04-002960 Save Our Beaches, Inc., And Stop The Beach Renourishment, Inc. vs. Department Of Environmental Protection, City Of Destin, And Walton County Status: Closed Recommended Order on Thursday, June 30, 2005.

Summary: Reasonable assurance on water quality was given, with no unreasonable infringement of riparian rights. Recommend approval of the beach restoration.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE OUR BEACHES, INC., and )

STOP THE BEACH RENOURISHMENT, )

INC., )

)

Petitioners, )

)

vs. ) Case No. 04 - 2960

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, CITY OF DESTIN, )

and WALTON COUNTY, )

)

Respondents. )

)

STOP THE BEACH RENOURISHMENT, )

INC., )

)

Petitioner, )

) Case No. 04 - 3261

vs. )

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and BOARD OF )

TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND, )

)

Respondents. )

)

RECOMMENDED ORDER

On June 7, 2005, a final administrative hearing was held

in this case in Sandestin, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrativ e

Hearings.

APPEARANCES

For Petitioners: D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

For City of Destin and Walton County:

Kenneth J. Plante, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Post Office Box 10369

Tallahassee, Florida 32302 - 2369

For Department of Environmental Protection:

Mark S. Miller, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

39 00 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection (DEP) should grant the application of

the City of Destin (City) and Walton County (County) for a

Consolidated Joint Coastal Permit (JCP) and Sovereign

Submerged Lands Authorization (Application) to restore a 6.9

stretch of beach in the City and County.

PRELIMINARY STATEMENT

After conducting an extensive studies and pre - application

conferences with D EP staff, the City and County filed their

Application on July 30, 2003. After requests for additional

information and responses to those requests, DEP issued a

Notice of Intent to Issue Joint Coastal Permit and

Authorization to Use Sovereign Submerged Lan ds, DEP JCP File

No. 0218419 - 001 - JC (Draft Permit) on or about July 15, 2004.

Save Our Beaches, Inc. (SOB) and Stop the Beach

Renourishment, Inc. (STBR) filed a Petition for Formal

Administrative Hearing challenging issuance of the Draft

Permit, which wa s given DEP OGC Case No. 04 - 1370, referred to

the Division of Administrative Hearings (DOAH) on August 20,

2004, and given DOAH Case No. 04 - 2960. STBR also filed a

Petition for Formal Administrative Hearing challenging the

County Erosion Control Line (ECL ) established by the Board of

Trustees of the Internal Improvement Trust Fund (BOT), in

conjunction with the proposed beach restoration project, which

was given DEP OGC Case No. 04 - 1545, referred to DOAH on

August 15, 2004, and given DOAH Case No. 04 - 3261. The two

cases were consolidated and set for final hearing in Sandestin

beginning February 7, 2005.

In December 2004, without objection, SOB and STBR filed a

joint Amended Petition challenging both the Draft Permit and

the ECLs established by the BOT in conjunction with the

proposed beach restoration projects. In January 2005, the

City and County moved without opposition to dismiss

constitutional property rights issues from the Amended

Petition, which was granted. (SOB and STBR were pursuing

their cons titutional claims in an action in state circuit

court to have applicable statutes declared unconstitutional.)

In February 2005, SOB and STBR moved for a continuance,

which was opposed, and the City and County moved to dismiss

the issue "whether the local sponsors for the Project have

obtained, or are able to obtain, all of the requisite private

property rights necessary to implement the Project," which

also was opposed. The continuance was denied, and the motion

to dismiss was withdrawn. After Petitione rs filed a Pre -

Hearing Statement and the other parties filed a Joint Pre -

Hearing Stipulation, the City and County filed an Emergency

Unopposed Motion for Continuance, which was granted, and the

final hearing was rescheduled for May 10 - 11, 2005. The City

a nd County then filed an Unopposed Motion for Continuance on

behalf of DEP, which was granted, and the final hearing was

rescheduled for June 7 - 8, 2005.

On June 3, 2005, the City and County filed a Joint

Request for Official Recognition. At the final hea ring, the

request for official recognition of codified statutes and

rules was granted without objection. But SOB and STBR opposed

the request for official recognition of Chapter 2004 - 475, Laws

of Florida (2004), and a related Senate Staff Analysis on

grou nds of relevance, and ruling was reserved. It is now

ruled that those items are not relevant to the remaining

issues in this case.

At the final hearing, the parties had the Application

File admitted in evidence as Joint Exhibit 1. The City and

County c alled five witnesses: Phil Flood, DEP's Beach and

Coastal Systems Manager and an expert in coastal permitting;

Thomas Campbell, P.E., an expert in coastal engineering; Jamie

Christoff, DEP's Environmental Resource Permitting processor

who reviewed the App lication in this case; Brad Pickel,

Director of Beach Management in the County's Tourist

Development Council, which sponsored the project; and Lindy

Chabot, the City's grants and project manager responsible for

the proposed project. The City and County al so had

Respondents' Exhibits 1 - 3 admitted in evidence on behalf of

themselves and DEP. DEP also called Marty Seeling, DEP's

Administrator of Beach Protection Environmental Resource

Permitting, and an expert in DEP's interpretation of beach

protection stat utes and rules and in beach restoration

projects. SOB and STBR called two witnesses: Slade Lindsey,

a beachfront property owner and a representative of STBR; and

Linda Cherry, a beachfront property owner and a representative

of SOB. SOB and STBR also ha d Petitioners' Exhibits 1 - 7

admitted in evidence.

