasonably continuous and uniform

construction line and if the existing

structures have not been unduly affected by

erosion, except where not al lowed by the

requirements of Section 161.053(6), Florida

Statutes, and this Chapter, the Department

shall issue a permit for the construction of

a similar structure up to that line, unless

such construction would be inconsistent with

Sections (3), (4), (6) or (8) of this rule.

94. The Department takes the position that when the 30 -

year, seasonal, high - water line provision comes into play, it

controls the location of the dwelling as opposed to the

reasonably continuous and uniform construction line. The

Department's position is supported by the above rule which

provides that Section 161.053(6), Florida Statutes, is an

exception to the continuous line of construction. See Rule 62B -

33.005(7), Florida Administrative Code. Nevertheless, there is

no reasona bly continuous and uniform construction line in the

immediate area of the dwelling with which this case is

concerned. The Department has not permitted nor denied a

structure within 2400 feet on either side of the dwelling.

Hence, there are no structures seaward of the coastal

construction control line in the area. Also the Department does

not take into account structures landward of the coastal

construction control line because it has no jurisdiction

landward of that line. Thus, it must be concluded tha t such

structures cannot be considered.

95. Other than and in addition to the specific provision

in Section 161.053(6), Florida Statutes, related to the 30 - year

seasonal high water line (erosion projection) and the line of

continuous and uniform construc tion, Rule 62B - 33, Florida

Administrative Code, establishes the specific criteria the

Department uses to review permit applications. The applicable

Rule provisions, in relevant part, are set forth as follows:

62B - 33.005(4), Florida Administrative Code.

T he Department shall issue a permit for

construction 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, Florida

Statutes, and this chapter are met,

including the following:

(a) The construction will not result in

removal or destruction of native vegetation

which will either destabilize a frontal,

primary or significant dune or cause a

significant adverse impact to the beac h and

dune system due to increased erosion by wind

or water;

(b) The construction will not result in the

removal or disturbance of in situ sandy

soils of the beach and dune system to such a

degree that a significant adverse impact to

the beach and dune s ystem would result from

either reducing the existing ability of the

system to resist erosion during a storm or

lowering existing levels of storm protection

to upland properties and structures;

(c) The construction will not result in the

net excavation o f the in situ sandy soils

seaward of the control line or 50 - foot

setback;

(d) The construction will not cause an

increase in structure - induced scour of such

magnitude during a storm that the structure -

induced scour would result in a significant

adverse i mpact;

(e) The construction will minimize the

potential for wind and waterborne missiles

during a storm;

* * *

(g) The construction will not cause a

significant adverse impact to marine

turtles, immediately adjacent properties or

the coastal system un less otherwise

specifically authorized in this chapter.

(5) Sandy material excavated seaward of the

control line or 50 - foot setback shall remain

seaward of the control line or set back and

be placed in the immediate area of

construction unless otherwise specifically

authorized by the permit.

(6) Major structures shall be located a

sufficient distance landward of the beach

and frontal dune to permit natural shoreline

fluctuations, to preserve and protect beach

and dune system stability and to allow

natur al recovery to occur following storm -

induced erosion.

Subparagraphs (4)(a)(b) & (g), above prohibit "significant

adverse impacts," which are defined by rule to mean:

(b) "Significant Adverse Impacts" are

adverse impacts of such magnitude that they

may:

1. Alter the coastal system by:

a. Measurably affecting the existing

shoreline change rate;

b. Significantly interfering with its

ability to recover from a coastal storm;

c. Disturbing topography or vegetation such

that the system becomes unstable, or suffers

catastrophic failure; or

2. Cause a take, as defined in Section

370.12(1), Florida Statutes, unless the take

is incidental pursuant to Section

370.12(1)(f), Florida Statutes.

96. The preponderant evidence at hearing culminating in

the above pertinent findings of fact shows that as to paragraph

(a) of the above - quoted Rule, the construction will result in

the removal or destruction of native vegetation which may

destabilize, in part, the frontal dune or cause a significant

adverse impact to t he beach - dune system due to increased erosion

by wind or water because the house will be constructed on what

is really the true frontal dune and vegetation occurring on the

dune will be removed to allow for construction of the house.

