11-005768 Broward County vs. The Mayan Beach Club, Inc., Ocean Lane Villas, Inc., And Department Of Environmental Protection
 Status: Closed
Recommended Order on Wednesday, August 22, 2012.


View Dockets  
Summary: Removal of a sand mound on Ft. Lauderdale's beach does not constitute a "take" of marine sea turtles -- CCCL permit should be issued.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SEA TURTLE OVERSIGHT )

12PROTECTION, INC. , )

15)

16Petitioner , )

18)

19vs. ) Case No. 11 - 5620

26)

27THE MAYAN BEACH CLUB, INC., )

33OCEAN LANE VILLAS, INC., AND )

39DEPARTMENT OF ENVIRONMENTAL )

43PROTECTION , )

45)

46Respondents . )

49_____________________________ __ )

52BROWARD COUNTY, )

55)

56Petitioner, )

58)

59vs. ) Case No. 11 - 5768

66)

67THE MAYAN BEACH CLUB, INC., )

73OCEAN LANE VILLAS, INC., AND )

79DEPARTMENT OF ENVIRONMENTAL )

83PROTECTION, )

85)

86Respondents. )

88)

89RECOMMENDED ORDER

91These cases were heard by David M. Maloney, Administrative

100Law Judge with the Division of Administrative Hearings , on

109February 16 and 17, 2012, in Fort Lauderdale, Florida, and on

120March 9, 2012, by vide o teleconferenc ing at sites located in

132Tallahassee and West Palm Beach, Florida.

138APPEARANCES

139For Petitioner Sea Turtle Oversight Protection, Inc.:

146George Steve Cavros, Esquire

150120 East Oakland Park Boulevard, Suite 105

157Fort Lauderdale, Florida 33334

161For Petitioner Broward County:

165Michael Christopher Owens, Esquire

169Broward County

171Governmental Center , Room 423

175115 South Andrews Avenue

179Fort Lauderdale, Florida 33301

183For Respondent Department of Environmental Protection:

189Brynna J. Ross, Esquire

193Department of Environmental Protection

197The Douglas Building, Mail Station 35

2033900 Commonwealth Boulevard

206Tallahassee, Florida 32399 - 3000

211For Respondents T he Mayan Beach Club, Inc., and Ocean Lane

222Villas, Inc.:

224Mitchell John Burnstein, Esquire

228Michelle Vos, Esquire

231Susan Trevarth e n, Esquire

236Weis s, Serota, Helfman, Pastoriza,

241Cole, and Boniske, P.L.

2452 00 East Broward Boulevard, Suite 1900

252Fort Lauderdale, Florida 33301

256BACKGROUND

257The Department of Environmental Protection (the "Department"

264or "DEP") issue d Permit No. BO - 612 (the "Permit") to T he Mayan

281Beach Club, Inc. ("The Mayan Beach Club") , in October 2009. The

294Permit allows excavation and restoration activities seaward of

302the Coastal Construction Control Line (the "CCCL"). The

311excavation activity is a reduction by three feet of the height of

323a sand feature (the "Sand Mound") on the Applicants' oceanfront

334property in Fort Lauderdale. At feet North American Vertical

343Datum (" NAVD ") , the peak of the Sand Mound is between five and

357six feet above the s urface of the beach. The three - foot

370reduction will lower the height of the Sand Mound to between two

382and three feet above the surface of the beach at feet NAVD,

394roughly half of its present height. The restoration activity

403allows the construction of a second sand feature, referred - to by

415the Permit as considerably smaller than the Sand Mound.

424The Permit was not challenged, and it is not at issue in

436this proceeding. 1/

439In September 2011, the Department issued a modification of

448the Permit, Permit No. BO - 61 2 M1, (the "Modification") upon the

462application of T he Mayan Beach Club and an adjoining property

473owner, Ocean Lane Villas, Inc. 2/ (the "Applicants"). The

483Modification substantially alters the excavation activity. It

490allows the entire Sand Mound to be re moved and taken down to

503grade. It does not contemplate construction of a new sand

513feature. Instead it calls for all of the excavated sand to be

525redistributed across the Applicants' property.

530Sea Turtle Oversight Protection, Inc. ("STOP") and Broward

540Cou nty (the "County") challenge the Modification in Case

550Nos. 11 - 5620 and 11 - 5768, respectively.

559STATEMENT OF THE ISSUE

563Whether STOP and the County have standing to challenge the

573issuance of the Modification?

577Whether the Department should issue the Mod ification as

586authorized in Permit No. BO - 612 M1?

594PRELIMINARY STATEMENT

596On November 2, 2011, the Department notified the Division of

606Administrative Hearings ("DOAH") that it had received a Petition

617for Administrative Hearing filed by STOP. The petition

625cha llenged the Modification and requested both a formal

634administrative hearing at DOAH and the issuance of a final order

645denying the Modification. The Department, in turn, requested

653that the petition be assigned to an administrative law judge to

664conduct proc eedings that would lead to submission of a

674recommended order.

676Pursuant to the request, the petition was assigned Case

685No. 11 - 5620 and the undersigned was designated to conduct the

697proceedings.

698On November 10, 2011, the Department notified DOAH of a

708second petition filed by the County that challenges the

717Modification. Pursuant to the Department's request, the petition

725was assigned Case No. 11 - 5768. Shortly after review of the

737responses to the Initial Orders in the two cases, the two were

749consolidated.

750The administrative hearing was held in Fort Lauderdale on

759February 16 and 17, 2012, and by video teleconference at

769facilities in Tallahassee and West Palm Beach on March 9, 2012.

780The Applicants presented the testimony of Laura Shepherd, an

789environmental scient ist with Coastal Systems International, Inc.;

797John James Goldasich, a biologist/ecologist; and Lewis Edward

805Fisher, Jr., employed by the County's Natural Resource s Planning

815and Management Division and is the Marine Turtle Permit Holder

825for the County. The Department presented the testimony of Tony

835McNeal, a professional coastal engineer with the Department. The

844Applicants and the Department jointly offered Respondents'

851Exhibit 1, which consists of documents tabbed 1 - 62. The exhibit

863was admitted into evid ence. (The Department refers to them in

874its Proposed Recommended Order as Respondents' Exhibits with the

883tabbed number. For example, t he document under Tab 27, which

894contains Permit No. BO - 612, is referred to as Respondents' 27.

906This order will do likew ise.) The Applicants offered Exhibits 75

917through 99 and 101 through 194. All were admitted into evidence.

928(They will be referred to as " Applicants' Exhibits " together with

938the appropriate number.) The Applicants also offered two late

947filed exhibits, c u rricula v itae of non - testifying experts, Yong

960Chen and Timothy Blankenship, which were not admitted into

969evidence.

970STOP presented the testimony of Richard Whitecloud, its

978founder and president; Dr. Kirt Rusenko, a marine conservationist

987at the Gumbo Limbo Nature Center; Mark Lopez, a sea turtle

998hatchling rescue volunteer; and, Thadeus Hamilton, a volunteer

1006soil conservationist. STOP offered STOP Exhibits 1 - 14. An

1016objection was sustained as to STOP Exhibit 7 , and STOP Exhibit 11

1028was admitted for the limite d purpose expressed by Mr. Cavros at

1040hearing. See Hearing Tr. vol.1, 168 - 16 9, Mar. 9, 2012. The

1053County presented the testimony of Blair Witherington, Ph.D., a

1062marine biologist with the Florida Fish and Wildlife Conservation

1071Commission; and Eric Myers, an employee of the County's

1080Department of Environmental Protection and Growth Management in

1088its Natural Resources Planning and Management Division. The

1096County offered the first two pages of County Exhibit 19 and

1107County Exhibits 25 and 29, which were admitte d into evidence.

