06-004756 Beach Group Investments, Llc vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, April 19, 2007.

Summary: The application for a coastal construction control line permit should be denied because the project extends seaward of the 30-year erosion projection.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEACH GROUP INVESTMENTS, LLC, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4756

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on February 15 -

16 , 200 7 , in Tallahassee , Florida.

APPEARANCES

For Petitioner: William L. Hyde, Esquire

Fowler White Boggs Banker, P.A.

Post Office B ox 11240

Tallahassee, Florida 32302 - 3240

For Respondent: Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental

Protection should approve Petitioner’s application for a coastal

construction control line permit .

PRELIMINARY STATEMENT

On November 1, 2006, the Department of Environmental

Protection (Depar tment) issued a proposed final order denying

Petitioner’s application for a coastal construction control line

(CCCL) permit. Petitioner timely requested an administrative

hearing on the denial of its perm it application, and on

November 21, 2006, the Depar tment referred the matter to the

Division of Administrative Hearings (D OAH) for the a ssignment of

an A dministrative L aw J udge to conduct the hearing requested by

Petitioner.

The final hearing was initially scheduled for April 4 - 5 ,

200 7, in Ft. Pierce, but it was rescheduled for February 15 - 16,

2007, in Tallahassee at the parties’ request. The parties filed

a Joint Pre - hearing Stipulation on February 12, 2007.

At the final hearing, Petitioner presented the testimony of

Michael Walther and Harold Seltzer and the Department presented

the testimony of Tony McNeal, Michael Barnett, and Emmett

Foster. The following exhibits were received into evidence:

Petitioner’s Exhibits (Pet. Ex.) 1, 2, 9 through 11, 15 through

17, 19 through 27, 29 through 35, 36A through 36C, and 37

through 39 ; and Department’s Exhibits (Dept. Ex.) 5 through 13,

16 through 19, 21 through 23, 24A through 24N, and 25 through

27 . Official recognition was taken of Section 161.053, Florida

Statues (2006), 1 and Florida Administrative Code Rule Chapter

62B - 33.

The three - volume Transcript of the final hearing wa s filed

on March 1 , 2007 . The parties requested 21 da ys from that date

to file proposed recommended orders (PROs) , but t he deadline was

subsequently extended to March 30, 2007, upon Petiti oner’s

unopposed motion . The PROs were timely filed and have been

given due consideration.

FINDINGS OF FACT

A. Stipulated Facts 2

1. Petitioner, Beach Group Investments, LLC (Beach Group),

is a limited liability corporation under Florida law. Its

addre ss is 14001 63rd Way North, Clearwater , Florida 33760.

2. On December 19, 2005, Coastal Technology Corporation

(Coastal Tech) on behalf of Beach Group submitted to the

Department an application for a CCCL permit pursuant to Chapter

161, Florida Statute s, to construct 17 luxury townhome units in

two four - story buildings, a pool, a dune walk - over, and

ancillary parking and driveway areas (hereafter “the Project ”).

The Department designated the application as File No. SL - 224.

3. The property on which the Project is proposed

(hereafter “the Property ”) is located between the Department's

reference monument s R - 34 and R - 35, in St. Lucie County . The

Property’s address is 222 South Ocean Drive, Fort Pierce,

Florida.

4. The Property is located seaward of the CCCL line

estab lished in accordance with S ection 161.053, Florida

Statutes , and Florida Administrative Code Rule Chapter 62B - 33.

5. On April 21, 2006, the application was determined to be

complete.

6. By letter dated June 5, 2006, the Departme nt notified

Beach Group that the Project appeared to be located seaward of

the 30 - year erosion projection of the seasonal high water line

(SHWL ), and that in accordance with S ection 161.053(6), Florida

Statutes, the staff could not recommend approval of th e Project

since major structures are seaward of the estimated erosion

projection.

7. By letter dated July 7, 2006, and subsequent

submittals, Beach Group requested a waiver of the 90 - day time

period for processing completed applications pursuant to Cha pter

120, Florida Statutes, until October 31, 2006.

8. On August 30, 2006, Beach Group submitted a certified

engineering analysis of the 30 - year erosion projection of the

SHWL for the Department's consideration pursuant to Florida

Administrative Code R ule 62B - 33.024(1). Beach Group's analysis

determined that the proposed major structures associated with

the Project were located landward, not seaward, of the 30 - year

erosion projection.

9. The Department also performed its own 30 - year erosion

project ion of the SHWL, and determined that the proposed major

structures were located seaward, not landward, of the 30 - year

erosion projection. The Department asserts that the proposed

structures are located between 87 feet and 68 feet seaward of

the Department 's determination of the 30 - year erosion

projection.

10. The Department disagreed with Beach Group's analysis

because the analysis ap peared to be inconsistent with S ection

161.053(6), Florida Statutes, Florida Administrative Code Rule

62B - 33.024, and th e Department's own analysis.

11. The Property is located just south of the Fort Pierce

Inlet , and landward of a federally maintained beach restoration

project that had approximately 14 years of life remaining under

the existing Congressional authorizat ion when the permit was

submitted to the Department.

12. By proposed Final Order dated November 1, 2006, the

Department provided to Beach Group notice of its intent to deny

the permit application.

13. The proposed Final Order was received by Beach G roup

on November 8, 2006. Beach Group's petition for hearing was

timely filed with the Department.

14. Since the Department proposes to deny Beach Group's

CCCL permit application, its substantial interests are clearly

at issue, and it has standing to maintain this proceeding.

