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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEA TURTLE OVERSIGHT )

PROTECTION, INC. , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5620

)

THE MAYAN BEACH CLUB, INC., )

OCEAN LANE VILLAS, INC., AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents . )

_____________________________ __ )

BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 11 - 5768

)

THE MAYAN BEACH CLUB, INC., )

OCEAN LANE VILLAS, INC., AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

These cases were heard by David M. Maloney, Administrative

Law Judge with the Division of Administrative Hearings , on

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

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

Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner Sea Turtle Oversight Protection, Inc.:

George Steve Cavros, Esquire

120 East Oakland Park Boulevard, Suite 105

Fort Lauderdale, Florida 33334

For Petitioner Broward County:

Michael Christopher Owens, Esquire

Broward County

Governmental Center , Room 423

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

For Respondent Department of Environmental Protection:

Brynna J. Ross, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

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

Villas, Inc.:

Mitchell John Burnstein, Esquire

Michelle Vos, Esquire

Susan Trevarth e n, Esquire

Weis s, Serota, Helfman, Pastoriza,

Cole, and Boniske, P.L.

2 00 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301

BACKGROUND

The Department of Environmental Protection (the "Department"

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

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

Permit allows excavation and restoration activities seaward of

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

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

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

property in Fort Lauderdale. At feet North American Vertical

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

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

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

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

roughly half of its present height. The restoration activity

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

the Permit as considerably smaller than the Sand Mound.

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

this proceeding. 1/

In September 2011, the Department issued a modification of

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

application of T he Mayan Beach Club and an adjoining property

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

Modification substantially alters the excavation activity. It

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

grade. It does not contemplate construction of a new sand

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

redistributed across the Applicants' property.

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

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

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

STATEMENT OF THE ISSUE

Whether STOP and the County have standing to challenge the

issuance of the Modification?

Whether the Department should issue the Mod ification as

authorized in Permit No. BO - 612 M1?

PRELIMINARY STATEMENT

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

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

for Administrative Hearing filed by STOP. The petition

cha llenged the Modification and requested both a formal

administrative hearing at DOAH and the issuance of a final order

denying the Modification. The Department, in turn, requested

that the petition be assigned to an administrative law judge to

conduct proc eedings that would lead to submission of a

recommended order.

Pursuant to the request, the petition was assigned Case

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

proceedings.

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

second petition filed by the County that challenges the

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

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

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

consolidated.

The administrative hearing was held in Fort Lauderdale on

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

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

The Applicants presented the testimony of Laura Shepherd, an

environmental scient ist with Coastal Systems International, Inc.;

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

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

and Management Division and is the Marine Turtle Permit Holder

for the County. The Department presented the testimony of Tony

McNeal, a professional coastal engineer with the Department. The

Applicants and the Department jointly offered Respondents'

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

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

its Proposed Recommended Order as Respondents' Exhibits with the

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

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

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

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

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

the appropriate number.) The Applicants also offered two late

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

Chen and Timothy Blankenship, which were not admitted into

evidence.

STOP presented the testimony of Richard Whitecloud, its

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

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

hatchling rescue volunteer; and, Thadeus Hamilton, a volunteer

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

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

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

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

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

marine biologist with the Florida Fish and Wildlife Conservation

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

Department of Environmental Protection and Growth Management in

its Natural Resources Planning and Management Division. The

County offered the first two pages of County Exhibit 19 and

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

After the conclusion of the administrative hearing, STOP

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

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

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

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

motion to strike subject to Florida Administrative Code Rule 28 -

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

motion opposing the admission of the affidavit. Af ter

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

the Department's motion is granted and the affidavit of

Mr. Whitecloud is rejected.

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

in support of their previous motion in limin e requesting that

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

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

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

the County's motion. The motion is granted.

After requests for extensions of time for the filing of

proposed recommended order s by the Applicants and the Department,

the parties all filed proposed recommended orders in a timely

manner on May 30, 2012.

FINDING S OF FACT

The Sand Mound

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

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

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

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

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

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

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

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

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

varying density.

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

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

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

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

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

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

the Sand Mound lies seaward of an extensive expanse of upland

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

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

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

approximately 800 feet away.