1118After the conclusion of the administrative hearing, STOP

1126filed a post - hearing affidavit by Mr. Whitecloud in support of

1138STOP's standing and a memorandum of law in support of standing.

1149The Department filed a motion in opposition to STOP's filing of

1160the post - hearing affidavit, which was ordered to be treated as a

1173motion to strike subject to Florida Administrative Code Rule 28 -

1184106.204. STOP filed a response in opposition to the Department's

1194motion opposing the admission of the affidavit. Af ter

1203consideration of the Department's position and STOP's response,

1211the Department's motion is granted and the affidavit of

1220Mr. Whitecloud is rejected.

1224On March 28, 2012, the Applicants filed a memorandum of law

1235in support of their previous motion in limin e requesting that

1246STOP and the County's petitions be struck for lack of standing.

1257On April 4, 2012, the County filed a motion to strike f ootnote 1

1271of the Applicants' memorandum of law. No response was filed to

1282the County's motion. The motion is granted.

1289After requests for extensions of time for the filing of

1299proposed recommended order s by the Applicants and the Department,

1309the parties all filed proposed recommended orders in a timely

1319manner on May 30, 2012.

1324FINDING S OF FACT

1328The Sand Mound

13311. The Sand Mo und is located entirely on the property of

1343the Applicants in the C ity of Fort Lauderdale on the southern

1355portion of the city's beach. Oval shaped, it is approximately

1365176 feet long in a north - south direction parallel to the shore

1378(shore - parallel direction ) and 140 feet wide in an east - west

1392direction perpendicular to the shore (shore - normal direction).

1401The Sand Mound's peak at 13 feet NAVD rises between five - to - six

1416feet above the surface of the beach. Gradually sloped, it

1426supports approximately 12,000 squ are feet of mixed vegetation of

1437varying density.

14392. The Sand Mound is an oddity. The width of the beach on

1452the property of T he Mayan Beach Club seaward (to the east) of the

1466Sand Mound is approximately 300 feet. The width of the beach

1477lying upland of the Sand Mound (to the west and landward) is

1489approximately 400 feet, a distance of a third or so greater than

1501the beach seaward of the Sand Mound. Unlike a dune, therefore,

1512the Sand Mound lies seaward of an extensive expanse of upland

1523beach. There are no du nes, moreover, in the immediate vicinity

1534of the Sand Mound. The closest dune is several hundred feet to

1546the south. North of the Sand Mound, the closest dune is

1557approximately 800 feet away.

15613. Over - sized, recycled tractor tires had been deposited

1571offshor e of T he Mayan Beach Club property years ago in an

1584unsuccessful government attempt to create an offshore reef.

1592Although not proven, the suggestion was made by the Applicants

1602that the Sand Mound formed as the result of the tires that had

1615washed ashore or e nded up on the beach through the beach's

1627advancement due to sand accretion. The suggestion was not

1636disputed by the other parties. It is the only explanation

1646offered by any of the parties for the Sand Mound's isolation from

1658other dunes and its peculiar lo cation seaward of an extensive

1669expanse of upland beach.

16734. The Sand Mound's lack of "alongshore continuity" means

1682it is not a "primary dune." It is not a "frontal dune" because

1695there is no "interdunal trough" between it and a primary dune.

1706See Fla. Admi n. Code R. 62B - 33.002(17)(b). The Sand Mound is not

1720a "significant dune" because it does not have "sufficient height

1730and configuration or vegetation to offer protective value." See

1739Fla. Admin. Code R. 62B - 33.002(17)(a). In a major storm event,

1751the Sand Mound would be unable to hold back storm surge. Water

1763would flow over the Sand Mound or flank it so as to move around

1777it.

17785. Despite the Department's reference to it as a "dune" in

1789the Permit, the Modification and elsewhere, the Sand Mound is not

1800a dun e. It bears similarity to a dune in that is a mound of

1815loose, sand - sized sediment deposited by natural or artificial

1825mechanism which is bare or covered with vegetation and is subject

1836to fluctuations in configuration and location. See Fla. Admin.

1845Code R. 62B - 33.002(17). Unlike a dune, however, it is seaward of

1858an extensive expanse of beach. It is not "lying upland of the

1870beach," see id. , a characteristic of a dune, and , therefore, it

1881is not a dune. 3/ See id.

1888The Permit and the Modification

18936. In Decemb er 2007, The Mayan Beach Club applied for a

1905permit to reduce the Sand Mound (which it called a "berm") to

1918existing beach level. In the application cover letter, The Mayan

1928Beach Club 's manager expressed "the opinion that a large tractor

1939tire was washed ont o shore, and never removed, thus causing the

1951berm to evolve." Respondents' Ex. 4, Cover Letter. The cover

1961letter also expressed a simple purpose: "to have the berm

1971leveled to match up with all of the surrounding beaches."

19817. In mid - 2008, Ocean Lane Vil las , Inc., put in writing its

1995support of the efforts to remove the Sand Mound and gave its

2007permission to arrange for removal of the portion of it on Ocean

2019Land Villas , Inc. ' s property.

20258. The Department issued the Permit on October 2, 2009.

2035But it did no t authorize a leveling of the Sand Mound, as

2048requested. The Permit contains a "Project Description" that

2056opens with the caption "Dune Restoration." See Respondents'

2064Ex. 27. The permitted activity is both excavation and

2073restoration between approximately 395 feet and 535 feet seaward

2082of the control line:

2086A .0 - foot (NAVD) dune feature is to be

2096reduced to .0 feet (NAVD), with up to

21041,442 cubic yards of excavated material to be

2113spread adjacent to the feature and to

2120construct a second dune feature

2125(appro ximately 440 cubic yards) located to

2132the north. Excavation and placement areas

2138are to be planted with native salt - tolerant

2147beach and dune vegetation.

2151Id. The Permit authorization of a three - foot reduction in the

2163Sand Mound allows about half of the Sand Mound's five to six - foot

2177elevation above the beach surface to be reduced so that it would

2189have a two to three feet elevation above grade.

21989. In January 2011, Coastal Systems International, Inc.,

2206submitted an application for a modification of the Permit. The

2216application was received by the Department's Bureau of Beaches

2225and Shores on January 18, 2011. The application proposed that

2235the Sand Mound be removed in its entirety "restoring grade to

2246match the typical conditions of the beach in the area."

2256Respon dents' Ex. 33, p. 2. The application's cover letter

2266described the Sand Mound as "an anomaly, uniquely located more

2276than 400 feet east of the landward edge of the beach." Id. The

2289Modification application provided more compelling reasons for the

2297need to r emove the Sand Mound beyond the desire of T he Mayan

2311Beach Club as expressed in the Permit application to have its

2322beach match the beach in the area. In addition to the contention

2334that the Sand Mound had negative impacts to sea turtles, the

2345cover letter as serted that it "obstructs resident views of the

2356ocean . . . and is an 'attractive nuisance' encouraging trespass

2367onto private property and trash accumulation, and resulting in

2376negative impacts to the Permittee's property values and

2384security." Id.

238610. On September 14, 2011, the Department issued the

2395Modification. Its Project Description is markedly different from

2403the Permit's. Rather than "Dune Restoration ," the Project

2411Description in the Modification is "Dune Redistribution . "

2419Instead of excavation and restoration, the Modified Project, as

2428applied for, is one for "Removal":

2435Dune Redistribution:

2437Removal: Removal of the existing vegetated

2443sand mound [4/] located approximately 514 feet

2450seaward of the control line and redistribute

2457approximately 1,730 cubic yards of the sand

2465across the property. The mound is

2471approximately 140 feet in the general shore -

2479normal direction by 176 feet in the general

2487shore - parallel direction. The removed sand

2494is to be distributed between the Seasonal

2501High Water Line and the west ern edge of the

2511existing sandy beach to a maximum distance of

2519536 feet seaward of the control line.

