19-001844 John S. Donovan, David H. Sherry, And Rebecca R. Sherry vs. City Of Destin, Florida, And Department Of Environmental Protection Status: Closed Recommended Order on Monday, October 14, 2019.

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

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN S. DONOVAN, DAVID H.

SHERRY, AND REBECCA R. SHERRY ,

Petitioner s ,

and

THOMAS WILSON ,

Intervenor,

Case No. 19 - 1844

vs.

CITY OF DESTIN, FLORIDA AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION

Respondents.

_ /

RECOMMENDED ORDER

Pursuant to notice, a final hearin g was held in this case

on Ju ly 29 through 31 , 2 01 9 , in Tallahassee , Florida , before

E. Gary Early, a designated A dministrative L aw J udge of the

Division of Administrative Hearings .

APPEARANCES

For Petitioner s David H. Sherry, Rebecca R. Sherry, and

John S. Donovan :

D. Kent Safriet, Esquire

Joseph A. Brown, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

For Respondent 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 Respondent Department of Environmental Protection :

Marianna Sarkisyan, Esquire

Paul Joseph Polito, Esquire

Jay Patrick Reynolds, Esquire

Department of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3900

STATEMENT OF THE ISSUE S

The issue s to be determined is whether the City of Destin

(“City”) 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

the Consolidated Joint Coastal Permit and Sovereign Submerged

Lands Authorization, Permit Number: 0288799 - 003 - JC (“Permit”) ,

in the swash zone east of East Pass in accordance with the

Notice to Proceed (“NTP”) ; and whether the Inlet Management Plan

referenced in the N TP is an unadopted rule as described in

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

PRELIMINARY STATEMENT

On February 26, 2015, the Department of Environmental

Protection (“DEP”) issued the Permit to the City . The Permit

authorized periodic maintenance dredging of the federally

authorized East Pass and Destin Harbor navigation channels.

Dredged material from the first maintenance dredging event was

placed at a spoil site along Norriego Point. In accordance with

the Perm it, “[d]redged material from subsequent maintenance

dredging activities will be placed in the swash zones of the

beaches east and west of East Pass, as specified in the East

Pass Inlet Management Plan. ”

On February 2, 2018, D EP issued the NTP to the City , which

approved the second maintenance dredging of the East Pass

navigation channel , with “ placement of dredged material in the

swash zone east of East Pass .” The NTP was not made subject to

a notice of rights . Petitioners, David H. Sherry, Rebecca R.

Sherry, and John S. Donovan (collectively, “Petitioners” or,

received a copy of the NTP on October 1, 2018, and first filed a

challenge on November 30, 2018.

On March 18, 2019 , Petitioners f iled a n Amended Petition

for Administrative Hearing (“Amended Petition”) . The

disposition of the initial Petition for Administrative Hearing

and the circumstances necessitating the filing of the Amended

Petition were not explained.

On April 9 , 201 9 , the Amended Petition was referred to the

Division of Administrative Hearings and assigned to the

undersigned. The final hearing was scheduled for July 29

through 31, 2019 .

On June 17, 2019, the City moved to dismiss the Amended

Petition on the ground that the placement of dredge d spoil was

an issue that could have been challenged at the time the Permit

was issue d , and the failure to do so at that time constituted a

waiver of the right to challenge the location(s) at which spoil

disposal was to occur. A hearing on the motion was held on

July 2, 2019 , and the motion was denied by Order on

July 3, 2019.

On June 28, 2019, a Motion for Leave to Intervene w as filed

by Thomas Wilson, the P etitioner in DOAH Case No. 19 - 3356, which

involves a challenge to a D EP permit to the United States Army

Corps of Engineers (“USCOE”) for the dredging of East Pass. On

that same date, Petitioners filed a Motion to Consolidate this

case with DOAH Case No. 19 - 3356. On July 8, 2019, the Motion

for Leave to Intervene was gran ted, and the Motion to

Consolidate was de n ied. For purposes of this Recommended Order,

the term “Petitioners” shall include Intervenor, unless the

context requires a separate identification.

On Ju ne 18, 2019 , the parties filed their Amended Joint

Pre - hearing Stipulation (“JPS”) . The J PS contained nine

stipulations of fact , each of which is adopted and incorporated

herein . The JPS also identified disputed issues of fact and law

remaining for disposition as follows:

I ssues of fact which remain to be litigated

a. Whether Petitioners and Intervenor have standing to

challenge the [NTP];

b. Whether Petitioners timely challenged the [NTP];

c. Whether the NTP authorizing the placement of all fill

from the Dredge event is “supported by the latest

phy sical monitoring data over a minimum of five years in

accordance with the adopted East Pass Inlet Management

Implementation Plan (July 24, 2013) ;

d. Whether all the physical monitoring relied upon to

issue the NTP was conducted in accordance with the

underlying permit and approved physical monitoring plan

dated August, 2014 ;

e. Whether the physical monitoring data provides

reasonable assurances for the Department to issue the

[NTP] ; and

f. Whether the [NTP] , which authorizes the City to deposit

material dredged from East Pass within the swash zone on

beaches solely to the east of East Pass, constitutes

final agency action.

