19-003356 Thomas Wilson vs. U.S. Army Corps Of Engineers And Florida Department Of Environmental Protection Status: Closed Recommended Order on Thursday, February 20, 2020.

Summary: The Corps of Engineers demonstrated that spoil from the dredging of East Pass should, to be compliant with section 161.142, Florida Statutes, be placed on adjacent eroding beaches east of the inlet.

A PPEARANCES

For Petitioner Thomas Wilson:

D. Kent Safriet, Esquire

Joseph Alexander Brown, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

For Intervenors David H. Sherry, Rebecca R. Sherry,

and John S. Donovan :

D. Kent Safriet, Esquire

Joseph A lexander Brown, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

For Respondent U.S. Army Corps of Engineers:

Winifred L. Acosta, Esquire

Kathryn Drey, Esquire

United States Attorney's Office

21 East Garden Street

Pensacola, Florida 32502 - 5676

F or Respondent Department of Environmental Protection :

Marianna Sarkisyan, Esquire

Paul Joseph Polito, Esquire

Jay Patrick Reynolds, Esquire

Department of Environmental Protection

Mail St ation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3900

For Intervenor City of Destin, Florida:

Kenneth G. Oertel, Esquire

Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

For Intervenor Okaloosa County, Florida:

Gregory Thomas Stewart, Esquire

Carley J. Schrader, Esquire

Elizabeth Desloge Ellis, Esquire

Nabors, Giblin and Nickerson, P.A.

15 00 Mahan Drive , Suite 200

Tallahassee, Florida 32308

S TATEMENT OF T HE I SSUES

The issue s to be determined are whether the U.S. Army Corps of

Engineers (“C orps ”) has demonstrated its entitlement to place dredged

material from the maintenance dredging of the East Pass (“East Pass” or

“inlet”) entrance channel conducted pursuant to Department of

Environmental Protection (“DEP”) Permit Modification No. 0288799 - 006 - JN

(“Permit Modification”) , as amended by the DEP’s August 21, 2019, Notice of

Proposed Changes to Proposed Agency Action (“Proposed Change”) in the

nearshore zone east of East Pass ; and whether the East Pass Inlet

Management Plan (“East Pass IMP”) is an unadopted rule as described in

section 120.57(1)(e), Florida Sta t utes .

P RELIMINARY S TATEMENT

On October 28, 2009, DEP issued Permit No. 0288799 - 001 - JC (“Permit”)

to the Corps to perform maintenance dredging of the East Pass Navigation

Channel and the Old Pass Lagoon Channel, and to rehabilitate the eastern and western jetties. Materials dredged fr om the Main Channel south of the

U.S. Highway 98 bridge would be primarily bypassed to a portion of the

beach on Eglin Air Force Base west of East Pass.

On November 14, 2016, DEP issued the Permit Modification to the C orps .

The Permit Modification did not change the authorization or requirements for

the dredging, but allowed dredged material to be placed on “the Gulf - front

beaches on the eastern and western sides of East Pass . ”

On November 16, 2018, John S. Donovan , David H. Sherry, and

Rebecca R. Sherry filed a Petition for Adminis trative Hearing challenging

the Permit Modification, which was refer r ed to DOAH and assigned as

DOAH Case No. 19 - 1915. On June 19, 2019, the ALJ assigned to that case

entered an Order Granting Motion in Limine, Relinquishing Jurisdiction, and

Closing File in which she found the challenge was not timely filed. On

July 16, 2019, DEP entered a Final Order in DOAH Case No. 19 - 1915

dismissing the challenge to the Permit Modification, with prejudice. That

Final Order was not appealed. A full account of the procedural history of that

case is contained in the docket of DOAH Case No. 19 - 1915.

On June 5, 2019, Petitioner, Thomas Wil son , filed his Petition for Formal

Administrative Hearing (“ Petition”). The Petition, though differing in the

identification of the party and in the manner in which notice was received, is

substantively identical to th at filed in DOAH Case No. 19 - 1915. The Petition

was referred to DOAH on June 19, 2019, and assigned to the undersigned as DOAH Case No. 19 - 3356. On June 28, 2019, David H. Sherry, Rebecca R.

Sherry, and John S. Donovan filed a motion to intervene in Case No. 19 - 3356,

which was granted on July 8, 2019. Unless context requires otherwise , Mr.

Wilson, Mr. and Mrs. Sherry, and Mr. Donovan will be collectively referred to

as “ Petitioners . ”

On August 20, 2019, the City of Destin (“Destin ” ) moved to intervene in

this case. On September 10, 2019, Okaloosa County, Florida (“Okaloosa

County”) moved to intervene. Orders granting their intervention were

entered on August 26, 2019, and S eptember 28, 2019, respectively. Unless

context requires otherwise , DEP, the Corps, Destin, and Okaloosa County

will b e collectively referred to as “Respondents.”

On August 21, 2019, DEP filed the Proposed Change, which amended the

Permit Modification from direct ing the placement of dredged material to “the

eastern and western sides of East Pass” to requir ing that “[b]ea ch compatible

material dredged from the initial maintenance dredge event following issuance of [the P ermit M odification ] , shall be placed to the east of East

Pass . ” The Proposed Change also extended the term of the Permit. Unless

context requires otherwise, the “Permit Modification” shall include the terms of the “Proposed Change . ”

On September 4, 2019, John S. Donovan, David H. Sherry, and Rebecca R.

Sherry filed a Petition for Formal Administrative Hearing to challenge the

Proposed Change allowing dredged material to be placed east of East Pass,

which was referred to DOAH and assigned as DOAH Case No. 19 - 4979. On

September 20, 2019, Case No. 19 - 4979 was consolidated with this case.

On October 21, 2019, Petitioners file d a Motion for Leave to File Amended

Petition for Formal Administrative Hearing along with a First Amended

Petition for Formal Administrative Hearing. The Motion was granted on

November 5, 2019, and the First Amended Petition for Formal

Administrative Hear ing was accepted as filed.

On November 15, 2019, Petitioners filed a second Motion for Leave to File

Amended Petition f or Formal Administrative Hearing, along with a Second

Amended Petition for Formal Administrative Hearing , which was to apply to

both this case and DOAH Case No. 19 - 4979. That Motion was granted at the

final hearing as to this case. The primary effect of the Second Amended

Petition was to drop Petition ers’ objection to the extended term of the Permit

authorize d by the Proposed Change . Thus, the issue for disposition is limited

to whether the dredged material from the Corps’ dredging of East Pass may

be placed on beaches to the east of East Pass. The original Petition and the

subsequent amendments will be collec tively referred to as the “Petition , ”

unless context requires their separate identification.

On November 12, 2019, Destin file d a Renewed Motion to Dismiss Petition

for Formal Administrative Hearing F iled in Case Number 19 - 4979, which

sought the dismissal of that case based on the untimely challenge to the

Permit Modification in DOAH Case No. 19 - 1915, and the application of

Rudloe v. Florida Department of Environmental Regulation , 517 So. 2d 731

(Fla. 1st DCA 1987), to a foreseeable and non - substantial modification of

proposed agency action.

On November 15, 2019 , the parties filed their Joint Pre - hearing

Stipulation (“JPS”) . The J PS contained 21 stipulations of fact , each of which

is adopted and incorporated herein , and seven stipulatio ns of law, which are

determined to accurately reflect law applicable to this proceeding .

The JPS also identified disputed issues of fact and law remaining for

disposition .

Petitioners identified the disputed issues of fact as follows:

a. Whether Petitioners [ ] have standing to

challenge issuance of the [Permit M odification . ] ;

b. Whether reasonable assurance has been

provided that the [Permit Modification] complies

with the requirements of Chapter 161, Florida Statutes, and Chapter 62B - 41, Florida

Administrative Code.

Petitioners identified the disputed issues of law as follows:

a. Whether the East Pass Inlet Management

Implementation Plan (July 24, 2013) is an

unadopted rule.

b. If the East Pass Inlet Management

Implementation Plan (July 24, 2013) is an

unadopted rule, whether the [Permit Modification]

can be issued .

c. Whether the U.S. Army Corps of Engineers has

demonstrated entitlement to [ the Permit

Modification] through competent substantial

evidence.

d. Whether Petitioners [ ] have sufficient standing

to participate in this proceeding.

Respondents identified the disputed issues of fact as follows , a number of

which Petitioners dispute ( issues related to DOAH Case No. 19 - 4979 are now

moot, and have been excluded) :

a. Whether [P etitioners ] have sufficient standing to

challenge the proposed agency action.