2526Id. at p. 2. Since all of the excavated sand will remain on the

2540beach seaward of the CCCL, there will be no net excavation of in -

2554situ sand or soil seaward of the CCCL.

256211. In sum, the primary effect of the Modification is to

2573change the Permit from one that allows the Sand Mound's elevation

2584to be reduced by three feet, to one that removes the Sand Mound

2597in its entirety. The Modification calls for distribu tion of the

2608excavated sand on the beach, but the Modification, unlike the

2618Permit, calls for no restoration activity that would create a new

2629sand feature.

2631The Parties

263312. The Mayan Beach Club is a condominium association that

2643operates and manages a 22 - u nit low - rise oceanfront residential

2656condominium located along the southern part of Fort Lauderdale's

2665beach. Shortly after its incorporation in 1953, T he Mayan Beach

2676Club assumed management of the condominium and its newly -

2686constructed units.

268813. The Mayan Beach Club 's condominium property is roughly

26981/4 of a mile north of the ocean inlet to Port Everglades, a

2711major seaport. Due primarily to a jetty that extends into the

2722ocean along the edge of the inlet, beach sand has accreted in

2734front of its property ov er a period of several decades.

274514. The Mayan Beach Club 's property is bounded "on the East

2757by the waters of the Atlantic Ocean." See Respondents' Ex. 11,

2768Schedule A to Title Opinion and Guarantee, Fund Serial No. 18344.

2779Its fee title ownership includes nearly 700 linear feet of beach

2790between the CCCL (seaward of the condominium residential

2798improvements) and the mean high water line ("MHWL") of the

2810Atlantic Ocean.

281215. Ocean Lane Villa s , Inc., is an association that owns

2823adjacent property to the south of T he Mayan Beach Club property.

2835It notified the Department that it supported the Permit and

2845granted permission for the authorized activity to be conducted on

2855its property. It joined T he Mayan Beach Club in seeking the

2867Modification.

286816. The Department is the state agency with the authority

2878to establish CCCLs and to issue permits for construction

2887activities seaward of a CCCL when an applicant has shown the

2898permit "to be clearly justified by demonstrating that all

2907standards, guidelines, and other requiremen ts set forth in the

2917applicable provisions of Part I, Chapter 161, F.S., and [Florida

2927Administrative Code Rule Chapter 62B - 33] are met . . . ." Fla.

2941Admin. Code R. 62B - 33.005(4). Also see §§ 161.052 and 161.053.

295317. Incorporated in the State of Florida o n August 31,

29642010, STOP is a not - for - profit corporation. Its mission is to

2978protect sea turtles, reduce hatchling mortality due to

2986disorientation from artificial light sources, educate the public

2994about marine turtle habitat and assist the State of Florida with

3005its sea turtle conservation program.

301018. Broward County is a political subdivision of the state

3020that has existed for more than one year prior to the date of the

3034filing of the application at issue. Official recognition is

3043taken that the populati on of Broward County is in excess of 25.

3056The Charter of Broward County addresses its interests in natural

3066resources and environmental protection. It has authority, for

3074example, to adopt environmental rules and regulations that

3082prevail over municipal ordi nances with which they conflict.

3091Standing

3092STOP's Standing

309419. STOP was incorporated less than one year prior to the

3105date of the filing of the application for the Modification.

311520. STOP has 120 permanent staff members. "Almost all of

3125them" (Hearing Tr. vol. 2, 231, Feb. 16, 2012), live in Broward

3137County.

313821. All of STOP's permanent staff members are permitted by

3148the Florida Fish and Wildlife Conservation Commission ("FWC") to

3159monitor Broward County's beaches nightly during sea turtle

3167nesting season.

316922. The members' work in the field is in shifts of a

3181minimum of four hours between sunset and sunrise. Members work

3191many shifts of more than four hours, some as long as ten hours.

320423. The activity of STOP includes recovering disoriented

3212turtle hatchling s and documenting disorientations. To rescue sea

3221turtles, FWC permittees must complete a written test and field

3231training that requires 40 hours on the beach.

323924. STOP's program is unusual. It is one of the few

3250organizations in Florida that recovers hatc hlings at all hours of

3261the night instead of in early morning daylight after hours of

3272disorientation.

327325. According to STOP activity logs, at least 20 different

3283members have patrolled the beach in the area of the Sand Mound.

329526. STOP has a website for pu blic use and another

3306accessible only to its members. It posts photos, videos,

3315commentary associated with its activities and materials for

3323public education to serve the conservation of sea turtles.

333227. Prior to filing its petition, STOP filed public

3341comme nts with DEP that the Modification "is likely to cause harm

3353to protected nesting adult sea turtles, and could prove deadly to

3364numerous sea turtle hatchlings, in addition to harming other

3373protected species." STOP Ex. 11.

3378Broward County's Standing

338128. Brow ard County has established a Natural Resource

3390Protection Code in Chapter 27 of the Broward County Code of

3401Ordinances (the "BCC"). The Natural Resource Protection Code was

3411adopted by the County to promote the preservation, protection,

3420and enhancement of na tural resources. These resources include

3429coastal and marine animal and plant life.

343629. The County also relies on the Florida Statutes 5/ and the

3448Florida Administrative Code, including section 161.053 and

3455chapter 62B - 33, to protect the interests of the Cou nty and its

3469residents in natural resources, plants, and wildlife that are

3478present in the beach and dune system in Broward County.

348830. The County's eastern boundary is three miles east of

3498the MHWL of the Atlantic Ocean. The beach area affected by the

3510Modi fication is in the County. The County has an interest in

3522protection of the area's natural resources, plant, and wildlife.

3531The Sand Mound's Vegetation

353531. The Sand Mound's vegetation, in varying density, is

3544spread over approximately 12,000 square feet of the Sand Mound.

3555The vegetation is not as robust as typical dune vegetation.

3565Vegetation on half of the Sand Mound is sparse. If the Sand

3577Mound were part of a dune restoration project, it would require

3588the planting of additional vegetation. In a 2011 Sit e Inspection

3599Report, the Sand Mound was determined to support " Sea Oats, Panic

3610Grass, Seashore Saltgrass, Beach Elder, Chamae s yce , Ambrosia ,

3619Railroad Vine, Dun e Sunflower a nd Beach Star. "

362832. Of the species growing on the Sand Mound only the b each

3641s tar is endangered. After interaction with the Department of

3651Agriculture, DEP, and the City of Fort Lauderdale, the Applicants

3661agreed to plant several endangered species in another location as

3671mitigation for the destruction on site of the beach s tar

3682vegetation. The City of Fort Lauderdale agreed to partner with

3692the Applicants as part of a dune restoration project at T he Palms

3705Condominium , north of the Applicants' property. The mitigation

3713plan included removal of invasive exotic plants, and replanting

3722the mitiga tion area with native plants, including several

3731endangered species. The mitigation planting area is

3738approximately 14,000 square feet, which is roughly 2,000 square

3749feet more than the area of vegetation that will be lost through

3761the removal of the Sand Mou nd.

3768Minimization of Impacts

377133. The Applicants minimize impact s by not proposing

3780activity beyond that which is necessary to remove the Sand Mound

3791and distribute the excavated sand on the beach.

3799Adverse Impacts

380134. "Adverse impacts" are defined by rule 62B - 33.002(33)(a)

3811as those "to the coastal system that may cause a measurable

3822interference with the natural functioning of the coastal system."