15. On December 11, 2006, the Department issued an

environmental resource permit for the Project .

16. The Department denied Beach Group’s permit application

because the Project extends seaward of the 30 - year erosion

projection calculated by the Department and because the

Project’s i mpacts to the beach - dune system had not been

minimized . The permit was not denied on the basis of the

existence, or absence , of a line of continuous construction in

the vicinity of the Project .

B. T he 30 - year Erosion Projection

(1) Background

17. Fort Pierce Inlet (hereafter “the inlet”) was

constructed by the Army Corps of Engineers in the 1920’s. The

channel of the inlet is protected by two jetties that extend

several hundred feet into the Atl antic Ocean.

18. The jetties act as a barrier to the littoral transfer

of sand from the north to south that would otherwise occur along

the beach in the vicinity of the Property. The jetties cause

accretion on the beach to the n orth of the inlet and eros ion of

the beach to the south of the inlet.

19. The inlet channel beyond the jetties also restricts

the littoral transfer of sand in the area. The deepening and

widening of the channel in 1995 likely contributed to the

increased erosion observed south of the inlet in recent years.

20. The beach to the south of the inlet, including that

portion on the Property , is designated as a “ critically eroded

beach ” by the Department. The inlet is the primary cause of the

erosion.

21. Congress first authorized bea ch nouri shment s outh of

the inlet in 1965 . That authorization expired in 1986.

22. Congress “reauthorized” beach nourishment south of the

inlet in 1996. Th at authorization expire s in 2021 , but St.

Lucie County has requested that the authorization be ext ended

for “another 50 years.”

23. The first “major” beach nourishment south of the inlet

occurred in 1971. Subsequent “major” nourishments occurred in

1 980, 1999, 2003, 2004, and 2005 . Another “major” nourishment

is planned for 2007.

24. There was a “m oderate” nourishment of the beach in

1995 , which included the placement of geotextile groins on the

beach just to the north of the Property . “Small” nourishment s

occurred in 1973, 1978, 1987, 1989, 19 90, 1992, 1994, 1997 , and

1998.

25. Cumulatively, the nourishment s that occurred between

the “major” nourishments in 1 980 and 1999 involved approximately

419,000 cubic yards of sand , which is more than the volume

in volved in several of the “major” nourishments.

26. B each nourishment south of the inlet has b een an

ongoing effort since it started in 1971 . The more persuasive

evidence establishes that the nourishment project that is

authorized through 2021 is a continuation of the project started

in 1971 rather than a separate and distinct project.

27. V ario us er osion control efforts have been used south

of the inlet in conjunction with the beach nourishment efforts.

For example, g eotextile groins (which are essentially massive

sandbags) have been installed and removed on several occasions

since the mid - 1990 ’s in order to “temporarily stabilize the

shoreline until such measures could be taken to design, permit

and c onstruct a long - term solution”; concrete rubble and other

riprap has been placed on the beach over the years (without a

permit from the Department ) to protect upland structures from

erosion; and a " spur jetty " was constructed on the south jetty

in an effort to reduce erosion south of the inlet.

28. These efforts have not slowed the pace of the erosion

or minimized the need for beach nourishment so uth of the inlet .

Indeed, the need for and frequency of “major” nou rishments south

of the inlet have increased in recent years.

29. Beach erosion south of the inlet will continue to be a

serious problem so long as the inlet exists and the jetties

remain in place. There is no reason to expect that the inlet or

the jetties will be removed in the foreseeable future and, as a

result, beach nourishment south of the inlet will continue to be

necessary.

30. The Department has recognized the need for continuin g

nourishment of the beach south of the inlet, as reflected in

both the S trategic Beach M anagement P lan for the St. Lucie

Bea ches and the Ft. Pierce Inlet Management Study Implementation

Plan. Those plans acknowledge the long - term need for continued

nouri shment of the beach at a rate of at least “130,000 cubic

yards on an average annual basis.” The plans do not, however,

guarantee that future beach nourishment in the area will occur

at that , or any , rate.

(2) Rule Methodology

31. Florida Administrative Code Rule 6 2 B - 33.024 contains

the methodology for determining the 30 - year erosion projection,

which is the projected location of the SHWL 30 years after the

dat e of the permit application under review.

32. Where, as here, the beach at issue is subject to an

ongoing beach nourishment project, the methodology requires

consideration of “pre - project” conditions -- i.e. , the

conditions that existed before the beach nourishment efforts

started -- because those conditions are used to project how the

beach will mi grate landward in the periods over the next 30

years when there may not be any be ach nourishment activity .

33. The coastal engineering experts presented by the

parties -- M ichael Walther for Beach Group and Emmett Foster for

the Department -- used essenti ally the same methodology to

determine the location of the 30 - year erosion projection .

However, the variables that they used in each step of the

methodology differed.

(a) Step 1: Locate th e Pre - Project MHWL

34. The first step in determining the 30 - year e rosion

projection is to locate the pre - project MHWL .

35. If a pre - project erosion control line (ECL) 3 has been

established in the area, i t is to be used as the starting - point

for the determination of the 30 - year erosion projection.

Oth erwise a pre - proj ect survey of the MHW L is to be used as the

starting - point.

36. Mr. Walther used a 1997 ECL as the starting point for

his analysis. Mr. Foster used a March 2002 survey of the MHWL

as the starting point for his analysis because he did not

consider the 199 7 ECL to be an appropriate pre - project ECL .