After presentation of evidence, the City and County

requested a transcript of the final hearing, and the parties

were given ten days from the filing of the transcript in which

to file proposed recommended orders (PROs). The Transcript

was filed June 14, 2005, making PROs due June 24, 2005. PROs

were timely - filed and have been considered.

FINDINGS OF FACT

1. The Gulf of Mexico beaches of the County and City

were critically eroded by Hurricane Opal in 1 995. The erosion

problem was identified by DEP, which placed the beaches on its

list of critically - eroded beaches, and by the County and City,

which initiated a lengthy process of beach restoration through

renourishment (also called maintenance nourishmen t.) 1 The

process, which included an extensive studies 2 and construction

design, as well as pre - application conferences with DEP staff,

culminated in the filing of the Application on July 30, 2003.

2. The Application proposed to dredge sand from an ebb

shoal ( i.e. , a near - shore) borrow area south of ( i.e. ,

offshore from) East Pass in eastern Okaloosa County, using

either a cutter head dredge (which disturbs the sand on the

bottom of the borrow area and vacuums it into a pipeline which

delivers it to the project area) or a hopper dredge (which

fills itself and is moved to the project site). On the

project site, heavy equipment moves the dredged sand as

specified in the design plans. The project is executed in

this manner and progresses along the beach, u sually at a pace

of about 300 - 500 feet a day. Each day work is in progress,

public access to the beach is restricted for a length of about

500 - 1000 feet in the immediate vicinity of the area of beach

being worked.

A. Water Quality

3. Increased turbidi ty is the primary water quality

concern in a project of this nature. Increased turbidity can

adversely impact submerged seagrasses and hard - bottom habitat,

along with the benthic communities depending on them. When

sand in the borrow area is disturbed by dredging, sand and

silt become suspended and increase turbidity to some extent

and for some duration, depending primarily on the nature of

the bottom material and the dredging method. (The cutter head

dredge vacuums most if not all of the disturbed sand and silt

into the pipeline while, by comparison, the hopper dredge

would result in higher turbidity in the water in the borrow

area.) Sand delivered to the project site via pipeline must

remain suspended in water for transport. When the sand is

deposited on the beach, the excess water, with suspended

particulate matter, will drain off and return to the Gulf of

Mexico. Even if hopper dredges are used, and if material is

deposited on the project site other than via pipeline, some of

the material will be de posited in the littoral zone, and some

material deposited landward of the waterline will be inundated

by the tides and wave action and potentially re - suspended in

water in the littoral zone. If the water is turbid upon

discharge in the littoral zone, the near - shore can become more

turbid.

(i) Sand Quality

4. The primary determinant of the amount and duration of

turbidity generated in the borrow area and in the littoral

zone of the project site is the quality of the bottom material

in the chosen borrow area. The coarser the material, the less

turbidity. The best quality bottom material usually is found

in the kind of borrow area proposed for use in the

Application. Sand in the borrow area came from some of

Florida's finest beaches. It has been cleane d of fine

material (silt) not only by wave action but also as the sand

moved along shore in the littoral zone and by the currents in

the East Pass inlet.

5. Numerous tests of the bottom material in the proposed

ebb shoal borrow for the project indicate that it generally

has less than one percent silt. Expert witnesses for the

City, County, and DEP testified that, with such low silt

content, turbidity increases of no more than 5 - 10

Nephalometric Turbidity Units (NTUs) above background levels

are expected at the edge of the mixing zone -- 150 meters down -

current from the borrow area, and down - current and offshore

from the discharge points on the beach. Moreover, they

testified that turbidity levels are expected to return to

background levels quickly ( i.e. , within an hour or so.)

6. SOB and STBR questioned whether the experts could be

certain of their testimony based on the test results. But SOB

and STBR called no expert to contradict the testimony, and it

is found that the expert testimony was persuasive .

(ii) Standard Mixing Zone

7. Initially, the City and County applied for a variance

from the turbidity standards to allow them to exceed 29 NTUs

more than 150 but less than 1660 meters down - current from the

borrow area, and down - current and offshore f rom the discharge

points, based on Attachment H, the Water Quality Impact

analysis in the Application. The analysis was based on an

assumption of five percent silt content in the bottom material

in the borrow area. SOB and STBR attempted to use the five

percent assumption to impeach the expert testimony on water

quality. But when the quality of the bottom material was

ascertained to be less than one percent, the variance request

was withdrawn at DEP's request as being unnecessary and

therefore inappropri ate.