383135. The "coastal system" is defined by rule 62B - 33.002(13)

3842as "the beach and adjacent upland dune system and vegetation

3852seaward of the coastal construction control line; swash zone;

3861surf zone; breaker zone; offshore and longshore shoals; reefs and

3871bars; tidal, wind, and wave driven currents; longshore and

3880onshore/offshore drift of sediment materials; inlets and their

3888ebb and flood tide shoals and zones of primary tidal influence;

3899and all other associated natural and manmade topographic features

3908and coastal construction."

391136. Removal of the vegetation on the Sand Mound, which is

3922seaward of the CCCL, will, of cou rse, have an impact on the

3935vegetation which is part of the coastal system. But it will not

3947cause measurable interference with the natural function of the

3956coastal system. Removal of the Sand Mound, itself, will not

3966cause adverse impacts to the coastal sys tem .

3975Mitigation

397637. The Department must deny an application for an activity

3986seaward of the CCCL if it does not provide for mitigation of

3998adverse impacts. If a project causes no adverse impact,

4007mitigation is not required. See Fla. Admin. Code R. 62B -

401833. 005(3)(b).

402038. Mitigation is not required for the removal of the Sand

4031Mound. Furthermore, no mitigation is required by the

4039Modification since the vegetation will be removed if the Permit

4049is implemented without the modification. Nonetheless, the

4056Applican ts entered into the mitigation described above with

4065regard to the planting of endangered species. As part of the

4076effort to mitigate off - site, the Applicants made a one - time

4089payment of $7,500 to the City of Fort Lauderdale. The mitigation

4101plan was success fully implemented prior to hearing.

4109Other General Criteria

411239. The proposed project will not cause any anticipated

4121short - term or long - term direct or indirect effects on the coastal

4135system and will not cause cumulative impacts to the coastal

4145system.

414640. T he proposed project is not inconsistent with siting

4156and design criteria. It will not result in damage to existing

4167structures and property or lower existing levels of protection.

4176It will not destabilize a frontal, primary, or significant dune

4186nor will it cause significant adverse impacts to the beach and

4197dune system due to increased erosion by wind or water.

420741. The proposed project will not reduce the existing

4216ability of the coastal system to resist erosion during a storm.

4227It will not significantly inte rfere with the coastal system's

4237ability to recover from a coastal storm.

424442. The proposed project will not affect the hydrology of

4254the water flowing across the land and will not direct discharges

4265of water or other fluids in a seaward direction.

427443. The proposed project will not result in the net

4284excavation of the in situ sandy soils seaward of the CCCL.

429544. The proposed project will not cause an increase in

4305structure induced scouring.

430845. The proposed project will not interfere with public

4317access and will not interfere with lateral beach access.

4326Marine Turtles

432846. Each night during late summer months, thousands of

4337marine turtle hatchlings emerge from nests located on Broward

4346County 's beaches. If not all, nearly all of the nests belong to

4359two of the five species of marine turtles protected by the Marine

4371Turtle Protection Act, s ection 379.2431 , Florida Statutes : the

4381Atlantic loggerhead turtle and the Atlantic green turtle. Of

4390these two species, the green turtle is more likely to be affected

4402by remova l of the Sand Mound . A significant number of the turtle

4416nests in Broward County are green turtle nests , and a significant

4427number of the hatchlings on Broward County 's beaches and in the

4439area of the Sand Mound are green turtle hatchlings.

444847. Marine turtl es nest on a wide variety of beaches, but

4460they tend to prefer steeply sloped beaches with prominent

4469vegetated dunes.

447148. Dunes are a particular attraction for green turtles in

4481search of a nest because green turtles prefer to nest at higher

4493beach elevatio ns than do loggerheads.

449949. The Sand Mound is a marine turtle nesting habitat.

4509Removal of the mound poses the threat of three impacts to marine

4521turtles: 1) promoting abandonment of nesting attempts by female

4530turtles; 2) negatively affecting the survivor ship of nests that

4540would have been in the Sand Mound ; and 3) disorientation of

4551hatchlings emerging from nests where the Sand Mound would have

4561been when the Sand Mound would have provided silhouette and shape

4572cues that correctly orient hatchlings toward the sea. Sea turtle

4582hatchlings orient toward the ocean and hatchling disorientation

4590frequently results in death.

459450. The Sand Mound offers a visual cue to a female m arine

4607t urtle that indicates the turtle has crawled far enough out of

4619the water and can stop . Turtles that emerge and find no dune or

4633other cover tend to wander longitudinally along the beach. They

4643may return to the sea in what is known as a "false crawl." See

4657Hearing Tr. vol. 2, 201 - 202, Mar. 9, 2012. False crawls have a

4671cost to the female t urtle's energy requirement for nesting.

468151. Dune elevation increases nest survivorship because it

4689protects the eggs from storm events. Nests at higher elevations

4699have a better chance of survival than nests at lower elevations

4710because they are less like ly to suffer effects from erosion and

4722inundation, two of the main factors that determine nest

4731survivorship. A dune also offers to hatchlings the benefit of a

4742silhouette which blocks out artificial light from the low

4751landward horizon that causes hatchling disorientation. Prominent

4758vegetated dunes are especially helpful in assisting hatchling

4766orientation. Dune vegetation also provides shade , which

4773increases the nest survivability over nests in bare sand.

478252. Artificial lighting can disrupt the ability of

4790hatchlings to find the sea from their nests. Hatchlings benefit

4800from the silhouette of a dune that blocks out some of the

4812disorienting lights that exist in an urban environment. Dune

4821vegetation assists in scattering light , and the downward slope of

4831a dun e is a cue that orients hatchlings towards the water.

484353. Both Dr. Witherington and Dr. Rusenko testified that in

4853their opinion, the removal of the Sand Mound would constitute a

"4864take" as defined in section 379.2431. Isolating the impact of

4874the removal o f the Sand Mound is difficult, however, because

4885there are so many factors that have a bearing on turtle nesting

4897and hatchling disorientation along the southern stretch of Fort

4906Lauderdale 's b each. These factors include "night glow,"

4915predation, erosion form high - wave storms, weather, inundation ,

4924and direct artificial lighting. Dr. Witherington was more

4932equivocal as to whether the Modification would be a take if the

4944Permit had been implemented. See Hearing Tr. vol. 2, 252 - 255,

4956Mar. 9, 2012.

495954. In cont rast to the opinions of Drs. Witherington and

4970Rusenko which were based on knowledge of marine turtle behavior

4980in general, the Applicants' biological consultant, John James

4988Goldasich, used Broward County data about turtle nesting and

4997hatchling disorientatio n in the area of the Sand Mound to form

5009his opinions. Mr. Goldasich also based his opinion on light

5019measurements taken on site which indicated no distinction between

5028the lux values of light on the east side of the Sand Mound and on

5043the west side. Further more, night glow, which tends to disorient

5054marine turtles, is significant near the Sand Mound and on the

5065southern stretch of Fort Lauderdale's beach.

507155. The accuracy of the Broward County data used by

5081Mr. Goldasich was verified by Lewis Edward Fisher, Jr ., the

5092County's lead employee for turtle management. Some of the data

5102included turtle nests that were relocated onto T he Mayan Beach

5113Club property , but of the exhibits used by Mr. Goldasich, only

5124Respondents' Exhibit 161 showed relocated nests. The inclu sion

5133is insignificant. Exhibit 161 depicts only two relocated nests.

514256. Mr. Goldasich offered opinions with regard to two

5151issues: 1) whether the Sand Mound affects the location and

5161pattern of turtle nesting; and, 2) whether the Sand Mound has an

5173effect on hatchling disorientation.