37. The March 2002 survey of the MHWL is not itself an

appropriate starting point for the analysis. The survey is not

a “pre - project” survey, no matter how the project is defined;

the survey occurred more than 30 years after the nourishments

started in 1971, and three years after the first “major”

nourishment pursuant to the Congressional rea uthorization of the

project. Moreover, as discussed below, there is a n appropriate

pre - project ECL in the area.

38. Ther e are two lines that might be considered to be a

pre - pr oject ECL in this case -- (1) the ECL established in 1997 ,

and (2) the South Beach High Tide Line (SBHTL) established in

1968.

39. The 1997 ECL was established based upon a survey of

the MHWL performe d on May 5, 1997. Th e survey occurred two

years after a “moderate” beach nour ishment and the placement of

the geotextile groins on the beach. There was also a “small”

nourishment in 1997, but the record does not reflect whether

that nourishment occurred before or after the survey.

40. The SBHTL was established based upon a survey of the

MHWL between 1966 and 1968 , prior to the initial nourishment of

the beach south of the inlet. It is approximately 65 feet

landward of the 1997 ECL.

41. The SBHTL is the functional equivalent of an ECL , and

it roughly corresponds to the “best fit line” for the March 2002

survey used by Mr. Foster as the starting point for his

determination of the 30 - year erosion projection in this case.

42. The Department contends that t he 1997 ECL i s not based

upon a “pre - project” survey of the MHWL because the applicable

beach restoration project south of the inlet began in the 1970’s

and has been ongoing since that time. Beach Group contends that

the applicable project is the current one that is authorized

through 2021, and that the 1997 sur vey preceded the start of the

nourishment s authorized by that project.

43. The Department has used the 1997 ECL as the starting -

point for determining the 30 - year erosi on projection in several

prior permits in the vicinity of the P roject , 4 and i n an April 9,

1999, memorandum discussing the 30 - year erosion projection in

the vicinity of monuments R - 35 and R - 36, Mr. Foster stated that

“the ECL represents the pre - project [MHWL] .”

44. Mr. Foster no longe r considers the 1997 ECL to be the

appropriate pre - project MHWL for purposes of determining the 30 -

year erosion projection south of the inlet. He testified that

had he been aware of “the complete background” of the 1997 ECL

and the extent of the nourishme nts in the 1980’s and 1990’s , he

would have brought the issue to the Department’s attention so

that the Department could consider whether the 1997 ECL or “an

earlier prenourishment line” was the appropriate pre - project

MHWL.

45. Although it is a close que stion, t he more persuasive

evidence presented at the final hearing establishes that the

1997 ECL is not an appropriate pre - project MHWL because the

applicable “project” includes the beach nourishment efforts

started in 1971 that have continued through the present , even

though those efforts were intermittent at times .

46. Thus, the a ppropriate starting point for determining

the location of the 30 - year erosion projection is the SBHTL , not

the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey

u sed by Mr. Foster .

(b) Step 2: Locate the Pre - Project SHWL

47. The second step in determining the 30 - year erosion

projection is to determine the location of the pre - project SHWL.

48. Mr. Walther located the pre - project SHWL 26.4 feet

landward of the 1997 E CL. That is the surveyed distance between

the MHWL and SHWL in June 2005.

49. Mr. Foster located the pre - project SHWL at the most

landward location that the SHWL w as surveyed i n March 2002. Th e

line is between 50 and 75 feet 5 landward of the “best fine” line

used by Mr. Foster as the pre - project MHWL, and it is as much as

25 feet landward of the surveyed location of the SHWL in some

areas.

50. Mr. Foster used “an average [of] 50 feet” as the MHWL -

to - SHWL distance in his analysis of several prior permit s in the

vicinity of the Project . 6

51. Mr. Foster te stified that the distance betwe en the

MHWL and SHWL in this area varies “from the 20s in the immediate

post - nourishment situation s . . . all the way up to 70 - some

feet” and that the “the averages gravi tate towards 40 feet.”

52. Consistent with that testimony, the distance between

the surveyed locations of the MHWL and SHWL depicted on

Department Exhibit 6 is approximately 40 feet, on average.

53. The MHWL - to - SHWL distance calculated by Mr. Walther is

not a reasonable projection of the pre - project distance because

it was based upon survey data taken immediately after a “major”

beach nourishment when the shoreline was unnaturally steep and ,

hence, not representative of “pre - project” conditions.

54. The SHWL located by Mr. Foster is also not a

reasonable projection of the pre - project SHWL because it was

based upon a March 2002 survey (which is clearly not " pre -

project " ); because it used the most landward surveyed location

of the SHWL rather than a “best fit” line or an average of the

distances between the surveyed MHWL and SHWL ; and because it

runs across areas of well - established dune vegetation.

55. In sum, t he MHWL - to - SHWL distance calculated by Mr.

Walther (26.4 feet) is too low, whereas the distance resulting

from Mr. Foster's siting of the SHWL based on the March 2002

survey (50 to 75 feet) is too high. Those distances are

essentially endpoints of the range observed in this area , as

described by Mr. Foster.

56. A more reasonable estimate of the pre - project MHWL - to -

SHWL distance is approximately 40 feet . See Findings 51 and 52.

57. Thus, th e pre - project SHWL is located 40 feet landward

of and parallel to the SB HTL . That line is not depicted on any

of the exhibits, but on Petitioner’s Exhibit 37 , it roughly

corresponds to a straight line between the points where the red -

dashed line intersects the Property’s north and south

boundaries.