* * *

c. Whether reasonable assurances have been provided that the [Corps] is entitled to the issuance

of the [P ermit M odification ] .

d. Whether [ Petitioners ] have participated in this

proceeding for any improper purposes, to primarily

harass, or cause unnecessary delay, or for frivolous

purpose, or to needlessly increase the co st of

litigation, licensing, or securing or approval of an activity.

e. Whether [ Petitioners ] , and/or their attorneys

knew or should have known that their claims when

presented to the court or at any time before the final hearing were not supported by m aterial facts

necessary to establish the claims, or would not be

supported by the application of then existing laws to those material facts.

f. Whether any moving party is entitled to sanctions, reasonable expenses and/or attorney ’ s

fees.

g. Whether the [ Corps ] is entitled to the issuance of

the [Pe rmit M odification ] .

h. Whether [DEP] is entitled to attorney’s fees.

Respondents identified the disputed issues of law as follows , a number of

which Petitioners dispute (issues related to DOAH Case No. 19 - 4979 are now

moot, and have been excluded):

a. Whether [Petitioners] have sufficient standing to challenge the proposed agency action.

* * *

c. Whether the [Corps] is entitled to the issuance of

the [P ermit M odification ] .

d. Whether [ Petitioners ] have participated in this

proceeding to primarily harass, or cause

unnecessary delay, or for frivolous purpose, or to needlessly increase the cost of litigation, licensing,

or securing or approval of an activity. [As to the

Department and the City, upon m otion];

e. Whether [ Petitioners ] , and/or their attorneys

knew or should have known that their claims when

presented to the court or at any time before the

final hearing were not supported by material facts necessary to establish the claims, or would not be supported by the application of then existing laws to those material facts. [As to the Department and

the City, upon motion];

f. Whether any moving party is entitled to sanctions, reasonable expenses and/or attorney’s

fees. [As to the Department and t he City, upon

motion] .

T he final hearing was convened on November 20, 2019 , as scheduled.

At the com mencement of the final hearing, Destin ’s Re newed Motion

to Dismiss Petition for Formal Administrati ve Hearing Filed in DOAH Case

Number 19 - 4979 was taken up, and granted on the record. On January 29,

2020, DOAH Case No. 19 - 4979 was severed from this case, and an Order

Granting Renewed Motion to Dismiss, Relinquishing Jurisdiction, and Closing File was entered , based upon the previous untimely challeng e to the

Proposed Modification in DOAH Case No. 19 - 1915 . A full account of the

procedural history of DOAH Case No. 19 - 4979 , and the basis for the action

taken in that case , is contained in the docket of that case.

I ssues related to the disposition of DOAH Case No. 19 - 1844 (“ 19 - 1844”)

were also taken up as a preliminary matter . 19 - 1844 involved the issuance of

a permit to Destin to perform maintenance dredging of East Pass north of the

U.S. Highway 98 bridge, with placem ent of dredged material to the beache s

to the east of East Pass. The Recommended Order, entered on October 14,

2019, determined that dredged material from the maintenance dredging of

East Pass should, to be compliant with section 161.142, Florida Statutes, be

placed on adjacent eroding beaches east of the inlet. It also determined that

the East Pass IMP is not an unadopted rule as described in section 120.57(1)(e). At the commencement of the fin al hearing, a Final Order in

19 - 1844 had not yet been entered. The similarities in the issue of law and fact

between 19 - 1844 and this case w ere discussed, and it was determined that if

the Final Order in 19 - 1844 substantially adopted the Recommended Ord er,

an Order to Show Cause would be entered, asking the parties to address

whether collateral estoppel applied to some or all of the issues in this case.

On November 20, 2019, DEP entered its Final Order in 19 - 1844. The

Final Order adopted the Recommended Order with minor modifications that

are not pertinent here. An Order to Show Cause was issued on November 22,

2019, to which the parties filed responses.

A hearing on the Order to Show Cause was held on December 8, 2019.

Based on case law and analysis set forth in the Order to Show Cause, and on

argument of counsel, the undersigned determined that the issue of whether

the East Pass IMP was an unadopted rule was one solely between the

Petitioners and DEP. The identical issue was presented in 19 - 1844; the

parties were identical; and the issue was actually litigated. The issue was

fully considered and addressed at paragraphs 22 through 25, and 74 through 83 of the Recommended Order in 19 - 1844 , which are adopted herein .

W hether the East Pass IMP is an unadop ted rule was fully resolved by DEP ’s

adoption of the Recommended Order in its Final Order in 19 - 1844 . The

doctrine of collateral estoppel is available in administrative proceedings in

the same manner as it is available in judicial proceedings. Deep Lagoon Boat

Club, Ltd . v. Sheridan , 784 So. 2d 1140, 1142, n.4 (Fla. 2d DCA 2001);

Doheny v. Grove Isle, Ltd. , 442 So. 2d 966, 970 (Fla. 1st DCA 1983). Thus ,

collateral estoppel bars Petitioners from re - litigating whether the East Pass

IMP is a n unadopted rule. State v. McBride , 848 So. 2d 287, 290 (Fla 2003);

Pearce v. Sandler , 219 So. 3d 961 (Fla. 3d DCA 2017); Felder v. State, Dep ’ t of

Mgmt. Servs., Div. of Ret. , 993 So. 2d 1031, 1034 - 1035 (Fla 1st DCA 2008).

The oral ruling made at the December 8, 2019 , heari ng is hereby reiterated

and affirmed , and the issue of whether the East Pass IMP is an unadopted

rule is stricken from the Petition and removed as an issue for further

consideration .

Though credible arguments were made that the entirety of this case

should be barred under the doctrine of collateral estoppel, it was recognized

that there was not an absolute identity of parties, with the Corps being the

applicant for the Permit Modificat ion. Therefore, the Order to Show Cause

was discharged, and this case proceeded on whether the Permit Modification

and Proposed Change requiring placement of dredged material from the dredging of East Pass to the beaches to the east of East Pass should be

issued.

The Permit was issued under the authority of both chapters 161 and 373,

Florida Statutes . However, the disputed provisions involve standards under

chapter 161. Therefore, the modified burden of proof established in section 120.569(2)(p) is not applicable, and the burden is with the C orps, as

the applicant, t o demonstrate that it me e t s the criteria for issuance of the

Permit Modification .

At the final hearing, Joint Exhibits 1 through 12, 14, and 16 through 18

were received in evidence.

At the final hearing , Destin presented the testimony of Matthew

Trammel, P.E., who was accepted as an expert in coastal engineering . DEP

presented the testimony of Ralph Clark, P.E., who was accepted as an expert

in coastal engineering, beach and inlet management, hydrographic surveying, photo interpretation, coastal processes and hydrodynamics, hurricane

impacts, and coastal construction regulation ; an d Greg Garis, Program

Administrator with DEP’ s Beaches, Inlets, and Ports Program. Mr. Trammell

and Mr. Clark also testified in rebuttal. Destin Exhibits 10 through 12, 14

through 19, 27, and 38 through 46 were received in evidence. DEP Exhibits 1, 20, 27 through 29, 32, 33, and 35 were received in evidence.

The Corps did not present its own witnesses or evidence , but relied upon

the evidence offered by DEP and Destin in support of its Permit Modification .

Three Corps employees: Jennifer Jacobsen, Elizabeth Godsey, and Waylon

Register, were subpoenaed by Petitioners, and testified as to their personal

involvement in the processing of the application for the Permit Modification .

They were not permitted to pro vide opinion testimony, expert or otherwise, or

policy and procedure testimony.

Petitioners presented the testimony of Scott Douglas, Ph.D., P.E., who

was accepted as an expert in coastal engineering , and Robert Young, Ph.D.,

who was accepted as an exper t in coastal engineering, coastal management,

coastal sediment movement, coastal sediment transport, coastal storm impacts, coastal erosion , and evaluation of coastal structures and processes.

Petitioners , Thomas Wilson, David Sherry, Rebecca Sherry, and J ohn

Donovan , were called as standing witnesses. Mr. and Mrs. Sherry and

Mr. Donovan adopted their previous testimony in 19 - 1844, and each offered

additional testimony relative to their perceived injuries. Petitioners’ Exhibits

3, 5, 8, 11, 26, 29, 39 (pages 0009 and 0010), 40 through 43, 45, 46 , and 58

were received in evidence. Petitioners’ Exhibits 47 and 62 through 64 were

offered but not received in evidence. They were proffered and, t h ough not

conside red by the undersigned in the development of this Recommended

O rder, will accompany the record of this proceeding.