8. SOB and STBR also argued in their PRO that, if a

1660 - meter mixing zone was needed for five percent fines, then

a 332 - meter mixing zone would be needed for one percent fines.

This argument was based entirely on counsel's arithmetic

extrapolatio n. There was no evidence in the record from which

to ascertain the validity of the extrapolation. In addition,

the evidence was that the bottom material in the borrow area

in this case will be less than one percent fines.

(iii) Shore - Parallel Sand Dik e

9. Specific Condition 6 of the Draft Permit requires the

permittee to "construct and maintain a shore - parallel sand

dike at the beach placement area at all times during hydraulic

discharge on the beach to meet turbidity standards prescribed

by this perm it." The shore - parallel sand dike is essentially

a wall of sand built parallel to the shoreline to keep the

sand slurry (the mixture of sand and water) being pumped onto

the beach from washing back in the water, thereby giving the

materials more time to s ettle out of the water before the

water returns to the Gulf of Mexico. Even if this condition

were not in the Draft Permit, the City and County would be

required to build the dike since it is part of their design

for construction of the Project.

(iv) T urbidity Monitoring

10. The Application included a proposal to monitor

turbidity, and the Draft Permit includes the proposed

monitoring as a Specific Condition 38. Every six hours during

dredging and pumping operations, the City and County are

required t o sample 150 meters down - current of the borrow area,

and down - current and offshore of the discharge point, and

report the results to DEP within a week. In addition,

Specific Condition 38 requires work to stop if turbidity

standards are exceeded, which mus t be reported immediately.

Work may not proceed "until corrective measures have been

taken and turbidity has returned to acceptable levels." If

more than one exceedence of the turbidity standard is

reported, DEP will require the City and County to redesi gn the

project to address and cure the problem. These conditions are

part of the reasonable assurance that water quality standards

will not be violated.

(v) Sediment Quality Control/Quality Assurance Plan

11. Pursuant to Special Condition 4.b. of the Draft

Permit, the City and County are required to do a Sediment

Quality Control/Quality Assurance Plan, which requires them to

measure the quality of the sand as it comes out of the

pipeline before it can cause a turbidity problem. If the

dredge hits pock ets of bad material, which is not expected in

this case, work could be stopped before it creates a turbidity

problem.

(vi) Absence of Natural Resources in Project Area

12. DEP performed side - scan sonar tests in the vicinity

of both the borrow site and near - shore in the Project area and

determined that there were no hard bottoms or seagrasses in

either area. Therefore, there are no natural resources within

the project area that would be covered or placed in jeopardy

by a turbidity plume.

(vii) Reason able Assurance Given

13. For all of these reasons, the City and County have

provided reasonable assurance that water quality standards

will not be violated.

B. Required Riparian Interest

14. Generally, and in the beach nourishment project

area, the BO T owns seaward of the mean high water line (MHWL).

The City and County own some but not all of the beachfront

landward of the MHWL. 3

15. In anticipation of the beach nourishment project,

the City and County had the MHWL surveyed as of September 7,

2003 . 4 The surveys state that the MHWL as of that date shall

also be known as the ECL.

16. The surveys also depict the landward and seaward

limits of construction and the predicted post - construction

MHWL. The surveys indicate that construction is planned to

take place both landward and seaward of the ECL. The

predicted post - construction MHWL is seaward of the ECL.

17. By resolution, the BOT approved the surveys and

established the ECLs for the Project. The City survey was

approved, and ECL established , on December 30, 2004; the

County survey was approved, and ECL established, on

January 25, 2005. The BOT's decisions are being challenged in

court. If the decisions are upheld, the BOT intends to file

its resolutions and record the surveys.

18. There was no evidence that the City and County have

an easement or the consent of all of the other beachfront

owners to undertake the proposed beach nourishment project.

Some of the other beachfront owners do not consent, including

members of SOB and STBR.

C . Standing

19. SOB was incorporated not - for - profit in Florida on

January 28, 2004. STBR was incorporated not - for - profit in

Florida on February 16, 2004. Both were incorporated to

protect and defend the natural resources of the beaches,

protect private property rights, and seek redress of past,

present, and future unauthorized and/or inappropriate beach

restoration activities.

20. No evidence was presented by any party as to whether

SOB and STBR have filed their annual reports with the

Department of Stat e, and no party filed a Department of State

certificate of status as to either SOB or STBR.

21. STBR has six members, all owners of beachfront

property in the area of the proposed beach nourishment

project. 5

22. SOB has approximately 150 members. Th ese members

own approximately 112 properties in the City, approximately 62

of which are beachfront and the rest condominium units of

beachfront condominium developments. However, it is not clear

from the evidence how many of these beachfront properties ar e

in the area of the proposed beach nourishment project (beyond

the four owned by Linda Cherry, who testified).

