STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANGROVE CHAPTER OF IZAAK ) WALTON LEAGUE OF AMERICA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4901

) FLORIDA GAME AND FRESH WATER )

FISH COMMISSION, an agency of ) the State of Florida, )

)

Respondent. )

)

and )

) DRISCOLL PROPERTIES, INC., and ) DRISCOLL FOUNDATION, )

)

Intervenors. )

)

) FRIENDS OF THE EVERGLADES, INC., )

a non-profit Florida )

Corporation, )

)

Petitioner, )

) CASE NO. 89-4902

vs. )

) FLORIDA GAME AND FRESH WATER )

COMMISSION, an agency of the ) State of Florida, )

)

Respondent. )

)

and )

) DRISCOLL PROPERTIES, INC. and ) DRISCOLL FOUNDATION, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these consolidated cases on December 13-15, 1989, in Miami, Florida , before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael F. Chenowith, Esquire

P. O. Box 236

Homestead, Florida 33090

For Respondent: James V. Antista

General Counsel

Florida Game and Fresh Water Fish Commission

620 S. Meridian Street Tallahassee, Florida 32399-1600

For Intervenors/ William J. Roberts, Esquire Permittees: Tom R. Moore, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The issue presented in these consolidated cases is whether the Respondent, Florida Game and Fresh Water Fish Commission, should issue the subject permit to Intervenors/Permittees which will allow the Intervenors/Permittees to "destroy nests and habitat of Key Largo woodrats... and Key Largo cotton mice..., to harm or molest Schaus' swallowtail butterflies... and to take Eastern Indigo snakes..., incidental to land-clearing operations and building construction of single family and cluster homes..."

PRELIMINARY STATEMENT

By letter dated July 24, 1989, the Florida Game and Fresh Water Fish Commission (the "Commission") set forth the conditions for the issuance of a permit to Driscoll Properties, Inc. and the Driscoll Foundation (collectively referred to as "Permittees or Intervenors") to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail Eastern Indigo snakes incidental to land clearing operations and building construction of single family homes on certain property located on North Key Largo, Monroe County, Florida which has been sub-divided as Ocean Reef Plats 17, 18 and 19. (The property is also referred to as Harbor Course South.) The Mangrove Chapter of the Izaak Walton League and the Friends of the Everglades timely challenged the issuance of the permit and the cases were referred to the Division of Administrative Hearings. The two cases were consolidated and duly scheduled for a formal administrative hearing.

At the hearing, the Intervenors presented the testimony of three witnesses: Bradley P. Dressler, the president of the development company for the Intervenors; Howard M. Post, the owner of certain property located south of the Intervenor's property and the holder of a permit issued by the Commission similar to the permit in question here; and Dr. Earl R. Rich, who was accepted as an expert in the field of ecology. The Intervenors offered twelve exhibits

into evidence, all of which were accepted except Intervenors' Exhibit #7 which was a composite of documents regarding a "vested rights" determination with respect to the Ocean Reef Club, Inc. (including the Intervenors' property.) Petitioners objected to the introduction of this composite exhibit on the grounds that the vested rights determination was irrelevant to the issues in this proceeding. Petitioners also objected to testimony offered by the Commission and the Intervenors on this subject. Ruling on these objections was reserved at the hearing and the evidence was proffered For the reasons set forth in the Conclusions of Law below, the objections are overruled and the evidence is hereby admitted.

The Petitioners presented the testimony of eight witnesses: Carl R. Paul, a supervisor of system distribution for the Florida Keys Electric Co-op; George Gann-Matzen, who was accepted over Intervenors objection as an expert in the area of ecological restoration; Robert Wilhelm, the assistant park manager for John Pennekamp Key Largo State Park; Jean Marie Parks, a park biologist with the Key Largo Hammocks State Botanical Site; Dr. Renate Skinner, a district biologist responsible for overseeing resource management in the state parks in Dade, Broward and Monroe County, who was accepted as an expert in resource management for state parks in the South Florida area; Peter Kalla, a biological scientist with the Commission, who was accepted as an expert on the impact of development on wildlife habitat and population; Dr. Wayne Hoffman, an employee in the research department of the National Audubon Society, who was accepted as an expert in the area of terrestrial ecology; and Dr. Numi Goodyear, who was accepted as an expert in ecology. Petitioners had seven exhibits marked for identification purposes. Five of the exhibits were accepted into evidence.