517757. Three nest plotting maps used by Mr. Goldasich

5186illustrate that the Sand Mound has had little, if any, impact on

5198the location and pattern of turtle nesting: 1) Applicants'

5207Exhibit 99 , which plots nesting data of loggerh ead and green

5218marine turtles in the vicinity of the Sand Mound from 2002 to

52302011; 2) Applicants' Exhibit 128 , which plots nesting data in a

5241broader area than Applicants' Exhibit 99 from 2001 through 2011;

5251and 3) Applicants' Exhibit 133 , which plots nesting data of

5261loggerhead and green turtles along southern Fort Lauderdale beach

5270for the year 2011.

527458. The three exhibits show no concentration or pattern of

5284loggerhead nesting in the vicinity of the Sand Mound. The

5294absence of effect on loggerhead nesting is expected because they

5304do not exhibit the preference for nesting in dunes that green

5315turtles exhibit.

531759. Of approximately 34 green marine turtle nests plotted

5326on Applicants' Exhibit 99, only six have nested in the immediate

5337vicinity of the Sand Mound. Th e locations of the other 28 nests

5350demonstrate the preference of green marine turtles to nest at

5360higher elevations in the upland beach. Respondents' Exhibit 133,

5369that contains FWC data, supports the finding that the Sand Mound

5380has been a negligible factor for the nesting of green turtles.

5391Of the 15 green turtle nests depicted in Respondents'

5400Exhibit 133, two are located in the vicinity of the Sand Mound.

5412Four are concentrated in a small contained beach area next to

5423tall buildings near the mouth of Port Ev erglades in an area of

5436greater light disturbance , but with no dune influence. The

5445remaining nine are spread over the hundreds of meters to the

5456north and south of the Sand Mound. They do not depict any

5468concentration of green turtle nesting close to the Sa nd Mound.

547960. Applicant Exhibits 99, 128, and 133 establish that the

5489Sand Mound has had little, if any, bearing on marine turtle

5500nesting.

550161. To evaluate whether the Sand Mound had any discernible

5511effect on hatchling disorientation, Mr. Goldasich analyze d FWC

5520Marine Turtle Disorientation Reports provided by the County. If

5529the Sand Mound protects hatchlings from disorientation, then

5537hatchlings from nests on or near the dune should exhibit less

5548disorientation. In comparing disorientation from two dozen

5555ne sts, there is no correlation between nest proximity to the Sand

5567Mound and hatchling disorientation.

557162. Analysis of hatchling disorientation data from the four

55802011 green turtle nests in the immediate vicinity of the Sand

5591Mound also yields a finding of no correlation between nest

5601proximity to the Sand Mound and hatchling disorientation.

560963. There is insufficient evidence as to why so many

5619hatchlings in the proximity of the Sand Mound have not benefited

5630from its presence. It may be because of night glow, weather, or

5642other relevant factors. Whatever the cause, Respondents have

5650presented empirical data and analysis that reveals no orientation

5659benefit to hatchlings from the Sand Mound, a sand feature that is

5671not a dune on a stretch of beach that is without d unes. The

5685A pplicants' data and analysis is more persuasive than

5694Petitioners' prediction based on general knowledge of marine

5702turtle behavior in coastal systems that include dunes .

5711No Take Letter

571464. When the Department believes a proposed project

5722justif i es an inquiry into whether the project would constitute a

5734Marine Turtle Take, it asks FWC to investigate the issue and, if

5746appropriate, to issue a "take letter." See Hearing Tr. vol. 1,

575724, Mar. 9, 2012.

576165. In the initial stages of the review of the ap plication

5773for the Permit, the Department did not request FWC to determine

5784if a take letter should be issued. The proposed activity seemed

5795to Department personnel not to constitute a " take. " Furthermore,

5804the activity was restricted to a time outside of th e marine

5816turtle nesting season.

581966. Later in the process when the " take " issue had been

5830raised by others, DEP requested that FWC determine whether or not

5841to issue a take letter. The Department contacted FWC repeatedly

5851about the matter.

585467. FWC did not i ssue a take letter.

5863The Department: No Position on the "Take" Issue

587168. At hearing, the Department described its position on

5880the Marine Turtle Take issue as neutral. It continued to have no

5892position on whether the evidence demonstrated a " take " or not in

5903its proposed recommended order.

5907CONCLUSIONS OF LAW

5910Jurisdiction

591169. The Division of Administrative Hearings has

5918jurisdiction over the subject matter of and the parties to this

5929proceeding. §§ 120.569 and 120.57, Fla. Stat.

5936Standing

5937STOP

593870. Because S TOP was formed less than one year prior to the

5951date of the filing of the application for the Modification, it

5962does not qualify for standing under section 403.412(6).

597071. STOP has demonstrated that its substantial interes ts

5979are being determined by the Depa rtment and that it has

5990associational standing under section 120.569 in this proceeding.

5998See In re Surface Water Mgmt. Permit No. 50 - 1420 - S , 515 So. 2d

60141288 (Fla. 4th DCA 1987) and Fla. Home Builders Assoc. v. Dep't

6026of Labor & Employment Sec. , 412 So. 2d 3 51 (Fla. 1982). STOP

6039proved that its substantial interests could be determined by

6048issuance of the modification through the testimony of Dr. Rusenko

6058and others. See Agrico Chem. Co. v. Dep't of Envtl. Reg. , 406

6070So. 2d 478 (Fla. 4th DCA 1981) and St. Johns Riverkeeper, Inc. v.

6083St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051 (Fla. 5th DCA

60962011).

609772. STOP has standing in this proceeding to challenge the

6107Modification by filing its petition with the Department that is

6117the subject of Case No. 11 - 5620.

6125The C ounty

612873. The County proved that its substantial interests could

6137be determined by the agency in this proceeding and this is the

6149type of proceeding designed to protect those interests.

615774. The County has standing in the proceeding to challenge

6167the Modific ation by filing its petition with the Department that

6178is the subject of Case No. 11 - 5768.

6187Burden and Standard of Proof

619275. The Applicants bear the burden of clearly establishing

6201entitlement to the CCCL permit. See § 161.053(4)(a)3: "The

6210department may a uthorize an excavation . . . at any coastal

6222location as described in subsection (1) . . . upon the

6233consideration of facts and circumstances . . . which, in the

6244opinion of the department, clearly justify a permit." Also see

6254Fla. Admin. Code R. 62B - 33.005(4 ): "The D epartment shall issue a

6268permit for construction which an applicant has shown to be

6278clearly justified by demonstrating that all standards,

6285guidelines, and other requirements set forth in the applicable

6294provisions of Part I, Chapter 161, F.S., and this rule chapter

6305are met . . . ."

6311Application of Permitting Criteria

631576. The Modification is a "minor" modification because it

6324does not increase the risk of adverse impacts . See Fla. Admin.

6336Code R. 62B - 33.013(2).

634177. If, on the other hand, the Modification is regarded by

6352the Department as a major modification (as appears from the

6362Department's Proposed Recommended Order), the Applicants' request

6369for Modification "shall be reviewed in the same manner as the

6380initial application." Fla. Admin. Code R. 62B - 33.013(1).

638978. The general criteria applicable to a permit and a major

6400modification of the permit are found in rule 62B - 33.005.

641179. The Department must deny an application for activity

6420seaward of the CCCL if the proposed project does not provide

6431for mitigation of "adverse impacts." Fla. Admin. Code

6439R. 62B - 33.005(3)(b). If the proposed activity causes no adverse

6450impacts, mitigation is not required.