23. The testimony of Slade Lindsey was sufficient,

together with member affidavits, to prove that all six members

of STBR use the beaches and waters of the Gulf of Mexico

adjacent to the Project area for swimming, fishing, boating,

and/or enjoying beach and Gulf vistas. As a result, the

construction of the Project will affect their interests at

least during the time construction is taking plac e near their

property. If the Project were to result in violations of

water quality standards for turbidity, their interests would

be affected as long as the violations lasted and perhaps

longer if lasting damage to natural resources were to result.

Howe ver, as found, there will not be any lasting damage to

natural resources, and reasonable assurance was given that no

water quality violations will occur and that exceedences of

water quality standards in the mixing zone will be of short

duration, lasting f or no longer than an hour. These effects

will not be substantial.

24. The evidence was not sufficient to prove that

construction of the Project will affect the interests of a

substantial number of the members of SOB. First, it was not

clear how many o f them own beachfront property or even

condominium units in developments adjacent to the Project

area. Second, the only witness on the subject, Linda Cherry,

does not know all of SOB's members and did not state how many

of the 39 SOB members who signed af fidavits as to their use of

the beaches and waters of the Gulf of Mexico adjacent to the

Project area are known to the witness. Even if a substantial

number would be affected, their interests would be affected no

more than the STBR members' interests.

C ONCLUSIONS OF LAW

25. SOB and STBR have deferred for determination in

court proceedings the constitutional property rights issues

initially raised in their challenges to the DEP's Notice of

Intent to Issue Joint Coastal Permit and Authorization to Use

Sov ereign Submerged Lands for the beach restoration project

proposed by the City and County and to establishment of the

related ECL. The only remaining issues are whether the City

and County gave reasonable assurance that applicable water

quality standards w ill not be violated and whether the City

and County have obtained, or are able to obtain, all requisite

private property rights necessary to implement the proposed

Project. In addition, the City, County, and DEP question the

standing of SOB and STBR to ra ise these issues.

D. Standing

26. In their PRO, the City and County cite Sections

617.1622(8) and 617.0128, Florida Statutes, 6 in support of

their argument that SOB and STBR have no standing because they

did not introduce in evidence a certificate of s tatus showing

that they are in good standing. The former statute provides

that a corporation failing to file an annual report "may not

maintain or defend any action in any court of this state until

such report is filed and all fees and taxes due under thi s act

are paid . . . ." (Emphasis supplied.) But DOAH is not a

court. See Florida Dept. of Revenue v. WHI Ltd. Partnership ,

754 So. 2d 205 (Fla. 1st DCA 2000). The latter statute

provides in pertinent part: "(1) Anyone may apply to the

Department of S tate to furnish a certificate of status

. . . ." (Emphasis supplied.) Lack of corporate standing

under these statutes would be in the nature of an affirmative

defense that the City and County would have to plead and

prove. See Christie v. Highland Water front Co. , 114 Fla. 263,

271, 153 So. 784, 787 (1934); Babe, Inc. v. Baby's Formula

Service, Inc. , 165 So. 2d 795, 799 (Fla. 3d DCA 1964). In

this case, the City and County neither pled the defense nor

introduced a certificate of status in evidence.

27. Section 403.412(6), Florida Statutes, provides:

Any Florida corporation not for profit

which has at least 25 current members

residing within the county where the

activity is proposed, and which was formed

for the purpose of the protection of the

enviro nment, fish and wildlife resources,

and protection of air and water quality,

may initiate a hearing pursuant to s.

120.569 or s. 120.57, provided that the

Florida corporation not for profit was

formed at least 1 year prior to the date of

the filing of the application for a permit,

license, or authorization that is the

subject of the notice of proposed agency

action.

In this case, neither SOB nor STBR was formed at least a year

prior to the filing of the Application. As a result, neither

can take advantage of this statute as a basis for standing.

28. Section 403.412(5), Florida Statutes, states:

Nothing herein limits or prohibits a

citizen whose substantial interests will be

determined or affected by a proposed agency

action from initiating a formal

ad ministrative proceeding under s. 120.569

or s. 120.57. A citizen's substantial

interests will be considered to be

determined or affected if the party

demonstrates it may suffer an injury in

fact which is of sufficient immediacy and

is of the type and natu re intended to be

protected by this chapter. No

demonstration of special injury different

in kind from the general public at large is

required. [7] A sufficient demonstration of

a substantial interest may be made by a

petitioner who establishes that the

p roposed activity, conduct, or product to

be licensed or permitted affects the

petitioner's use or enjoyment of air,

water, or natural resources protected by

this chapter. [8]

29. There was no evidence that SOB or STBR themselves

own property or otherwise w ould be affected by the proposed

Project. Their standing is "associational" and is derived

from their representation of their members. The requirements

for "associational standing" in proceedings under Sections

120.569 and 120.57(1), Florida Statutes, ar e set out in

Florida Home Builders Ass'n v. Dept. of Labor and Employment

Security , 412 So. 2d 351 (Fla. 1982): instead of having to

prove that the associations' own substantial interests would

be affected, the associations would have to prove that a

subs tantial number of their members would meet the standing

test. They must prove: (a) that a substantial number of

their members, although not necessarily a majority, are

substantially affected by the proposed Project; (b) that the

subject matter of the pro posed Project is within the general

scope of the interests and activity for which the

organizations were created; and (c) that the relief requested

is of the type appropriate for the organizations to receive on

behalf of their members. See also Florida Le ague of Cities,

Inc. v. Department of Environmental Regulation , 603 So. 2d

1363 (Fla. 1992); Friends of the Everglades, Inc. v. Board of

Trustees of the Internal Improvement Trust Fund , 595 So. 2d

186 (Fla. 1st DCA 1992). The standing issues in this case

relate to the first of the three requirements.