Issues of law which remain for determination

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 NTP

can be issued ;

c. Whether the City has demonstrated entitlement to the

NTP through competent substantial evidence ;

d . Whether the Petitioners and Intervenor have sufficient

standing to participate in this proceeding ; and

e. Whether the Petitioners’ administrative challenge is

timely.

T he final hearing was convened on Ju ly 29, 2019 , as

scheduled.

The Permit under review 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), Florida Statu tes , is not applicable,

and the burden is with the City, as the applicant, t o

demonstrate that it met the criteria for issuance of the NTP .

At the final hearing, Joint Exhibits 3 through 12 and

16 through 18 w ere received in evidence .

The City c alled the following witnesses: Matthew Tra m m ell ,

P.E., who was accepted as an expert in the field of coastal

engineering ; and Michael Trudnak, P.E., who was also accepted as

an expert in the field of coastal engineering. City E xhibit s

10 through 12, 1 4, 15, 17 through 19, and 27 were received in

evidence.

D EP called the following witnesses: Ralph Clark , P.E., who

was accepted as an expert in the field s of coastal engineering ,

beach and inlet management, hydrographic surveying, photo -

interpretation, hurricane impacts, and coastal construction

regulation ; and Greg Garis, it’s Program Administrator for the

Beaches, Inlets, and Ports Program. DEP Exhibits 1 and 20 were

received in evidence.

Petitioners called the following witnesses: Dr. Todd

Walton , who was accepted as an expert in the field of coastal

engineering ; Dr. Lainie Edwards, Deputy Director of DEP’s

Division of Water Resource Management; David Sherry; Rebecca

Sherry; and John Donovan . Petitioner s ’ Exhibits 3, 5, 8, 12,

and 26 (photographs on pages 8 through 10 only) were received in

evidence.

A five - volume Transcript of the final hearing was filed on

August 19, 2019 . An extension to file proposed recommended

orders was filed by Petitioners on August 22, 2019, and granted

over Respondents’ objection on August 23, 2019. Since the

extension was not by consent, the undersigned express ed that the

extension would not be considered to be a waiver of applicable

timeframes. All par ties filed a p roposed r ecommended o rder

(“PRO”) on September 5, 2019 , each of which has been considered

in the preparation of this Recommended Order .

On September 5, 2019, the City filed a Motion for

Attorney’s Fees, Expenses and Costs, by which it seeks an award

pursuant to sections 120.569 (2)(e) and 120.595(1). Pet itioners

filed their r esponse on September 12, 2019. The 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).

FINDINGS OF FACT

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 . Petitioners , David H. Sherry and Rebecca R. Sherry , own

Unit 511 at the S urf Dweller Condominium, 554 Coral Court, Fort

Walton Beach, Florida. The Surf Dweller Condominium , which is

on Santa Rosa Island in the unincorporated community of Okaloosa

Island , 1/ fronts the Gulf of Mexico, and straddles DEP Reference

Monument 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.

2. Petitioner , John S. Donovan , owns Units 131 and 132 at

the El Matador Condominium, 909 Santa Rosa Boulevard , Fort

Walton Beach, Florida. The El Matador Condominium is o n

Okaloosa Island, fronts the Gulf of Mexico, and 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 wal k

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.

3. Intervenor, 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 , in the vicinity of Monument R - 14 . Mr. Wilson uses and

enjoys the gulf - front beaches between his property on Okaloosa

Island and East Pass.

4 . Petitioners’ stated injuries are related to the

allegation that the lateral movement of sand from the East Pass

areas of influence is from east to west . P lacing dredged

material in the eastern disposal site would allegedly deprive

the beaches in front of their property -- beaches that are miles

from the nearest area of influence 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 NTP .

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 . The City is the applicant for the Permit and the NTP ,

and abuts the east side of East Pass.

6 . DEP is an agency of the State of Florida pursuant to

s ection 20.255, Florida Statutes. DEP is the permitting

authority in this proceeding and issued the NTP at issue in this

proceeding to the City .

7 . The NTP was issued on February 2, 2018 , without notice

of rights language regarding the right to request a hearing or

time limits for doing so. Petitioners received a copy of the

NTP on October 1, 2018, and filed a challenge more than 14 days

later, on November 30, 2018.

East Pass

8 . Prior to 1928 , the connection from Choctawhatchee Bay

to the Gulf of Mexico flowed through what is now Old Pass

Lagoon. After a storm 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

Pensac ola, Florida.

9 . East Pass separates the gulf - fronting beaches of the

City 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.

10 . East Pass is an ebb tide dominated inlet, with a

sizable amount of sediment moving in and out. When outgoing

tidal flow moves though t he constriction formed by the jetties,

flow velocities are accelerated . When the water, and an y

entrained sediment, passes the jetties , flow tends to spread out

to 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 drop s out of

suspension, whic h 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.

11 . East Pass is a h ighly 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 Physical Monitoring Plan (“PMP”), which is part of the

Permit , and thus , not subject to challenge in this case,

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].”