645580. The preponderance of the evidence leads to the

6464conclusion that removal of the Sand Mound wil l cause no adverse

6476impacts to the coastal system. Mitigation by the Applicants,

6485therefore, is not required.

648981. The applicants have shown the Modification is clearly

6498justified by demonstrating that all standards, guidelines, and

6506other requirements set fo rth in the applicable provisions of p art

6518I of chapter 161 and chapter 62B - 33, including the standards and

6531requirements listed in section (4) of rule 62B - 33.005. These

6542include the requirements that apply to m arine t urtles.

6552Marine Turtles

655482. Section 379.2 431, which is known as the "Marine Turtle

6565Protection Act," declares that with limited exceptions not

6573applicable in this case:

6577[A] person, firm, corporation may not:

6583* * *

65862. Knowingly take . . . any marine turtle or

6596the eggs or nest of any marine tu rtles . . .

6608§ 37 9 .2431(1)(d), Fla. Stat.

661483. "Take" is defined in section 37 9 .2431(1)(c)2., as "an

6625act that actually kills or injures marine turtles, and includes

6635significant habitat modification or degradation that kills or

6643injures marine turtles by sig nificantly impairing essential

6651behavioral patterns, such as breeding, feeding or sheltering."

665984. The Act addresses DEP permits: "Any application for a

6669Department of Environmental Protection permit or other type of

6678approval for an activity that affects m arine turtles or their

6689nests or habitat shall be subject to conditions and requirements

6699for marine turtle protection as part of the permitting or

6709approval process." § 37 9 .2431(1)(f), Fla. Stat.

671785. Despite the invitation from the Department to offer an

6727o pinion as to whether the Modification would cause a take, FWC

6739has not issued an opinion in writing.

674686. The Department defines "significant adverse impacts"

6753as:

6754. . . adverse impacts of such magnitude that

6763they may:

6765* * *

67682. Cause a take, as defi ned in Section

6777379.2413(1) [sic] , F.S., unless the take is

6784incidental pursuant to Section

6788379.2413(1)(f) [sic] , F.S.

6791Fla. Admin. Code R. 62B - 33.002(33)(b) (emphasis added).

680087. "'Adverse impacts' are impacts to the coastal system

6809that may cause a measurabl e interference with the natural

6819functioning of the coastal system." Fla. Admin. Code

6827R. 62B - 33.002(33)(a).

683188. "'Coastal System' is the beach and adjacent upland dune

6841system and vegetation seaward of the coastal construction control

6850line; swash zone; su rf zone; breaker zone; offshore and longshore

6861shoals; reefs and bars; tidal, wind, and wave driven currents;

6871longshore and onshore/offshore drift of sediment materials;

6878inlets and their ebb and flood tide shoals and zones of primary

6890tidal influence; and al l other associated natural and manmade

6900topographic features and coastal construction."

690589. The Department takes the position that "adverse

6913impacts" to the coastal system as defined in chapter 62B - 33 do

6926not include impacts to marine turtles because the d efinition of

"6937coastal system" is limited to topographic features and coastal

6946construction, terms which do not include marine turtles. The

6955Department's construction of the definition of "adverse impacts"

6963is reasonable and is entitled to deference. An agen cy's

6973interpretation of its rule is entitled to deference unless

6982contrary to the plain language of the rule or is clearly

6993erroneous. Fla. Hosp. v. Agency for Health Care Admin. , 823 So.

70042d 844, 847 (Fla. 1st DCA 2002).

701190. S ection 379.2431(1)(h) provides : "The department shall

7020recommend denial of a permit application if the activity would

7030result in a "take" as defined in this subsection, unless, as

7041provided for in the federal Endangered Species Act and its

7051implementing regulations, such taking is inciden tal to, and not

7061the purpose of, the carrying out of an otherwise lawful

7071activity."

707291. The Department interprets its rule defining

"7079significant adverse impacts" to include a "take" of marine

7088turtles regardless of whether marine turtles are part of the

7098coa stal system as the Department defines it in rule and

7109regardless of whether adverse impacts includes impacts to

7117turtles. The interpretation is based on the explicit inclusion

7126of a "take" as a significant adverse impact in the definition of

"7138significant adv erse impacts." The interpretation does not

7146resolve the conflict with the plain language of the Department's

7156rule that a "significant adverse impact" is an adverse impact in

7167the first instance. Nonetheless, the interpretation of rule 62B -

717733.002(33)(b)2., appears to be reasonable in light of statutes

7186and rules of the Department. See, e.g. , § 379.2431(1)(h), Fla.

7196Stat., and Fla. Admin. Code R. 62B - 33.005(11).

720592. The Applicants have presented empirical data and

7213analysis that reveals no impact to the nesti ng of marine turtles

7225and no orientation benefit to hatchlings from the Sand Mound, a

7236sand feature that is not a dune on a stretch of beach that is

7250without dunes. In contrast to the Applicants' empirical data and

7260analysis, Petitioners' prediction that a Ma rine Turtle Take would

7270occur in the future after the removal of the Sand Mound is based

7283on knowledge of marine turtle behavior in coastal systems that

7293include dunes. On balance, the greater weight of the opinion

7303evidence is with the Applicants .

730993. T he r emoval of the Sand Mound in its entirety under the

7323Modification does not cause a "take" as defined in section

7333379.2431(1) , and , therefore, it is not a significant adverse

7342impact.

7343RECOMMENDATION

7344Based on the foregoing Findings of Fact and Conclusions of

7354La w, it is RECOMMENDED that the Department of Environmental

7364Protection enter a final order that issues the Modification as

7374reflected in Permit No. BO - 612 M1 filed by the Department with

7387its Clerk on September 14, 2011.

7393DONE AND ENTERED this 22nd day of Augus t , 2012 , in

7404Tallahassee, Leon County, Florida.

7408S

7409DAVID M. MALONEY

7412Administrative Law Judge

7415Division of Administrative Hearings

7419The DeSoto Building

74221230 Apalachee Parkway

7425Tallahassee, Florida 32399 - 3060

7430(850) 488 - 9675

7434Fax Filing (850) 921 - 6847

7440www.doah.state.fl.us

7441Filed with the Clerk of the

7447Division of Administrative Hearings

7451this 22nd day of August , 2012 .

7458ENDNOTE S

74601/ See the order entered February 15, 2012, that grants the

7471Department's motion in limine.

74752/ Part o f the Sand Mound may be on the property of Ocean Lane

7490Villas, Inc., which owns the property immediately south of the

7500Mayan Club's property.

75033/ The Applicants commenced the presentation of their case with

7513the testimony of Ms. Shepherd, an environmental s cientist.

7522Ms. Shepherd testified that her firm did not consider the Sand

7533Mound to be a dune because of the expanse of beach landward of

7546it. See Hearing Tr. vol. 1, 71, Feb. 16, 2012. Although the

7558Department's witness, Tony McNeal, P.E., referred to it a s "an

7569oscillating mound" ( Hearing Tr. vol. 1, 13, Mar. 9, 2012 ) , that

7582is neither a significant, primary or frontal dune and that has no

7594protective value in a major storm event , and h e also opined that

7607it is a dune because it is "up on the sandy beach itsel f." Id.

7622at 19. The Applicants appear to have acquiesced in the

7632Department's opinion because, in their view, it does not matter

7642since it has no protective value and is not a significant,

7653primary or frontal dune. The evidence, however, demonstrates

7661that t here is a substantial expanse of beach landward of it. The

7674Sand Mound is not "lying upland of the beach," as required to

7686meet the Bureau of Beaches and Coastal System's definition of

"7696dune."