30. In this case, all six STBR members own beachfront

property adjacent to the proposed Project, and all six would

be affected by the proposed Project if it significantly

reduced water quality, infringed on riparian rights, or

proceeded without their required consent, as alleged. But it

was not clear from the evidence if more than one of SOB's

approximately 150 members own beachfront property in the

proposed project area or would be affected by the proposed

Project if it significantly reduced water quality, infringed

on riparian rights, or proceeded without their required

consent, as alleged.

31. In any event, as found, there will not be any

lasting damage to natural resources, and reasonable assurance

wa s given that no water quality violations will occur and that

exceedences of water quality standards in the mixing zone will

be of short duration, lasting for no longer than an hour.

These effects will not be substantial.

E. Water Quality

32. Among oth er things, Section 373.414(1), Florida

Statutes, requires an "applicant [for a wetland/environmental

resource permit] to provide reasonable assurance that state

water quality standards applicable to waters as defined in s.

403.031(13) will not be violated . . . ." The term

"reasonable assurance" is also found in Rule 62 - 4.070(1). 9

33. An applicant need not provide an absolute guarantee.

See ManaSota - 88, Inc. v. Agrico Chemicals, Co. and Florida

Department of Environmental Regulation , 12 F.A.L.R. 1319, 1325

(DER Feb. 19, 1990). Nor is it necessary for an applicant to

eliminate speculation concerning what "might" occur. Chipola

Basin Protective Group, Inc. v. Department of Environmental

Regulation , Case No. 88 - 3355, 1988 WL 1859974 (Dept. Env. Reg.

Dec. 29, 1988). "Reasonable assurance" requires an applicant

to establish a "substantial likelihood that the project will

be successfully implemented." Metro Dade County v. Coscan

Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992).

34. The applicable w ater quality standard in this case

is the turbidity standard for surface waters found in Rule 62 -

302.530(70): 29 or fewer NTUs outside the mixing zone

described in Rule 62 - 4.244(5). As found, the City and County

provided reasonable assurance that the app licable water

quality standard will not be violated.

F. Required Riparian Interest

35. The City and County seek a JCP, which includes two

separate permits, and an authorization. The two permits

included within a JCP are: a coastal construction permit

governed by Chapter 161, Florida Statutes, and Rule Chapter

62B - 41; and a wetland/environmental resource permit 10 governed

by Chapter 373, Florida Statutes, and Rule Chapter 62 - 312. A

JCP also includes a proprietary authorization to use sovereign

submerg ed lands, which is governed by Chapter 253, Florida

Statutes, and Rule Chapter 18 - 21. See Fla. Admin. Code R.

62B - 49.001.

36. Rule Chapter 62B - 49, entitled “Joint Coastal Permits

and Concurrent Processing of Proprietary Authorizations,” does

not change the substantive requirements for obtaining a

coastal construction permit, wetland/environmental resource

permit, or a proprietary authorization to use sovereign

submerged lands. Rather, it provides a procedural mechanism

for processing all three componen ts of the JCP ( i.e. , coastal

construction permit, wetland/environmental resource permit,

and/or a proprietary authorization to use sovereign submerged

lands) at the same time. Rule 62B - 49.001 specifically

recognizes that:

[t]he standards and criteria for issuance

of environmental resource permits and

coastal construction permits pursuant to

Title 62, Florida Administrative Code, and

proprietary authorizations pursuant to

Chapters 18 - 18, 18 - 20, 18 - 21, Florida

Administrative Code, shall be applicable to

the review of joint coastal permits.

Rule 62B - 49.005(2) provides that applicants for a JCP must

submit all information required by Rule Chapters 62 - 312, 62B -

41, and 18 - 21.

Rule Chapter 18 - 21

37. Under Section 253.03(1), Florida Statutes, the BOT

“is vested and charged with the acquisition, administration,

management, control, supervision, conservation, protection,

and disposition of all lands owned by [the State].”

38. Section 253.77, Florida Statutes, provides: “A

person may not commence any excavation, construction, or other

activity involving the use of sovereign or other lands of the

state, the title to which is vested in the board of trustees

of the Internal Improvement Trust Fund under this chapter,

until the person has received the required lease, license,

easement, or other form of consent authorizing the proposed

use.”