12. The PMP further established that a “drift nodal point”

existed at East Pass . Longshore transport at uniform coastal

locat ions is generally in one direction . H owever, 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 refer r ed 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 ha s

exhibited “quite a few” nodal points over the past decad e,

resulting in frequent drift reversals and sand transport to the

east and the west.

13. The evidence as to the exist e nce and effect of the

East Pass drift nodal point , and its affect 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 co nsistent direction of lateral sand transport

in the vicinity of East Pass , and no predominant lateral current

transporting sa nd in a westerly direction , is accepted.

Evidence to the contrary was not persuasive.

14 . East Pass includes a federal navigation channel. The

federal navigation channel requires routine maintenance to

prevent it from shoaling. On an average, East Pass is dredged

in two - year intervals. The last time that East Pass was dredged

was in December of 2013. It has now shoaled with sand and

become very hazardous for marine traffic. In December of 2018,

the City declared a state of eme rgency relating to the

navigational hazards caused by the accumulation of sand in the

navigation channel.

The Permit

15 . On February 26, 2015, DEP issued the Permit , which

authorized the City to perform “periodic maintenance dredging of

the federally au thorized East Pass and Destin Harbor and

navigation channels.” The Permit will expire on February 26,

2030. Notice of the issuance of this Permit was published in

the Destin Log, a newspaper of general circulation, on December

24, 2014. No challenge to the issuance of th e Permit was filed.

16 . As it pertains to the issues in this proceeding, the

Permit provides that “Dredged material from . . . maintenance

dredging activities will be placed in the swash zones of the

beaches east and west of East Pass, as specified in the East

Pass Inlet Management Plan. ”

17 . The specific beach spoil placement sites are , as

relevant to this proceeding, l ocated “ west of East Pass . . .

between [DEP] reference monuments V - 611 and V - 622; and on

2 beach sites situa ted east of East Pass . . . from R - 17 to

R - 20.5 and from R - 23.5 to R - 25.5. ” Those areas correspond to

what have been identified as the “areas of influence , ” which are

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

tidal forces generated by the inlet. Th e specified beach spoil

placement sites , being conditions of the unchallenged Permit,

are not subject to challenge in this case.

18 . The Permit establishes the criteria by which specific

work is to be authorized. Specific Condition 5 provides, in

pertinent part, that:

5. No work shall be conducted under this

permit until the Permittee has received a

written notice to proceed from the

Department for each event. At least 30 days

prior to the r equested date of issuance of

the notice to proceed, the Permittee shall

submit a written request for a Notice to

Proceed along with the following items for

review and approval by the Department:

* * *

f. Prior to the second dredging event

authorized u nder this permit, and each

subsequent event, the Physical Monitoring

Data, as specified in Specific Condition 9,

shall be submitted to select the appropriate

placement locations.

19 . Specific Condition 9 provides that:

Following the initial placement of material

on Norriego Point, fill site selection shall

be supported by the latest physical

monitoring data over a minimum of five years

in accordance with the adopted East Pass

Inlet Manag ement Implementation Plan

(July 24, 2013). All physical monitoring

shall be conducted in accordance to the

Approved physical monitoring plan dated

August, 2014. A notice to proceed for

specific projects shall be withheld pending

concurrence by the Department that the data

support the proposed placement location.

20 . T he purpose of Specific Condition 9 is to identify ,

using supporting monitoring data from the eastern and western

areas of influence , the “adjacent eroding beach” most in need of

sand from the inlet.

21 . The requirement that physical monitoring data be used

to determine which of the beach spoil placement sites identified

in the Permit’s Project Description will receive the spoil from

any particular periodic dredging event was to implement section

161.142, Florida Statutes . That section mandates that

“maintenance dredgings of beach - quality sand are placed on the

adjacent eroding beaches , ” and establishes the overriding policy

of the state regarding disposition of sand from navigational

channel maintenance dredging.

East Pa ss Inlet Management Implementation Plan

22 . The East Pass Inlet Management Implementation Plan

( “ East Pass IMP ” ) was adopted by Final Order of DEP on July 30 ,

2013. 2 / The East Pass IMP was not adopted through the rulemaking

procedures proscribed by chapter 120, Florida Statutes , or DEP

rules. Despite a comprehensive Notice of Rights advising

persons whose substantial interests could be affected of the

means by which the East Pass IMP could be challenged, it was

not.

23 . There are 44 maintained inl ets in Florida. About half

have individual inlet management plans. The East Pass IMP is

not applicable to any inlet other than East Pass.

24 . 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 the Permit.

Rather, the disposal site is to be determined on a case - by - case

basis based on the best monitoring data available for the

beaches in the area of influence of East Pass .

25. The critical element of the 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

East Pass IMP, being applicable only to East Pass, is not of

“general applicability.” Furthermore, the East Pass IMP does

not implement, interpret, or prescribe law or policy .

The Notice to Proceed

26 . On January 30, 2018, the City filed its Request for

Notice to Proceed (“Request”) . The R equest addressed the

criteria in Specific Conditions 5 and 9 of the Permit.

27 . Upon review , DEP determined the conditions of the

Permit were satisfied and issued the NTP on February 2, 2018.

28 . The analysis of data submitted as part of the R equest

was designed to show areas of erosion and accretion wit h in the

eastern and western areas of influence in order to identify

“criti cally eroded beaches.”