Because of the similarity (if not identity) of issues and the overlapping

witnesses and evidence in this case and those in 19 - 1844, the pa rties

stipulated to the admission into evidence of the record from 19 - 1844 . That

record incorporates the hearing transcript from 19 - 1844 , which include s the

testimony of Mr. Garis, and the e xpert testimony of Mr. Trammell, Michael

Trudnak, and Mr. Clark, on behalf of Respondents; and the testimony of

Petitioners and Dr. Lainie Edwards, Deputy Director of DEP’s Division of

Water Resource Management , and the expert testimony of Dr. Todd Walton,

on behalf of Petitioners, all of which has been considered and g iven weight as

though the testimony was separately offered in this case (Petitioners’ Exhibit

58) , and exhibits received in this case as Joint Exhibits 1 through 12 and 16

through 18; Destin Exhibits 10 through 12, 14 through 19, and 27; DEP

Exhibits 1 and 20; and Petitioners ’ Exhibits 3, 5, 8, 11, and 26 (photographs

only) . Supplemental e xhibits new to this proceeding are Joint Exhibit 14;

DEP Exhibits 27 through 29, 32, 33, and 35; Destin Exhibits 38 through 46;

and Petitioners’ Exhibits 29, 39 (pages 000 9 and 0010), 40 through 43, 45,

and 46. Petitioner, Mr. Wilson ; Petitioners’ witnesse s Dr. Douglas and

Dr. Young ; and the three Corps w itnesses were new to this case.

Counsel for Destin objected to testimony offered by Petitioners’ experts ,

Dr. Douglas and Dr. Young , as being cum ulative of the testimony of

Dr. Walton in 19 - 1844. The objection was overruled, with the reminder that

taking testimony “ two times doesn't equal two times the weight. ” Much of the

“heavy lifting” in this case will be in determin ing the extent to which

testimony and evidence elicited in this case, or the application of different

law, will result in findings and conclusions that differ from those in the Recommended Order and F inal Order in 19 - 1844. Thus, the findings and

conclusion s from the Recommended Order in 19 - 1844 will be the starting

point for this Recommended Order, and are adopted as such, with changes supported by competent substantial evidence set forth as appropriate.

A f our - volume Transcript of the final hearing was filed on January 7,

2020 . All par ties filed p roposed r ecommended o rder s (“PRO”) on January 17,

2020 , each of which has been considered in the preparation of this

Recommended Order .

On November 15, 2019, Destin filed a Motion for Attorney’s Fees,

Expenses and Costs, by which it seeks an award pursuant to sections

120.569 (2)(e) , and, on December 18, 2019, an Amended Motion for Attorney's

Fees, Expenses and Costs seeking the same relief . Pet itioners filed their

r es ponse s on November 19, 2019, and January 17, 2020 , respectively. The

Amended Motion is addressed at the conclus ion of this Recommended Order.

The law in effect at the time D EP takes final agency action on the

application being operative, references to statutes are to their current versions , unless otherwise noted . Lavernia v. Dep’t of Prof’l Reg. , 616 So. 2d

53 (Fla. 1st DCA 1993).

F INDINGS O F F ACT

Based upon the demeanor and credibility of the witnesses , the

stipulations of the parties, and the evidentiary record of this proceeding, the

following Findings of Fact are made:

The Parties

1 . Petitioner , Thomas Wilson, resides at 856 Edgewood Drive, Charleston,

West Virginia, and owns a secondary residence at 1530 Miracle Strip

Parkway, No. 101 - B, Fort Walton Beach, Florida, which is on Santa Rosa

Island in the unincorporated community of Okaloosa Island 1 , and fronts the

Gulf of Mexico. Petitioner’s property is in the vicinity of Monument R - 14 ,

which is roughly 2.3 miles west of DEP Virtual Monument V - 611 , and

4.3 miles west of the west side of East Pass. Mr. Wilson uses and enjoys the

gulf - front beaches between his property i n Okaloosa Island and East Pass.

2. Intervenors , David H. Sherry and Rebecca R. Sherry , own Unit 511 at

the S urf Dweller Condominium, 554 Coral Court, Fort Walton Beach,

Florida , fronting the Gulf of Mexico and in the Okaloosa Island community .

1 Okaloosa Island is the name of an unincorporated community that stretches about 2.8 miles along Santa

Rosa Island from D EP reference monument R - 1 through R - 16 , and is across Santa Rosa Sound from the

mainland community of Ft. Walton Beach . Okaloosa Island is the name of the unincorporated community,

while Santa Rosa Island is the name of the much longer island of roughly 40 miles in length, which

includes U.S. Air Force /Eglin AFB property that extends from the Okaloosa Island community to East

Pass .

The Surf Dweller Condominium straddles DEP Reference Monume nt R - 7,

which is between three and four miles west of DEP Virtual Monument V - 611,

and is between five and six miles west of the west side of East Pass. The

Sherrys use the beach at their condominium on a daily basis for fishing,

crabbing, swimming, walking, running, and general recreation. They also

walk or run from Monument R - 7 along the beaches to East Pass, and

occasionally drive to and use the beaches on the east side of East Pass.

3 . Intervenor , John S. Donovan , owns Units 131 and 132 at the

El Matador Condominium, 909 Santa Rosa Boulevard , Fort Walton Beach,

Florida , fronting the Gulf of Mexico and in the Okaloosa Island community.

The El Matador Condominium is approximately five miles west of

Monument V - 611, and is more than six miles west of the west side of East

Pass. Mr. Donovan generally walks the beaches west of his condominium, but

does occasionally walk along the beach to Monument V - 607 , which is the

location of a seawall constructed by the Air Force on sovereign submerged

lands to protect an Air Force tracking facility.

4 . Petitioners’ residential properties do not abut either the area

established as the zone of influence of East Pass or the stretch of beach that

is adjacent to the west fill placement site. Petitioners’ stated injuries are

related to the allegation that the lateral movement of sand from the East

Pass area of influence is from east to west . P lacing dredged material in the

eastern disposal site would allegedly deprive the bea ches in front of their

property -- beaches that are miles from the nearest area of i nfluence or spoil

disposal site -- of their natural sand supply by cutting off what they allege to

be the natural sand flow , causing the beaches in front of their pr operties to

eventually erode. Petitioners alleged no immediate environmental injuries associated with the Permit Modification . Petitioners ’ stated objective in this

case is to have any sand dredged from East Past to be placed on the western

disposal areas at all times.

5 . Respondent, DEP , is an agency of the State of Florida pursuant to

s ection 20.255, Florida Statutes , having the power and duty to protect

Florida's air and water resources and to administer and enforce the

provisions of c hapters 161, 373, and 403, Florida Statutes, and rules

promulgated thereunder in Florida Administrative Code Chapters 62 and

62B, regarding activities in surface waters of the state. DEP has been

designated by the legislature as the beach and shore preservation authority fo r the State of Florida and is authorized to take all necessary initiatives to

implement the provisions of c hapter 161. See § 161.101, Fla. Stat. DEP is the

permitting authority in this proceeding and issued the Permit Modification at

issue in this proceeding to the C orps .

6 . Respondent, the Corps, is a federal agency responsible for maintenance

dredging of East Pass, and is the applicant for the Permit Modification. The

Corps and DEP are parties to an Interagency Agreement pursuant to which

the Corps has agreed that for joint coastal permits, beach compatible dredged

material shall be disposed on Florida’s beaches consistent with c hapter 161

and other beneficial use criteria specified by the Department and federal

standards. Pursuant to the Interagency Agreement , if DEP determines that a

permit modification is required to meet state standards , as was the case here,

the Corps agrees to apply for and obtain the modification.

7 . Intervenor, Destin , is a municipality in Okaloosa County, Florida , and

abuts the east side of East Pass.

8 . Intervenor, O kaloosa County , is the local sponsor of the federally

authorized East Pass Navigation Project. It has a substantial interest in the

safety and navigability of the East Pass Navigation Channel a nd its

protection from eff ects of tropical storm systems. Okaloosa County also has a

substantial interest in preserving its recreational and environmental resources.

9 . The Permit Modification was issued on November 14, 2016 , without

publication, or a notice of rights language regarding the right to request a

hearing or time limits for doing so. Petitioner , Mr. Wilson, alleged that he

received a copy of the Permit Modification on or after May 22, 2019. There

was no evidence to the contrary. He , thereaft er , filed a challenge with DEP on

June 5, 2019, no more than 14 days from the date on which he received

notice.

East P ass

10 . The issue in dispute in this case, as it was in 19 - 1844 , is the

determination of whether beaches adjacent to the East Pass inlet are

eroding, stable, or accreting, for purposes of meeting the statutory objective

of section 161.142.

11 . Prior to 1928 , the connection from Choctawhatchee Bay to the Gulf of

Mexico flowed through what is now Old Pass Lagoon. After a stor m in 1928, a

high - tide breach of the shoreline near the current location of East Pass was

formed. In 1929, a record rain event caused waters to rise in Choctawhatchee

Bay. Residents of the area dug a relief channel at roughly the present

location of East Pass. The waters releasing through the more hydraulically

efficient flow path from Choctawhatchee Bay established a channel , which

quickly enlarged to become the prominent inlet to the Gulf of Mexico . The

permanent channel, now known as East Pass , is the only navigable passage

from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of

Mexico between Panama City, Florida, and Pensacola, Florida.

