28-FDEP Permit Modification 0314535-005-JN 7 Nov 2023.pdf

FFLORIDAA DEPARTMENTT OF

EEnvironmentall Protection

Bob Martinez Center

2600 Blair Stone Road Tallahassee, FL 32399-2400

Ronn DeSantis Governor

Jeanette Nuñez

Lt. Governor

Shawnn Hamilton Secretary

November 7, 2023

Broward County Board of County Commissioners Natural Resources Administration 115 S. Andrews Ave. Suite 329H Fort Lauderdale, Florida 33301 resilience@broward.org and

Christopher G. Creed, P.E.

Olsen Associates, Inc.

2618 Herschel Street Jacksonville, FL 32204 ccreed@olsen-associates.com

Permit Modification No. 0314535-005-JN Permit No. 0314535-001-JC, Broward County Broward County Segment II Beach Nourishment and Restoration

The Florida Department of Environmental Protection (Department) is issuing an administrative modification to Permit No. 0314535-001-JC to authorize the use of limestone boulders for the construction of the artificial reef required as mitigation for the construction of the Segment II project.

Background

On January 31, 2014, the Department issued Permit No. 0314535-001-JC to Broward County to authorize the placement of beach-compatible sand along 4.9 miles of the Broward County coastline, between Hillsboro Inlet and Port Everglades. The permit authorized beach nourishment at Pompano Beach and Lauderdale-by-the-Sea, beach restoration at northern Fort Lauderdale, and dune construction within the Lauderdale-by-the-Sea and Fort Lauderdale segments and required construction of 6.8 acres of artificial reef as mitigation for direct impacts to 4.9 acres of nearshore hardbottom. The permit authorized truck-haul and railcar delivery of sand to the project area from the E.R. Jahana Ortona Mine, the Stewart Immokalee Mine, the Vulcan Witherspoon Mine, and the Cemex Davenport Mine.

Notice of Permit Modification Permit Modification No. 0314535-005-JN Broward County Segment II Beach Nourishment and Restoration www.floridadep.gov

For additional background, please see the CONSOLIDATED MAJOR MODIFICATION OF

JOINT COASTAL PERMIT AND AUTHORIZATION TO USE SOVEREIGN

SUBMERGED LANDS for Permit No. 0314535-001-JC at the following website:

https://depedms.dep.state.fl.us:443/Oculus/servlet/shell?command=getEntity&[guid=20.185924.

1]&[profile=Permitting_Authorization]

On February 7, 2020, the U.S. Army Corps of Engineers (Corps), on behalf of Broward County, submitted Application No. 0314535-002-JM for a major modification to Permit No. 0314535- 001-JC. The proposed modification was to expand the project area 2.1 miles northward from R- 36 to the Hillsboro Inlet jetty at R-25. The Corps withdrew the application on February 25, 2021.

On August 13, 2020, the Department issued Permit Modification No. 0314535-003-JN to authorize the use of the Garcia upland sand mine for beach nourishment.

On August 17, 2023, Broward County submitted Application No. 0314535-004-JN to revise the location of the authorized artificial reef placement site, to update the Biological Monitoring Plan (BMP) to reflect the revised reef location, and to merge the BMPs of Permit Nos. 0314535-001- JC and 0294925-001-JC into a single, unified plan. This application is still being processed by the Department.

Justification and Staff Assessment

Permit No. 0314535-001-JC requires Broward County to construct 6.8 net acres of artificial reef as mitigation for 4.9 acres of project-related impacts to nearshore hardbottom. As of August 2023, approximately 51% of the required mitigation reef has been completed, using a concrete module configuration required by the original permit. Following discussions between Department staff and the Permittee, plans were developed to complete the remaining mitigation reef using limestone boulders as a substrate material. The use of modules was causing project delays and the perceived benefits to the modules was not being realized. Limestone boulders provide a durable, stable, and cost-effective substrate that closely replicates the function of natural reef substrates and have been successfully deployed in several artificial reefs across southern Florida.

The Department has determined that the use of limestone boulders for the construction of the required mitigation reef will not increase the potential for adverse impact on the coastal system and will not compromise the design or function of the mitigation reef. The permit shall therefore be modified as follows:

The specific conditions shall be modified as follows (underlines are insertions, strikethroughs are deletions):

34. Artificial reefs, consisting of concrete modules or limestone boulders, shall be constructed as mitigation to offset the impacts to hardbottom. The perimeter of the mitigation site shall encompass an area within 10 acres, and the actual footprint of the artificial reefs shall cover 6.8 acres of the sea floor. The modules or boulders shall be placed in single layers at least 2-feet high and no shallower than 8 feet in depth.

