17-001456 Save Our Siesta Sands 2, Inc.; Peter Van Roekens; Diane Erne; And Jeanne Ezcurra vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, May 8, 2018.

Summary: It is recommended that the joint coastal permit be approved, but only if it is modified to restrict dredging during the spawning season for the spotted seafront; otherwise it is recommended that the permit be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SIESTA KEY ASSOCIATION OF

SARASOTA, INC., AND MICHAEL S.

HOLDERNESS,

Petitioners,

vs.

Case No. 17 - 1449

CITY OF SARASOTA; U.S. ARMY

CORPS OF ENGINEERS; DEPARTMENT

OF ENVIRONMENTAL PROTECTION; AND

BOARD OF T RUSTEES OF THE

INTERNAL IMPROVEMENT TRUST FUND,

Respondents,

and

LIDO KEY RESIDENTS ASSOCIATION,

INC.,

Intervenor.

_______________________________/

SAVE OUR SIESTA SANDS 2, INC. ;

PETER VAN ROEKENS; AND DIANE

ERNE ,

Petitioners,

Case No. 17 - 1456

vs.

DEP ARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent,

and

LIDO KEY RESIDENTS ASSOCIATION,

INC.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

The final hearing in these consolidated cases was held on

December 12 through 15, 2017, in Sarasota, Florida, and on

December 18, 2017, by video teleconference in Sarasota and

Tallahassee, before Bram D.E. Canter, an Administrative Law

Judge of the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioners Siesta Key Association of Sarasota, Inc.,

and Michael S. Holderness:

D. Kent Safriet, Esquire

Mohammad O. Jazil, Esquire

Adam F. Blalock, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

For Petitioners Save our Siesta Sands 2, Inc., Peter v an

Roekens, and Diane Erne:

Martha M. Collins, Esquire

Collins Law Group

1110 N orth Florida Avenue

Tampa, Florida 33602

For Respondent City of Sarasota:

John R. Herin, Jr., Esquire

401 East Olas B oulevard , Suite 1000

Ft. Lauderdale, Florida 33301

For Respondent U.S. Army Corps of Engineers:

E. Chris Lambert, Esquire

Brittany Berger, Esquire

Brooks W. Moore, Esquire

United States Army Corps of Engineers

701 San Marco Boulevard

Jacksonville, Florida 32207

For Respondents Florida Department of Environmental

Protection and Board of Trustees of the In ternal Improvement

Trust Fund:

Kirk Sanders White, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahas see, Florida 32399 - 3000

For Intervenors Lido Key Residents Association:

Kevin Hennessy, Esquire

Deborah Getzoff, Esquire

Richard Green Esquire

Lewis, Longman, and Walke r, P.A.

101 Riverfront Blvd., Suite 620

Bradenton, Florida 34205

STATEMENT OF THE ISSUE

The issue to be determined in these consolidated cases is

whether the U.S. Army Corps of Engineers (ÐCorpsÑ) and the City

of Sarasota (ÐCityÑ) (sometimes referred to as Ðthe ApplicantsÑ)

are entitled to the proposed joint coastal permit, public

easement, and sovereign submerged lands use authorization

(referred to collectively as Ðthe PermitÑ) from the Department

of Environment al Protection (ÐDEPÑ) and the Trustees of the

Internal Improvement Trust Fund to dredge sand from Big Sarasota

Pass and its ebb shoal and place the sand on the shoreline of

Lido Key.

PRELIMINARY STATEMENT

On December 22, 2016, DEP gave notice of its intent to

issue the Permit to the City and Corps. The Permit would

authorize a 15 - year joint coastal permit for beach nourishment,

grant a Letter of Consent to use sovereign submerged lands for

the proposed beach fill placement area, and grant a public

easement to use sovereign submerged lands for three proposed

borrow areas and for two groins.

Siesta Key Associa tion of Sarasota, Inc., Michael S.

Holderness, William A. Bortz, and David N. Patton (ÐSKAÑ); and

Save Our Siesta Sands 2, Inc., Peter Van Roekens, Dian e Erne,

and Jeanne Ezcurra (ÐSOSS2Ñ) filed petitions challenging the

Permit. The two cases were consolidated. Lido Key Residents

Association, Inc. (ÐLKRAÑ) was granted leave to intervene in

support of the Permit.

Florida Wildlife Federation filed a petit ion for hearing to

challenge the Permit, but later filed a notice of voluntary

dismissal of the petition and it was dismissed before the final

hearing.

At the final hearing, Petitioners presented the testimony

of Catherine Luckner; Michael Holderness; Pete r v an Roekens;

Diane Erne; Jennifer Peterson, Ph.D.; Ellen Edwards, Ph.D.;

Todd Walton, Jr., Ph.D., accepted as an expert in coastal

engineering; Mark Luther, Ph.D., accepted as an expert in

coastal marine science; R. Grant Gilmore, Ph.D., accepted as an

e xpert in marine ecology and marine fisheries; and Robert Young,

Ph.D., accepted as an expert in coastal geology. SKA

Exhibits 7, 11, 12, 27, 33, 35, 36, 37 - 1 through 37 - 7, and

48 through 51 were admitted into evidence. SOSS2 Exhibits 69,

71, 77, 79, and 83 were admitted into evidence.