(c) Step 3: Calculate the Erosion Rate

58. The third step in determining the 30 - year erosion

projection is to calculate an erosion rate.

59. The erosion rate used by Mr. Foster was - 7 feet per

year (ft/yr) . T hat rate was calculated based upon an average of

the shoreline change data for monument R - 35 for the period from

1949 to 1967. The rate would have been h ig her had Mr. Foster

averaged the rate s for the nearby monuments. 7

60. The erosion rate used by Mr. Walther was - 4.9 f t/yr .

That rate was calculated based upon an average of the shoreline

change data for monuments R - 34 to R - 39 over the period of 1930

to 19 68.

61. An erosion rate of - 7 ft/ yr south of the inlet was

referenced in permit application s submitted by Mr. Walter’s

firm , Coastal Tech, for several shore protection structures

south of the inlet ; was used by Mr. Foster in his review of

several prior CC CL permit applications south of the inlet ; and

was included in reports on the inlet prepared by the Army Corps

of Engineers over the years .

62. An erosion rate of - 3.3 ft/yr was used and accepted by

the Department in its review of another permit applicati on in

the general vicinity of the project. 8 That erosion rate was

based upon data from the period of 1972 to 1994, which is after

the beach nourishment sta r ted south of the inlet.

63. It is not entirely clear why Mr. Foster chose to use a

data set starti ng in 1949, particularly since his report stated

that the “1928 - 30 survey already shows significant erosion

occurring south of the inlet.” His testimony did not adequately

explain the choice of that data set.

64. The use of a longer data set is typically more

appropriate when calculating a historical rate. In this case,

however, the use of the shorter period of 1949 - 68 is reasonable

because the 1930 - 49 erosion r ate was considerably lower than the

1949 - 68 rate, 9 which has the effect of skewing the erosion rate

calculated for the longer period of 1930 - 68.

65. The higher erosion rate calculated by Mr. Foster also

better takes into account the i ncreased frequency of the

nourishments in recent years as well as the continued need for

shore stabilization in the area.

66. In sum, the higher erosion rate of - 7 f t/yr calculated

by Mr. Foster using the 1949 - 68 data set better reflects the

historical post - inlet, pre - nourishment erosion rate than does

the lower erosion rate calculated by Mr. Walther.

(d) Step 4: De termine the Remaining Project Life

67. The f ourth step in determining the 30 - year erosion

projection is to determine the “remaining project life” of the

“ exist ing ” beach nourishment project .

68. It was stipulated that there are 14 ye ars remaining

until t he currently authorized federal beach rest oration project

expires .

69. It is reasonable to expect that beach nourishment

south of the inlet will continue well beyond th e expiration of

the current federal project , but there were no other funded and

permitt ed projects in place a t the time Beach Group’s permit

application was filed.

70. Potential future beach nourishment projects are not

considered “existing” under the rule methodology in Florida

Administrative Code Rule 62B - 33.024 unless they are funded and

permitted at the time the application at issue is filed.

71. Mr. Walther used the 14 - year remaining life of the

existing federal project in his calculation of the 30 - year

erosion projection, as did Mr. Foster.

72. The “remaining project life” applicable to this case

is 14 years, notwithstanding the likelihood of continued beach

nourishment in the area beyond the expiration of the existing

project.

(e) Step 5: Calculate the 30 - year Erosion Projection

73. The final step in determining the location of th e 30 -

year erosion projection is a calculation using the variables

determined in the previous steps.

74. The calculation is as follows: first, the re maining

project life determined in step four is subtracted from 30;

then, that result is multiplied by the erosion rate determined

in step three to get a distance; and, finally, the SHWL is moved

t hat distance landward of its pre - project location determined in

step two.

75. Subtracting the remaining project of 14 years from 30

equals 16 years.

76. Multiplyin g 16 years by the erosion rate of - 7 f t/yr

equals 112 feet, which means that the 30 - year erosion line is

located 112 feet landward of the pre - project SHWL (or 152 feet

landward of the SBHTL) .

77. That line is not depicted on any of the exhibits, but

it ro ughly corresponds to a straight line than runs across the

Property parallel to the SBHTL just landward of the “conc. pad”

and “existing conc. Pile caps (typ)” shown on Petitioner’s

Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s

30 - year eros ion projection depicted on that exhibit.

(3) Ultimate Finding Regarding the Location of

the Proposed Structures in Relation to

the 30 - year Erosion Projection

78. The Project includes major structures seaward of th e

30 - year erosion projection, as deter mined above.

C. Impacts of the Pr oject on the Beach - Dune System

79. The Project includes 17 luxury town home units in t wo

four - story buildings, a pool and spa, landscaping, and a n

elevated dune walkover. The units will range from 2,700 to

4,400 square f eet of living space and are projected to be

offered for sale in the $1.5 to $2.5 million range .

80. B e ach Group’s principal , Harold Seltzer, testified

that the Project is sited as far landward as possible to allow

for the development of all 17 units while still complying with

the local setback and height restrictions; that the Project ’s

financial viability depends upon it being developed as proposed;

and that the Project cannot be redesigned and remain financially

viable.

81. The CCCL permit application i ncluded a letter from the

City of Ft. Pierce confirming that the Project is consistent

with the applicable local development codes . Mr. Seltzer

testified that the Project’s local development approvals expired

in September 2006 because the CCCL permit had not been issued,

and that Beach Group is having to go back through the local

permitting process .