12 . East Pass separates the gulf - fronting beaches of Destin to its east from

the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder - mount jetties: a

3,860 foot - long jetty on the west side of the inlet , and a 1,210 foot - long jetty

on the east side of the inlet.

13 . East Pass includes a federal navigation channel. The federal

navigation channel requires routine maintenance to prevent it from shoaling. On average, East Pass is dredged in two - year intervals. The last time that

East Pas s was dredged was in December of 2013. It has now shoaled with

sand. Although there was a suggestion that recent storms may have opened

the channel to some extent, the evidence was not sufficient to alter the

findings based on the 19 - 1844 record that the c hannel remains hazardous for

marine traffic.

East Pass Inlet Management Implementation Plan

14 . The East Pass I MP was adopted by Final Order of DEP on July 30 ,

2013.

15 . The East Pass IMP does not require that any quantity of dredged

material from the dredging of East Pass be placed at any particular location

other than as established in permits issued by DEP . Rather, disposal site s

are to be determined on a case - by - case basis based on the best monitoring

data avail able for the beaches in the area of influence of East Pass . A reas of

influence are the beach areas east and west of East Pass affected by tidal

forces generated by the inlet.

16 . The critical element of the East Pass IMP, and that in keeping with

the statutory requirement that sand be place d on “a d jacent eroding beaches”

is the “strategy” that “the recent erosion of adjacent beaches observed over a

minimum of five years shall define the placement need in terms of location and volume.”

The Permit Modification

17 . On October 28, 2009, DEP issued Permit No. 0288799 - 001 - JC to the

Corps to perform maintenance dredging of the East Pass Navigation Channel and the Old Pass Lagoon Channel, and to rehabilitate the eastern and

western jetties. Materials dredged from the Main Channel south of the U.S.

Highway 98 bridge would be primarily bypassed to a portion of the beach on Eglin Air Force Base west of East Pass.

18 . As originally issued, the 2009 Permit limited placement of dredged

sand to sites west of the inlet, and prohibited placement to the east of the

inlet. C ontrary to the 2008 amendment to section 161.142 and the 2013 East

Pass IMP , the 2009 Permit did not require that sand dredged from the

federal navigation channel be placed on the adjacent erod ing beach, nor did it

extend the life of the proximate West Destin Beach Restoration Project .

19 . The Corps requested the Permit Modification in furtherance of an

inter - agency agreement between DEP and the Corps , by which the Corps

agreed, to the best of its abilities , to act in a manner consistent with state

requirements. Pursuant to section 161.142(5), beach compatible sand dredged

from federal navigation channels is to be placed on the adjacent eroding

beach.

20 . On November 14, 2016, DEP issued the Permit Modification to the

Corps. The Permit Modification did not change the authorization or

requirements for the dredging, but allowed dredged material to be placed on

“the Gulf - front beaches on the eastern and western sides of East Pass.”

21 . On August 21, 2019, DEP filed the Proposed Change, which amended

the Permit Modification to requir e that “[b]each compatible material dredged

from the initial maintenance dredge event following issuance of [the Permit

Modification], shall be placed to the east of East Pass.”

22 . The Permit Modification provides that, for the first maintenance

dredging event following issuance of th e Permit Modification, dredged

material is to be placed at fill sites e ast of East Pass , the condition that

Petitioners’ find objectionable. The Permit Modification then provides that

“[f]o r all subsequent maintenance dredgin g events conducted under this

permit, disposal locations shall be supported by physical monitoring data of

the beaches east and west of East Pass in order to identify the adjacent

erod ing beach e s that will receive the maintenance dredged material,

providin g consistency with section 161.142, Florida Statutes. ” Thus, the

placement of dredged material to the east of East Pass authorized by the

Permit Modification applies to the next dredging event, and not necessarily to

subsequent periodic dredging events aut horized by the Permit Modification.

Fill Placement Site

23 . The eastern fill placement site authorized by the Permit M odification

extends from R - 17 to R - 20.5. The shoreline adjacent to the east ern fill

placement site has been designated as critically eroded for more than ten

years. The eastern fill placement site is within the Western Destin Beach

Restoration Project and designated as “Reach 1.”

24 . The fill placement site west of East Pass is located between V - 611 a nd

V - 622. The shoreline landward of the west ern fill site has not been

designated as critically eroded by the Department. There are no current

beach restoration projects in or adjacent to the west ern fill site .

25 . East Pass is an ebb tide dominated inlet , with a sizable amount of

sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the

water, and any entrained sediment, passes the jetties, flow tends to spread

out t o the east, west, and south, and naturally loses velocity. When the

outgoing tidal waters reach a critical velocity where they can no longer carry

the sand, the sand drops out of suspension, which forms the ebb shoal.

Essentially, the ebb shoal is a large, semi - circular sandbar extending from

the mouth of East Pass that was created by the ebb tide carrying sediments south.

26 . East Pass is a highly dynamic inlet system. There are processes

spurred by the configuration and location of East Pass, tides, waves , and

storms that have resulted in currents running to the east and west that

change on a frequent basis. The evidence in this proceeding, which includes

the evidence adduced in 19 - 1844, established, for the period of 1996 through

2007, “a trend of west to east longshore transport, resulting in net gain

immediately west of [East Pass] and a significant loss of sand along Holiday

Isle east of [East Pass].”

27 . The evidence further established that a “drift nodal point” existed at

East Pass. Longshore trans port at uniform coastal locations is generally in

one direction. However, when there are wave events coming from varying

angles, and where beach contours are not parallel and uniform, or even

linear, it is common for transport reversals to occur. The point at which those

reversals occur is referred to as a nodal point. That point can be where east

and west transport converges, or where it diverges. The shoreline in the

vicinity of East Pass has exhibited “quite a few” nodal points over the past

decade, resu lting in frequent drift reversals and sand transport to the east

and the west.

28 . The evidence as to the existence and effect of the East Pass drift nodal

point, and its effect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other

evidence introduced at the final hearing. The testimony and evidence that

there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current tra nsporting sand in a

westerly direction, is accepted.

29 . Competent substantial evidence in the record of this proceeding

include s monitoring data for the eastern beach placement areas from the

West Destin Four - Year Post - construction Monitoring Report and earlier

annual post - construction reports covering the period from October 2012 to

July 2017 ; data from the Holiday Isle Emergency Beach Fill Two - Year Post -

construction Report ; historical monitoring data for the area west of East

Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017 ; the Potential Borrow Area Impact Report, which include d data from

1996 throu gh 2012 ; and recent profile data from April 2019. These reports,

and the data contained within them, cumulatively provide more than 20 years of dat a , and demonstrate convincingly that the shoreline to the west of

East Pass has been stable or accreting, and the areas to the east are eroded.

30 . Mr. Trammell offered testimony, including a discussion of

photographic evidence, demonstrating the beaches east of East Pass exhibit

the following signs of significant and ongoing erosion: extensive dune erosion;

exp osed sea oat roots; reduced beach elevation; reduced beach width;

crenulate 2 bays; newly built dune walkovers that replaced old walkovers

claimed by erosion; dune walkovers in close proximity to the shoreline ,

indicating that the shoreline had receded to t he walkover; and beach scarping

at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the

eastern spoil disposal sites was convincing and is accepted. The eastern areas

of influence are currently designated to be “critically eroded” by DEP, a

designation maintained for more than 10 years.

31 . The photographic evidence supports the data collected over time for

the beaches east of East Pass , and the persuasive testimony offered by

Mr. Clark, Mr. Trammell, Mr. Garis, and Mr. Trudn ak (who testified in

19 - 1844) , collectively establishes, by a preponderance of the evidence, that

the beaches east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R - 17 to R - 20.5, except

for the area immediately abutting the eastern jetty, are critically eroded, a condition that is influenced by Eas t Pass and its navigational channel, and

are “adjacent eroding beaches” as that term is used in section 161.142.

32 . The evidence demonstrates that the shoreline of Santa Rosa Island to

the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island

experienced erosion. DEP declared the shoreline to be critically eroded after the 2004 - 2005 hurricane seasons, which prompted Okaloosa County to

commission a study to monitor the health of the Monuments R - 1 through

R - 16 beach segment, a segment that includes Petitioners’ residences. Despite

the fact that no post - storm beach restoration occurred in the area, the beach

recovered naturally and gained sand following the post - storm recovery. In

addition, Santa Rosa Islan d is known for “beach cusps,” which are crenulate

2 “Having an irregularly wavy or serrate outline.” See “crenulate,” Merriam - Webster Dictionary,

https://www.merriam - webster.com/ dictionary/crenulate (last visited February 2 , 2020) .

shapes along the shoreline. Depending on the season and storm conditions,

those beach cusps can have a localized erosive effect on the beach, but those

tend to be seasonal. They do not negate what the evid ence shows to be the

overall stable to accretional conditions of the beaches west of East Pass from

Monument V - 622 to Petitioners’ residences.