29 . 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 t he 2004 - 2005 hurricane

seasons, which prompted Okaloosa County to commission a study to

monitor the h ealth of the Monument s 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 recover ed naturally and gain ed sand

following the post - storm recovery. In addition, Santa Rosa

Islan d is known for “ beach cusps, ” which are crenulate 3 / 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 s easonal. They do not

negate what the evidence shows to be the overall stable to

accretional conditions of the beaches west of East Pass from

Monument V - 622 to Petitioners’ residences .

30 . Mram m ell offered testimony, including a discussion

of photographic evidence, demonstrating the beaches west of East

Pass have large dunes; multiple dune lines; tall, and thick

vegetated dunes indicating established dune growth; pioneering

vegetation indicating active, healthy dune growth and accretion;

partia lly buried signs indicating dune advance; and broad and

expansive beaches. Those features are indicative of a stable

and a ccretional shoreline. Mra m m el l ’s testimony as to the

western spoil disposal site was convincing and is accepted. At

present, the Santa Rosa Island shorelin e is not deemed by DEP to

be “ critically eroded . ”

31 . The photographic evidence supports the data collected

over time for the beaches west of East Pass , and the testimony

offered at the final hearing, which collectively establishes, 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 beaches” as

that term is used in section 161.142.

32 . The shore line 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 and R - 23.5 to R - 25 , except for

the area immediately abutting the eastern jetty, is highly

erosional . Mram m ell 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; exposed sea oat roots;

reduced beach elevation; reduced beach width; crenulate 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 the walkover; and

beach scarpi ng at the shoreline indicating active erosion.

Mr. Tra m m el l ’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 .

33 . The photographic evidence supports the data collected

over time for the beaches east of East Pass, and the testimony

offered at the final hearing, which collectively establishes, by

a preponderance of the evidence , that the beaches to the east of

East Pass are critically eroded, a condition that is influenced

by East Pass and or its navigational channel , and are “adjacent

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

Data in Support of the NTP

34 . The data submitted by the City to DEP in support of

the Request included monitoring data for the eastern beach

placement areas from the West Destin Four - Year P ost - construction

Monitoring Report and earlier annual post - construction reports

covering the peri od from October 2012 to July 2017, and

additional data from the Holiday Isle Emergency Beach Fill

T wo - Y ear P ost - construction R eport . DEP was also provided with

historical monitoring data for the area west of East Pass ,

including the Western Beach Monitoring Report , which covered

2006 to 2017 , and the Potential Borrow Area Impact Report , which

included data from 1996 through 2012. DEP has also received

recent profile data from April 2019. These reports, and the

data contained within them, cu mulatively provide more than

20 years of survey date, 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.

35 . The data submitted in support of the Request was

suffi cient to meet Specific Condition 9 that fill site selection

be supported by the latest physical monitoring data over a

minimum of five years in accordance with the East Pass IMP.

36 . Petitioners argue that the City failed to comply with

the PMP, which r equires, among other things, that the analysis

of the dredged mater ia l disposal area include “preconstruction

survey data and the most recent survey conducted at least five

years prior.” The PMP establishes that “[p]reconstruction

surveys shall be conduct ed no more than 90 days before

construction commences. A prior beach monitoring survey of the

beach and offshore may be submitted for the pre - construction

survey if consistent with the other requirements” of the PMP.

The City submitted a prior beach moni toring survey of the beach

and offshore that is consistent with the PMP.

37 . Petitioner s argue that the City violated a temporal

limitation which provides that the City “ may submit a prior

beach restoration monitoring report for the west or east beach

areas (Walton - Destin or Western Destin Beach Restoration

Project) if the monitoring data is collected within 1 year of

the proposed maintenance dredging event and if consistent w ith

the other requirements of this condition.” Petitioners

acknowledge in their PRO that the beach restoration monitoring

report was timely when the Request for NTP was submitted. The

information contained therein was sufficient to support the

notice of proposed action on the NTP.

38 . The o therwise compliant data is no longer within one

year of the proposed dredge . In that regard, the litigation in

this case, initiated by Petitioners , has been ongoing for almost

one year. Work authorized by the NTP cannot go forward when

subject to challenge. If the PMP, which is not a rule, is

unreasonably read so as not to account for delay caused by

litigation, such delay becomes a tool for use by, and a reward

for, a person dissatisfied with DEP’s outcome. In t his case,

the NTP was lawfully issued pursuant to compliant data , surveys,

and analysis. As with any permit or license subject to a third -

party challenge, the terms of the NTP are tolled pending

Petitioners’ litigation, and do not become a ground for denial

of the otherwise compliant Request. See § 120.60(1), Fla. Stat.

(“An application for a license must be approved or denied within 90 days after receipt of a completed application unless a

shorter period of time for agency action is provided by law.

The 90 - day time period is tolled by the initiation of a

proceeding under ss. 120.569 and 120.57. Any application for a

license which is not approved or denied . . . within 45 days

after a recommended order is submitted to the agency a nd the

parties, . . . is considered approved unless the recommended

order recommends that the agency deny the license. ”).