82. The seaward extent of the Project is the 1978 CCCL,

which is approximately 250 fee t seaward of the current CCCL.

83. The buildings on the adjacent proper ties are also

located on the 1978 CCCL. The Project does not extend further

seawar d than the nearby development, including the structures

authorized by the Department in File Nos. SL - 162 and SL - 173. 10

84 . The seaward boundary of the Property is the SBHTL .

That line is approximately 295 feet landward of the MHWL

established in June 2005, and as noted above, it is

approximately 65 feet landward of the ECL established in 1997.

85 . The adjacent propert ies are developed with multi - s tory

residential buildings. There is a densely vegetated dune

feature in front of the building to the south of the Property .

There is some vegetation, but no discernable dune in front of

the building to the north of the Property .

86 . The Property as a whole is sparsely vegetated , but

there are areas of “prolific vegetation” on the P roperty .

87 . The seaward extent of the vegetation on the Property

roughly corresponds t o the location of the 1978 CCCL. There are

several mature sea grape cluste rs in the vicinity of that line .

88 . The beach in front of the Property is devoid of

vegetation. It has a steep slope immediately landward of the

water line; a wide (approximately 270 feet) expanse of

relatively flat beach; and a gently sloping dune feature that

starts just landward of the P roperty ’s seaward boundary, crests

approximately 30 feet fa rther landward, and then gradually

slopes downward across the Property all of the way to State Road

A1A .

89 . The dune feature on the Property is the frontal dun e.

It is the first mound s a nd locat ed landward of the beach that

has sufficient vegetation, height, continuity, and configura tion

to offer protective value.

90 . The crest of the frontal dune is seaward of the

vegetation line on the Property , and ranges in height from .7

to .2 feet NAV D. 11 The seaward toe of the dune is shown on

the topographic survey for the Property at elevations ranging

fr om .27 to .85 feet NAVD. Similar elevations occur on the

landward side of the dune crest, just landward of the 1978 CCCL .

91 . The vegetation on the Property extends landward of the

1978 CCCL and landward of the line shown on the topographic

survey of the Property as the “approximate location of sparse

grass and ground cover.” The landward extent of the vegetation

does not in and of itself defi ne the landward extent of the

dune; changes in the slope of the ground must also be

considered.

92 . The more persuasive evidence establishes that the

landward toe of the frontal dune is landward of the 1978 CCCL,

but not as f ar landward as suggested by D epartment witness Tony

McNeal . 12 The landward toe of the dune on the P roperty is best

defined by the elevations landward of the dune crest similar to

the elevations shown for the seaward toe of the dune.

93 . The Project extends into the frontal dune on th e

P roperty , and it will requires minor excavation of the frontal

dune, primarily in the area of the proposed pool.

94 . All aspects of the project, except for the proposed

dune walkover, will be landward of the crest of the frontal dune

and t he mature sea grape clusters located on th e dune.

95 . There will be no net excavation on the Property as a

result of the Project . The sand excavated for the pool will be

placed on - site , and additional beach - compatible sand will be

used as fill for the site. Overall, the Project will result in

the net placement of approximately 66 cubic yards of sand on the

Property .

96 . The proposed structures will be elevated on piles,

which will allow the beach - dune system to fluctuate under the

structure s during storm events. The finished floor elevation of

the proposed structures is approximately feet NAVD, which is

slightly higher than the elevations associated with the toes of

the frontal dune.

97 . The Project will not destabilize the frontal dune,

even though it will encr oach into the dune.

98 . The impacts of the Project on the beach - dune system

will be mitigated by the placement of additional sand into the

beach - dune system, as described above.

99 . The Project’s impacts will be further mitigated by the

enhancements to the frontal dune described in the permit

application .

100 . Mr. Walt her testified that the frontal dune on the

Property could “very easily” be enhanced to be of comparable

height and magnitude of the dun es on the adjacent properties .

101 . T he permit a p plication proposes enhancements to the

frontal dune as part of the Site Landscaping Plan for the

Project. The proposed enhancements include increasing the crest

of the dune to a height of feet NAVD , and extensive planting

of the dune with sea grapes, beach morning glories, and sea

oats. The plantings would extend from the 1978 CCCL to the

seaward toe of the existing frontal dune.

102 . The dune enhancements proposed in the permit

application should be included as a specific condition of the

CCCL permi t for the Project, if it is approved.

CONCLUSIONS OF LAW

103 . DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes .

104 . Beach Group has the burden to prove by a

pre ponderance of the evidence that its permit application should

be approved. See Dept. of Transportation v. J.W.C. Co., Inc. ,

396 So. 2d 778, 788 - 89 (Fla. 1st DCA 1981).

105 . The Department’s interpretation of the statutes and

rules governing the issuance of CCCL permits is entitled to

deference . See , e.g. , Dept. of Environmental Reg. v. Goldring ,

477 So. 2d 532, 534 (Fla. 1985) (“Courts should accord great

deference to administrative interpretations of statutes which

the administrative agency is required to enforce.”) .

106 . Generally, a ll construction seaward of the CCCL

requires a permit from the Department , unless an exemption

applies . See § 161.053 , Fla . Stat. ; Atlantis at Perdido Ass’n

v. Warner , 932 So. 2d 1206 (Fla. 1st DCA 2006). No exemption

ap pl ies in this case.