Petitioners' Exhibit 4, the Key Largo Land Use Feasibility Study and Petitioners' Exhibit 5, a verified complaint dated December 27, 1985 with a caption Friends of the Everglades v. Honorable Robert Graham, were not offered.

The Commission presented the testimony of two witnesses: Julie Hovis, a biologist employed by the Commission, who was accepted as an expert in the area of wildlife ecology; and Bradley Hartman, the Director of the Office of Environmental Services for the Commission, who was accepted as an expert in the fields of wildlife biology and wildlife management. The Respondent had eleven exhibits marked for identification purposes, all of which were accepted into evidence. Respondent's Exhibit 1 was an application filed by Intervenors for a related federal permit and included a number of attachments that were submitted with the application. Petitioners' objection to the hearsay contents of the attachments has been noted.

At the conclusion of the hearing, a schedule was established for filing late-filed exhibits relating to certain issues raised at the hearing. No late- filed exhibits have been filed.

Subsequent to the hearing, the Petitioners filed a Notice and Request for Subpoenas on March 30, 1990. That Notice sought subpoenas in order to depose certain employees of the Respondents regarding the possible need to reopen the hearing in this cause. The Respondents filed a Response to Request for Subpoenas on April 9, 1990. In addition, Respondent filed an Amended Response to Request for Subpoenas on April 19, 1990. On April 3, 1990, the Intervenors filed Permittees' Response in Opposition to "Notice and Request for Subpoenas" files [sic] by Petitioners. Counsel for the Petitioners was requested to coordinate a conference call for April 13, 1990 regarding the matters raised in the Notice and the Responses. Prior to the scheduled time for the conference call, counsel for the Petitioner advised that scheduling conflicts made it impossible for all the parties to be available at the planned time. Counsel for

Petitioners indicated that he would attempt to reschedule the conference call at a time mutually agreeable to the parties. No subsequent conference call was scheduled and in June, counsel for the Petitioners advised that the Petitioners were abandoning their attempt to depose the Respondent's employees and there would be no need to reopen the hearing in this case.

A transcript of the proceedings has been filed. Each of the parties has timely filed a Proposed Recommended Order. Those proposals have been carefully considered in the preparation of this Recommended Order. A ruling on each of the parties proposed findings of fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Harbor Course South is a one hundred and seventy two lot real estate development which is a portion of the Ocean Reef Club located at the extreme northern end of Key Largo, Monroe County, Florida.

   
   

2. The Harbor Course South property was acquired in approximately 1964 along with over 1200 acres of adjoining property for approximately 1.5 million dollars.

   
   

3. Driscoll Properties, Inc. ("Driscoll"), a Florida Corporation, is the developer of Harbor Course South.

   
   

4. Driscoll Foundation, Inc., (the "Foundation") is a non-profit Florida corporation which owns a portion of the Harbor Course South property. (Driscoll and the Foundation are collectively referred to as the "Intervenors" or the "Permittees.")

   
   

5. The Ocean Reef Club is a one thousand two hundred unit development encompassing approximately eight hundred acres including at least two eighteen hole golf courses, a marina and an air strip. Nine holes of golf are located in Harbor Course South. These nine holes were leased to the Ocean Reef Club in 1974-1975 pursuant to an agreement providing for creation of golf course lots and lake-front lots in Harbor Course South. The nine holes of the golf course located in Harbor Course South were in place by at least 1978 and have been in use since that time. In order to install those nine holes, some roads were cut through the property and the lakes were dredged.