The City presented the testimony of Alexandrea Davis - Shaw,

P.E., and Michelle Pfeiffer, P.E. City Exhibits 3, 5, and 6

were admitted into evidence.

The Corps presented the testimony of Aubree Hershorin,

Ph.D., accepted as a n expert in biology; and Jason A. Engle,

P.E., accepted as an expert in coastal engineering. Corps

Exhibits 76, 79E and 79H were admitted into evidence.

DEP presented the testimony of Robert Brantly, P.E.,

accepted as an expert in coastal engineering; and Ellen Edwards,

Ph.D. DEP Exhibits 1 and 17A were admitted into evidence.

LKRA presented the testimony of Mark S. Fonseca, Ph.D.,

accepted as an expert in marine ecology and seagrass

restoration. LKRA Exhibit 20 was admitted into evidence.

The Transcript of the final hearing was filed with DOAH.

The parties submitted proposed recommended orders, which were

considered in preparing this Recommended Order. All references

to the Florida Statutes are to the 2017 codification.

FINDING S OF FACT

The Parties

1. Petitioner Siesta Key Association, Inc. is a Florida

Not for Profit Corporation, with its principal place of business

in Sarasota. The organization has approximately 1 , 425 members

and represents the interests of those who use and enjoy Siesta

Key Ós beach and waters. A substantial number of its members

have substantial interests in the use of the beach and adjacent

waters.

2. Petitioner Michael S. Holderness is a resident and

property owner on Siesta Key. Mr. Holderness has substantial

interests in the protection of his property and the use of the

beach at Siesta Key and adjacent waters.

3. Petitioner Save Our Siesta Sands 2, Inc. is a Florida

Not For Profit Corporation, with its principal place of business

in Sarasota. The organization has over 700 me mbers and was

formed in opposition to the current dredging proposal. A

substantial number of its members have substantial interests in

the use of the beach at Siesta Key and adjacent waters.

4. Petitioners Peter van Roekens and Diane Erne are

residents a nd property owners on Siesta Key. They have

substantial interests in the protection of their properties and

the use of the beach at Siesta Key and adjacent waters.

5. Respondent City of Sarasota is an incorporated

municipality in Sarasota County. It is a co - applicant for the

Permit.

6. Respondent Corps is the federal agency responsible for

the Lido Key Hurricane and Storm Damage Reduction Project first

authorized by Congress in 1970. Under this Project, the Corps

has conducted periodic maintenance, inl et dredging, surveys, and

bypassing to protect Lido KeyÓs shoreline. The Corps is a

co - applicant for the Permit.

7. Respondent DEP is the Florida agency having the power

and duty to protect FloridaÓs air and water resources and to

administer and enforce the provisions of chapters 161, 373, and

403, Florida Statutes, and rules promulgated thereunder in

Titles 62 and 62B of the Florida Administrative Code, which

pertain to the permitting of construction activities in the

coastal zone and in surface waters o f the state. DEP acts as

staff to the Board of Trustees of the Internal Improvement Trust

Fund.

8. Intervenor Lido Key Residents Association is a Florida

Not for Profit Corporation incorporated in 1980 and with its

principal place of business in Sarasota . The organization

represents the interests of regular users of Lido Key Beach. A

substantial number of its members have substantial interests in

the use of the beach at Lido Key and adjacent waters.

The Project Area

9. Lido Key is a 2.6 - mile - long, manm ade barrier island

constructed in the 1920s, located on the Gulf of Mexico and

within the City of Sarasota.

10. North of Lido Key is New Pass, a navigation channel

that separates Lido Key from Longboat Key.

11. South of Lido Key is Big Sarasota Pass and the ebb

shoal of the pass. Further south is Siesta Key, a natural

barrier island.

Sediment Transport

12. In the project area, sand generally drifts along the

various shorelines from north to south. There can be sand drift

to the north during some storm events, currents, and tides, but

the net sand drift is to the south. It is sometimes called

Ðdowndrift.Ñ

13. Whatever downdrift conditions existed 100 years ago,

they were substantially modified by the creation of Lido Key.

14. For decades, the shorelin e of Lido Key has been

eroding. Since 1964, the Cor ps has periodically dredged

New Pass to renourish the shoreline of Lido Key. The City has

also used offshore sand to renourish Lido Key. These

renourishment projects have not prevented relatively rapid

erosion of the shoreline.

15. A 2.4 - mile - long segment of the shoreline of Lido Key

has been designated by DEP as Ðcritically eroded.Ñ

16. The Big Sarasota Pass ebb shoal has been growing and

now has a volume of about 23 million cubic yards (ÐcyÑ) of sand .

The growth of the ebb shoal is attributable to the renourishment

projects that have placed over a million cy of sand on Lido Key

and Longboat Key.

17. The growth of the ebb shoal has likely been a factor

in the southward migration of the main ebb chann el of Big

Sarasota Pass, closer to the northern shoreline of Siesta Key.

18. Most of the west - facing shoreline at Siesta Key has

experienced significant accretion. It is unusually wide for a

Florida beach. It was named the best (Ð#1Ñ) beach in the Unite d

States by ÐDr. Beach,Ñ Dr. Steven Leatherman, for 2011 and 2017.

The Project

19. The federally - authorized Lido Key Hurricane and Storm

Damage Reduction Project includes the use of New Pass as a

supplemental sand source for renourishing Lido Key. Howeve r,

the use of New Pass is the subject of separate DEP permitting.