33 . Mr. Trammell offered testimony, including a discussion of

photographic evidence, demonstrating the beaches we st of East Pass have large dunes; multiple dune lines; tall and thick ly vegetated dunes indicating

established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance;

and broa d and expansive beaches. Those features are indicative of a stable

and accretional shoreline. Mr. Trammell’s testimony as to the western spoil

disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.”

34 . Mr. Trammel’s photographs offered in 19 - 1844 were supplemented by

a series of photographs taken from several of the same locations after the

passage of T ropical Storm Nestor in October 2019. Those photographs are

consistent wi th a finding that the beaches to the east of East Pass are highly

eroded and erosional, and that the beaches to the west of East Pass are not.

35 . The photographic evidence supports the data collected over time for

the beaches west of East Pass, and the te stimony offered at the final hearing,

which collectively establish, by a preponderance of the evidence, that the

beaches to the west of East Pass are stable and accretional, are not subject to

erosion caused by East Pass, and are not “adjacent eroding beac hes” as that

term is used in section 161.142.

36 . Petitioners offered testimony of Dr. Douglas and Dr. Young in an effort

to shore up weaknesses in the evidence offered in 19 - 1844. Their testimony

and the evidence discussed therein was largely, if not excl usively designed to

demonstrate that the direction of lateral sand transport in the vicinity of

East Pass was predominantly east to west, which was the prevailing theme of

Petitioners’ argument in 19 - 1844.

37 . The evidence adduced from Dr. Douglas was, in many respects,

cumulative of that previously offered by Dr. Walton in 19 - 1844, and

considered in the development of the Recommended Order in that case. For

example, both Dr. Walton and Dr. Douglas reviewed and assessed

information from the Taylor study, t he Morang study, and the CP&E report

in developing their opinions. Both agreed that sand placed in proximity to the

jetties would tend to stay in place . Both ultimately concluded that sand

placed to the west of the East Past west jetty would migrate to the west.

38 . Dr. Douglas offered new opinion testimony largely based on the Wave

Information Study (“WIS”) , which is an estimate of wave height and direct ion

from a location two miles off - shore of East Pass. The data is a mathematical

estimate, and does not rely on physical measurements from buoys or wave

gauges. The wave estimates were then used as inputs in a model developed

by the Coastal Engineering Res earch Center (“CERC”). Dr. Douglas candidly

testified that the CERC model, even with normal input data, involves a su bstantial degree of uncertainty - - up to an order of magnitude. Adding to

that uncertainty is that the CERC model assumes bottom contours a nd

offshore volume calculations that were either inapplicable to the area around East Pass, or unavailable. Dr. Douglas was convincing that the CERC model

is a tool commonly used by coastal engineers. His testimony, and the evidence

on which it was based, was not unreasonable . However, it was not sufficient

to outweigh the evidence introduced in support of the Permit Modification. In

particular, and in addition to the evidence and testimony introduced in

19 - 1844, the testimony of Mr. Clark, whose exte nsive and direct knowledge,

observations, and familiarity with the area, and of the data and information

collected over periods of years, is found to be more persuasive regarding the

processes and conditions in and around East Pass, and supports a finding, by

a preponderance of the evidence, that the area to the east of East Pass

constitutes “adjacent eroding beaches,” and that the area to the west of East

Pass does not.

39 . Similarly, the evidence adduced from Dr. Young was largely

cumulative, a fact tha t resulted in sustained objections to questions eliciting

such information. He did provide testimony regarding time - lapse images from

Google Earth Engine, and a critique on how to balance a sediment budget,

though without providing a budget. As was the case with Dr. Douglas,

Dr. Young’s testimony and the evidence discussed therein , was not sufficient

to outweigh the more persuasive evidence introduced in support of the Permit Modification that the area to the east of East Pass constitutes “adjacent eroding beaches,” and that the area to the west of East Pass does not.

40 . The evidence is persuasive that placing dredged material at R - 17 to

R - 20.5 i n Holiday Isle on the eastern side of East Pass would not result in

erosion on the western side of East Pass.

41 . D redged material placed in the western beach placement area , and in

the “shadow” of the western jetty, will tend to remain in that area. It would

take a very long time, if at all, for that material to migrate further to the

west. However, some -- but certainly not all -- of the dredged material placed

on the eroding beaches to the east of East Pass can be introd u ced into the ebb

shoal and move to the west. In that regard, the Google Earth Engine images

depict sand moving across the ebb shoal to the western side of the inlet and

attaching at various distances from the west jetty. As such, placement of the

dredged material on the eastern beach placement areas would, to some

degree , accomplish the goals of allowing sand transport to the wes tern

beaches , as was the relief sought in the Petition.

42. The evidence was convincing that depositing dredged material onto

the eroding beaches east of East Pass , as authorized by the Permit

Modification , will not result in significant adverse impact s to areas either

east or west of East Pass, nor will it interfere with the use by the public of

any area of a beach seaward of the mean high - water line . Furthermore, the

evidence introduced in this case and 19 - 1844 provide reasonable assurance

that the Per mit Modification is consistent with s ection 161.142 and will

e nsure that net long - term erosion or accretion rates on both sides of East

Pass remain equal .

Ultimate Findings of Fact

4 3 . The greater weight of the competent substantial evidence establishes

that the eastern areas of influence of East Pass, including the beach disposal

areas at R - 17 to R - 20.5, are critically eroded, a condition influenced , if not

caused , by East Pass, and constitute East Pass’s “adjacent eroding beaches . ”

Evidence to the contr ary was not persuasive.

4 4 . The greater weight of the competent substantial evidence establishes

that the western areas of influence of East Pass, including the beach disposal

areas at Monuments V - 611 to V - 622 , are stable, if not accreting, and are not

East Pass’s “ adjacent eroding beaches. ” Evidence to the contrary was not

persuasive.

4 5 . The greater weight of the competent substantial evidence establishes

that the placement of dredged material on the eastern side of East Pass will

extend the life of the proximate West Destin Beach Restoration Project .

4 6 . The greater weight of the competent substantial evidence establishes

that the Corps met the standards for the Permit Modific ation as proposed for

issuance by DEP on November 14, 2016 , and August 21, 2019 , including

section 161.142 and r ules 62B - 41.003 and 62B - 41.005 . Evidence to the

contrary was not persuasive. Thus, the Permit Modification should be issued.

C ONCLUSIONS OF L AW

Jurisdiction

4 7 . The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. §§ 120.569 and

120.57, F la. Stat.

Standing

4 8 . Section 120.52(13) defines a “party , ” in pertinent part, as a person

“ whose substantial interests will be affected by proposed agency action, and

who makes an appearance as a party.” Section 120.569(1) provides, in

pertinent part, that “[t]he provisions of this section apply in all proceedings

in which the subst antial interests of a party are determined by an agency.”

4 9 . Standing under chapter 120 is guided by the two - pronged test

established in the seminal case of Agrico Chemical Corporation v.

Dep artment of Env ironmental Regulation , 406 So. 2d 478 (Fla. 2d DCA 1981).

In that case, the c ourt held that:

We believe that before one can be considered to

have a substantial interest in the outcome of the

proceeding, he must show 1) that he will suffer an

injury in fact which is of suffici ent immediacy to

entitle him to a section 120.57 hearing , and 2) that

his substantial injury is of a type or nature which

the proceeding is designed to protect. The first

aspect of the test deals with the degree of injury. The second deals with the nature of the injury.

Id. at 482.

50 . Agrico was not intended as a barrier to the participation in

proceedings under chapter 120 by persons who are affected by the potential

and foreseeable results of agency action. Rather, “[t]he intent of Agrico was to

preclude parties from intervening in a proceeding where those parties ’

substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceedings. ” Mid - Chattahoochee River Users

v. Fla. Dep't of Envtl. Prot. , 948 So. 2d 794, 797 (Fla. 1st DCA 2006)(citing

Gregory v. Indian River Cty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

5 1 . The standing requirement established by Agrico has been refined, and

now stands for the proposition that standing to initiate an ad ministrative

proceeding is not dependent on proving that the proposed agency action

would violate applicable law. Instead, standing requires proof that the

petitioner has a substantial interest and that the interest could reasonably be

affected by the prop osed agency action. Whether the effect would constitute a

violation of applicable law is a separate question.

Standing is “a forward - looking concept” and

“cannot ‘disappear’ based on the ultimate outcome

of the proceeding.”. . . When standing is challenged

during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his substantial interests “ could

reasonably be affected by . . . [the] proposed

activiti es.”