   
   

6. Thirty-eight of the one hundred and seventy-two lots in Harbor Course South were originally platted in 1978 or 1979. These thirty eight lots are referred to as Section 1 of Harbor Course South. All of lots in Section 1 have been sold to individual purchasers for an average price of $34,210.00 per lot. The thirty-eight lots in Section 1 were all sold prior to 1988.

   
   

7. In approximately 1979, some roads were cleared and paved on the Harbor Course South property in order to provide access to the thirty-eight originally platted lots in Section 1.

   
   

8. A number of the lots in Section 1 have been permitted for construction by Monroe County and houses have been constructed on several of them. No individual lot owner in Section 1 has been denied a permit for clearing at least some of his land for a homesite. Both the United States Fish and Wildlife Services ("U.S.F.W.S.") and the Florida Game and Fresh Water Fish Commission (the "Commission") have determined that the clearing and/or development of the

   lots in Section 1 will not require permits for the taking of endangered or threatened species or their nests.

   
   

9. In 1985, the Intervenors, in conjunction with the Ocean Reef Club, sought a determination as to the extent of their vested development rights with respect to the Harbor Course South property by initiating a vested rights hearing before Monroe County. These proceedings were initiated under Chapters

   380 and 120, Florida Statutes and resulted in a Joint Stipulation on February 23, 1988 recognizing that the Intervenors have vested rights to develop the Harbor Course South plats. (The Joint Stipulation is referred to as the "Vested Rights Determination.") The Vested Rights Determination recognized that the Intervenors and the Ocean Reef Club had incurred obligations and expenditures based upon the approval of the master plan for development of Ocean Reef in 1977 in accordance with the then-existing regulations of Monroe County. The expenses and improvements upon the property included the construction of roadways, water main extensions, medical facilities, and golf courses. As a result of these expenditures, the Vested Rights Determination established that the Intervenors were authorized to continue development under the master development plan for the Ocean Reef Club, notwithstanding the enactment of a comprehensive land use plan and development regulations by Monroe County on September 15, 1986.

   
   

10. No appeal of the Vested Rights Determination was filed by the Florida Department of Community Affairs or any other party.

    
    

11. The remaining one hundred thirty-four lots in Harbor Course South were subdivided into three plats in 1986. These plats have been designated Ocean Reef Plat Numbers 17, 18 and 19 (also referred to as Sections 2, 3 and 4 respectively of Harbor Course South.) The Intervenors were not required to obtain a permit from the U.S.F.W.S. or the Commission prior to subdividing and/or selling lots of the Harbor Course South property.

    
    

12. Most of the infrastructure for development of Plats 17, 18 and 19 is in place. Paved roads were completed in 1987-1988. The electrical lines and sewer lines are in place and operational in all three plats. The water lines are in place and connected in Plat 17. The waterlines are also in place, but not connected, in Plats 18 and 19.

    
    

13. The total area of Sections 2, 3 and 4 of Harbor Course South is 134.09 acres. The remaining one hundred thirty-four lots occupy approximately 53.66 acres of this total. The lots in the area are priced at an average of $127,000 each.

    
    

14. The Intervenors have begun selling the lots in Plat 17 (Section 2 of Harbor Course South). This plat consists of twenty-five lots. No competent substantial evidence was offered to establish the exact number of lots sold or houses constructed in this area, but it appears that ten to twelve lots were sold between July 1, 1989 and December 13, 1989. At least one house has been constructed on this plat and three building permits are pending before Monroe County.

    
    

15. Prior to selling the lots in Plat 17, the Intervenors reached an informal agreement with the U.S.F.W.S. and the Commission as discussed in more detail in Findings of Fact 33 below. In accordance with that agreement and because there was no indication of the presence of endangered or threatened species on these lots, it was determined that none of the lots sold in Plat 17 would require the issuance of a permit from the Commission before land clearing could take place.