The project at issue in this proceeding only involves the

renourishment of Lido Key and is named ÐLido Key Beach

Renourishment and Groins.Ñ

20. The Applicants conducted a study of the ebb shoal to

determine whether it could be used as a permanent sand source to

renourish Lido Key. The study consisted of an environmental

feasibility study and an inlet management program for Big

Sarasota Pass and New Pass with alternative solutions. The

app lication for the Permit was a response to this study.

21. The proposed sand source or borrow areas are three

dredge Ðcuts.Ñ Cuts B and D are within the ebb shoal. Cut C

extends through the ebb shoal and partly into Big Sarasota Pass.

Cut C generally fo llows an existing Ðflood marginal channel.Ñ

22. The sand from the cuts would be placed along the

central and southern 1.6 miles of Lido Key to fill a beach

Ðtemplate.Ñ The design width of the renourished beach would be

80 feet. The initial placement wou ld be wider than 80 feet to

account for erosion.

23. The Permit would have a duration of 15 years. The

ApplicantsÓ intent is to initially place 950,000 cy of sand on

Lido Key. After the initial renourishment, sand would be

dredged from one or more of th e three designated cuts about

every five years to replace the sand that eroded away, and would

probably be on the scale of about 500,000 cy.

24. The numerical modeling of the proposed project assumed

the removal of up to 1.3 million cy of sand from the th ree cuts.

25. One of DEPÓs witness es testified that the Permit

authorizes the removal of up to 1.732 million cy of sand. The

record does not support that testimony. The Applicants did not

model the effects of dredging 1.732 million cy of sand from the

e bb shoal and pass. There is insufficient evidence in the

record to support an authorization to remove more than

1.3 million cy of sand.

26. Although the total volume of sand in the three cuts is

1.732 million cy, it is reasonable for the dimensions of th e

cuts and the proposed easement that is based on these dimensions

to contain more material than is authorized to be removed, so as

to provide a margin to account for less - than - perfect dredging

operations.

27. Therefore, it is found that the Permit author izes up

to 1.3 million cy of sand to be removed from the designated

borrow areas. The findings of fact and conclusions of law in

this Recommended Order that address the expected impacts of the

proposed project are based on this finding.

28. The Permit al so authorizes the construction of two

rubble mound groins at the south ern end of Lido Key to stabilize

the beach and lengthen the time between renourishment events.

The groins are designed to be semi - permeable so that they ÐleakÑ

sand.

29. There are no s eagrasses in the renourishment area and

mostly scattered and thin patches of seagrass near the dredge

cuts. The Permit requires mitigation for the potential direct

impacts to 1.68 acres of seagrasses. To offset these impacts,

the Applicants propose to cr eate 2.9 acres of seagrass habitat.

The seagrass habitat would be established at the Rookery at

Perico Seagrass Mitigation Basin in Manatee County , about

16 miles north of Big Sarasota Pass.

30. The Permit incorporates the recommendations of the

Florida Fish and Wildlife Conservation Commission regarding

protections for turtles, nesting shorebirds, and manatees.

31. The Permit requires regular monitoring to assess the

effects of the project, and requires appropriate modifications

if the project does not meet performance expectations.

Project Engineering

32. The CorpsÓ engineering analysis involved three

elements: evaluating the historical context and the human

influences on the regional system, developing a sediment budget,

and using numerical modeling to analyze erosion and accretion

trends near the project site.

33. A principal objective of the engineering design for

the borrow areas, sand placement, and groins was to avoid

adverse effects on downdrift, especially downdrift to

Siesta Key.

34. The Cor ps developed a sediment budget for the Ðno

actionÑ and post - project scenarios. A sediment budget is a tool

used to account for the sediment entering and leaving a

geographic study area.

35. The sediment budgets developed by the Corps are based

on sound s cience and they are reliable for the purposes for

which they were used.

36. The post - project sediment budget shows there would be

minimal or no loss of sediment transport to Siesta Key.

37. Petitioners did not prepare a sediment budget to

support their t heory of adverse impact to Siesta Key.

38. Petitioners object to the engineering materials in the

Permit application because they were not certified by a Florida

registered professional engineer. DEP does not require a

Florida professional engineerÓs cer tification for engineering

work submitted by the Corps. As explained in the Conclusions of

Law, Florida cannot impose licensing conditions on federal

engineers.

Ebb Shoal Equilibrium

39. PetitionersÓ witness, Dr. Walton, developed a formula

to estimate e bb shoal volume equilibrium, or the size that an

ebb shoal will tend to reach and maintain, taking into account

bathymetry, wave energy, tides, adjacent shorelines, and related

factors.

40. In an article entitled ÐUse of Outer Bars of Inlets as

Sources of Beach Nourishment Material,Ñ Dr. Walton calculated

the ebb shoal equilibrium volume for the Big Sarasota Pass ebb

shoal as between 6 and 10 million cy of sand.

41. The ebb shoal has been growing and is now about

23 million cy of sand, which is well in ex cess of its probable

equilibrium volume. The volume of sand proposed to be removed

from the ebb shoal is only about six percent of the overall ebb

shoal volume.

42. Dr. WaltonÓs study of the use of ebb shoals as sand

sources for renourishment projects su pports the efficacy of the

proposed project.

