Summary of the Reccomended Order Ruling

Here is a great layman's summary of the 277 page ruling:

1. Palm Beach has failed to undertake a monitoring program to assure that the project does not have an adverse impact on the Florida Reef Tract.
2. Palm Beach has failed to provide adequate engineering data concerning shoreline stability and performance, post-construction, and the potential impacts of the project upon the beach-dune system of Reach 8.
3. Palm Beach has failed to provide sufficient mitigation to assure the performance of the Permit with respect to the covering of hardbottom.
4. Palm Beach has failed to provide reasonable assurance that the direct and indirect coverage of hardbottom will be limited to 6.9 acres, so it has failed to provide adequate mitigation.
5. Palm Beach has failed to provide any mitigation whatsoever for the expected deaths of five juvenile green turtles from the loss of 6.9 acres of hardbottom and additional juvenile sea turtles from the loss of additional hardbottom.
6. Palm Beach has failed to provide any mitigation for the turbidity that would result from the project and deprive a wide range of species from the use of these beach and nearshore habitats, other than the mitigated hardbottom, for a period of about one year.
7. Palm Beach has failed to justify the scope of this project, given the large overfill factor that results from the relatively large discrepancy between the mean grain size of the sand source and the existing beach.
8. Palm Beach has failed to establish that Reach 8 is eroding, especially the majority of it that is not designated CEB.
   Palm Beach has failed to justify the use of a limited resource--offshore sand--to restore considerable lengths of nonCEB, especially where they may be other, dissipative beaches that are CEBs…
9. Palm Beach has failed to show that the proposed project would produce a net positive benefit to the coastal system. To the contrary, the project would produce a net negative impact to the coastal system, again due to the use of excessive fines in the fill.
10. The impacts from turbidity are unmitigated; the impacts from hardbottom coverage are only partly mitigated.
11. Palm Beach has failed to protect all of the environmental functions of Florida's beaches by proposing to fill Reach 8 with fill whose mean grain size is little more than half the mean grain size of the existing beach and will not maintain the general character and functionality of the beach, dune, and coastal system of Reach 8.
12. Palm Beach has failed to provide reasonable assurance that the project protects the water resources of the district from harm.
13. Palm Beach has failed to provide reasonable assurance that the project is not contrary to the public interest.
14. Palm Beach failed to show that the project would satisfy any one of the public-interest criteria except the criterion concerning archaeological and historical resources; even for the criterion of temporary versus permanent, the recurring nature of beach nourishments, on a cycle of probably two or three years, lends to the project a certain permanency.
15. The project would affect the property of others in essentially closing the Lake Worth Municipal Beach and Lake Worth Pier for about one year.
16. The project would interfere with public safety by elevating the turbidity of the local waters, so as to raise the risk of shark...

In less than 45 days Secretary Sole will come back with DEP's Final Order. Please feel free to contact DEP michael.sole@dep.fl.state.us or the Governor's office Charlie.Crist@myflorida.com to encourage them to adopt the Judge's ruling.

SURFRIDER WINS CHALLENGE- PERMIT DENIED

Judge Determines Harm Outweighs Need for Project

Palm Beach, FL –Administrative Law Judge Robert E. Meale ruled late yesterday that the Town of Palm Beach be denied a Joint Coastal Permit to nourish Reach 8. One year ago in March 2008, the Surfrider Foundation, Snook Foundation, and three individuals filed suit against the Florida Department of Environmental Protection for approving a Joint Coastal Permit for the Town of Palm Beach to dredge-and-fill Reach 8. The Town of Palm Beach intervened on behalf of the DEP, and the City of Lake Worth and Eastern Surfing Association intervened in opposition of the project. The trial lasted three weeks, ending in October of last year.

Reach 8 is one of eleven reaches of beach within the County of Palm Beach. The Town of Palm Beach nourished Reach 7 two years ago costing taxpayers tens of millions of dollars. Reach 7 caused substantial environmental harm to the local coastal resources and has already significantly eroded away.

The Town of Palm Beach was proposing more of the same in their attempt to dredge-and- fill Reach 8. Reach 8 extends 1.8 miles and includes beaches within the Town of Palm Beach and the City of Lake Worth. The Town of Palm Beach proposed dredging offshore and filling in 700,000 cubic yards of fill material on Reach 8 directly burying seven acres of nearshore hardbottom reef.

The City of Lake Worth maintains a public park within Reach 8 and opted out of the Joint Coastal Permit due to the projects’ potential to harm their environmental resources and local economy dependent on them.

“This is a tremendous win for Florida’s Beaches,” said Chapter Chair Greg Lyon. “To our knowledge, this is the first time that any court in the US has flatly rejected the permitting of an approved dredge-and-fill project due primarily to the potential negative environmental impacts.”

The five petitioners proved the dredge-and-fill project would destroy the beach and coastal environment by directly burying reefs, killing marine life, including endangered seaturtles, and overall destabilizing fishing, diving, surfing and other valuable recreational uses of the area.
“The Judge clearly grasped the significance of the geological and biological coastal systems in this area and their rarity. His ruling focused extensively on the overwhelming data from numerous experts that supported the denial of this permit,” said attorney Jane West, whose firm Collins & West, P.A. represented the five petitioners.

Rob Young, Director of the Program for the Study of Developed Shorelines at Western Carolina University and an expert witness in the case expressed admiration for the judge’s ruling. "Judge Meale took a very hard look at the numerical computer model used to predict where the nourishment sand would go, and he strongly criticized its use," Young said. "This same model, GENESIS, is used all over the country for the design of beach nourishment projects. The Judge’s ruling is a serious indictment of that practice."