Staff has determined that the proposed alteration does not increase the potential for adverse impact on the coastal system, public beach access seaward of the mean high water line or nesting sea turtles and hatchlings and their habitat, and that the proposed alteration does not reduce the design adequacy of the project. Since the proposed modification is not expected to result in any adverse environmental impact or water quality degradation, the permit is hereby modified as stated above. By copy of this letter, we are notifying all necessary parties of the modification.

This letter of approval does not alter the December 15, 2024 expiration date of the permit. The only Specific Conditions of the permit that are altered by this modification are those stated above. This letter must be attached to the original permit.

This permit is hereby modified unless a sufficient petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, Florida Statutes (F.S.), as provided below. The procedures for petitioning for a hearing are set forth below. Mediation under Section 120.573, F.S., is not available for this proceeding.

NOTICE OF RIGHTS

This action is final and effective on the date filed with the Clerk of the Department unless a petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, F.S., before the deadline for filing a petition. On the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. Because the administrative hearing process is designed to formulate final agency action, the hearing process may result in a modification of the agency action or even denial of the application.

Petition for Administrative Hearing A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. Pursuant to Rules 28- 106.201, and 28-106.301, F.A.C., a petition for an administrative hearing must contain the following information:

(a) The name and address of each agency affected and each agency’s file or identification number, if known;

(b) The name, address, any email address, any facsimile number, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests are or will be affected by the agency determination;

(c) A statement of when and how the petitioner received notice of the agency decision;

(d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate;

(e) A concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency’s proposed action;

(f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and

(g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agency’s proposed action.

The petition must be filed (received by the Clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399- 3000, or via electronic correspondence at Agency_Clerk@dep.state.fl.us. Also, a copy of the petition shall be mailed to the applicant at the address indicated above at the time of filing.

Time Period for Filing a Petition In accordance with Rule 62-110.106(3), F.A.C., petitions for an administrative hearing by the applicant must be filed within 14 days of receipt of this written notice. Petitions filed by any persons other than the applicant, and other than those entitled to written notice under Section 120.60(3), F.S., must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. The failure to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention (in a proceeding initiated by another party) will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.

Extension of Time Under Rule 62-110.106(4), F.A.C., a person whose substantial interests are affected by the Department’s action may also request an extension of time to file a petition for an administrative hearing. The Department may for good cause shown, grant the request for an extension of time.

Requests for extension of time must be filed with the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399- 3000, or via electronic correspondence at Agency_Clerk@dep.state.fl.us, before the applicable deadline for filing a petition for an administrative hearing. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon.

Mediation Mediation is not available in this proceeding.

FLAWAC Review The applicant, or any party within the meaning of Section 373.114(1)(a) or 373.4275, F.S., may also seek appellate review of this order before the Land and Water Adjudicatory Commission under Section 373.114(1) or 373.4275, F.S. Requests for review before the Land and Water Adjudicatory Commission must be filed with the Secretary of the Commission and served on the Department within 20 days from the date when this order is filed with the Clerk of the Department.

Judicial Review Once this decision becomes final, any party to this action has the right to seek judicial review pursuant to Section 120.68, F.S., by filing a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this action is filed with the Clerk of the Department.

If you have any questions regarding this matter, please contact Zach Boudreau by email at William.Boudreau@dep.state.fl.us or by telephone at (850) 245-7585.

EXECUTION AND CLERKING:

Executed in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Gregory W. Garis Program Administrator Beaches, Inlets and Ports Program Office of Resilience and Coastal Protection

Broward County Segment II Beach Nourishment and Restoration www.floridadep.gov

CERTIFICATE OF SERVICE

The undersigned duly designated deputy clerk hereby certifies that this permit and all copies were sent on the filing date below to the following listed persons:

cc: Sean Green, ORCP Brendan Biggs, ORCP Maria Gudnitz, ORCP Nathan Bonanno, ORCP FWC Imperiled Species BIPP@dep.state.fl.us JCPCompliance@dep.state.fl.us

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to Section 120.52, F. S., with the designated Department Clerk, receipt of which is hereby acknowledged.

Clerk Date

11/7/2023