4 /

39 . F urthermore , DEP has now received recent profile data

from April 2019. The evidence establishes that the data

provided to DEP as part of the Request includes the latest

physical monitoring data over a period of greater than five

years, and that the data collection met the standards for

cond ucting physical monitoring.

Fill Site Selection

40 . The NTP authorized “placement of dredged material in

the swash zone east of East Pass.” In accordance with the

Permit, that authorized area extends eastward from R - 17 to

R - 20.5 and from R - 23.5 to R - 25.5 , in Holiday Isle.

41 . The evidence is persuasive that placing dredged

material on the eastern side of East Pass would not result in

erosion on the western side of East Pass.

42 . 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,

dredged material placed to the east of East Pass would, if the

lateral shoreline drift is east to west as asserted by

Petitioners (though not supported by a preponderance of the

evidence as set forth in paragraph s 11 through 13 ) , be

introd u ced into the ebb shoal and likely move faster to the west

as opposed to it being placed directly at the base of the west

jetty. As such, placement of the dredged material on the

eastern beach placement areas would, more likely than not,

accomplish the beach effect objectives set forth in the

Petition.

The Eglin AFB Beach Restoration Project

43 . Petitioners relied heavily on photographs taken in

2010 and 2019 from roughly the same location in the vicinity of

Monuments V - 607 to V - 608 to demonstrate that the be a ches of

Santa Rosa Island are eroding. The area depicted is outside of

the area of in fluence of East Pass, and outside of the west ern

beach placement area under the Permit. Those photographs depict

a wide expanse of beach in 2010, with a seawall well upland from

the shore in 2010. Then, in 2019, a photograph depicting the

same stretch wa s offered that showed the same seawall, now at or

below the water line. The photographs were , ostensibly,

designed to depict naturally occurring erosion in the area .

44 . Mr. Clark testified that the seawa ll and boulder mound

structure depicted in both photographs protect an Air Force

mission - critical tracking facility . The seawall was originally

constructed in 1 979 after Hurricane Frederick, was constructed

at that time to extend into the water , and was maintained in

that configuration through the 1990s. O ne could not walk around

the original seawall . Rather, for most of its history, passage

around the seaward side of the seawall could only be

a c complished by swimming o r wading .

45 . T he original sea wall was damaged by Hurricane Opal,

and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005.

The Air Force, needing to reconstruct the wall, applied for and

received a joint coastal construction permit , allowing the

structure to be constructed on sov ereign subme r ged land below

the line of mean high water. The seawall was rebuilt and, a s

stated by Mr. Clark, “it was in the water.”

46 . In 2010, the Air Force performed the small Eglin Air

Force Base Beach Restoration Project, which placed artificial

fill in front of the seawall, thereby creating a temporary

beach. That beach fill project was “a one - shot deal,” did not

involve any subsequent maintenance , and is now essentially gon e ,

as was expected. Mr. Clark was neither surprised nor concerned

with the fact that the area returned to what he described as its

natural state , with the seawall below mean high water.

47 . T he 2019 photograph was presented as evidence of

erosion caused by East Pass. That was not the case. Rather,

the 2010 photograph was evidence of an artificial and singular

event, and the 2019 photograph depict s the natural state of the

shoreline . Rather than depicting erosion, the 2019 photograph

depi cts a return to the stable shoreline that exists all along

Santa Rosa Island to the west of East Pass.

48 . The photographs of the site of the 2010 Eglin Air

Force Base Beach Restoration Project do not support a finding

that the beaches of Santa Rosa Island are anything but stable,

if not accretional, nor do they support a finding that the

beaches of Santa Rosa Island are eroding .

Ultimate Factual Conclusion

49 . Specific Condition 9 of the Permit requires the

location of the spoil disposal be supported by the latest

physical monitoring data over a minimum of five years in

accordance with the East Pass IMP and the PMP.

50 . The greater weight of the competent substantial

evidence establishes that the City submitted physical monitoring

data c onsistent with the requirements of Specific Condition 9.

51 . 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 and

R - 23.5 to R - 25.5, are critically eroded, a condition influenced

if not caused by the East Pass, and constitute East Pass’s

“adjacent eroding beaches . ” Evidence to the contrary was not

persuasive.

52 . 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.

53 . The greater weight of the competent substantial

evidence establishes that the City met the standards for the NTP

as proposed for issuance by DEP on February 2, 2018. Evidence

to the contrary was not persuasive. Thus, the N TP should be

issued.

CONC LUSIONS OF LAW

Jurisdiction

54 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

Standing

55 . 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 proceedi ngs in

which the substantial interests of a party are determined by an

agency.”

56 . 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 sufficient i mmediacy 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. (emphasis

added).

Id. at 482.

57 . 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 Ag rico 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 Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

58 . The standing requirement established by Agrico has

been refined, and now stands for the proposition that standing

t o initiate an administrative 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 reasonably could be

aff ected by the proposed 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

st anding 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 . . . [th e] proposed activities.”

Palm Beach Cnty. 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 nty . Bd.

of Cnty. 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.”).

59 . “Under the first prong of Agrico, the 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]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 Admi n. , 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 )) .