The same consideratio n is true as to paragraph (b) of the above -

quoted Rule because the construction will result in removal or

disturbance of in situ sandy soils of that beach - dune system so

as to have a potentially, significant, adverse impact on that

beach - dune system becau se it will occur on the protective, true,

natural frontal dune and will reduce the ability of the beach

dune - system to resist erosion. It will lower existing levels of

storm protection to the upland properties and structures the

natural frontal dune is su pposed to protect. The construction

will result in net excavation of sandy soils seaward of the

control line in that excavation will have be done for the

footprint of the house, particularly for the concrete slab

underlying the house. The preponderant ev idence does not show

any significant structure - induced scour of such a magnitude

during a storm such that scour would result in a significant

adverse impact in and of itself. Rather, the preponderant

evidence indicates that within 10 years or less the nat ural

frontal dune the house would actually be constructed on will be

gone in its entirety, due to wind and waterborne erosive

impacts. The construction will not minimize the potential for

wind and waterborne missiles during a storm, for purposes of

paragr aph (e) quoted above, because the structure would be built

upon the natural frontal dune which cannot be permitted for the

above - referenced reasons and which will result in the proposed

house being in very close proximity to landward structures.

Because of the dune recession and erosion referenced in the

above findings of fact, the house within a few short years will

be rendered unstable and literally standing in the water which

instability and exposure to the active beach and to wave action,

as well as win d in a storm event, will likely result in the

construction being a hazard for wind and waterborne missiles

which can harm adjacent upland property.

97. It is true that the proposed project will comply with

paragraph (5) of the above - quoted Rule because s andy material

excavated seaward of the control line will remain seaward of the

control line on the lot or construction site itself, in the

immediate area of construction. Rule paragraph (6) quoted above

will not be complied with because installation of th e dwelling

will not be of sufficient distance landward of the frontal dune

because it will be on the frontal dune, It will not permit

natural shoreline fluctuations and will not serve to preserve

and protect the beach dune - system stability nor to allow na tural

recovery to occur to the beach - dune system following storm

induced erosion. In summary, the simple fact that the house

would be constructed on what is the true frontal dune renders it

unpermittable and, in addition to the reasons referenced above,

w ill render it so because it will pose significant adverse

impacts to the beach - dune system and the frontal dune in the

particulars mentioned in the above - quoted portions of Rule 62B -

33.005(4), Florida Administrative Code, as discussed immediately

above.

E ffects on Marine Turtles and Habitat

98. The dwelling proposed to be installed will not cause a

"take" of marine turtles. The controlling provisions of law are

Section 370.12, Florida Statutes, which provides in pertinent

part:

The Department shall reco mmend denial of a

permit application if the activity would

result in a 'take' as defined in this

subsection (Section 370.12(1)(f), Florida

Statutes.)

'Take' means an act which actually kills or

injures marine turtles, and includes

significant habitat modif ication or

degradation that kills or injures marine

turtles by significantly impairing essential

behavioral patterns such as breeding,

feeding, or sheltering. (Section

370.12(c)(1), Florida Statutes).

99. Rule 62B - 33.005(4)(g), Florida Administrative Code,

quoted above, prohibits the take of marine turtles as take is

defined in Section 370.12(c)(1), Florida Statutes. The location

of the proposed dwelling is not marine turtle nesting habitat at

the present time. There is no preponderant evidence that a

marine turtle has ever nested in the area of the beach dune

system where the dwelling will be located. The dune scarp or

artificial berm will prevent marine turtles from nesting in the

area of the proposed dwelling as long as the artificial dune or

berm lasts. Statistically speaking, the chance that a marine

turtle might nest on the property is once every two years. But

such nesting is likely to occur for the present at least on the

seaward side of the artificial berm or dune scarp as is

evidenced by t he nest that was laid near the northern end of the

scarp, and slightly seaward of it, during the 2002 nesting

season as well as the natural propensity of marine turtles to

nest seaward of a frontal dune or in this case the artificial

dune scarp.