16. The sales of the lots in Plat 17 were not completed until after the issuance of a Proposed Permit by the Commission for the "incidental taking" of endangered and threatened species with respect to the entire Harbor Course Property. (This Proposed Permit is discussed in more detail in Findings of Fact 44.) After the Proposed Permit was issued and this challenge was filed, the titles to the lots sold in Plat 17 were transferred to the purchasers. As indicated above, some of these lot owners have proceeded with the development of their property without the need of a permit from the U.S.F.W.S. or the Commission.

    
    

17. None of the lots in Plats 18 and 19 (Sections 3 and 4) have yet been offered for sale.

    
    

18. The natural vegetation of North Key Largo, including the Harbor Course South property, consists largely of tropical hardwood hammock. The quality of the vegetation varies widely throughout the area. Development of the Ocean Reef Club has largely supplanted the hardwood hammock in that area. The golf course which is located on the Harbor Course South property was placed in the midst of the hammock. The golf course and the infrastructure for development of Harbor Course South have fragmented the hammock in Plats 17, 18 and 19.

    
    

19. The hardwood hammock of North Key Largo is a unigue flora to North America, being extremely tropical in character. It is characterized by vegetation more commonly found on the tropical islands of the Carribean and is different from the tropical hammocks of mainland South Florida because of a difference in hydrology, i.e., the Florida Keys are substantially drier and have a lower water table. The hammock of North Key Largo has a very high species diversity with one hundred and five species of trees and shrubs and fifteen species of woody vines in the hammock vegetation. The ecology of a hardwood hammock is cyclical. Over the years, the hammock has demonstrated its ability to regenerate naturally. Thus, while much of North Key Largo was used as agriculture land in the late nineteenth and early part of the twentieth century, the hammock has recovered in those areas where it has been allowed to naturally regenerate.

    
    

20. The species of plants in the hardwood hammock are well-adopted for colonizing. The trees are "good at getting their seeds into places where they will grow." Many of the species of hammock trees and shrubs have fruits that are attractive to birds and some animals such as raccoons. These animals, birds, and raccoons eat the fruit, do not digest the seeds, but pass them in their fecal material which helps spread the vegetation. Tree growth in a young hammock is initially rapidly vertical before spreading out to provide larger coverage. A mature hammock provides a "closed canopy" of branches which affords protection and transportation for many animals including woodrats and cotton mice.

    
    

21. As the hammock matures, there is an accumulation of humis and leaf litter on the ground beneath the trees. This humis layer serves as a seed bed for new growth and accumulates over the years. The humis layer is an important factor in assessing the quality of a hammock as habitat for endangered species. It takes decades for a hammock to fully mature to the point that it provides habitat and food sources for woodrats and similar creatures.

    
    

22. Because of the biological richness of the hardwood hammock, as well as to protect the off-shore coral reefs from the detrimental effects of run-off from development, the State of Florida, through the Conservation and

    Recreational Land Acquisition program, ("CARL") has designated much of area of North Key Largo at the top of the acquisition priority list. The area slated for acquisition under the CARL program extends approximately twelve miles from the point where U.S. Highway 1 enters Key Largo northeastward to the southern boundary of Harbor Course South.

    
    

23. The State of Florida has already acquired large tracks of North Key Largo under the CARL program. These tracks include a large portion of the land on the east side of State Road 905 from Port Bougainville to the southern border of the Ocean Reef Club (Harbor Course South.) Moreover, the Foundation is currently negotiating with the State regarding the acquisition of approxiately twelve hundred acres immediately adjacent to Harbor Course South.

    
    

24. The federal government has established the Crocodile Lake National Wildlife Refuge which embraces most of the land lying west of State Road 905 from Card Sound Road (near and west of the Ocean Reef Club) south to Lake Surprise, a distance of approximately twelve miles. In sum, a large portion of the property in North Key Largo outside the Ocean Reef Club and Harbor Course South does not have vested development rights. A vast majority of this property is, or will likely become in the near future, publicly owned for conservation purposes. Thus, large quantities of high quality tropical hardwood hammock habitat have been, or are in the process of being, acquired in the immediate vicinity of the Harbor Course South property.