60 . 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 tha t 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

th at [the landscaping activities] will

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 standing.

Id. at 13 1 ( citing Town of Palm Beach v. State Department of

Natural Resources , 577 So. 2d 1383 , 1388 (Fla. 4th DCA 1991) ) .

61 . 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.

62 . The allegations 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 ado pted thereunder.

63 . 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 NTP to entitle them to a section 120.57 hearing. “[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]he injury or threat of injury must be both

real and immediate, not conjectural or hypothetica l.’”

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 ) .

64 . 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.”

65 . Despite their allegations, Petitioners , who reside

miles away from the area of influence of Ea st 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. There was little or no

competent, substantial, and persuasive evidence to support a

finding that even a grain of sand deposited on the western

disposal site would ever make its way to their property and, if

it managed to do so, the journey would take years. Thus,

despite the ir allegations, Petitioners wholly failed to prove at

the hearing that the NTP as issued would -- or could -- result

in actual or immediate threatened injury to their property or

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

6 6 . 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 in this case.

6 7 . The City has standing as the applicant for the NTP .

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) .

Timeliness of Petition

6 8. Petitioners filed their Petition for Formal

Administrative Hearing more than 14 days from their receipt of

the NTP. The NTP was issued without a notice of rights to

advise substantially affected persons of their right to a

hearing. The notice was insufficient to inform Petitioners of

their right to request a hearing, and the time limits for d oing

so, and is , therefore , inadequate to “trigger” the commencement

of the administrative process. See Gardner v. Sch. Bd. , 73 So.

3d 314, 315 (Fla. 2d DCA 2011); Henry v. State, Dep't of Admin.,

Div. of Ret. , 431 So. 2d 677, 680 (Fla. 1st DCA 1983).

Furthermore, section 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 admi nistrative 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 obtain the hearing or judicial

review; and shall state the time limits

which apply.

Based on the la ck of notice in the NTP, the Petition for Formal

Administrative Hearing was timely.

Nature of the Proceeding

6 9 . This is a de novo proceeding, intended to formulate

final agency action and not to review action taken earlier and

preliminarily. Young v. Dep’t of Cmty. Aff. , 625 So. 2d 831,

833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of

Envtl. Reg. , 587 So. 2d at 1387; McDonald v. Dep’t of Banking &

Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

B urden and Standard of Proof

70 . The City bears the burden of demonstrating, by a

preponderance of the evidence, entitlement to the NTP .

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).

71 . The standard of proof is preponderance of the

evidence. § 120.57(1) (j) , Fla. Stat.

Reasonable Assurance Standard

72 . I ssuance of the NTP i s dependent upon there being

reasonable assurance that the activities authorized will meet

applicable standards.

7 3 . Reasonable assurance means “a substantial likelihood

that the project will be successfully implemented.” Metro. Dade

Cnty . v. Coscan F la., Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

1992). Reasonable assurance does not require absolute

guarantees that the applicable 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).

The East Pass Inlet Management Implementation Plan as an

Unadopted Rule

7 4 . Section 120.52(16) defines a rule as:

each agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes

the procedure or pract ice requirements of

any agency and includes any form which

imposes any requirement or solicits any

information not specifically required by

statute or by an existing rule.

7 5 . An "unadopted rule" is defined as an agency statement

that meets the definiti on of the term rule, but that has not

been adopted pursuant to the requirements of section 120.54.

§ 120.52(20), Fla. Stat.

7 6 . Agencies must adopt, as rules, those statements

meeting the definition of a rule. As set forth in section

120.54(1):

(1)(a ) Rulemaking is not a matter of

agency discretion. Each agency statement

defined as a rule by s. 120.52 shall be

adopted by the rulemaking procedure

provided by this section as soon as

feasible and practicable.

7 7 . When a person is substantially affec ted by agency

action, section 120.57(1)(e) provides , in pertinent part, that:

1. An agency or an administrative law

judge may not base agency action that

determines the substantial interests of a

party on an unadopted rule . . . .

2. In a matter initiat ed as a result of

agency action proposing to determine the

substantial interests of a party, the

party’s timely petition for hearing may

challenge the proposed agency action based

7 8 . Petitioner has the burden of demonstrating that the on . . . an alleged unadopted rule.

East Pass IMP meets the definition of a rule, and that the

agency has not adopted the statement by rulemaking procedures.

Sw . Fla. Water Mgmt. Dist. v. Charlotte Cnty. , 774 So. 2d 903,

908 (Fla. 2d DC A 2001); see also Ag. for Pers. with Disab. v.

C.B. , 130 So. 3d 713, 717 (Fla. 1st DCA 2013).

7 9 . The standard of proof is by a preponderance of the

evidence. § 120.56(1)(e), Fla. Stat.

80 . An agency statement is “generally applicable” if it is

in tended by its own effect “to create rights, or to require

compliance, or otherwise have the direct and consistent effect

of law.” Coventry First, LLC v. Off. of Ins. Reg. , 38 So.