Palm Beach Cty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076,

1078 (Fla. 4th DCA 2009) (citing Peace River/Manasota Reg'l Water Supply

Auth. v. IMC Phosphates Co . , 18 So. 3d 1079, 1083 (Fla. 2d DCA 2009) ; and

Hamilton C ty . Bd. of Cty. Comm'rs v. State, Dep't of Envtl. Reg. , 587 So. 2d

1378 (Fla. 1st DCA 1991)); see also , St. Johns Riverkeeper, Inc. v. St. Johns

River Water Mgmt. Dist. , 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011)

(“Ultimately, the ALJ's conclusion adopted by the Governing Board that

there was no proof of harm or that the harm would be offset went to the

merits of the challenge, not to standing.”).

5 2 . “Under the first prong of Agrico, the injury - in - fact standard is met by

a showing that the petitioner has sustained actual o r immediate threatened

injury at the time the petition was filed, and ‘[t]he injury or threat of injury must be both real and immediate, not conjectural or hypothetical.’”

S. Broward Hosp. Dist. v. Ag. for Health Care Admin. , 141 So. 3d 678 , 681

(Fla. 1st DCA 2014) ( citing Vill . Park Mobile Homes Ass'n v. Dep't of Bus.

Reg . , 50 6 So. 2d 426, 433 (Fla. 1st DCA 1987 )) .

5 3 . Petitioners alleged standing based on the effect that the disruption in

the lateral flow of sand along the shoreline would have on the beaches in front of their property. I n Bluefield Ranch Mitigation Bank Trust v. S outh

Fl orida Water M anagement District , 263 So. 3d 125 (Fla. 4th DCA 2018), the

court held that the petitioners established their standing based on the

following analysis :

The petitioning parties included the Town of Palm

Beach, which owned Phipps Ocean Park within 1000 feet of the condominium and alleged that the Park would suffer damage if the landscaping

activity continued, and Dave Darwin, who owned a property within 1000 feet of the condominium and alleged that his property would be damaged by the continued disruption of the dune system. We found

that both of these petitioners had a substantial

interest in challenging the agency's determination

because the statute and administrative proceedings

are designed to protect the entire beach/dune system of the state of Florida, and [the petitioners] allege that [the landscaping activities] w ill harm

the dune system in the area of [the condominium's]

property. Therefore [the petitioners] have made

sufficient allegations to meet the test of standing under Agrico and are entitled to a hearing to

present evidence to support their allegations of

s tanding.

Id. at 13 1 ( citing Town of Palm Beach v. State Dep ’t of Nat . Res . , 577 So. 2d

1383 , 1388 (Fla. 4th DCA 1991) ) .

5 4 . The individual petitioners in Town of Palm Beach who alleged, as do

the Petitioners here, that their properties would be substantially affected

were within 1,000 feet of the challenged activity. However, it was the e ffects

alleged, rather than the distance, that appeared to be controlling.

5 5 . The all egations of conditions that might lead to erosive conditions

along the shoreline west of East Pass meet the second prong of the Agrico test, that is, this proceeding is designed to protect against erosion , impacts

that are the subject of chapter 161 , and the rules adopted thereunder.

5 6 . The question for determination as to the first prong of the Agrico test

is whether Petitioner s ha ve alleged injuries in fact of sufficient immediacy as

a result of the Permit Modification to entitle them to a section 120.57

hearing , and not whether those allegations were ultimately proven . “[T] he

injury - in - fact standard is met by a showing that the petitioner has sustained

actual or immediate threatened injury at the time the petition was filed, and

‘[t]h e injury or threat of injury must be both real and immediate, not

conjectural or hypothetical.’” S. Broward Hosp. Dist. v. Ag. for Health Care

Admin. , 141 So. 3d 678, 68 1 (Fla. 1st D CA 2014 ) ( citing Vill . Park Mobile

Home Ass'n v. Dep't of Bus. Reg . , 506 So. 2d at 433 ) .

5 7 . Petitioner s ha ve alleged that the proposed placement of dredged

material in the swash zone to the east o f East Pass could result in adverse

erosional impacts . For purposes of standing, the allegations must be accepted

as true. S. Broward Hosp. Dist. v. Ag. for Health Care Admin. , 141 So. 3d at

681. The allegations are sufficient to meet the standard of an “injury in fact

which is of sufficient immediacy to entitle them to a section 120.57 hearing.”

5 8 . Based on what is perceive d to be a broad grant of standing as

established in Palm Beach County Environmental Coalition and further

discussed in Bluefield Ranch Mitigation Bank Trust , and on the policy that it

is best to have cases heard on their merits when possible, the undersigne d is

willing to accept the tenuous and ultimately unsupported thread that

constitutes Petitioners’ standing as alleged in this case.

5 9. Despite their allegations that they were “substantially affected,”

Petitioners, who reside miles away from the area of influence of East Pass,

completely failed to prove that they will suffer any injury to their property, or

any injury to their ability to enjoy the beaches between their homes and East

Pass, or that they were otherwise adversely affected by the issuance of the Permit Modification. The evidence was not persuasive that perceptible

quantities of sand deposited on the western disposal site woul d migrate from

the area of influence, or make its way to their property, or would adversely

affect the already accretional nature of the shoreline adjacent to their

properties. Furthermore, even accepting that sand would eventually make it

to their propert ies, the evidence was convincing that the journey would be

lengthy, ha rdly an immediate or adverse effect, particularly since the

immediate case involves a single maintenance dredging event, and not all

maintenance dredging authorized over the term of the Permit Modification.

Thus, despite their allegations, Petitioners wholly failed to prove at the

hearing that the Permit Modification as issued would -- or could -- result in

actual or immediate threatened adverse effects to their property or their

ability to use and enjoy the beaches west of East Pass.

60 . The C orps has standing as the applicant for the Permit Modification .

Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. & Prof'l Reg. , 53 So. 3d

1158, 1162 (Fla. 1st DCA 2011); Maverick Media Group v. Dep’t of Transp. ,

791 So . 2d 491, 492 - 493 (Fla. 1st DCA 2001) .

6 1 . Intervenors, Destin and Okaloosa County, established that their

substantial interests are affected by the Permit Modification, and they are

entitled to participate as parties to this proceeding. Furthermore, their

standing was stipulated by the parties in the JPS.

Timeliness of Petition

6 2 . Petitioner , Thomas Wilson, filed his Petition for Formal

Administrative Hearing more than 14 days from his receipt of the Permit

Modification . Mr. Wilson did not receive actual notice of the Permit

Modification . The Permit Modification was not published so as to provide

constructive notice o f its issuance . Petitioner was not notified of the Permit

Modification until, at the earliest, May 22, 2019. S ection 120.569(1) provides,

in pertinent part, that:

The provisions of this section apply in all

proceedings in which the substantial interests of a

party are determined by an agency . . . . Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed

to obtai n the hearing or judicial review; and shall

state the time limits which apply.

Based on Petitioner Thomas Wilson’s lack of actual or constructive notice of

the Permit Modification, the Petition for Formal Administrative Hearing was

timely.

Nature of the P roceeding

6 3 . This is a de novo proceeding, intended to formulate final agency action

and not to review action taken earlier and preliminarily . § 120.57(1)(k), Fla.

Stat; Young v. Dep’t of Cmty. Aff. , 625 So. 2d 831, 833 (Fla. 1993); Hamilton

Cty. Bd. of Cty. Comm'rs v. Dep't of Envtl. Reg. , 587 So. 2d 1378, 1387;

McDonald v. Dep’t of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA

1977).

B urden and Standard of Proof

6 4 . The Corps bears the burden of demonstrating, by a preponderance of

the evidence, entitlement to the Permit Modification . Fla. Dep't of Transp. v.

J.W. C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981 ); Save O ur Creeks, Inc. v.

Fla. Fish & Wildlife Conser. Comm’n , Case No. 12 - 3427 (Fla. DOAH July 3,

2013; Fla. DEP Jan. 14, 2014).

6 5 . The standard of proof in this case is a preponderance of the competent,

substantial evidence. § 120.57(1) (j) , Fla. Stat. ; Jacobs and Solar

Sportsystems, Inc. v. Far Niente II, LLC and S. Fla. Water Mgmt. Dist. , Case

No. 12 - 1056 (Fla. DOAH Apr. 26, 2013 ; Fla. SFWMD May 22, 2013 ).

6 6 . “ Competent substantial evidence is ‘ such evidence as will establish a

substantial basis of fact from which the fact at issue can reasonably be

inferred [o r] such relevant evidence as a reasonable mind would accept as

adequate to support a conclusion. ’” Duval Utilit y Co. v. Fla. Pub. Serv.