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

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

unsuccessful government attempt to create an offshore reef.

Although not proven, the suggestion was made by the Applicants

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

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

advancement due to sand accretion. The suggestion was not

disputed by the other parties. It is the only explanation

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

other dunes and its peculiar lo cation seaward of an extensive

expanse of upland beach.

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

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

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

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

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

and configuration or vegetation to offer protective value." See

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

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

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

it.

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

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

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

loose, sand - sized sediment deposited by natural or artificial

mechanism which is bare or covered with vegetation and is subject

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

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

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

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

is not a dune. 3/ See id.

The Permit and the Modification

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

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

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

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

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

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

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

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

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

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

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

Land Villas , Inc. ' s property.

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

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

requested. The Permit contains a "Project Description" that

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

Ex. 27. The permitted activity is both excavation and

restoration between approximately 395 feet and 535 feet seaward

of the control line:

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

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

1,442 cubic yards of excavated material to be

spread adjacent to the feature and to

construct a second dune feature

(appro ximately 440 cubic yards) located to

the north. Excavation and placement areas

are to be planted with native salt - tolerant

beach and dune vegetation.

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

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

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

have a two to three feet elevation above grade.

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

submitted an application for a modification of the Permit. The

application was received by the Department's Bureau of Beaches

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

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

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

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

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

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

Modification application provided more compelling reasons for the

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

Beach Club as expressed in the Permit application to have its

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

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

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

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

onto private property and trash accumulation, and resulting in

negative impacts to the Permittee's property values and

security." Id.

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

Modification. Its Project Description is markedly different from

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

Description in the Modification is "Dune Redistribution . "

Instead of excavation and restoration, the Modified Project, as

applied for, is one for "Removal":

Dune Redistribution:

Removal: Removal of the existing vegetated

sand mound [4/] located approximately 514 feet

seaward of the control line and redistribute

approximately 1,730 cubic yards of the sand

across the property. The mound is

approximately 140 feet in the general shore -

normal direction by 176 feet in the general

shore - parallel direction. The removed sand

is to be distributed between the Seasonal

High Water Line and the west ern edge of the

existing sandy beach to a maximum distance of

536 feet seaward of the control line.

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

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

situ sand or soil seaward of the CCCL.

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

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

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

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

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

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

sand feature.

The Parties

12. The Mayan Beach Club is a condominium association that

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

condominium located along the southern part of Fort Lauderdale's

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

Club assumed management of the condominium and its newly -

constructed units.

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

1/4 of a mile north of the ocean inlet to Port Everglades, a

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

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

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

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

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

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

Its fee title ownership includes nearly 700 linear feet of beach

between the CCCL (seaward of the condominium residential

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

Atlantic Ocean.

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

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

It notified the Department that it supported the Permit and

granted permission for the authorized activity to be conducted on

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

Modification.

16. The Department is the state agency with the authority

to establish CCCLs and to issue permits for construction

activities seaward of a CCCL when an applicant has shown the

permit "to be clearly justified by demonstrating that all

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

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

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

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

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

2010, STOP is a not - for - profit corporation. Its mission is to

protect sea turtles, reduce hatchling mortality due to

disorientation from artificial light sources, educate the public

about marine turtle habitat and assist the State of Florida with

its sea turtle conservation program.

18. Broward County is a political subdivision of the state

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

filing of the application at issue. Official recognition is

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

The Charter of Broward County addresses its interests in natural

resources and environmental protection. It has authority, for

example, to adopt environmental rules and regulations that

prevail over municipal ordi nances with which they conflict.

Standing

STOP's Standing

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

date of the filing of the application for the Modification.

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

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

County.

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

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

monitor Broward County's beaches nightly during sea turtle

nesting season.

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

minimum of four hours between sunset and sunrise. Members work

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

23. The activity of STOP includes recovering disoriented

turtle hatchling s and documenting disorientations. To rescue sea

turtles, FWC permittees must complete a written test and field

training that requires 40 hours on the beach.

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

organizations in Florida that recovers hatc hlings at all hours of

the night instead of in early morning daylight after hours of

disorientation.

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

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

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

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

commentary associated with its activities and materials for

public education to serve the conservation of sea turtles.