107 . T he Department may not issue a CCCL permit for major

structures seaward of the 30 - year erosion projection , except in

limited circumstances not applicable in this case . See

§ 163.053(6)(b), Fla. Stat .

108 . Florida Administrative Code Rule 62B - 33.024

establishes the procedure for determining the location of the

3 0 - year erosion projection . The rule provides in pertinent

part :

(1) A 30 - year erosion projection is the

projection of long - term shoreline recession

occurring over a peri od of 30 years based on

shoreline change information obtained from

historical measurements. A 30 - year erosion

projection of the seasonal high water line

(SHWL) shall be made by the Department on a

site specific basis upon receipt of an

application with th e required topographic

survey . . . for any activity affected by

the requirements of Section 161.053(6), F.S.

An applicant may submit a proposed 30 - year

erosion projection for a property, certified

by a professional engineer licensed in the

state of Flori da, to the Department for

consideration.

(2) A 30 - year erosion projection shall be

determined using one or more of the

following procedures:

(a) An average annual shoreline change

rate in the location of the mean high water

line (MHWL) at a Departm ent reference survey

monument shall be determined and multiplied

by 30 years. The resulting distance shall

be added landward of the SHWL located on the

application survey. The rate shall be

determined as follows:

1. The shoreline change rate shall be

derived from historical shoreline data

obtained from coastal topographic surveys

and maps, controlled aerial photography, and

similar sources approved by the Department.

Data from periods of time that clearly do

not represent current prevailing coastal

p rocesses acting on or likely to act on the

site shall not be used.

2. The shoreline change rate shall

include the zone spanned by three adjacent

Department reference monuments on each side

of the site. A lesser or greater number of

reference monuments can be used as necessary

to obtain a rate representative of the site,

and a rationale for such use shall be

provided.

3. In areas that the Department

determines to be either stable or accreting,

a minus one - foot per year shoreline change

rate shall be applied as a conservative

estimate.

* * *

(d) Beach nourishment or restoration

projects shall be considered as follows:

1. Future beach nourishment or

restoration projects shall be considered as

existing if all funding arrangements have

been made and all permits have been issued

at the time the application is submitted.

2. Existing beach nourishment or

restoration projects shall be considered to

be either a one - time beach construction

event or a long - term series of related sand

placement e vents along a given length of

shoreline. The Department shall make a

determination of remaining project life

based on the project history, the likelihood

of continuing nourishments, the funding

arrangements, and consistency with the

Strategic Beach Manage ment Plan adopted by

the Department for managing the state’s

critically eroded shoreline and the related

coastal system.

3. The MHWL to SHWL distance landward of

the erosion control line (ECL) shall be

determined. If the ECL is not based on a

pre - proje ct survey MHWL, then a pre - project

survey MHWL shall be used instead of the

ECL. The pre - project SHWL shall be located

by adding the MHWL to the SHWL distance

landward of the pre - project MHWL (usually

the ECL). The remaining project life, which

is the nu mber of years the restored beach

MHWL is expected to be seaward of the ECL,

shall be subtracted from the 30 years as a

credit for the nourishment project. The

non - credited remaining years times the pre -

project shoreline change rate for the site

yields the 30 - year projection distance

landward of the pre - project SHWL.

4. If the Department is unable to

scientifically determine a pre - project

erosion rate due to a lack of pre - project

data, the Department shall set the 30 - year

erosion projection along an exi sting,

reasonably continuous, and uniform line of

construction that has been shown to be not

unduly affected by erosion.

109 . Beach Group argues in its PRO (at paragraph 58.d)

that , for purposes of applying this rule methodology, the

“remaining project l ife” applicable to this case

is likely to exceed 30 years, given the

history of beach renourishment in this area

since 1971, the likelihood of continuing

renourishments, including a request by St.

Lucie County to extend the life of the

nourishment project (and the unlikelihood

that state, federal and local governments

will allow this and other similarly situated

structures to simply fall into the Atlantic

Ocean), funding arrangements, and

nourishment project’s undisputed consistency

with the Strategic Beach Management Plan and

the Fort Pierce Inlet Management Plan.

110 . There is some appeal to this argument , particularly

since it is reasonable to expect that beach nourishment south of

the inlet will continue for the foreseeable future. However,

t he potent ial for continued nourishments beyond the term of the

“ existing” project is not appropriate for consideration under

Florida Administrative Code Rule 62B - 33.024. See also

§ 161.053(6)(d), Fla. Stat.

111 . The “existing” project includes future nourishment

project s only if “all funding arrangements have been made and

all permits have been issued at the time the application is

submitted.” F la. Admin. Code R. 62B - 33.024(2)(d)1. Potential

(or even likely) future nourishment projects other than one

authorized by Congress through 202 1 do not meet that standard. 13

112 . The factors listed in Florida Administrative Code

Rule 62B - 33.024(2)(d)2 . relating to the Department’s

determination of remaining project life necessarily relate to

“ existing ” project s, as defined in Subparagraph (2)(d)1 . of the

rule. Indeed, it would be illogical -- and , arguably, contrary

to Section 161.053(6)(d), Florida Statutes -- to construe

Subparagraph (2)(d)2 . of the rule to allow for consideration of

projects that would not be considered to be “existing” under

Subparagraph (2)(d)1 . of the rule.

113 . The more persuasive evidence establishes that the

Project extends seaward of the 30 - year erosion projection . See

Findings of Fact, Part B. Therefore, the Department may not

issue a CCCL perm it for the Project . See § 161.053(6)(b), Fla.