Comm'n , 380 So. 2d 1028, 1031 (Fla. 1980) (quoting De Groot v. Sheffield ,

95 So. 2d 912, 916 (Fla. 1957)).

6 7 . “ Surmise, conjecture or speculation have been held not to be

substantial evidence . ” Dep't of High . Saf . & Motor Veh . v. Trimble , 821 So. 2d

1084, 1087 (Fla. 1st DCA 2002) ( citing Fla. Rate Conf . v. Fla. R.R. & Pub.

Utils. Comm'n , 108 So. 2d 601, 607 (Fla. 1959)).

R easonable Assurance Standard

6 8 . I ssuance of the Permit Modification i s dependent upon there being

reasonable assurance that the activities authorized will meet applicable

standards.

6 9 . Reasonable assurance means “a substantial likelihood that the project

will be successfully implemented.” Metro. Dade Cty . v. Coscan Fla., Inc. ,

609 So. 2d 644, 648 (Fla. 3d DCA 1992). Reasonable assurance does not

require absolute guarantees that the app licable conditions for issuance of a

permit have been satisfied. Furthermore, speculation or subjective beliefs are not sufficient to carry the burden of presenting contrary evidence or proving a lack of reasonable assurance necessary to demonstrate that a permit should

not be issued. FINR II, Inc. v. CF Indus . , Inc. , Case No. 11 - 6495 ( Fla. DOAH

Apr. 30, 2012; Fla. DEP June 8, 2012).

Sta ndards

70 . Section 161.142 pr ovides, in pertinent part, that :

Legislature recognizes the need for maintaining

navigation inlets to promote commercial and recreational uses of our coastal waters and their

resources. The Legislature further recognizes that

inlets interrupt or alter the natural drift of beach -

quality sa nd resources, which often results in these sand resources being deposited in nearshore areas or in the inlet channel, or in the inland waterway

adjacent to the inlet, instead of providing natural

nourishment to the adjacent eroding beaches. Accordingly, th e Legislature finds it is in the public

interest to replicate the natural drift of sand which

is interrupted or altered by inlets to be replaced

and for each level of government to undertake all reasonable efforts to maximize inlet sand bypassing to ensure that beach - quality sand is placed on

adjacent eroding beaches . Such activities cannot

make up for the historical sand deficits caused by inlets but shall be designed to balance the sediment budget of the inlet and adjacent beaches and extend the life of p roximate beach - restoration

projects so that periodic nourishment is needed less

frequently. Therefore, in furtherance of this

declaration of public policy and the Legislature’s

intent to redirect and recommit the state’s

comprehensive beach management effo rts to

address the beach erosion caused by inlets, the department shall ensure that:

( 1) All construction and maintenance dredgings

of beach - quality sand are placed on the adjacent

eroding beaches unless, if placed elsewhere, an equivalent quality and quantity of sand from an

alternate location is placed on the adjacent eroding beaches.

(2) On an average annual basis, a quantity of

beach - quality sand is placed on the adjacent

eroding beaches which is equal to the natural net annual longshore sediment t ransport. The

department shall, with the assistance of university -

based or other contractual resources that it may employ or call upon, maintain a current estimate of such quantities of sand for purposes of prioritizing, planning, and permitting.

* * *

(5) The department shall ensure that any disposal

of the beach - quality sand from federal projects in

this state which involve dredging for the purpose of navigation is on, or in the nearshore area of,

adjacent eroding beaches . (emphasis added).

7 1 . As stipulated by the parties, East Pass is dredged periodically by the

Corps , which is authorized by the U.S. Congress to maintain the federal

navigational channel.

7 2 . What is evident from section 161.142 , is that the overriding -- i f not

exclusive -- i nterest of the state is that sand from maintenance dredging of

navigation inlets is to be placed on adjacent eroding beaches. That interest is

even more pronounced where, as here, the dredging is in furtherance of a

federal navigation project, in which cas e the disposal of beach quality sand is

specifically directed to be “ on, or in the nearshore area of, adjacent eroding

beaches .” § 161.142(5), Fla. Stat.

7 3 . The more specific and unequivocal legislative requirement that

disposal of beach quality sand from maintenance dredging of navigation

inlets be on to adjacent eroding beaches , as established in section 161.142(5) ,

controls over more general provisions of section 161. 142. See, e.g. Nolden v.

Summit Fin. Corp. , 244 So. 3d 322, 327 (Fla. 4th DCA 2018) ; G.E.L. Corp. v.

Dep't of Envtl. Prot. , 875 So. 2d 1257, 1261 ( Fla. 5th DCA 2004); Barnett

Banks, Inc. v. Dep ’t of Rev . , 738 So. 2d 502, 505 (Fla. 1st DCA 1999 ).

74. Rule 62B - 41.003 provides, in pertinent part, that:

(2) The Department shall deny any application for

a coastal construction project if, after considering any proposed mitigation plan, the proposed project as a whole will result in a significant adverse

impact.

(3) No coastal construction shall interfere, except

during construction, with t he use by the public of

any area of a beach seaward of the mean high -

water line . . . .

75. Rule 62B - 41.005 provides, in pertinent part, that:

(13) . . . [M] aintenance of inlets shall require on an

average annual basis, placement of a quantity of beach - quality sand on adjacent eroding beaches

that is equal to natural net annual longshore sediment transport.

* * *

(15) Any permit application for . . . maintenance of

a coastal inlet and related shoals shall be

consistent with the statewide strat egic beach

management plan for long term management of the inlet pursuant to Sections 161.142 and 161.161, F.S. Any permit issued shall be conditioned on continued bypassing of the sand in sufficient

quantity to insure that net long term erosion or

accreti on rates on both sides of the inlet remain

equal . . . .

76. Rule 62B - 41.008 establishes information to be included in an

application “ to demonstrate that the proposed activity will not have a

significant adverse impact on adjacent beaches or the inlet sy stem .”

E NTITLEMENT T O T HE P ERMIT M ODIFICATION

7 7 . The evidence in this case established conclusively that the beaches

east of East Pass are adjacent eroding beaches.

7 8 . The evidence in this case is equally conclusive that the beaches west of

East Pass are not adjacent eroding beaches.

7 9 . T o be compliant with section 161.142 , sand from the dredging of East

Pass must be placed on the beach e s east of East Pass.

80. The P ermit Modification, and the decision to place sand from the

dredging of East Pass on the beaches east of East Pass , are in compliance

with the criteria for issuance established in rule 62B - 41.

81 . As established in the F indings of F act, reasonable assurance was

provided that the Corps’ fill site complied with the applicable standards

established by statute and rule 62B - 41 , and that the Corps is entitled to the

Permit Modification .

A TTORNEYS ’ F EES

82 . Destin has moved for an award of attorneys’ fees, e xpenses , and c osts

pursuant to sections 120.569(2)(e).

83 . Section 120.569(2)(e) provides that:

(e) All pleadings, motions, or other papers filed in

the proceeding must be signed by the party, the

party’s attorney, or the party’s qualified

representative. The signature constitutes a

certificate that the person has read the pleading, motion, or other pap er and that, based upon

reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause

unnecessary delay, or for frivolous purpose or

needless increase in the cost of litigation. If a pleading, motion, or other paper is s igned in

violation of these requirements, the presiding

officer shall impose upon the person who signed it,

the represented party, or both, an appropriate sanction, which may include an order to pay the

other party or parties the amount of reasonable

expen ses incurred because of the filing of the

pleading, motion, or other paper, including a reasonable attorney’s fee.

84 . An objective standard is used to determine improper purpose for the

purpose of imposing sanctions on a party or attorney under section

1 20.569(2), and its predecessor statutes. See, e.g., Friends of Nassau Cty., Inc.

v. Nassau Cty. , 752 So. 2d 42, 50 - 51 (Fla. 1st DCA 2000).

8 5 . A frivolous claim is not merely one that is likely to be unsuccessful.

Rather, it must be so clearly devoid of merit that there is little, if any,

prospect of success. French v. Dep't of Child. & Fams. , 920 So. 2d 671, 679

(Fla. 5th DCA 2006). “[A] finding of improper purpose could not stand ‘if a

reasonably clear legal justification can be shown for the filing of the paper.’”

Procacci Com m. Realty , 690 So. 2d 603, 608, n. 9 , (quoting Mercedes Lighting

& Electrical Supply v. State, Dep’t of Gen. Servs. , 560 So. 2d 272, 277 (Fla. 1st

DCA 1990)).

8 6 . DOAH has jurisdiction to resolve th e issue of sanctions by separate

final order. See, e.g., Procacci Com m . Realty, Inc. , 690 So. 2d at 606 .

Therefore, jurisdiction is reserved to consider that request through a separate

final order , provided Destin renews its Motion within 30 days of DEP’s entry

of the final order in this case .

8 7 . If Destin elects to renew its Motion upon entry of the f inal o rder, the

renewed Motion should provide a discussion and analysis of the issues in the

paragraphs that follow.