39. Rule Chapter 18 - 21 was promulgated under the

specific authority of Section 253.03(7), Florida Statutes.

Rule 18 - 21.004(3) provides in pertinent part:

Riparian Rights.

(a) N one of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditional,

common law riparian rights, as defined in

Section 253.141, F.S., of upland property

owners adjacent to sovereignty submerged

lands.

( b) Satisfactory evidence of sufficient

upland interest is required for activities

on sovereignty submerged lands riparian to

uplands, unless otherwise specified in this

chapter. Public utilities and state and

other governmental agencies proposing

activit ies such as utility lines, roads or

bridges must obtain satisfactory evidence

of sufficient upland interest prior to

beginning construction, but need not

provide such evidence as part of any

required application. Satisfactory evidence

of sufficient upland interest is not

required for activities on sovereignty

submerged lands that are not riparian to

uplands, or when a governmental entity

conducts restoration and enhancement

activities, provided that such activities

do not unreasonably infringe on riparian

r ights.

40. Rule 18 - 21.003(49) defines "satisfactory evidence of

sufficient upland interest" as:

documentation, such as a warranty deed; a

certificate of title issued by a clerk of

the court; a lease; an easement; or

condominium, homeowners or similar

association documents that clearly

demonstrate that the holder has control and

interest in the riparian uplands adjacent

to the project area and the riparian rights

necessary to conduct the proposed activity.

Other forms of documentation shall be

accepte d if they clearly demonstrate that

the holder has control and interest in the

riparian uplands adjacent to the project

area and the riparian rights necessary to

conduct the proposed activity.

41. SOB and STBR take the position that the City and

County ha ve not provided “satisfactory evidence of sufficient

upland interest.” But the Application in this case falls

squarely within the exception in the last sentence of Rule 18 -

21.004(3)(b), supra : no evidence of an upland interest is

necessary "provided that such activities do not unreasonably

infringe on riparian rights." 11

42. One riparian right alleged to be infringed by the

Application is the right to accretion. However, under the

pertinent statutes, the riparian right to accretions (as well

as the ri sk of erosion) will be eliminated upon recording of

the ECL. Section 161.141, Florida Statutes, provides:

The Legislature declares that it is the

public policy of the state to cause to be

fixed and determined, pursuant to beach

restoration, beach nouris hment, and erosion

control projects, the boundary line between

sovereignty lands of the state bordering on

the Atlantic Ocean, the Gulf of Mexico, or

the Straits of Florida, and the bays,

lagoons, and other tidal reaches thereof,

and the upland properties adjacent thereto;

except that such boundary line shall not be

fixed for beach restoration projects that

result from inlet or navigation channel

maintenance dredging projects unless such

projects involve the construction of

authorized beach restoration proj ects.

However, prior to construction of such a

beach restoration project, the board of

trustees must establish the line of mean

high water for the area to be restored; and

any additions to the upland property

landward of the established line of mean

high w ater which result from the

restoration project remain the property of

the upland owner subject to all

governmental regulations and are not to be

used to justify increased density or the

relocation of the coastal construction

control line as may be in effec t for such

upland property. The resulting additions

to upland property are also subject to a

public easement for traditional uses of the

sandy beach consistent with uses that would

have been allowed prior to the need for the

restoration project. It is fu rther

declared that there is no intention on the

part of the state to extend its claims to

lands not already held by it or to deprive

any upland or submerged land owner of the

legitimate and constitutional use and

enjoyment of his or her property. If an

a uthorized beach restoration, beach

nourishment, and erosion control project

cannot reasonably be accomplished without

the taking of private property, the taking

must be made by the requesting authority by

eminent domain proceedings.

Section 161.161(5), Fl orida Statutes, provides that the BOT

shall approve or disapprove the ECL for a beach restoration

project. Section 161.181, Florida Statutes, provides that, if

no review is taken, or if the BOT'S decision is upheld on

review, the BOT shall file its resolu tion approving the ECL in

the public records and record the survey showing the area of

beach to be protected and the ECL in the book of plats of the

county or counties where the ECL lies. Section 161.191,

Florida Statutes, states:

(1) Upon the filing of a copy of the board

of trustees' resolution and the recording

of the survey showing the location of the

erosion control line and the area of beach

to be protected as provided in s. 161.181,

title to all lands seaward of the erosion

control line shall be de emed to be vested

in the state by right of its sovereignty,

and title to all lands landward of such

line shall be vested in the riparian upland

owners whose lands either abut the erosion

control line or would have abutted the line

if it had been located di rectly on the line

of mean high water on the date the board of

trustees' survey was recorded.

(2) Once the erosion control line along

any segment of the shoreline has been

established in accordance with the

provisions of ss. 161.141 - 161.211, the

common la w shall no longer operate to

increase or decrease the proportions of any

upland property lying landward of such

line, either by accretion or erosion or by

any other natural or artificial process,

except as provided in s. 161.211(2) and

(3). However, the s tate shall not extend,

or permit to be extended through artificial

means, that portion of the protected beach

lying seaward of the erosion control line

beyond the limits set forth in the survey

recorded by the board of trustees unless

the state first obtai ns the written consent

of all riparian upland owners whose view or

access to the water's edge would be altered

or impaired.