Modeling Morphological Trends

43. The Corps used a combined hydrodynamic and sediment

transport computer model called the Coastal Modeling System,

Version 4 (ÐCMSÑ) to analyze the probable effects of the

propos ed project. The CMS model was specifically developed to

represent tidal inlet processes. It has been used by the Corps

to analyze a number of coastal projects.

44. Dr. Walton opined that the CMS model was inappropriate

for analyzing this project because it is a two - dimensional model

that is incapable of accounting for all types of currents and

waves. However, a two - dimensional model is appropriate for a

shallow and well - mixed system like Big Sarasota Pass.

Dr. WaltonÓs lack of experience with the CMS mo del and with any

three - dimensional sediment transport model reduced the weight of

his testimony on this point.

45. Petitioners contend that the CMS model was not

properly calibrated or verified. Calibration involves

adjustments to a model so that its pre dictions are in line with

known conditions. Verification is the test of a modelÓs ability

to predict a different set of known conditions.

46. For calibrating the hydrodynamic portion of the model,

the Corps used measurements of water levels and currents

collected in 2006. The model showed a 90 - percent correlation

with water surface elevation and 87 - percent correlation to

velocity.

47. Dr. Walton believes a model should exhibit a

95 - percent correlation for calibration. However, that opinion

is no t generally accepted in the modeling community.

48. Model verification , as described by Dr. Walton , is

generally desirable for all types of modeling, but not always

practical for some types of modeling. A second set of field

data is not always available or practical to produce for a

verification step. In this case, there was only one set of sea

floor elevations available for verification of the CMS model.

49. It is the practice of DEP in the permitting process to

accept and consider sediment transport m odeling results that

have not been verified in the manner described by Dr. Walton.

50. The Corps described a second calibration of the CMS

model, or Ðtest of model skill,Ñ as an evaluation of how well

the CMS modelÓs sediment transport predictions (morpho logical

changes) compared to Light Detection and Ranging (Ð LIDAR Ñ) data

collected in 2004. The CMS model successfully reproduced the

patterns of erosion and sediment deposition within the area of

focus.

51. PetitionersÓ expert, Dr. Luther, testified that , over

the model domain, the CMS model predictions differed

substantially from LIDAR data and believes the discrepancies

between the modelÓs predictions and the LIDAR data make the

modelÓs predictions unreliable.

52. Modeling sediment transport is a relat ively new tool

for evaluating the potential impacts of a beach renourishment

project. Renourishment projects have been planned, permitted,

and carried out for decades without the use of sediment

transport models. Now, modeling is being used to add

inform ation to the decision - making process. The modeling does

not replace other information, such as historical data, surveys,

and sediment budgets, which were heretofore used without

modeling to make permit decisions.

53. Sediment transport is a complex proce ss involving many

highly variable influences. It is difficult to predict where

all the grains of sand will go. Sediment transport modeling has

not advanced to the point which allows it to predict with

precision the topography of the sea floor at thousand s of LIDAR

points.

54. However, the CMS model is still useful to coastal

engineers for describing expected trends of accretion and

erosion in areas of interest. This was demonstrated by the

modelÓs accurate replication of known features of the Big

Saraso ta Pass and ebb shoal, such as the flood marginal channels

and the bypassing bars.

55. The CMS modelÓs ability to predict morphological

trends assisted the Applicants and DEP to compare the expected

impacts associated with alternative borrow locations on the ebb

shoal and pass, wave characteristics, and sediment transport

pathways. Together with other data and analyses, the results of

the CMS model support a finding that the proposed dredging and

renourishment would not cause significant adverse impacts.

56. The Applicants extensively analyzed sediment transport

pathways and the effects of alternative borrow areas on sediment

transport to Siesta Key. PetitionersÓ hypothesis is not

supported by engineering studies of equivalent weight. The more

persuasiv e evidence indicates that sediment transport to

downdrift beaches would not be reduced and might even be

increased because sediment now locked in the ebb shoal would

reenter the sediment transport pathways.

57. In addition, the proposed dredging may halt the

southward migration of the main ebb channel of Big Sarasota

Pass, and thereby reduce erosive forces on the interior

shoreline of north Siesta Key.

Wave Energy

58. Petitioners assert that the proposed dredging would

result in increased wave energy on Siesta Key because the

diminished ebb shoal would no longer serve as a natural buffer

against wave energy from storms. They conducted no studies or

calculations to support this assertion.

59. Because the proposed dredging would remove a small

percentage of the total ebb shoal volume, the ebb shoal would

remain a protective barrier for Siesta Key.

60. Wave energy reaching the shorelines along Big Sarasota

Pass or within Sarasota Bay would continue to be substantially

reduced by the ebb shoal. The predict ed increase in wave energy

that would occur as a result of the project could increase the

choppiness of waters, but would not materially increase the

potential for wave - related erosion.

61. Petitioners conducted no studies and made no

calculations of thei r own to support their allegation that the

project would significantly increase the potential for damage to

property or structures on Siesta Key due to increased wave

energy. To the extent that PetitionersÓ expert coastal engineer

opined otherwise, it was an educated guess and insufficient to

rebut the ApplicantsÓ prima facie case on the subject of wave

energy.