8 8 . Despite Destin’s intervention on October 24, 2019, the original Motion

for Attorney’s Fees, Expenses and Costs was filed on November 15, 2019 ,

three business days prior to the commencement of the final hearing. The

seven - day time allowed for filing a response under Florida Administrative

Code R ule 28 - 106.204 did not run until after the final hearing was complete.

The Amended Motion for Attorney’s Fees, Expenses and Costs (“Amended

Motion”) was filed on December 18, 2019 .

8 9 . As was the case in French , Destin “ filed a general notice of intent to

seek attorney's fees pursuant to this [ ] statute [ ] prior to the hearing in this

c ase, [but] the notice did not identify any ‘ pleadings, motions, or other papers ’

it believed had been filed for an improper purpose. ” Rather, the Amended

Motion was designed “[t]o determine whether a proceeding was initiated for

an improper purpose ; ” requested consideration of issues related to

“participation in a proceeding ; ” and concluded that “the maintenance of this

case is done for an improper and frivolous purpose and an appropriate

sanction should be applied.”

90 . Unlike section 120.595(1), whi ch allows for an award of costs and

attorney’s fee s when “ the nonprevailing adverse party has been determined

by the administrative law judge to have participated in the proceeding for an

improper purpose ,” section 120.569(2)(e) is directed to whether plea dings

have been signed and filed for an improper purpose. As stated by Judge

Daniel Manry:

14. Section 120.569(2)(e) is aimed at deterring

parties from filing "pleadings, motions, and other papers" for improper purposes. The statute is not

intended to shif t fees and costs to compensate the

prevailing party. Section 120.569(2)(e) is aimed at

the conduct of counsel and not the outcome of the proceeding. See Mercedes Lighting and Electrical

Supply, Inc. v. State, Department of General

Services , 560 So. 2d 272, 276 (Fla. 1st DCA

1990)(involving former Section 120.57(1)(b)5 that is

now codified in Section 120.569(2)(e)).

15. A party seeking sanctions under Section

120.569(2)(e) is required to take action to mitigate the amount of resources expended by the party in defense of a pleading that the party claims is filed for an improper purpose. Mercedes , 560 So. 2d at

277. The party must give prompt notice to the

opposing party and allow the ALJ an opportunity to promptly punish an offending party. The purpose of

Sec tion 120.569(2)(e) is not well served if an

offending party is not sanctioned until the end of

the administrative hearing. Id.

Beverly Health and Rehab. Servs - Palm Bay v. Ag. for Health Care Admin. ,

Case No. 02 - 1297F ( Fla. DOAH Apr. 25, 2003) .

91 . Judge Donald Alexander provided an even more detailed analysis of

the requirements and limitations of section 120.595(2)(e) in the following

lengthy, but pertinent and comprehensive , discussion:

Several broad tenets govern a sanctions request.

First, an essentia l element of a claim for sanctions

is for the moving parties to identify a specific pleading, motion, or other paper interposed for an improper purpose, “ such as to harass or to cause

unnecessary delay, or for frivolous purpose or

needless increase in the cost of litigation. ”

§ 120.569(2)(e), Fla. Stat.; French v. Dep't of Child.

& Fams. , 920 So. 2d 671, 676 - 77 (Fla. 5th DCA

2006). To determine whether a paper is filed for an

improper purpose, it is necessary to determine

whether the filing is reasonable under the

circumstances. Mercedes Lighting & Elec. Supply

Co. v. Dep't of Gen. Servs. , 560 So. 2d 272, 276

(Fla. 1st DCA 1990). The determination must be

based on an objective evaluation of the

circumstances existing at the time the papers were

filed. See Friends of Nassau Cnty. , 752 So. 2d at 57.

(Unlike claims under sections 57.111 and 57.105(5),

liability under section 120.569(2)(e) is determined

only based on the circumstances as of the time of the filing of the offending document, not subse quently.) The issue is not whether the non -

moving party would ultimately prevail on the

merits. Rather, the question is whether a party or

attorney made a reasonable inquiry of the facts and law prior to signing and filing a pleading, motion, or other pape r. Id. at 52. Finally, and especially

relevant here, if an obvious offending paper is filed, a party is obligated to promptly take action to

mitigate the amount of resources expended in

defending against the offending paper. See

Mercedes , 560 So. 2d at 276 - 77. A delay in seeking

sanctions undermines the mitigation principle that applies to the imposition of sanctions. Id. The

purpose of the statute is to deter subsequent abuses, a purpose not well - served if an offending

pleading is fully litigated and the o ffender is not

punished until the end of the trial. Id.

* * *

Accepting the City's invitation to rule otherwise would encourage a party to sit back and fully litigate a case, and depending on the final outcome, to then seek sanctions under section 120.569(2)(e);

clearly, this process is not contemplated by the

statut e. See, e.g., Spanish Oaks of Cent. Fla., LLC

v. Lake Region Audubon Soc'y, Inc. , Case No. 05 -

4644F, 2006 Fla. Div. Adm. Hear. LEXIS 294 at

*48 (Fla. DOAH July 7, 2006)(where moving party

did not file request for sanctions until “ just prior to

the final he aring, ” delay warranted denial of

request); Rustic Hills Phase III Prop. Owners Ass'n

v. Olson , Case No. 00 - 4792, Order Denying

Sanctions Under Section 120.569(2)(e), (Fla. DOAH July 31, 2001)(where moving parties waited until final hearing to seek sanctio ns, and the basis for

sanctions was the weakness of the evidentiary

presentation, sanctions not awarded); Hasselback v.

Dep't of Envtl. Prot. , Case No. 07 - 5216, 2011 Fla.

ENV. LEXIS 63 (Fla. DOAH June 14, 2011)(failure to timely take action to mitigate the amount of

resources expended in litigating the permit criteria warranted denial of request for sanctions); Still v. New River Solid Waste Ass'n , Case No. 01 - 1033,

2001 Fla. Div. Adm. Hear. LEXIS 2720 (Fla. DOAH

Aug. 7, 2001)(request denied where moving pa rty

waited until final hearing to seek sanctions

directed to non - moving party's amended petition for

hearing); Alfonso v. Constr. Indus. Licensing Bd. ,

Case No. 05 - 4711, Order Denying Motion for

Attorney's Fees, (Fla. DOAH July 26, 2006)(sanctions denied a s being untimely where

request was filed two weeks after proposed

recommended orders were submitted by parties). The moving parties have cited no contrary

authority on this issue. Accordingly, as to all

papers filed prior to the filing of the Motion, the r equest for sanctions is denied.

David a nd Cynthia Cope v . Dep ’t o f Env tl Prot . a nd City o f Gulf Breeze , Case

No. 10 - 8893 (Fla. DOAH Oct. 26, 2011) .

92 . This discussion is not intended to reach the merits of whether any

element of this case was “ interposed for any improper purposes ,” but is rather

intended to identify issues for consideration and discussion in any renewe d

m otion and response thereto.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law , it is

R ECOMMENDED that the Department of Environmental Protection enter a

final order a pproving the November 14, 2018, Permit Modification

No. 0288799 - 006 - JN, as amended by the DEP’s August 21, 2019, Notice of

Proposed Changes to Proposed Agency Action , for the maintenance dredging

of East Pass , subject to the general and specific conditions set forth therein .

D ONE A ND E NTERED this 20th day of February , 20 20 , in Tallahassee, Leon

County, Florida.

E. G ARY E ARLY

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 20 th day of February , 2020 .

C OPIES F URNISHED :

Joseph Alexander Brown, Esquire

Hopping Green & Sams , P.A.

119 South Monroe Street , Suite 300

Tallahassee, Florida 32301

(eServed)

D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 323 01

(eServed)

Marianna Sarkisyan, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3900

(eServed)

Paul Joseph Polito, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3900

(eServed)

Jay Patrick Reynolds, Esquire

Department of Environmental Protection

Mail St ation 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3900

(eServed)

Winifred L. Acosta, Esquire

United States Attorney's Office

Northern District Florida

21 East Garden Street

Pensacola, Florida 32502 - 5676

(eServed)

Kathryn Drey, Esquire

United States Attorney's Office

Northern District Florida

21 East Garden Street

Pensacola, Florida 32502 - 5676

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Timothy Joseph Perry, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Carley J. Schrader, Esquire

Nabors Giblin & Nickerson, P.A.

1500 Mahan Drive , Suite 200

Tallahassee, Florida 32308

(eServed)

Gregory Thomas Ste wart, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive , Suite 200

Tallahassee, Florida 32308

(eServed)

Elizabeth Desloge Ellis, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive , Suite 200

Tallahassee, Florida 32308

(eServed)

L ea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Justin G. Wolfe, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

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, F lorida 32399 - 3000

(eServed)

N OTICE O F R IGHT T O S UBMIT 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 t hat will issue the Final Order in this

case.