    
    

25. The hardwood hammocks of North Key Largo are inhabited by certain endangered and threatened species.

    
    

26. The Commission has the authority to determine endangered species within the area of its jurisdiction under the Endangered Species Act of 1973, 35

    U.S.C.A. 1531, et seq. The Key Largo woodrat (neotoma floridana smalli) and the Key Largo cotton mouse (peromystus gossypinus allapaticola) are animals which can be found in the secondary growth and mature tropical hardwood forests of North Key Largo. Both the woodrat and cotton mouse as well as the Schaus' swallowtail butterfly (heraclides aristodemus ponceana,) have been listed as endangered species in Rule 39-27.003, Florida Administrative Code. The hardwood hammock of North Key Largo also serves as a habitat for the Eastern Indigo snake (drymarchon corais couperi), which has been listed as a threatened species by the Commission pursuant to Rule 39-27.004, Florida Administrative Code.

    
    

27. Rock piles, tree roots, mounds, piles of sticks, holes in the rock substrate, holes in the humis layer beneath the trees and similar hiding areas all serve as nests or "refugia" for the woodrat. A mature hammock provides an ideal habitat for the woodrat. Destruction of the habitat of the woodrat has been a key factor in the woodrat becoming an endangered species. The Key Largo cotton mouse occupies much of the same habitat as the woodrat.

    
    

28. Although the density of the population has not been established, there is no dispute that some portions of the Harbor Course South property are populated with woodrats and cotton mice. The quality of the habitat varies significantly throughout the property.

    
    

29. There is only limited evidence of the presence of the Schaus' swallowtail butterfly on the Harbor Course South property. There have been a few citings of the species in the vicinity of Harbor Course South, but it does not appear that this property is an important habitat for the Schaus' swallowtail butterfly.

30. There is no specific evidence of the presence of the Eastern Indigo snake on the subject property.

    
    

31. Before a lot owner in Harbor Course South can clear his homesite, the Monroe County Code requires the owner to secure a habitat analysis which must be prepared by an accredited biologist approved by the County. That analysis determines the quality of the hammock on the lot, which in turn determines the amount of vegetation which the County will allow the lot owner to clear. This requirement was in place for the first thirty eight lots that were originally platted in Section 1. Under the existing Monroe County Land Clearing Regulations, only twenty percent of a lot with high quality tropical hardwood hammock can be cleared; forty percent of a lot with medium quality hammock can be cleared and forty to eighty percent of a lot with low quality hammock can be cleared.

    
    

32. As of the date of the hearing in this case, all lot owners in Harbor Course South who have applied for a building permit were allowed to clear at least a portion of the lot for construction of a homesite. It does not appear that any lot owner was permitted to clear more than forty percent of his lot.

    
    

33. As indicated above, no permits from the Commission or the U.S.F.W.S. were necessary in order to clear the lots and commence building on the thirty- eight lots in Section 1. Likewise, the Commission determined that the habitat quality in the area of Plat 17 was sufficiently low that a permit would not be required for development on that Plat. However, the Intervenors were aware of the presence of endangered and threatened species in this area. Around the time that the Vested Rights Determination was obtained, the Intervenors entered into discussions with the U.S.F.W.S. and the Commission in an attempt to obtain an overall permit for Plat 17, 18 and 19 with respect to endangered and threatened species. During these negotiations, the Intervenors received permission from the U.S.F.W.S. and the Commission to proceed with development in Plat 17 even before a permit was issued. The Commission determined that the Intervenors could proceed with the development of Plat 17 without obtaining a permit because of the relatively low habitat value of most of the parcel and the apparent absence of any endangered species in this area. As part of the negotiations regarding this authorization, the Intervenors agreed to seek a permit with respect to the remaining one hundred and nine lots in the subdivision.