Groins

62. Petitioners contend that the two proposed groins would

adversely impact the beaches of Siesta Key because the groins

would capture san d that would otherwise drift south and benefit

Siesta Key. However, the preponderance of the evidence shows

the groins would not extend into or obstruct the sand ÐstreamÑ

waterward of the renourished beach.

63. The historic use of groins to capture downd rift

resulted in adverse impacts to adjacent beaches. However, the

use of groins in conjunction with beach renourishment to

stabilize a renourished beach and without obstructing downdrift

is an accepted practice in coastal engineering.

64. The proposed g roins would not obstruct longshore

sediment transport and, therefore, would not interfere with

downdrift to Siesta Key.

Public Interest - General

65. Section 373.414(1) requires an applicant to provide

reasonable assurance that state water quality standar ds will not

be violated, and reasonable assurance that a proposed activity

is not contrary to the public interest. However, if the

proposed activity significantly degrades or is within an

Outstanding Florida Water (ÐOFWÑ), the applicant must provide

reaso nable assurance that the proposed activity will be clearly

in the public interest.

66. Sarasota Bay, including Big Sarasota Pass and portions

of Lido Key, have been designated as an OFW. Therefore, the

Applicants must demonstrate that the proposed projec t is clearly

in the public interest.

67. In determining whether an activity is clearly in the

public interest, section 373.414(1)(a) requires DEP to consider

and balance seven factors:

1. Whether the activity will adversely

affect the public health, safe ty, or welfare

or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

3. Whether the activity will adversely

affect navigation or th e flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent n ature;

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of section 267.061; and

7. The current condition and relative value

of functions being performed by areas

affe cted by the proposed activity.

68. DEP determined that the project is clearly in the

public interest because it would improve public safety by

providing protection to Lido Key upland structures from storm

damage and flooding, protect and enhance wildlife habitat, and

provide beach - related recreational opportunities; and it would

create these public benefits without causing adverse impacts.

Public Interest - Safety

69. Petitioners contend that the proposed project would

adversely affect public health, saf ety, welfare , or the property

of others because it would interrupt downdrift and substantially

reduce the storm protection provided by the ebb shoal. As found

above, the preponderance of the evidence does not support this

contention.

Public Interest - Con servation of Fish and Wildlife

70. Petitioners contend that the proposed project would

adversely affect the conservation of fish and wildlife,

including endangered or threatened species. The Permit

application materials provided evidence that the propose d

project would have no effects, or only minimal temporary

effects, on water quality, temperature, salinity, nutrients,

turbidity, habitat, and other environmental factors. That was

sufficient as a prima facie showing that the project would not

adversely affect the conservation of fish and wildlife because,

if environmental factors are not changed, it logically follows

that there should be no adverse impacts to fish and wildlife.

71. Therefore, as explained in the Conclusions of Law, the

burden shifted to Petitioners to present evidence to show that

adverse effects to fish and wildlife would occur. It was not

enough for Petitioners to simply contend that certain fish

species were not adequately addressed in the application

materials.

72. With the excepti on of Dr. GilmoreÓs field

investigation related to the spotted seatrout, Petitioners

conducted no studies or field work of their own to support their

allegations of adverse impacts to fish and wildlife.

73. Dr. Gilmore discovered that spotted seatrout wer e

spawning in Big Sarasota Pass. Such spawning sites are not

common, are used repeatedly, and are important to the

conservation of the species. Spotted seatrout spawn from April

through September.

74. The record does not show that the Florida Fish and

W ildlife Conservation Commission, the U.S. Fish and Wildlife

Service, or the National Marine Fisheries Service were aware

that Big Sarasota Pass was a spawning area for spotted seatrout,

or considered this fact when commenting on the project.

75. The spott ed seatrout is not a threatened or endangered

species, but DEP is required to consider and prevent adverse

impacts to non - listed fish species, as well as recreational

fishing and marine productivity. If the proposed project would

destroy a spotted seatrou t spawning area, that is a strong

negative in the balancing of public interest factors.

76. The Applicants do not propose mitigation for adverse

impacts to spotted seatrout spawning.

77. Seagrass sites close to the spawning area are used by

post - larval s potted seatrout for refuge. The likely seagrass

nursery sites for seatrout spawning in Big Sarasota Pass are

depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation

at the Perico Rookery Sea grass Mitigation Basin, over 16 miles

away, would not off set a loss of this refuge function because it

is not suitable as a refuge for post - larval spotted seatrout.

78. The spawning season for spotted seatrout occurs during

the same months as turtle nesting season , and DEP argued that

the turtle protection cond itions in the Permit to limit lighting

and prohibit nighttime work, would also prevent adverse impacts

to the spotted seatrout. However, spotted seatrout spawning is

also threatened by turbidity and sedimentation in the spawning

area and adjacent seagrass es.

79. The spotted seatrout spawning area is in the area

where dredge C ut B is located. If C ut B were dredged during the

spawning season, it would likely disrupt or destroy the spawning

site. Reasonable assurance that the proposed project would not

dis rupt or destroy the spawning site requires that C ut B not be

dredged during the spawning season.

80. Seagrasses that are likely to provide refuge to post -

larval seatrout are near the most eastern 1, 2 00 feet of C ut C.

Reasonable assurance that the propose d project would not disrupt

or destroy the refuge function requires that the most eastern

1, 2 00 feet of cut C not be dredged during the spawning season.