27. Prior to filing its petition, STOP filed public

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

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

numerous sea turtle hatchlings, in addition to harming other

protected species." STOP Ex. 11.

Broward County's Standing

28. Brow ard County has established a Natural Resource

Protection Code in Chapter 27 of the Broward County Code of

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

adopted by the County to promote the preservation, protection,

and enhancement of na tural resources. These resources include

coastal and marine animal and plant life.

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

Florida Administrative Code, including section 161.053 and

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

residents in natural resources, plants, and wildlife that are

present in the beach and dune system in Broward County.

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

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

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

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

The Sand Mound's Vegetation

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

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

The vegetation is not as robust as typical dune vegetation.

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

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

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

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

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

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

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

s tar is endangered. After interaction with the Department of

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

agreed to plant several endangered species in another location as

mitigation for the destruction on site of the beach s tar

vegetation. The City of Fort Lauderdale agreed to partner with

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

Condominium , north of the Applicants' property. The mitigation

plan included removal of invasive exotic plants, and replanting

the mitiga tion area with native plants, including several

endangered species. The mitigation planting area is

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

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

the removal of the Sand Mou nd.

Minimization of Impacts

33. The Applicants minimize impact s by not proposing

activity beyond that which is necessary to remove the Sand Mound

and distribute the excavated sand on the beach.

Adverse Impacts

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

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

interference with the natural functioning of the coastal system."

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

as "the beach and adjacent upland dune system and vegetation

seaward of the coastal construction control line; swash zone;

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

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

onshore/offshore drift of sediment materials; inlets and their

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

and all other associated natural and manmade topographic features

and coastal construction."

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

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

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

cause measurable interference with the natural function of the

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

cause adverse impacts to the coastal sys tem .

Mitigation

37. The Department must deny an application for an activity

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

adverse impacts. If a project causes no adverse impact,

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

33. 005(3)(b).

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

Mound. Furthermore, no mitigation is required by the

Modification since the vegetation will be removed if the Permit

is implemented without the modification. Nonetheless, the

Applican ts entered into the mitigation described above with

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

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

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

plan was success fully implemented prior to hearing.

Other General Criteria

39. The proposed project will not cause any anticipated

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

system and will not cause cumulative impacts to the coastal

system.

40. T he proposed project is not inconsistent with siting

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

structures and property or lower existing levels of protection.

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

nor will it cause significant adverse impacts to the beach and

dune system due to increased erosion by wind or water.

41. The proposed project will not reduce the existing

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

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

ability to recover from a coastal storm.

42. The proposed project will not affect the hydrology of

the water flowing across the land and will not direct discharges

of water or other fluids in a seaward direction.

43. The proposed project will not result in the net

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

44. The proposed project will not cause an increase in

structure induced scouring.

45. The proposed project will not interfere with public

access and will not interfere with lateral beach access.

Marine Turtles

46. Each night during late summer months, thousands of

marine turtle hatchlings emerge from nests located on Broward

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

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

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

Atlantic loggerhead turtle and the Atlantic green turtle. Of

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

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

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

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

area of the Sand Mound are green turtle hatchlings.

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

they tend to prefer steeply sloped beaches with prominent

vegetated dunes.

48. Dunes are a particular attraction for green turtles in

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

beach elevatio ns than do loggerheads.

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

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

turtles: 1) promoting abandonment of nesting attempts by female

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

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

hatchlings emerging from nests where the Sand Mound would have

been when the Sand Mound would have provided silhouette and shape

cues that correctly orient hatchlings toward the sea. Sea turtle

hatchlings orient toward the ocean and hatchling disorientation

frequently results in death.

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

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

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

other cover tend to wander longitudinally along the beach. They

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

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

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

51. Dune elevation increases nest survivorship because it

protects the eggs from storm events. Nests at higher elevations

have a better chance of survival than nests at lower elevations

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

inundation, two of the main factors that determine nest

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

silhouette which blocks out artificial light from the low

landward horizon that causes hatchling disorientation. Prominent

vegetated dunes are especially helpful in assisting hatchling

orientation. Dune vegetation also provides shade , which

increases the nest survivability over nests in bare sand.