    
    

34. The negotiations were prompted, at least in part, by an agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority (which provides water to the area) that established certain requirements before water connections could be made to new residential property in North Key Largo. This agreement requires that, before water connections can be made to an area inhabited by endangered or threatened species of wildlife, a permit must be obtained by the U.S.F.W.S.

    
    

35. During the negotiations, the U.S.F.W.S. indicated to the Intervenors its desire to address the conflict between the endangered species on North Key Largo and development interests in "one big conflict rather than having to handle it land owner by land owner." The Commission agreed with this approach feeling it could better protect the subject species through required mitigation by the developer which would probably not be possible or practical when dealing with individual lot owners.

    
    

36. Although the Intervenors questioned the legality of the requirements imposed as a result of the agreement between the U.S.F.W.S. and the Florida Keys Aqueduct Authority, the Intervenors decided to try and work with both the

    federal and state agencies and attempt to meet their concerns rather than engage them in a legal battle over their authority to impose mitigation requirements on new developments.

    
    

37. A permit from the U.S.F.W.S. or the Commission is not necessary for the Intervenors to sell the lots in Plats 17, 18 and 19. The Intervenors sought permits from the Commission and the U.S.F.W.S. in a good faith attempt to cooperate with the agencies responsible for enforcing the Endangered Species Act and to eliminate obstacles to the clearing and development of the lots by individual lot purchasers.

    
    

38. The U.S.F.W.S. has developed specific rules and procedures for protecting the habitat of endangered species and issuing "incidental take" permits for activities that may impact on the species or their habitat. The Commission has not adopted any rules that specifically protect the habitat of endangered species other than a prohibition against molesting or harming their nests. Similarly, the Commission has no specific rules regarding "incidental take" permits.

    
    

39. The Intervenors filed an application with the U.S.F.W.S. on March 13, 1989 seeking a permit for covering all of Plats 17, 18 and 19.

    
    

40. Attached as exhibits to the application were copies of the pleadings from the proceedings whereby Intervenors received their Vested Rights Determination, a summary of a proposed revegetation project to be undertaken in connection with the permit; the Harbor Course Subdivision construction plans together with construction details; a report prepared by Dr. Earl Rich regarding North Key Largo endangered rodent preservation measures; a report by Dr. Jack Stout setting forth the results of woodrat and cotton mice trapping in the subject area; and an aerial photograph of the subject area. The application sought a "permit for the incidental taking of endangered species in connection with completion of development of a residential subdivision and related site improvements surrounding an existing golf course. The area to be cleared may include habitat for the Key Largo woodrat, cotton mice, or Schaus' swallowtail butterfly."

    
    

41. A permit has not been issued by the U.S.F.W.S. with respect to Plat 17,

    18 and 19.

    
    

42. The Intervenors' application for a permit has been transmitted to the Commission. It is not clear how the application filed with U.S.F.W.S. came before the Commission for consideration. The Commission has no direct agreement with the Florida Keys Aqueduct Authority regarding water connections. The Commission's authority for asserting jurisdiction over the development is not based on any existing rules or statutes regarding "incidental take" permits.

    
    

43. The U.S.F.W.S. has apparently agreed to defer to the Commission with respect to the issuance of a permit for the Harbor Course South development. The U.S.F.W.S. has been kept abreast of the negotiations and terms of the

    Proposed Permit and has suggested various changes during the negotiation process in an effort to coordinate the conditions of the two permits.

    
    

44. By letter dated July 24, 1989, the Commission set forth conditions for the issuance of a permit to the Intervenors which would authorize them to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, and to take Eastern Indigo snakes, "incidental to land clearing operations and building construction of single family and cluster

    homes" on Plat 17, 18 and 19. The permit does not authorize the killing of woodrats, cotton mice or Schaus' swallowtail butterflies. The Commission stated that the permit was being issued pursuant to Rules 39-27.002(1) and 39- 27.002(2), Florida Administrative Code. (The July 24, 1989 letter setting forth the conditions for the permit will be referred to as the "Proposed Permit.")