Finally, Section 161.201, Florida Statutes, states:

Any upland owner or lessee who by operation

of ss. 161.141 - 161.211 ceases to be a

holder of title to the mean high - water line

shall, nonetheless, continue to be entitled

to all common - law riparian rights except as

otherwise provided in s. 161.191(2),

including but not limited to rights of

ingress, egress, view, boating, bathing,

an d fishing. In addition the state shall

not allow any structure to be erected upon

lands created, either naturally or

artificially, seaward of any erosion

control line fixed in accordance with the

provisions of ss. 161.141 - 161.211, except

such structures r equired for the prevention

of erosion. Neither shall such use be

permitted by the state as may be injurious

to the person, business, or property of the

upland owner or lessee; and the several

municipalities, counties and special

districts are authorized a nd directed to

enforce this provision through the exercise

of their respective police powers.

Since the Project cannot proceed without recording of the

established ECL, there will be no infringement of any right to

accretion, assuming the constitutionalit y of these statutes.

(Alternatively, infringement of the right to accretion by

issuance of the Draft Permit pending establishment of the ECL

is not unreasonable.)

43. SOB and STBR also alleged that there is another

riparian right infringed by the Draft Permit -- the so - called

"right to have the property's contact with the water remain

intact." Board of Trustees of the Internal Improvement Trust

Fund v. Sand Key Associates, Ltd. , 512 So. 2d 934, 936 (Fla.

1987). 12 Actually, this right is no different tha n the

riparian right to accretions (and relictions). As indicated,

those rights (as well as the risk of loss of land by erosion)

would be eliminated by establishment of the ECL, assuming the

constitutionality of the pertinent statutes.

Rule Chapter 62B - 41

44. SOB and STBR also contend that Rule 62B - 41.005(3)

requires the City and County to establish a riparian interest

in the beach to be restored by their proposed Project, or

establish that they have the consent of the owners of that

land.

45. Rule 6 2B - 41.005(3), which originally applied to

coastal construction permits before they were combined with

wetland/environmental resource permits to become JCPs under

Rule Chapter 62B - 49, states in pertinent part: "The

Department will determine whether to auth orize coastal

construction at any coastal location upon receipt of an

application from a property or riparian owner and upon

consideration of the facts or circumstances . . . ." But Rule

62B - 49.001 provides:

This chapter implements the provisions of

16 1.055, Florida Statutes, establishing a

joint coastal permit. A joint coastal

permit is issued when both a coastal

construction permit is required pursuant to

Section 161.041, Florida Statutes, and an

environmental resource permit pursuant to

Part IV of C hapter 373, Florida Statutes,

are required. This chapter also provides

for concurrent review of any activity

requiring a joint coastal permit that also

requires a proprietary authorization for

use of sovereign submerged lands owned by

the Board of Trustee s of the Internal

Improvement Trust Fund. In the event there

is a conflict between the procedural

requirements of this chapter and other

procedural rules promulgated pursuant to

the referenced statutes, then this chapter

shall govern. The standards and c riteria

for issuance of environmental resource

permits and coastal construction permits

pursuant to Title 62, Florida

Administrative Code, and proprietary

authorizations pursuant to Chapters 18 - 18,

18 - 20, 18 - 21, Florida Administrative Code,

shall be applic able to the review of joint

coastal permits.

(Emphasis added.) Therefore, while the standards and criteria

for issuance of wetland/environmental resource permits and

coastal construction permits pursuant to Rule Chapter 62 are

expressly made applicable t o JCPs, Rule Chapter 62B - 49

controls in the event of any conflict.

46. Rule 62B - 49.002(3) defines an applicant for a JCP to

include:

any . . . county, municipality , township,

special district, or any public agency

having authority, pursuant to Section

1 61.041 , Chapter 253 or 258 and Part IV of

Chapter 373, Florida Statutes, to request a

permit , and if necessary, an authorization

to conduct activities upon sovereign

submerged lands of Florida.

(Emphasis added.) Section 161.041(1), Florida Statutes,

sp ecifically provides:

If any person, firm, corporation, county,

municipality, township, special district,

or any public agency desires to make any

coastal construction or reconstruction or

change of existing structures, or any

construction or physical act ivity

undertaken specifically for shore

protection purposes, or other structures

and physical activity including groins,

jetties, moles, breakwaters, seawalls,

revetments, artificial nourishment, inlet

sediment bypassing, excavation or

maintenance dredging of inlet channels, or

other deposition or removal of beach

material, or construction of other

structures if of a solid or highly

impermeable design, upon sovereignty lands

of Florida, below the mean high - water line

of any tidal water of the state, a coast al

construction permit must be obtained from

the department prior to the commencement of

such work.