76974/ The Modification refers to the sand feature subject to the

7708Permit as a "sand mound" rather than a "dune."

77175/ References to statutes are to Florida Statutes (2011) unless

7727otherwise noted.

7729COPIES FURNISHED:

7731George Steve Cavros, Esquire

7735120 East Oakland Park Boulevard, Suite 105

7742Fort Lauderdale, Florida 33334

7746Michael Christopher Owens, Esquire

7750Broward County

7752Governmental Center, Room 423

7756115 South Andrews Avenue

7760Fort Lauderdale, Florida 33301

7764Brynna J. Ross, Esquire

7768Department of Environmental Protection

7772The Douglas Building, Mail Station 35

77783900 Commonwealth Boulevard

7781Tallahassee, Florida 32399 - 3000

7786Mitchell John Burnstein, Esquire

7790Michelle Vos, Esquire

7793Susan Trevarth e n, Esquire

7798Weiss, Serota, Helfman,

7801Pastoriza, Cole, and Boniske, P.L.

7806200 East Broward Boulevard, Suite 1900

7812Fort Lauderdale, Florida 3330 1

7817Lea Crandall, Agency Clerk

7821Department of Environmental Protection

7825The Douglas Building, Mail Station 35

78313900 Commonwealth Boulevard

7834Tallahassee, Florida 32399 - 3000

7839Tom Beason, General Counsel

7843Department of Environmental Protection

7847The Douglas Building , Mail Station 35

78533900 Commonwealth Boulevard

7856Tallahassee, Florida 32399 - 3000

7861Herschel T. Vinyard, Jr., Secretary

7866Department of Environmental Protection

7870The Douglas Building, Mail Station 35

78763900 Commonwealth Boulevard

7879Tallahassee, Florida 32399 - 3000

7884NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7890All parties have the right to submit written exceptions within