3d 200 (Fla. 1st DCA 2010) (quoting McDonald v. Dep’t of Banking

& Fin. , 346 So. 2d 569, 581 (Fla. 1st DCA 1977)). Furthermore:

“[a]n agency statement that either requires

compliance, creates certain rights while

adversely affecting others, or otherwise

has the direct and consistent effect of

law, is a rule.” When deciding whether a

challenged action constitutes a rule, a

court analyzes the action's general

applicability, requirement of compliance,

or direct and consistent effect of law.

Fla. Dep't of Fin. Servs. v. Cap. Collateral Reg'l Counsel -

Middle Region , 969 So. 2d 527, 530 (Fla. 1st DCA 2007)

(citations omitted); see also State Bd. of Admin. v. Huberty ,

46 So. 3d 1144, 1147 (Fla. 1st DCA 2010).

81 . The East Pass IMP is limited to its use in but one of

the 44 improved inlets in the state of Florida. There was no

evidence that DEP requires that an i nlet m anagement p lan be

developed for each of those 44 inlets, or whether comparable

management standards and criteria are replicated in any other

inlet management plan .

82 . The East Pass IMP does not establish specific

standards of general applicability with regard to target

quantities for placement either to the east or west of East

Pass. Rather, the East Pass IMP establishes that the placement

sites and quantities for dredged fill be determined on a case -

by - case basis , based on a case specific analysis of data for

beaches east and west of East Pass . Thus, there is no evidence

that the East Pass IMP has the direct and consiste nt effect

of law.

8 3 . The “statement of general applicability” in this case

is that dredged material be placed on “adjacent eroding

beaches.” That standard is statutory. There was no proof

sufficient to establish that the IMP was intended to, or did,

set enforceable standards for the implementation of section

161.142. T herefore, Petitioner s failed to demonstrate th at the

East Pass IMP is an agency statement of “general

applicability . ” 5 /

Sta ndards

8 4 . Section 161.142 provides, in pertinent part, that DEP

shall ensure that:

[T]he 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 maximiz e inlet sand bypassing to

ensure that beach - quality sand is placed on

adjacent eroding beaches . . . . Therefore,

in furtherance of this declaration of public

policy and the Legislature’s intent to

redirect and recommit the state’s

comprehensive beach man agement efforts 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 qu ality 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

transport. 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 permittin g.

85 . What is evident from section 161.142 is that the

overriding -- i f not exclusive -- interest of the state is that

sand from maintenance dredging of navigation inlets is to be

placed on adjacent eroding beaches.

Entitlement to the Notice to Proceed

8 6 . A “Notice to Proceed” is the notification from DEP

authorizing a permitted activity to commence. Fla. Admin. Code

Rule s 62B - 49.002(10) and 62B - 41.002(32) .

8 7 . T his proceeding is limited to determining whether, as

established in the Permit, the “physical monitoring data over a

minimum of five years in accordance with the adopted East Pass

Inlet Management Implementation Plan (July 24, 2013)” was

sufficient to supp ort the fill site selection for the issuance

of the N TP .

8 8 . The evidence in this case established conclusively

that the beaches east of East Pass are adjacent eroding beaches.

8 9 . The evidence in this case is equally conclusive that

the beaches west o f East Pass are not adjacent eroding beaches.

90 . 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.

91 . As established in the F indings of F act, the City

pr ovided reasonable assurances that the fill site selection

complied with the applicable standards applied by D EP , in

particular, Specific Conditions 5 and 9. Further, the City has

provided reasonable assurances that it is entitled to the N TP .

ATTORNEYS’ FEES

92 . T he City has moved for an award of a ttorneys ’ f ees,

e xpenses and c osts pursuant to sections 120.569(2)(e) and

120.595(1).

93 . A n objective standard is used to determine improper

purpose for the purpose of imposing sanctions on a party or

attorney under s ection 120.569(2), and its predecessor statutes.

See , e.g. , Friends of Nassau C nty . , Inc. v. Nassau C nty . ,

752 So. 2d 42, 50 - 51 (Fla. 1st DCA 2000). While no appellate decision has explicitly extended the objective standard to

s ection 120.595(1), a number of DOAH cases have applied the

standard to cases arising from 120.595(1) . See , e.g. , G.E.L.

Corp. v. Orange City and Dep’t of Envtl Prot. , DOAH Case

No. 01 - 4132 (DOAH July 24, 2006); Palm Beach Polo Holdings, Inc.

v. Acme Imp . Dist. , DOAH Case No. 03 - 2469 (DOAH Mar. 25, 2004 ;

SFWMD May 14, 2004)(holding that the objective standard should

be applied to claims arising under s ection 120.595(1)).

Section 120.569(2)(e)

94 . 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 signat ure constitutes a certificate

that the person has read the pleading,

motion, or other paper 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 o r needless increase

in the cost of litigation. If a pleading,

motion, or other paper is signed in

violation of these requirements, the

presiding officer shall impose upon the

person who signed it, the represented

party, or both, an appropriate sanction,

w hich may include an order to pay the other

party or parties the amount of reasonable

expenses incurred because of the filing of

the pleading, motion, or other paper,

including a reasonable attorney’s fee.