52. Artificial lighting can disrupt the ability of

hatchlings to find the sea from their nests. Hatchlings benefit

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

disorienting lights that exist in an urban environment. Dune

vegetation assists in scattering light , and the downward slope of

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

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

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

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

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

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

and hatchling disorientation along the southern stretch of Fort

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

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

and direct artificial lighting. Dr. Witherington was more

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

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

Mar. 9, 2012.

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

Rusenko which were based on knowledge of marine turtle behavior

in general, the Applicants' biological consultant, John James

Goldasich, used Broward County data about turtle nesting and

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

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

measurements taken on site which indicated no distinction between

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

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

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

southern stretch of Fort Lauderdale's beach.

55. The accuracy of the Broward County data used by

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

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

included turtle nests that were relocated onto T he Mayan Beach

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

Respondents' Exhibit 161 showed relocated nests. The inclu sion

is insignificant. Exhibit 161 depicts only two relocated nests.

56. Mr. Goldasich offered opinions with regard to two

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

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

effect on hatchling disorientation.

57. Three nest plotting maps used by Mr. Goldasich

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

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

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

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

2011; 2) Applicants' Exhibit 128 , which plots nesting data in a

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

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

loggerhead and green turtles along southern Fort Lauderdale beach

for the year 2011.

58. The three exhibits show no concentration or pattern of

loggerhead nesting in the vicinity of the Sand Mound. The

absence of effect on loggerhead nesting is expected because they

do not exhibit the preference for nesting in dunes that green

turtles exhibit.

59. Of approximately 34 green marine turtle nests plotted

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

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

demonstrate the preference of green marine turtles to nest at

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

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

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

Of the 15 green turtle nests depicted in Respondents'

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

Four are concentrated in a small contained beach area next to

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

greater light disturbance , but with no dune influence. The

remaining nine are spread over the hundreds of meters to the

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

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

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

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

nesting.

61. To evaluate whether the Sand Mound had any discernible

effect on hatchling disorientation, Mr. Goldasich analyze d FWC

Marine Turtle Disorientation Reports provided by the County. If

the Sand Mound protects hatchlings from disorientation, then

hatchlings from nests on or near the dune should exhibit less

disorientation. In comparing disorientation from two dozen

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

Mound and hatchling disorientation.

62. Analysis of hatchling disorientation data from the four

2011 green turtle nests in the immediate vicinity of the Sand

Mound also yields a finding of no correlation between nest

proximity to the Sand Mound and hatchling disorientation.

63. There is insufficient evidence as to why so many

hatchlings in the proximity of the Sand Mound have not benefited

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

other relevant factors. Whatever the cause, Respondents have

presented empirical data and analysis that reveals no orientation

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

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

A pplicants' data and analysis is more persuasive than

Petitioners' prediction based on general knowledge of marine

turtle behavior in coastal systems that include dunes .

No Take Letter

64. When the Department believes a proposed project

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

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

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

24, Mar. 9, 2012.

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

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

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

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

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

turtle nesting season.

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

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

to issue a take letter. The Department contacted FWC repeatedly

about the matter.

67. FWC did not i ssue a take letter.

The Department: No Position on the "Take" Issue

68. At hearing, the Department described its position on

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

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

its proposed recommended order.

CONCLUSIONS OF LAW

Jurisdiction

69. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

Standing

STOP

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

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

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

71. STOP has demonstrated that its substantial interes ts

are being determined by the Depa rtment and that it has

associational standing under section 120.569 in this proceeding.

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

1288 (Fla. 4th DCA 1987) and Fla. Home Builders Assoc. v. Dep't

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

proved that its substantial interests could be determined by

issuance of the modification through the testimony of Dr. Rusenko

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

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

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

2011).

72. STOP has standing in this proceeding to challenge the

Modification by filing its petition with the Department that is

the subject of Case No. 11 - 5620.

The C ounty

73. The County proved that its substantial interests could

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

type of proceeding designed to protect those interests.

74. The County has standing in the proceeding to challenge

the Modific ation by filing its petition with the Department that

is the subject of Case No. 11 - 5768.