In this case, both the City and the County desire to deposit

beach material on sovereignty lands of the State of Florida

below the MHWL for the purpose of shore protection and beach

restoration pursuant to Sections 161.088 – 161.212, Florida

Statutes, which provides for beach restoration and

renourishment funded and sponsored by government, both State

and local. It is not reasonable to interpret the applicabl e

statutes and rules to require a local government to be the

riparian owner of all the upland property which is subject to

a beach restoration project. In fact, Section 161.201,

Florida Statutes, expressly preserves the common - law rights of

upland owners affected by beach restoration activities under

Sections 161.141 - 161.211, Florida Statutes. DEP’s

interpretation that Rule 61B - 41.005(3) is inapplicable to the

Application in this case is reasonable, and the City and

County are proper applicants for the JC P in this case. See

Level 3 Communications, LLC v. Jacobs , 841 So. 2d 447 (Fla.

2003); Meszaros v. Dep’t of Ag. and Consumer Servcs , 861

So. 2d 86 (Fla. 5th DCA 2003)(agency interpretation of rules

and statutes it is charged with administering is entitled to

deference).

47. Even if Rule 61B - 41.004(3) were applicable, it

merely provides that DEP will determine whether to authorize

activity “upon receipt of an application from a property or

riparian owner.” Since both the City and County own riparian

pr operty within the Project area, they would appear to satisfy

this generic requirement.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order issuing Draft

Permit DEP JCP Fi le No. 0218419 - 001 - JC.

DONE AND ENTERED this 30th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 30th day of June, 2005.

ENDNOTES

1/ Technically, expe rts refer to an initial project to

restore a beach by adding sand as restoration or nourishment,

while renourishment technically refers to the addition of sand

8 - 12 years later to maintain the "design beach" by replacing

sand "sacrificed" to erosion durin g those years, as envisioned

in the initial design.

2/ These included environmental assessments, engineering

analyses, and detailed geotechnical studies.

3/ Specifically, proposed beach nourishment would occur along

4.8 miles of beachfront in the C ounty, and the County owns

four of the 275 parcels of beachfront property along that

stretch. Proposed beach nourishment also would occur along

two miles of beachfront in the City, and the City owns one of

the 178 parcels of beachfront property along that stretch,

plus six beach accesses. In addition, Okaloosa County, a

partner with the City in the beach nourishment project, owns a

parcel in the City in the project area.

4/ The survey for the County portion of the project, which

was introduced in evide nce as Petitioners' Exhibit 4, bears

that date. It is not clear from the evidence whether the

survey for the City portion of the project bears the same

date, but it is inferred from the evidence that any difference

in the dates of the surveys would not be significant.

5/ No party presented deeds to prove or refute beachfront

ownership. The City and County argued in their PRO that it

was necessary for SOB and STBR to introduce such deeds in

evidence in order to prove ownership to the MHWL in the area

o f the proposed beach nourishment project. This argument is

rejected. The testimony and evidence in the record was

sufficient to support this finding.

6/ All statutory citations are to the 2004 codification of

the Florida Statutes.

7/ This statuto ry provision contradicts the Conclusion of Law

proposed in the PRO filed by the City and County based on the

decision in Grove Isle, Ltd. v. Bayshore Homeowners Ass'n , 418

So. 2d 1046 (Fla. 1st DCA 1982).

8/ The City and County argue in their PRO: "Th e purpose of

the requirement for water quality assurances and, more

specifically, the water quality standard of less than or equal

to 29 NTU imposed by the Permit is to protect the fish and

benthic communities within the Project area. The turbidity

standa rd is not intended to ensure that waters are

aesthetically pleasing during the construction of this, or any

other beachfront Project. Thus, Petitioners fail to meet this

requirement." But this statutory provision contradicts their

argument, which must be rejected.

9/ All rule citations are to the current codification of the

Florida Administrative Code.

10/ Within the Northwest Florida Water Management District, a

“wetland resource permit” is required rather than an

“environmental resource permit,” which is required in the

other four water management districts in the State. The minor

distinction between the two permits has no effect on the

issues in this case.

11/ Witnesses for the City and County suggested that

ownership of some riparian propert y along the proposed Project

site was sufficient under these rules, but the argument was

not made in their PRO.

12/ During the hearing, this was referred to as the right for

one's riparian property to remain in contact with the water."

But riparian owner ship only extends to the MHWL, and

beachfront property usually is not in contact with the water.

COPIES FURNISHED :

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Bouleva rd

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Colleen M. Castille, Secretary

Department of Environmental Protection

Dou glas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Richard S. Brightman, Esquire

D. Kent Safriet, Esquire

Hopping, Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Mark S. Miller, Esquire

Department of Envi ronmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kenneth J. Plante, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Post Office Box 10369

Tallahassee, Florida 32302 - 2369

Gary Vorbeck, Esquire

Walton County Board of County Commissioners

161 East Sloss Avenue

Defuniak Springs, Florida 32433

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions 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.