100. St atistically speaking, the chance that a turtle

would nest in a vegetative area behind the dune scarp on the

property in question is about once every 13.5 years. Therefore,

it can not be concluded that the proposed dwelling would

actually kill or injure a marine turtle or would cause a

significant habitat modification or degradation that would kill

or injure a marine turtle.

101. Even if it was assumed that the dwelling was located

in nesting habitat, as for instance at such time in the

immediate or near future when the artificial berm or dune is no

longer in existence, the dwelling will still not cause a take.

A nesting turtle encountering the dwelling has the option of

false crawling and there is no evidence that false crawling

injures or harms marine turtles.

102. Even if a nest were laid in harm's way in the

vicinity of the dwelling, it could be relocated since nest

relocation is an accepted, successful and routine practice.

Additionally, the amount of habitat impacted by the dwelling,

even if it i s nesting habitat, is minuscule and certainly would

not constitute significant habitat modification or degradation

within the purview of Section 370.12(1)(f), Florida Statutes.

103. Finally, even if erosion of the artificial berm or

dune makes the area of property behind it become nesting

habitat, the berm being located on the property will not cause

significant habitat, modification or degradation, nor will it

likely result in killing or injuring marine turtles. The

habitat modification or degradation posed by the dwelling even

if the site should become nesting habitat in the future (when

the berm is gone) will still be a de minimus impact.

104. Since the definition of "take" in Section

370.12(1)(f), Florida Statutes, is the same as the definition of

"take" under the Federal Endangered Species Act (ESA) and its

implementing regulations, federal case law is instructive on the

issue of speculative take. ESA defines "take" to mean "harm" 16

USC Section 1532(19). The rule definition of "harm" upheld by

t he United States Supreme Court in Babbitt v. Sweet Homes

Chapter of CMTYS. For A Greater Oregon , 515 U.S. 687, 696 - 700

(1995), is "an act which actually kills or injures wildlife.

Such an act may include significant habitat modifications or

degradation wh ere its actually kills or injures wildlife by

significantly impairing essential behavioral patterns, including

breeding feeding or sheltering. 50 CFR Section 17.3. Habitat

modification does not constitute harm, i.e. a take, unless it

'actually kills or i njures wildlife.'" Defenders of Wildlife v.

Bernal , 204 F.3d 920, 924 - 925 (9th Circuit 1999). As the United

States Supreme Court emphasized, "every term in the regulation's

definition of 'harm' is subservient to the phrase 'an act which

actually kills or injures wildlife'." Babbitt v. Sweet Homes

Chapter of CMTYS for a Greater Oregon , supra . Mere habitat

degradation is not sufficient to equal a take. There must be

significant impairment of the species habitat. National

Wildlife Federation v. Burlington Northern Railroad , 23 F.3d

1508 (9th Cir. 1994). The possible future habitat impacts of

the dwelling are speculative and cannot be interrupted to cause

an actual killing or injuring of a marine turtle or to

significantly impair marine turtle habitat.

R ECOMMENDATION

Having considered the foregoing Findings of Fact and

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be e ntered by the Department

of Environmental Protection denying the applicants' application

for a permit pursuant to Section 161.053, Florida Statutes, for

construction seaward of the coastal construction control line in

Gulf County, Florida.

DONE AND ENTERED this 5th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 2003.

COPIES FURNISHED :

Kenneth G. Oertel, Esquire

Patricia A. Renovitch, Esquire

Oert el, Hoffman, Fernandez & Cole, P.A.

301 South Bronough Street, Fifth Floor

Tallahassee, Florida 32301

Charles T. Collette, Esquire

Department of Environmental Protection

Office of General Counsel

3900 Commonwealth Boulevard, Mail Stop - 35

Tallahassee, Flo rida 32399 - 3000

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32303

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop - 35

Tallahassee, Florida 32399 - 3000

Kathy C. Cart er, Agency Clerk

Office of the Attorney General

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop - 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s 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.