95 . Section 120.569(2)(e) authorizes the imposit ion of a

sanction, which may include reasonable attorney's fees and

expenses, if a determination is made that a party filed a paper

in a proceeding for an improper purpose, such as to harass or to

cause unnecessary delay, or for frivolous purpose or needle ss

increase in the cost of litigation. DOAH has jurisdiction to

resolve that issue by separate final order. See , e.g. , Procacci

Comm . Realty, Inc. v. Dep't of HRS , 690 So. 2d 603, 606

(Fla. 1st DCA 1997). Therefore, jurisdiction is reserved to

consider that request through a separate final order , provided

the City renews its Motion within 30 days of DEP’s entry of the

final order in this case .

Section 120.595

9 6 . Section 120.595 provides, in pertinent part, that:

(1) CHALLENGES TO AGENCY ACTION PURSUANT TO

SECTION 120.57(1). —

* * *

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney’s

fee to the prevailing party only where the

nonprev ailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

(c) In proceedings pursuant to

s. 120.57(1), and upon motion, the

administrative law judge shall determine

whether an y party participated in the

proceeding for an improper purpose as

defined by this subsection. In making such

determination, the administrative law judge

shall consider whether the nonprevailing

adverse party has participated in two or

more other such proc eedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proceedings the nonprevailing adverse

party did not establish either the factual

or legal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the nonprevailing

adverse party participated in the pending

proceeding for an impr oper purpose.

(d) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorney’s fees.

(e) For the purpose of this subsection:

1. “Improper purpose” means participation

in a proceeding pursuant to s. 120.57(1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of litigation,

licensing, or securing the approval of an

activity .

9 7 . 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 67 1, 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 Commer. Realty v. Dep’t of

HRS , 690 So. 2d 603, 608 , n.4 (Fla. 1st DCA 1997) (quoting

Mercedes Lighting & Ele ctrical Supply v. State, Dep’t of Gen.

Servs. , 560 So. 2d 272, 277 (Fla. 1st DCA 1990) ) .

9 8 . Although Petitioners did not prevail, they presented

testimony and evidence in support of the issues raised in their

Amended Petition and Motion for Leave to Int ervene , including

expert testimony .

99 . Ba sed upon a full review and consideration of the

record in this proceeding, the undersigned finds that the facts

of this case, and the application of the law as asserted by

Petitioners , were not made for an improper purpose , i.e.,

primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

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

under section 120.595(1). Furthe rmore, there was no evidence to

suggest that Petitioners participated in two or more proceedings

involving the City or DEP and the same project as an adverse

party .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that the Department of Environmental

Protection enter a final order :

1. A pproving the February 2, 2018 , Notice to Proceed for

the maintenance dredging of East Pass as authorized pursuant to

Consolidated Environmental Resource Permit and Sover eign

Submerged Lands Authorization No . 50 - 0126380 - 005 - EI and State -

owned Lease No. 0288799 - 003 - JC , subject to the general and

specific conditions set forth therein ; and

2. Denying the City of Destin’s Motion for Attorney’s

Fees, Expenses and Costs pursuant to section 120.595(1) .

DONE AND ENTERED this 14th day of October , 201 9 , in

Tallahassee, Leon County, Florida.

E. GARY EARLY

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 14th day of October , 2019 .

ENDNOTE S

1/ Okaloosa Island is the name of the unincorporated community ,

while Santa Rosa Island is the name of the island .

2 / Although the Final Order was signed on July 24, 201 3 , it was

not filed with and acknowledged by the agency clerk until

July 30, 201 3 . See § 120.52(7), Fla. Stat.

3 / “H aving an irregularly wavy or serrate outline .” Merriam -

Webster Dictionary , https://www.merriam - webster.com/

dictionary/crenulate.

4 / The obvious source of unnecessary confusion arising from the

PMP is its failure to specifically account for litigation

delays, likely due to DEP’s belief that an NTP is not “agency

action” entitling one to a hearing. The confusion could be

avoided by specifically incorporating terms consistent with

section 120.60 into the PM P’s time frames.

5 / Petitioners’ reliance on Town of Hillsboro Beach v. City of

Boca Raton , DOAH Case No. 17 - 220 1 (Fla. DOAH Dec. 11, 2017;

DEP Jan. 30, 2018) as establishing that an IMP is an unadopted rule is rejected since, as noted in the DEP Final Order at page

16, “the legal issues raised in paragraphs 64 - 70 (relating to

the IMP as an unadopted rule) are not before the ALJ for

consideration, because no party filed an unadopted rule

challenge in the case, nor was the issue raised by the Petition

or the Joint Prehearing Stipulation.”

COPIES FURNISHED :

Joseph Alexander Brown, Esquire

Hopping Green & Sams , P.A.

Suite 300

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

D. Kent Safriet, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Kenneth G. Oertel, Esquire

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

Post Office Box 1110

Tallaha ssee, Florida 32302

(eServed)

Timothy Joseph Perry, Esquire

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

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Marianna Sarkisyan, Esquire

Department of Environmental Protection

Mail St op 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Paul Joseph Polito, Esquire

Department of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Jay Patrick Reynolds, Esquire

Departm ent of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3 0 00

(eServed)

Lea Crandall, Agency Clerk Department of Environmental Protection Mail Stop 35

Douglas Building

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 Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.