“We look forward to working with our experts and the Florida Department of Environmental Protection to re-examine its policies on beach management and realize these dredge and fill projects can be detrimental to the coastal environment they are alleged to be protecting,” said Ericka Davanzo, Surfrider's Regional Manager in Florida.

Judge Meale’s ruling is an order of recommendation to Secretary of the Florida Department of Environmental Protection, Michael Sole, who will now have 45 days to issue the final order.

Judge still has not issued ruling on Reach 8 beach petition

By WILLIAM KELLY
Daily News Staff Writer
Thursday, January 29, 2009

Nearly four months after an environmental impact hearing on the proposed Reach 8 beach fill, there's still no word from an administrative law judge on whether the project should go forward. On Oct. 2, Judge R.E. Meale concluded a Florida Department of Environmental Protection hearing to consider a petition filed by environmentalists seeking to block reconstruction of the eroded South End beach.
Meale said at the time that he would recommend by Dec. 3 whether a DEP environmental permit should be awarded. But Meale's secretary said Thursday he is still working on his recommended order. Meale did not return a message seeking comment for this story.
"It's not uncommon for a judge to take longer than what he or she says," said Reginald Bouthillier, a lawyer with Greenberg Traurig, the firm representing the town against the petitioners. "We don't know what his docket is, we don't know all the other pressures and priorities he's faced with."

If the judge recommends the issuance of the permit, DEP Secretary Michael W. Sole would then have 45 days to issue a final order, DEP Press Secretary Doug Tobin said. If the judge recommends denial, the DEP has 90 days to issue a final order, he said.
Jane West, a lawyer representing the petitioners, declined to comment.

The Snook Foundation, Surfrider Foundation and three individuals filed their petition in March after the DEP sent out a notice of intent to award an environmental permit for the beach fill project. The town says the beach and dunes are vital to protection of oceanfront property from storm damage. The petitioners say the beach is stable, and that the dredge and fill will harm nearshore rock reef.

The town proposes to dredge 724,000 cubic yards of sand to restore dunes and reconstruct shoreline at Reach 8, which is between the Ambassador II condominium, 2780 S. Ocean Blvd., and the southern town limit, excluding the Lake Worth Municipal Beach.

The town is required to obtain environmental permits from the DEP and the U.S. Army Corps of Engineers before it can rebuild the beach, which it says has not recovered from erosion caused by the hurricanes of 2004 and '05. The Army Corps has notified the town that it will grant the town the federal permit for Reach 8 if the DEP does the same, Town Manager Peter Elwell said. Leah Oberlin, Reach 8 project administrator for the U.S. Army Corps, could not be reached to comment for this story.

But time is running out on any chance the town has to rebuild Reach 8 this season, Public Works Director Paul Brazil told the Shore Protection Board earlier this week. Beach reconstruction projects aren't permitted to take place during sea turtle nesting season, which is March 1 through Oct. 31.

To move forward in time to mobilize the dredge and other equipment, and complete the work before turtle nesting season begins, the town would need permit approval from the DEP within two weeks, Brazil told the shore board Tuesday. Even if that were to happen, any further legal challenge from the petitioners also would derail any hopes of the project getting done this season, he said. West told the town last year that the petitioners would exhaust every legal avenue to block the project on both the state and federal levels.

The town also faces the question of how to finance the estimated $18 million project, which includes $8 million for beach reconstruction and $8 million to build an artificial reef required by the DEP to compensate for marine habitat that would be covered by sand. Options include a bank loan and a bond issue, Brazil said.

HEARING FINISHED!!!

The Reach 8 Administrative Hearing finally came to a close on Thursday October 2 after a three week trial. The challengers of this case, Surfrider, Snook Foundation, 3 individuals, City of the Lake Worth and Eastern Surfing Association are extremely pleased with their case in chief. Collins & West (Surfrider's attorneys) were very successful in highlighting the sloppiness of the Town's consultant (CPE) and the number of inconsistencies in the DEP's Beach Management Program.

The process took about 1 year, from the start of the debate the close of the hearing. The case attorneys now have 30 days to submit their Recommended ORders to the Judge. Following their submittal the Judge will likely provide his decision no later than December 3. Latest Article.

The Palm Beach County Chapter Executive Committee would really like to thank all its experts for their time and dedication to our cause. In addition, they want to thank their donors and all the members who have dedicated their time and efforts to see this effort be elevated to this level.

Surfrider Members & Plantiffs Begin to Testify

A number of local members finally got to testify on behalf of the local Surfrider Palm Beach County Chapter.

On Monday afternoon former Chapter Chair Kerri Smith discussed impacts that would occur to members and what other members had voiced to her while she was Chair. She help explain to the Judge surfing terms and why this was important to the Chapter. In addition, Connie Gasque, an Executive Committee member, covered the diving and reefs impacts. Connie has been diligent at taking updated photos of the beaches in both Reach 7 and 8, which have been used throughout this case.

On Tuesday, Eastern Surfing Association (ESA), Snook Foundation, Captain Danny Barrow, and Terry Gibson took the stand, testifing to their concerns and issues with this project. Captain Barrow showed the economic debacle that would occur to him and other charter fishing guides if this habitat were to be impacted. Terry Gibson, as an individual plantiff who grew up at this beach, did not leave any item left toquestion as he discussed the fishing and surfing impacts to communities that recreate at this beach.

Tom Warnke called in from Texas to represent the historical importance of this area to ESA and the number of contests over the years that have occurred here, all of which provide valuable revenue to the City of Lake Worth.

Brett Fitgerald, the Southeast Coordinator of the Snook Foundation and former Surfrider Vice Chair, did a great job of highlighting the use of the pier and beaches for snook fishing and his role in voting for taking this litigative action. In addition he discussed personal loss to his family and others from the ability to snorkel the nearshore reefs and the ability to teach kids with hands on learning about the ocean habitat.