    
    

45. The Proposed Permit states that the permit will inure to the benefit of the Intervenors and their "successors in title or their agents." In other words, purchasers of lots from the Intervenors would be covered by the Permit and no additional permit would be necessary to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies, or to take the Eastern Indigo snakes incidental to the development of their lots.

    
    

46. The terms and conditions of the Proposed Permit were prepared after several meetings and discussions between Commission personnel, the Intervenors' expert biologist Dr. Stout and the developers themselves.

    
    

47. The Proposed Permit requires both on-site mitigation and off-site mitigation. The on-site mitigation requires the permanent dedication in the form of a conservation eastment of 5.94 acres in Tract E of Harbor Course South, Section 3 ( Ocean Reef Plat 18) to provide perpetual protection for the habitat for the species listed in the Proposed Permit. The exact provisions of this conservation easement are not speficified in the Proposed Permit and were not established in this proceeding.

    
    

48. The Permit also requires specific habitat enhancement of Tract E by planting torchwood seedlings as a means to attract Schaus' swallowtail butterflies in the area of an old service road on Tract E, revegetation in accordance with specific planting instructions of another road that bisects Tract E and the placement of ten piles of rocks and logs of at least four cubic yards each in the old roadway. A ten thousand dollar surety bond or letter of credit is required to ensure compliance with the planting and debris placement provisions within three years of the date of the issuance of the permit.

    
    

49. The Intervenors had intended to subdivide Tract E into ten additional lots to be sold as homesites. While Petitioner contends that the development of lots in Tract E may have been prohibited because of the high quality hammock on some of these lots, the evidence established that most, if not all, of the lots in Tract E will be sold and developed as individual homesites if the area is not set aside as a conservation area pursuant to the terms of the Proposed Permit.

    
    

50. The establishment of a conservation area in Tract E will help preserve a continuous habitat area for the endangered species. Tract E is adjacent to a large track of property that has been or is in the process of being acquired by the state for conservation purposes. By requiring the Intervenors to provide rubble and debris piles and revegetation on Tract E, the Proposed Permit will further enhance the quality of the habitat in this area.

    
    

51. The Proposed Permit requires the existing dirt road which currently cuts through Tract E to be closed and revegetated. There is no requirement that the fill installed for the road bed be removed. While Petitioners contend that such a condition is necessary for the development of this tract into high quality habitat for the endangered species, the natural regeneration of the hammock will be enhanced by the revegetation plan and this area will ultimately develop into high quality habitat.

52. Planting torchwood in the area of Tract E, which is close to the golf course and areas that will be developed, may actually harm the survival potential of the Schaus' swallowtail butterfly. The butterflies are extremely susceptible to chemical insecticides. Planting torchwood in areas where insecticides will be used may create an attractive nuisance to the butterflies. Therefore, the requirement for planting should be moved to an off-site area that is remote from the development to guard against this problem. The area of the old service road should be revegetated pursuant to a schedule similar to the one used for the other revegetation area.

    
    

53. Off-site mitigation is to be provided through the enhancement of hammock succession on five, one acre segments of the right-of-way of Old State Road 905 or an alternative similar site approved by the Commission with an area of enhancement to equal five acres. The amount of off-site mitigation was baseed upon a calculation of the amount of road surface in Harbor Course South. The Proposed Permit requires the old road bed and asphalt to be removed and the road restored to original grade. The enhancement of the site is to be accomplished by planting tropical hardwood vegetation from a specified vegetation list, adherence to specific planting instructions governing phase of planting, survival rate and watering conditions, placement of twenty rock and debris piles, (each four cubic yards in volume), removal of exotic plant species semi-annually for a five year period and removal of weedy species of trees and shrubs in an area within a radius of three feet around each planted tree over a similar time period. Four lots in Plat 18 are to be set aside as an assurance against failure to complete the planting or failure to provide an alternative site. A surety bond or letter of credit in the amount of $50,000.00 is also required to ensure compliance with the planting requirements.