790015 days from the date of this Recommended Order. Any exceptions

7911to this Recommended Order should be filed with the agency that

7922will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 10/17/2012
Proceedings: Agency Final Order
PDF:
Date: 10/17/2012
Proceedings: The Mayan Beach Club's Response to Sea Turtle Oversight Protection, Inc.'s Exceptions to the Recommended Order filed.
PDF:
Date: 10/17/2012
Proceedings: The Mayan Beach Club's Response to Broward County's Exceptions to the Recommended Order filed.
PDF:
Date: 10/17/2012
Proceedings: Florida Department of Environmental Protection's Response to Broward County's Exceptions filed.
PDF:
Date: 10/17/2012
Proceedings: Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 10/17/2012
Proceedings: Florida Department of Environmental Protection's Request for Acceptance of its Exceptions to Recommended Order filed.
PDF:
Date: 10/17/2012
Proceedings: Petitioner, Broward County's Exceptions to Recommended Order filed.
PDF:
Date: 10/17/2012
Proceedings: Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 10/17/2012
Proceedings: Agency Final Order filed.
PDF:
Date: 09/04/2012
Proceedings: Notice of Designation of Primary and Secondary Email Addresses filed.
PDF:
Date: 08/22/2012
Proceedings: Recommended Order
PDF:
Date: 08/22/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/22/2012
Proceedings: Recommended Order (hearing held February 15-16 and March 9, 2012). CASE CLOSED.
PDF:
Date: 08/21/2012
Proceedings: Department's Motion to Amend its Proposed Recommended Order filed.
PDF:
Date: 05/30/2012
Proceedings: Applicant's Proposed Recommended Order filed.
PDF:
Date: 05/30/2012
Proceedings: Department's Proposed Recommended Order filed.
PDF:
Date: 05/30/2012
Proceedings: Petitioner Broward County's Proposed Recommended Order (filed in Case No. 11-005768).
PDF:
Date: 05/30/2012
Proceedings: Petitioner Sea Turtle Oversight Protection, Inc.'s Proposed Recommended Order filed.
PDF:
Date: 05/22/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 05/22/2012
Proceedings: Department of Environmental Protection's Request for an Extension of Time to File Proposed Recommended Order filed.
PDF:
Date: 05/10/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 05/10/2012
Proceedings: Respondents' Motion to Extend the Deadline for the Parties to Submit Proposed Recommended Orders filed.
Date: 04/13/2012
Proceedings: Transcript of Proceedings Volume I-III (not available for viewing) filed.
Date: 04/13/2012
Proceedings: Transcript of Proceedings Volume I-II (not available for viewing) filed.
PDF:
Date: 04/04/2012
Proceedings: Petitioner Broward County's Motion to Strike Footnote 1 of Respondents Mayan Beach Club, Inc.'s and Ocean Lane Villas, Inc.'s Memorandum of Law in Support of their Motion in Limine Regarding Standing (filed in Case No. 11-005768).
PDF:
Date: 04/03/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc's Late-filed Exhibit No. ST 16 filed.
PDF:
Date: 03/30/2012
Proceedings: Sea Turtle Oversight Protection, Inc.'s Response in Opposition to the DEP Motion Opposing Admission into Evidence of Sea Turtle Oversight Protection, Inc.'s Affidavit filed.
PDF:
Date: 03/28/2012
Proceedings: Respondents Mayan Beach Club, Inc.'s and Ocean Lane Villas, Inc.'s Memorandum of Law in Support of their Motion in Limine Regarding Standing filed.
PDF:
Date: 03/26/2012
Proceedings: Respondents' Motion for Two-day Extension to File Their Opposition to Petitioner Sea Turtle Oversight Protection, Inc.'s Claim of Standing filed.
PDF:
Date: 03/26/2012
Proceedings: Order (on the Department's opposition to filing of post hearing affidavit by STOP).
PDF:
Date: 03/23/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc's Memorandum of Law in Support of Standing filed.
PDF:
Date: 03/23/2012
Proceedings: Department's Response in Opposition to the Filing of the Post Hearing Affidavit by STOP filed.
PDF:
Date: 03/16/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc's Affidavit in Support of Standing filed.
Date: 03/09/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/08/2012
Proceedings: Sea Turtle Oversight Protection, Inc.'s Second Amended Uniltateral Prehearing Statement filed.
Date: 03/08/2012
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 03/02/2012
Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 9, 2012; 8:30 a.m.; West Palm Beach, FL).
PDF:
Date: 03/01/2012
Proceedings: Notice of Filing (Proposed) Demonstrative Exhibits and Resumes of Laura Shepherd and John Goldasich filed.
PDF:
Date: 02/27/2012
Proceedings: Joint Response to Request for Dates of Availability filed.
Date: 02/23/2012
Proceedings: Respondent's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 02/23/2012
Proceedings: Petitioner, Broward County's, First Amendment to Prehearing Staetment filed.
PDF:
Date: 02/22/2012
Proceedings: Petitioner, Broward County's, Response to Respondents' Motion in Limine Regarding Standing (filed in Case No. 11-005768).
PDF:
Date: 02/22/2012
Proceedings: Petitioner, Broward County's, Response to Respondents' Motion in Limine (filed in Case No. 11-005768).
Date: 02/16/2012
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
PDF:
Date: 02/16/2012
Proceedings: Petitioner, Broward County's, First Amended Prehearing Statement (filed in Case No. 11-005768).
PDF:
Date: 02/16/2012
Proceedings: Applicants' First Amendment to its Prehearing Statement filed.
PDF:
Date: 02/16/2012
Proceedings: Respondents' Motion in Limine Regarding Standing filed.
PDF:
Date: 02/16/2012
Proceedings: Respondents' Motion in Limine filed.
PDF:
Date: 02/15/2012
Proceedings: Order (granting Department's motion in limine).
PDF:
Date: 02/15/2012
Proceedings: Request for Appearance by a Qualified Representative filed.
PDF:
Date: 02/14/2012
Proceedings: Department of Environmental Protection's Notice of Neutral Position filed.
PDF:
Date: 02/13/2012
Proceedings: Sea Turtle Oversight Protection, Inc.'s Second Amended Unitlateral Prehearing Statement filed.
PDF:
Date: 02/13/2012
Proceedings: Notice and Certificate of Service of Petitioner Broward County's Second Amended Answers to Respondents' Expert Witness Interrogatories (filed in Case No. 11-005768).
PDF:
Date: 02/10/2012
Proceedings: Petitioner, Broward County's Prehearing Statement (filed in Case No. 11-005768).
PDF:
Date: 02/10/2012
Proceedings: Sea Turtle Oversight Protection, Inc.'s Amended Unitlateral Prehearing Statement filed.
PDF:
Date: 02/09/2012
Proceedings: Applicants' Proposed Prehearing Statement filed.
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Date: 02/09/2012
Proceedings: Department's Proposed Prehearing Statement filed.
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Date: 02/09/2012
Proceedings: STOP's Unilateral Prehearing Statement filed.
PDF:
Date: 02/08/2012
Proceedings: Notice of Taking Depositions Duces Tecum (of T. Hamilton and K. Rusenko) filed.
PDF:
Date: 02/08/2012
Proceedings: Notice of Telephonic Depositions Duces Tecum (of C. Jackson and T. McNeal) filed.
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Date: 02/08/2012
Proceedings: Notice of Taking Depositions Duces Tecum (of E. Myers and L. Fisher) filed.
PDF:
Date: 02/07/2012
Proceedings: Joint Status Report filed.
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Date: 02/07/2012
Proceedings: Order (granting extension of time).
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Date: 02/07/2012
Proceedings: Department of Environmental Protection's Notice of Additional Language to Add to the Proposed Agency Action filed.
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Date: 02/07/2012
Proceedings: Department of Environmental Protection's Motion in Limine filed.
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Date: 02/07/2012
Proceedings: Notice and Certificate of Service of Petitioner Broward County's Amended Ansers to Respondents' Expert Witness Interrogatories (filed in Case No. 11-005768).
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Date: 02/07/2012
Proceedings: Notice of Deposition (of C. Lackson) filed.
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Date: 02/06/2012
Proceedings: Request for Extension of Time to File Pre-hearing Stipulation filed.
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Date: 02/06/2012
Proceedings: Order (denying County's motion for continuance).
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Date: 02/06/2012
Proceedings: Notice and Certificate of Service of Petitioner Broward County's Answers to Respondents' Expert Witness Interrogatories (filed in Case No. 11-005768).
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Date: 02/03/2012
Proceedings: Respondents' Objection to Broward County's Motion for Continuance (filed in Case No. 11-005768).
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Date: 02/03/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc.'s Response in Support of Broward County's Motion for Continuance filed.
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Date: 02/03/2012
Proceedings: Petitioner Broward County's Motion for Continuance (filed in Case No. 11-005768).
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Date: 02/01/2012
Proceedings: Amended Notice of Hearing (hearing set for February 16 and 17, 2012; 9:00 a.m.; Fort Lauderdale, FL; amended as to hearing room location).
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Date: 01/31/2012
Proceedings: DEP's Response to the Petitioner, Sea Turtle Oversight Protection, Inc.'s Motion for Continuance filed.
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Date: 01/31/2012
Proceedings: Order (denying Petitioner's motion for continuance; parties shall file case status on or before February 7, 2012).
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Date: 01/30/2012
Proceedings: Respondents' Objections to Petitioner Sea Turtle Oversight Protection, Inc.'s Motion for Continuance filed.
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Date: 01/27/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc.'s, Motion for Continuance filed.
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Date: 01/26/2012
Proceedings: Notice and Certificate of Service of Respondent Department of Environmental Protection's Answers to Respondents' First Set of Interrogatories filed.
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Date: 01/24/2012
Proceedings: Department's Response to Petitioner, Sea Turtle Oversight Protection, Inc.'s, First Request for Production of Documents to the Department filed.
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Date: 01/23/2012
Proceedings: Notice and Certificate of Service of Respondent's Department of Environmental Protection's Responses to Petitioner's Sea Turtle Oversight Protection, Inc.'s First Set of Interrogatories filed.
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Date: 01/06/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc.'s Responses to Petioners(sic), Mayan Beach Club Inc.'s and Ocena Villas, Inc.'s, First Set of Interrogatories filed.
PDF:
Date: 01/06/2012
Proceedings: Petitioner, Sea Turtle Oversight Protection, Inc.'s Responses to Petioners(sic), Mayan Beach Club Inc.'s and Ocena Villas, Inc.'s, First Set of Interrogatories filed.
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Date: 01/03/2012
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 16 and 17, 2012; 9:00 a.m.; Fort Lauderdale, FL).
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Date: 12/28/2011
Proceedings: Department of Environmental Protection's Motion for Continuance filed.
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Date: 12/21/2011
Proceedings: Undeliverable envelope returned from the Post Office.
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Date: 12/20/2011
Proceedings: Respondents' Notice of Serving Answers to Petitioner Sea Turtle Oversight Protection, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 12/20/2011
Proceedings: Respondents' Responses to Petitioner Sea Turtle Oversight Protection, Inc.'s First Request for Production filed.
PDF:
Date: 12/14/2011
Proceedings: Notice of Propounding Respondents' Expert Witness Interrogatories to Department of Environmental Protection Pursuant to Rule 1.280(B)(4) filed.
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Date: 12/14/2011
Proceedings: Notice of Appearance (Mitchell Burnstein) (filed in Case No. 11-005768).
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Date: 12/14/2011
Proceedings: Notice of Appearance (Mitchell Burnstein) filed.
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Date: 12/14/2011
Proceedings: Notice of Appearance (Mitchell Burnstein) filed.
PDF:
Date: 12/06/2011
Proceedings: Notice of Propounding Respondents' Expert Witness Interrogatories to Broward County Pursuant to Rule 1.280(B)(4) filed.
PDF:
Date: 12/06/2011
Proceedings: Notice of Propounding Respondents' Expert Witness Interrogatories to Sea Turtle Oversight Protection, Inc. Pursuant to Rule 1.280(B)(4) filed.
PDF:
Date: 11/29/2011
Proceedings: Amended Notice of Taking Agency Deposition Under Rule 1.310(6) filed.
PDF:
Date: 11/29/2011
Proceedings: Notice of Taking Agency Deposition Under Rule 1.310(6) filed.
PDF:
Date: 11/28/2011
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 11/21/2011
Proceedings: Notice of Substitution of Counsel for Department of Environmental Protection (Brynna Ross) filed.
PDF:
Date: 11/18/2011
Proceedings: Order of Pre-hearing Instructions.
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Date: 11/18/2011
Proceedings: Notice of Hearing (hearing set for January 19 and 20, 2012; 9:00 a.m.; Fort Lauderdale, FL).
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Date: 11/18/2011
Proceedings: Order of Consolidation (DOAH Case Nos. 11-5620 and 11-5768)).
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Date: 11/17/2011
Proceedings: Joint Response to Initial Order filed.
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Date: 11/14/2011
Proceedings: Initial Order.
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Date: 11/10/2011
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
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Date: 11/10/2011
Proceedings: Broward County's Petition for Administrative Hearing filed.
PDF:
Date: 11/10/2011
Proceedings: Modification of Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes filed.

Case Information

Judge:
DAVID M. MALONEY
Date Filed:
11/10/2011
Date Assignment:
11/14/2011
Last Docket Entry:
10/17/2012
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (7):