81. In summary, the proposed project would adversely

affect the conservation of fish and wildlife unle ss dredging was

restricted during the spotted seatrout spawning season, as

described above.

Public Interest Î Navigation, Flow of Water, and Erosion

82. Petitioners contend that the proposed project would

adversely affect navigation, the flow of water, an d would cause

harmful erosion to Siesta Key , but P etitioners conducted no

studies or calculations to support th is assertion. T he

preponderance of the evidence shows that no such adverse impacts

would occur.

Public Interest Î Recreational Values

83. Petit ioners contend that the proposed project would

adversely affect fisheries and associated recreation because of

harm to spotted seatrout and other fish species. As found

above, the preponderance of the evidence shows the project would

adversely affect the spotted seatrout, an important recreational

fish species, unless dredging w as restricted during the spawning

season.

Public Interest - Value of Functions

84. Petitioners contend that the proposed project would

adversely affect the current condition and re lative value of

functions being performed by areas affected by the proposed

project because dynamic inlet system would be disrupted. As

found above, the preponderance of the evidence shows the project

would not adversely affect the coastal system. Howeve r, it

would adversely affect the spotted seatrout spawning and refuge

functions provided by Big Sarasota Pass unless dredging was

restricted during the spawning season.

Mitigation

85. If a balancing of the public interest factors in

section 373.414(1)(a) results in a determination that a proposed

project is not in the public interest, section 373.414(1)(b)

provides that DEP must consider mitigation offered to offset the

adverse impacts.

86. Although the Perico Rookery at Seagrass Mitigation

Basin is withi n the OFW and the same drainage basin, it does not

fully offset the adverse impacts likely to be caused by the

proposed project. The mitigation would not offset the loss of

spotted seatrout spawning and refuge functions.

87. The mitigation for the loss o f spotted seatrout

spawning and refuge functions is unnecessary if the impacts are

avoided by restricting dredging during the spawning season as

described above.

Design Modifications

88. Petitioners contend that the Applicants did not

evaluate the alterna tive of taking sand from offshore borrow

areas for the renourishment. The record shows otherwise.

Furthermore, as explained in the Conclusions of Law, the

Applicants were not required to address design modifications

other than alternative locations for t aking sand from the ebb

shoal and Big Sarasota Pass.

Consistency with the Coastal Zone Management Program

89. Petitioners contend that DEP failed to properly review

the Permit for consistency with the Florida Coastal Zone

Management Program (ÐFCZMPÑ), bec ause DEP failed to obtain an

affirmative statement from Sarasota County that the proposed

project is consistent with the Sarasota County Comprehensive

Plan.

90. The State Clearinghouse is an office within DEP that

coordinates the review of coastal permit applications by

numerous agencies for consistency with the FCZMP. It is the

practice of the State Clearinghouse to treat a lack of comment

by an agency as a determination of consistency by the agency.

91. With respect to this particular project, the Stat e

Clearinghouse provided a copy of the joint coastal permit

application to the Southwest Florida Regional Planning Council

(ÐSWFRPCÑ) for comments regarding consistency with local

government comprehensive plans. SWFRPC submitted no comments.

92. In a let ter dated June 26, 2015, the State

Clearinghouse reported to the Corps that Ðat this stage, the

proposed federal action is consistent with the [FCZMP].Ñ

93. In a written Ðpeer reviewÑ of the proposed project

produced by the Sarasota Environmental Planning Department in

October 2015, some concerns were expressed, but no mention was

made of inconsistency with the Sarasota County Comprehensive

Plan.

94. Sarasota County sen t a letter to DEP, dated August 24,

2016, in which it requested that the Corps prepare an

Environmental Impact Statement (ÐEISÑ) for the project.

Sarasota County did not indicate in its letter to DEP that the

proposed project is inconsistent with any policy of the Sarasota

County C omprehensive P lan.

95. Petitioners assert that the proposed project would be

inconsistent with an environmental policy of the Sarasota C ounty

Comprehensive Plan that Petitioners interpret as prohibiting the

proposed dredging. The record contains no evidence that

Sarasota County believes the proposed project is in consistent

with this particular policy or any other policy of its

comprehensive plan.

CONCLUSIONS OF LAW

Jurisdiction

96. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. See §§ 120.569, 120.57(1), Fla.

Stat.

97. This is a de novo proceeding under section 120.57. It

is intended to formulate final agency action, not to review

action taken earlier and preliminarily. See § 120.57(1)(k),

Fla. Stat.; McDonald v. DepÓt of Banking and Finance , 346 So.

2d 569, 584 (Fla. 1st DC A 1977).

Standing

98. Parties to a chapter 120 proceeding include persons

whose substantial interests will be affected by the proposed

agency action. § 120.52(13), Fla. Stat. The standing of

Petitioners and Intervenor was not challenged. The record sho ws

the substantial interests of Petitioners and Intervenor could be

affected by the proposed Permit. Therefore, Petitioners and

Intervenor have standing under chapter 120.

99. In addition, Petitioner and Intervenor associations

have standing under sectio n 403.412, Florida Statutes, as non -

profit organizations formed for the purpose of environmental

protection, with at least 25 members residing within Sarasota

County.