Burden and Standard of Proof

75. The Applicants bear the burden of clearly establishing

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

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

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

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

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

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

permit for construction which an applicant has shown to be

clearly justified by demonstrating that all standards,

guidelines, and other requirements set forth in the applicable

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

are met . . . ."

Application of Permitting Criteria

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

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

Code R. 62B - 33.013(2).

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

the Department as a major modification (as appears from the

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

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

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

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

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

79. The Department must deny an application for activity

seaward of the CCCL if the proposed project does not provide

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

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

impacts, mitigation is not required.

80. The preponderance of the evidence leads to the

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

impacts to the coastal system. Mitigation by the Applicants,

therefore, is not required.

81. The applicants have shown the Modification is clearly

justified by demonstrating that all standards, guidelines, and

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

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

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

include the requirements that apply to m arine t urtles.

Marine Turtles

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

Protection Act," declares that with limited exceptions not

applicable in this case:

[A] person, firm, corporation may not:

* * *

2. Knowingly take . . . any marine turtle or

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

§ 37 9 .2431(1)(d), Fla. Stat.

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

act that actually kills or injures marine turtles, and includes

significant habitat modification or degradation that kills or

injures marine turtles by sig nificantly impairing essential

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

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

Department of Environmental Protection permit or other type of

approval for an activity that affects m arine turtles or their

nests or habitat shall be subject to conditions and requirements

for marine turtle protection as part of the permitting or

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

85. Despite the invitation from the Department to offer an

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

has not issued an opinion in writing.

86. The Department defines "significant adverse impacts"

as:

. . . adverse impacts of such magnitude that

they may:

* * *

2. Cause a take, as defi ned in Section

379.2413(1) [sic] , F.S., unless the take is

incidental pursuant to Section

379.2413(1)(f) [sic] , F.S.

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

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

that may cause a measurabl e interference with the natural

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

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

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

system and vegetation seaward of the coastal construction control

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

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

longshore and onshore/offshore drift of sediment materials;

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

tidal influence; and al l other associated natural and manmade

topographic features and coastal construction."

89. The Department takes the position that "adverse

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

not include impacts to marine turtles because the d efinition of

"coastal system" is limited to topographic features and coastal

construction, terms which do not include marine turtles. The

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

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

interpretation of its rule is entitled to deference unless

contrary to the plain language of the rule or is clearly

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

2d 844, 847 (Fla. 1st DCA 2002).

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

recommend denial of a permit application if the activity would

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

provided for in the federal Endangered Species Act and its

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

the purpose of, the carrying out of an otherwise lawful

activity."

91. The Department interprets its rule defining

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

turtles regardless of whether marine turtles are part of the

coa stal system as the Department defines it in rule and

regardless of whether adverse impacts includes impacts to

turtles. The interpretation is based on the explicit inclusion

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

"significant adv erse impacts." The interpretation does not

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

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

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

33.002(33)(b)2., appears to be reasonable in light of statutes

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

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

92. The Applicants have presented empirical data and

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

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

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

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

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

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

on knowledge of marine turtle behavior in coastal systems that

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

evidence is with the Applicants .

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

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

379.2431(1) , and , therefore, it is not a significant adverse

impact.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

La w, it is RECOMMENDED that the Department of Environmental

Protection enter a final order that issues the Modification as

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

its Clerk on September 14, 2011.

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

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of August , 2012 .

ENDNOTE S

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

Department's motion in limine.

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

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

Mayan Club's property.

3/ The Applicants commenced the presentation of their case with

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

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

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

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

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

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

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

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

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

at 19. The Applicants appear to have acquiesced in the

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

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

primary or frontal dune. The evidence, however, demonstrates

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

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

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

"dune."

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

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

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

otherwise noted.

COPIES FURNISHED:

George Steve Cavros, Esquire

120 East Oakland Park Boulevard, Suite 105

Fort Lauderdale, Florida 33334

Michael Christopher Owens, Esquire

Broward County

Governmental Center, Room 423

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Brynna J. Ross, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Mitchell John Burnstein, Esquire

Michelle Vos, Esquire

Susan Trevarth e n, Esquire

Weiss, Serota, Helfman,

Pastoriza, Cole, and Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 3330 1

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

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.