Stat.

114 . In light of th is co nc lusion, it is not necessary to

determine whether the Project otherwise satisfies the applicable

CCCL permit ting requirements . H owever, th e issue will be

addressed below in an abundance of caution in the event that t he

Department or an appellate court rejects the conclusion that the

Project is located seaward of the 30 - year erosion projection .

115 . The Department is authorized to issue permits for

construction seaward of the CC CL if the permit is “clearly

justified” based upon the consideration of facts and

circumstances, including the potential impacts of the proposed

construction on the beach - dune system . See § 161.053(5)(a)3.

Fla. Stat.

116 . The general criteria governing a pproval of a CCCL

permit are set forth in Florida Admin istrative Code 62B - 33.005.

The rule requires the applicant to “ provide the Department with

sufficient information pertaining to the proposed project to

show that any impacts associated with the constr uction have been

minimized and that the construction will not result in a

significant adverse impact.” Fla. Admin. Code R. 62B - 33.005(2).

117 . It is undisputed that the Project will not result in

a “ significant adverse impact , ” which is defined as an adv erse

impact of such magnitude that it may alter the coastal system by

measurably affecting the existing shoreline change rate;

significantly interfering with its ability to recover from a

coastal storm; or disturbing topography or vegetation such that

the dune system becomes unstable or suffers catastrophic failure

or the protective value of the dune system is significantly

lowered. See Fla. Admin. Code R. 62B - 33.002(31)(b).

118 . At issue is whether the Project will cause “adverse

impacts” to the beach - du ne system and, if so, whet h er those

impacts have been minimized. Adverse impacts are impacts to the

coastal system that may cause a measurable interference with he

natural func t ioning of the system. See F la. Admin. Code R. 62B -

33.002(31)(a ).

119 . Florid a Administrative Code Rule 62B - 33.005(3)(b)

requires “siting and design criteria that minimize adverse and

other impacts and . . . mitigation of adverse impacts . ” The

Deparment contends that the Project fails to meet the

requirements of th is rule because the Project w ill be located on

the frontal dune, no t landward of the dune.

120 . For the same reason, the Department contends that the

Project fails to meet the requirements of Florida Administrative

Code Rule 62B - 33.005(8), which requires major structures to 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 natural

recovery to occur following storm - induced erosion.”

121 . I t is undisputed that the Project satisfies the

permitting criteria in Florida Admi nistrative Code Rule 62B -

33.005, except for those in paragraph (3)(b) and subsection (8).

122 . The frontal dune is “the first natural or manmade

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.” § 161.053(6)(a)1.,

Fla. Stat. It is undisputed that the Project encroaches i nto

frontal dune, but that it is behind t he crest of the dune.

123 . The only express statutory or rule prohibition

against construction on a frontal dune is in the limited

circumstance where construction of a single - family dwelling is

permitted seaward of the 30 - year erosion projection. See

§ 1 61.053(6)(c)3. - 4., Fla. Stat. (requiring the dwelling to be

located “landward of the frontal dune structure” and “as far

landward . . . as practicable without being located seaward of

or on the frontal dune”).

124 . There is no express statutory prohibiti on against

construction on a frontal dune landward of the 30 - year erosion

projection, so long as the proposed construction does not

destabilize the frontal dune or otherwise adversely impact the

beach - dune system. See , e.g. , Young v. Dept. of Environmenta l

Protection , 2005 Fla. ENV LEXIS 155 , at ¶¶ 83, 111 (DOAH Aug.

15, 2005 ), adopted in toto , 2005 Fla. ENV LEXIS 154 ( DEP Sep.

26, 2005), aff’d per curiam , 937 So. 2d 133 (Fl a. 2nd DCA 2006)

(table) .

125 . Florida Administrative Code Rule 62B - 33.005(8) does

not expressly prohibit construction that encroaches into a

frontal dune; it only requires that major structures be located

a “sufficient distance landward of the . . . frontal dune to

permit natur al shoreline fluctations, to preserve and protect

beach and dune system stability, and to allow natural recovery

to occur following storm - induced erosion . ” Where, as here, the

more persuasive evidence establishes that the location of the

proposed structures on the landward side of the crest of the

frontal dune wi ll not destabilize the dune or otherwise

adversely affect the beach - dune system, the purpose of the rule

is satisfied . See Young , supra .

126 . The stability of the beach - dune system in the

vicinity of the Property is dependent upon the continuing

renour ish ment efforts ; the contribution of the frontal dune on

the P roperty to the stability of the beach - dune system or the

protection of upland properties is relatively minor in

comparison. As a result, t he slight encroachment of the Project

into the landward side of the frontal dune will not have a

material impact on t he na tural functioning of the beach - dune

system or the ability of the system to recover following storm -

induced erosion.

127 . The impacts to the frontal dune will be limited to

minor excavation s and the removal of existing dune vegetation in

areas behind the crest of the dune . Those impacts will not

destabilize the frontal dune or materially affect the ability of

th e dune or the beach - dune system to recover from storm events ,

and the impacts ha ve been adequately mitigated through the

plac e ment of additional sand in the beach - dune system and the

proposed enhancements to the frontal dune.

128 . In sum, if it is determined contrary to the

conclusion above that the Project is landward of the 30 - yea r

erosion projection, the permit should be approved because the

more persuasive evidence establishes that the Project satisfies

the applicable criteria in Florida Administrative Code Rule 62B -

33.005.