Burden and Standard of Proof

100. The procedure outlined in section 120.569(2)(p)

appli es to proceedings arising under chapter 373, Florida

Statutes. Section 120.569(2)(p) applies to this proceeding

because it arises under section 373.427, which provides for

concurrent review of activities that require an environmental

resource permit, a co astal construction permit, and proprietary

authorization from the Board of Trustees.

101. Under Section 120.569(2)(p), a permit applicant must

present a prima facie case of its entitlement to the permit,

which can be accomplished by submitting into eviden ce the permit

application, agency staff report, and related materials. The

City and the Corps satisfied their prima facie case for

entitlement to the Permit.

102. After the prima facie case has been met, a petitioner

challenging the issuance of a permit has the burden of ultimate

persuasion to show that the applicant has not provided

reasonable assurance that it will meet applicable permit

requirements. Reasonable assurance means Ða substantial

likelihood that the project will be successfully implemented .Ñ

Metro. Dade Cty. v. Coscan Fla., Inc. , 609 So. 2d 644, 648 (Fla.

3d DCA 1992). It does not mean absolute guarantees.

103. The standard of proof is a preponderance of the

evidence. § 120.57(1)(j), Fla. Stat.

104. Petitioners demonstrated by a prepon derance of the

evidence that the City and Corps have not provided reasonable

assurance that the project meets applicable criteria because the

proposed project would cause avoidable adverse impacts to the

conservation of the spotted seatrout. The Applicant s can

provide reasonable assurance if the proposed Permit is modified

to restrict dredging during the spotted seatrout spawning

season.

Project Engineering

105. Rule 62B - 41.005(3) requires DEP to consider the

following:

(a) Adequate engineering data conc erning

the existing coastal system, including

topography, bathymetry; wave and current

data; coastal processes, conditions and

morphological trends;

(b) Design features of the proposed

structures or activities; and

(c) Such other specific information or

calculations as are necessary for the

evaluation of the application.

DEP had adequate data to make its initial decision to issue the

Permit.

10 6 . Rule 62B - 41.007 requires that all coastal

construction be sited and designed so as to minimize any

expect ed adverse impact to the coastal system, marine turtles

and adjacent property and structures. The term Ðcoastal systemÑ

is defined to exclude fish and wildlife. See Fla. Admin. Code

R. 62B - 41.002(9). The preponderance of the evidence shows the

Applicant sÓ compliance with rule 62B - 41.007.

10 7 . Rule 62B - 41.005(5) prohibits structures that will

interfere with natural/offshore movements of sediment unless a

net positive benefit to the coastal system can reasonably be

expected and mitigation is provided. Th e preponderance of the

evidences shows the ApplicantsÓ compliance with this rule.

10 8 . The application for the Permit and the additional

evidence provided at the final hearing included sufficient

technical information and analysis, including the modelling of

morphological trends, to support the DEPÓs determination that

the proposed project complies with all applicable criteria for

approval except for the various criteria related to adverse

impacts to fish and wildlife, because of the adverse impacts to

spo tted sea trout.

Cumulative Impact s

109. Section 10.2.8 of the ApplicantÓs Handbook, Volume 1,

requires consideration of whether this proposed project, in

conjunction with past, present, and future activities , would

amount to unacceptable cumulative impact s to surface water

functions in the basin. The proposed projects Ó adverse impacts

to the conservation of fish and wildlife, together with proposed

f uture impacts, would be unacceptable. However, the cumulative

impacts would be acceptable if the Permit we re modified to

r estrict dredging operations as recommended.

Licensed Florida Engineer

1 10 . Petitioners contend that the Applicants failed to

comply with rule 62B - 41.007(4), which requires the design plans

and specifications, studies, and other coastal pro cess analyses

submitted as part of the permit application to be certified by a

professional engineer registered in the State of Florida.

11 1 . DEPÓs practice not to impose this requirement on

Corps engineers is consistent with an advisory legal opinion

iss ued by the Florida Attorney General, which concluded that the

Supremacy Clause of the United States Constitution prohibits

Florida from requiring by statute or rule that a Corps engineer

be licensed in Florida in order to secure a permit from DEP.

See Op. AttÓy Gen. Fla. 94 - 61 (1994).

Public Interest

11 2 . The proposed project provides several public

benefits. However, considering and balancing the seven public

interest factors in section 373.414(1), the proposed project is

not clearly in the public inter est because it causes

unreasonable and avoidable adverse impacts to the conservation

of fish and wildlife, marine productivity, fishing recreation,

and the relative value of functions being performed by areas

affected. For the same reasons, the proposed p roject does not

comply with the public interest requirement of Florida

Administrative Code chapter 18 - 21 for acti viti es that requir e

approval of the Trustees of the Internal Improvement Trust Fund .

113. The proposed project would satisfy the public

intere st requirements of section 373.414(1) and chapter 18 - 21 if

the Permit were modified to restrict dredging operations during

the spotted seatrout spawning season.

Mitigation

11 4 . Section 373.414(1)(b) requires DEP to consider

measures proposed by an applica nt to mitigate the adverse

impacts that may be caused by a proposed project. The

mitigation measures proposed by the Applicants do not fully

offset the impacts because the measures do not replace the loss

of spotted seatrout spawning and refuge functions.

Consideration of Design Modifications

11 5 . Section 10.2.1 of the ApplicantÓs Handbook requires

an applicant to consider the practicability of design

modifications that could eliminate or reduce impacts to the

area, but does not require consideration of p rojects

significantly different in type of function. Because the

objective of this project was to use the ebb shoal as a long -

term sand source for renourishing Lido Key, the ApplicantsÓ

analysis was properly confined to considering different parts of

the ebb shoal for making dredge cuts.

Financial Assurances

11 6 . Petitioners complain that the City and Corps have

offered no financial assurance that the proposed project will

perform as designed. However, there is no statute or rule

requirement for federal entities or local governments to provide

DEP with financial assurance to obtain a joint coastal permit.

Coastal Zone Consistency

11 7 . The federal Coastal Zone Management Act (ÐCZMAÑ)

requires federal activities that are in or affect the coastal

zone to be consistent to the maximum extent practicable with

Ðthe enforceable policies of approved State management

programs.Ñ 16 U.S.C. £ 1456(c)(1)(A).

11 8 . In furtherance of the CZMA, Florida has adopted a CZM

Program to be administered by DEP. See Part II, ch . 380, Fl a.

Stat. DEP is responsible for making consistency determinations

pursuant to the CZMA.

11 9 . Section 373.428 provides that Ðthe final agency

action on a permit application shall constitute the stateÓs

determination as to whether the activity is consistent with the

federally approved Florida Coastal Zone Management Program.Ñ

Through its Notice of Intent to issue the Permit, DEP signaled

its determination that the Permit is consistent with the CZM

Program. See § 373.428, Fla. Stat. However, like DEPÓs

determination regarding any other regulatory criterion, DEPÓs

consistency determination is subject to de novo review in this

proceeding.

1 20 . The Florida State Clearinghouse coordinates the

dissemination of coastal permit applications for comment

r egarding consistency with the enforceable policies of the

FCZMP. An agency that submits a determination of inconsistency

is an indispensable party to an administrative proceeding on the

issue. Id.

12 1 . Among the enforceable policies of the FCZMP is

chap ter 163, Florida Statutes, which requires all development

undertaken by governmental agencies to be consistent with the

local governmentÓs comprehensive plan. £ 163.3194(1)(a), Fla.

Stat. For comment on the consistency of this proposed project

with chapt er 163, the State Clearinghouse sent a copy of the

permit application to the Southwest Florida Regional Planning

Council (ÐSWFRPCÑ). Under Florida Administrative Code R ule

29I - 5.003(1)(a), SWFRPC is responsible for reviewing a proposed

project for Ðconsis tency with adopted regional and local goals,

objectives and policies.Ñ SWFRPC coordinates its review with

affected local governments. Fla. Admin. Code R. 29I - 4.004(3).

12 2 . SWFRPC provided no comments to DEP regarding the

Permit, which DEP treated as a determination of consistency.

Whether this consistency determination is sufficient or correct

under chapter 163 is irrelevant. Even an affirmative

consistency comment from a local government to the State

Clearinghouse does not settle the question of whet her a project

is consistent with the local governmentÓs comprehensive plan

under chapter 163. A consistency comment is similar to a permit

applicantÓs demonstration that it owns or controls land, which

cann ot open a permit proceeding to dispute d issues re garding

land title, nor result in a legally binding determination of

land title. In this permit proceeding, the requirement for

consistency with the FCZMP was satisfied when Respondents showed

that the established commenting procedure was followed and no

inconsistency comment was received by DEP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that

1. DEP issue a f inal o rder approving the proposed agency

actions, but only if the joint coastal permit is modi fied to

prohibit dredging operations in C ut B and the most eastern

1, 2 00 feet of C ut C during April through September . If this

modification is not made, it is recommended that the proposed

agency actions be DENIED ; and

2. The joint coastal permit be mod ified to clarify that it

authorizes the removal of up to 1.3 million cy of sand.

DONE AND ENTERED this 8 th day of May , 2018 , in Tallahassee,

Leon County, Florida.

S

BRAM D. E. CANTER

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 8 th day of May , 2018 .

COPIES FURNISHED:

Kirk Sanders White, Esquire

Florida Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

T allahassee, Florida 32314

(eServed)

Alexandrea Davis Shaw, Esquire

City of Sarasota

Room 100A

1565 1st Street

Sarasota, Florida 34236

John R. Herin, Jr., Esquire

Gray Robinson, P.A.

Suite 1000

401 East Las Olas Boulevard

Fort Lauderdale, Florida 3 3301

(eServed)

Eric P. Summa

U.S. Army Corps of Engineers

Post Office Box 4970

Jacksonville, Florida 32232

Martha Collins, Esquire

Collins Law Group

1110 North Florida Avenue

Tampa, Florida 33602

(eServed)

Thomas W. Reese, Esquire

2951 61st Avenue Sou th

St. Petersburg, Florida 33712 - 4539

(eServed)

Richard Green, Esquire

Lewis, Longman & Walker, P.A.

Suite 501 - S

100 Second Avenue South

St. Petersburg, Florida 33701

(eServed)

Kevin S. Hennessy, Esquire

Lewis, Longman & Walker, P.A.

Suite 501 - S

100 Se cond Avenue South

St. Petersburg, Florida 33701

(eServed)

E. Christopher Lambert, Esquire

United States Army Corps of Engineers

701 San Marco Boulevard

Jacksonville, Florida 32207

(eServed)

L ea Crandall, Agency Clerk

Department of Environmental Pr otection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 30 00

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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.