RECOMMENDATION

Based upon the foregoing findings of fac t and conclusions

of law, it is

RECOMMENDED that the Department issue a final order denying

Beach Group’s application for a CCCL permit.

DONE AND ENTERED this 19th day of April, 200 7 , in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 19th day of April , 2007 .

ENDNOTES

1 / All statutory references in this Recommended Order are to the

2006 version of the Florida Statutes.

2 / Finding s 1 throug h 14 are based upon the stipulations in the

Joint Pre - hearing Stipulation . Finding s 15 and 16 are based

upon stipulations at the final hearing. See Tr. 102 - 03, 191 - 97.

3 / The ECL represents the boundary between the sovereignty lands

of the state and th e adjacent upland properties. See §

161.151(3), Fla. Stat. An ECL is to be established prior to a

beach restoration project in order to define the ownership of

the beach created by the project. See § 161.141, Fla. Stat.

The new beach created seaward of the ECL is state property ; any

new beach created landward of the ECL is private property

subject to a public easement across the property. See §§

161.141, 161.191, Fla. Stat. But cf. Save Our Beaches, Inc. v.

Dept. of Environmental Protection , 31 Fla. L . Weekly D1173 (Fla.

1st DCA Apr. 28, 2006) (holding that the establishment of an ECL

as part of a beach renourishment project results in an

unconstitutional taking of the upland property owners’ riparian

rights), question certified , 31 Fla. L. Weekly D181 1 (Fla. 1st

DCA July 3, 2006), rev. granted , 937 So. 2d 1099 (Fla. 2006).

4 / See , e.g. , Pet. Ex. 24 (File Nos. SL - 162 and SL - 173); Pet.

Ex. 25 (File No. SL - 200).

5 These distances are based upon the scale shown on Department

Exhibit 6, which is more acc urate that Mr. Foster’s testimony

that the distances between MHWL and SHWL, as surveyed in March

2002, was “ about 40 to 60 feet.\. 290 (emphasis supplied) .

6 / See Pet. Ex. 24 (memo dated April 9, 1999, attached to the

analyses for File Nos. SL - 162 an d SL - 173). See also Tr. 68

(referencing Mr. Foster’s use of “a distance of some 42 feet

based on historical averages” in his review of File No. SL - 222).

7 / See , e.g. , Pet. Ex. 16 (Table 1), which shows an average

erosion rate of - 7.5 ft/yr for monuments R - 34 to R - 39 over the

period of 1949 - 68. Accord Tr. 291 - 92.

8 / See Pet. Ex. 25 (File No. SL - 200).

9 / See Pet. Ex. 16 (Table 1), which reflects that the erosion

rates for monuments R - 34 and R - 35 were - 0.1 and - 0.5 ft/yr,

respectively, for the period o f 1930 - 49, as compared to - 10.3

and - 6.7 ft/yr, respectively, for the period of 1949 - 68.

10 / See , e.g. , Pet. Ex. 24; Dept. Ex. 6. Beach Group points out

that the structures authorized in File Nos. SL - 162 and SL - 173

were found to be landward of the 30 - ye ar erosion projection

calculated by the Department. However, the “remaining project

life” was longer when those permit applications were filed -- in

1999 and 2000, respectively -- and, as a result, the historical

erosion rate was applied to a smaller numb er of years in

calculating the landward migration of the SHWL in those cases.

Indeed, as Mr. Foster pointed out in his review of those

applications, the 30 - year erosion projection is “time sensitive”

and “must be adjusted in the future for diminishing cre dit for

the renourishment project.” Pet. Ex. 24 (memorandum dated April

9, 1999, attached to analyses for File Nos. SL - 162 and SL - 173).

11 / NAVD is the North American Vertical Datum of 1988. See Fla.

Admin. Code R. 61B - 33.002(37). Elevations shown on t he

topographic survey for the Property are reflected in relation to

the NAVD. See Pet. Ex. 19 ( n ote 11).

12 / Mr. McNeal opined that the landward toe of the frontal dune

was located 20 feet or more landward of the 1978 CCCL. See Tr.

203, 207 - 10, 229 - 33. See also Dept. Ex. 24N (highlighted

line s ). The opinion that the encroachment was more than 20 feet

was in the form of a proffer because it was a new opinion not

disclosed by the Department prior to the final hearing. See Tr.

205 - 06. The exclusion of M r. McNeal’s opinion regarding the

landward extent of the frontal dune (and the resulting larger

encroachment of the project into the dune) is immaterial to Mr.

McNeal’s ultimate opinion that the project fails to meet the

applicable regulatory requirements because he understands the

Department’s rules to prohibit development that encroaches into

the frontal dune at all . See Tr. 223.

13 / The likelihood of continued beach nourishment south of the

inlet for the foreseeable future might be appropriate for

cons ideration in the context of a request for a variance or

waiver under Section 120.542, Florida Statutes. See Pet. Ex. 21

(identifying a variance as a possible means for the Project to

be approved as it is currently proposed). A variance or waiver

must be pursued through a separate proceeding.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwe alth Boulevard

Tallahassee, Florida 32399 - 3000

William L. Hyde, Esquire

Fowler White Boggs Banker, P.A.

Post Office box 11240

Tallahassee, Florida 32302 - 3240

Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail S tation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommend ed Order should be filed with the agency that

will issue the Final Order in this case.