    
    

54. Old State Road 905 is currently owned by the Florida Department of Transportation. There are plans to convey this right-of-way to Monroe County which in turn plans to abandon the road, remove the road bed and asphalt, and cooperate with the restoration. Thus, it appears that Monroe County may assume responsibility for removing the asphalt road along Old State Road 905. The Proposed Permit requires the Intervenor to ensure that this removal is accomplished.

    
    

55. Old State Road 905 is utilized by some utility companies to service their utility lines. At this point, it is not clear whether the utility easements will preclude the revegetation required by the Proposed Permit from becoming effective. The Proposed Permit provides adequate procedures for selecting alternative sites in the event that Old State Road 905 can not be effectively used for a mitigation area.

    
    

56. With respect to both the on-site and off-site mitigation, the revegatation requirements in the Proposed Permit are reasonably related to the Commission's goal of enhancing the long term survival of woodrats and cotton mice on North Key Largo. While the diversity of the flora in a natural hammock is greater than that called for in the proposed mitigation, the revegetation will accelerate the development of the mitigation areas into high quality habitat for the endangered species. While a hardwood hammock has a natural capability to regenerate on its own, the regeneration can be enhanced by planting trees in a scarified area. The revegetation required pursuant to the Proposed Permit will be placed mainly in corridors replacing old road ways. This placement will hasten the redevelopment of these areas into high quality habitat.

57. The Intervenors are required to ensure a two year, seventy five percent survival rate for trees planted. Any trees that die are to be replaced by the species with the highest survival rate. The evidence established that the most effective way to enhance the revegetation process is to plant those species of trees that are slow to seed or that are relatively rare. It is not clear whether the planting schedule and sucession procedures attached to the Proposed Permit have taken this fact into consideration.

    
    

58. While the diversity of species detailed in the attachments to the Proposed Permit could be reallocated between species to further enhance the revegetation process, the proposed schedules are adequate except for the requirement of planting torchwood on Tract E. Torchwood is an important habitat and food source for Schaus' swallowtail butterflies and should not be placed in an area where chemical insect control efforts are likely.

    
    

59. As indicated above, the Proposed Permit requires a survival rate of 75% for the planted trees within two years of the initial planting. The Intervenors are also required to inspect the revegetation sites semi-annually for five years and to remove invasive exotic plants. In addition, Intervenors are required to remove weeding trees, shrubs and vines within a radius of 3 feet around each planted tree for a period of five years. Semiannual reports must be filed with the Commission for the first five years after planting to advise as to the presence of such species. There are no enforcement mechanisms in the Proposed Permit to ensure that the monotoring and removal of exotic species requirements will be completed. The bond requirements of the Proposed Permit only apply to the plantings and installation of debris piles.

    
    

60. The requirement for removal of exotic species will help ensure that those exotic species cannot invade the mitigation sites and prevent or retard the natural hammock regeneration process. This requirement will enhance the development of a high quality hammock which will hopefully provide habitat for the endangered species. It is important that an enforcement mechanism be provided in the permit with respect to this requirement.

    
    

61. The State Department of Natural Resources has a program for the removal of exotic plants from state lands. DNR is currently preparing a major management plan for North Key Largo and DNR employees are currently involved in removing exotic species from the right-of-way of Old State Road 905. The requirements of the Proposed Permit will augment the on-going efforts of DNR and free-up resources to focus on the removal of exotic species in neighboring areas.

    
    

62. The Proposed Permit does not impose qualifications on the individuals who will be responsible for removing the exotic species. The permit should require the Intervenors to retain qualified people to identify the exotic species.

    
    

63. The spacing, watering and survival rate aspects of the revegetation plan were based, in part, upon the experiences with revegetation at a previous mitigation site (the Budd Post site discussed below) and represent a reasonable effort for enhancing the revegetation of the hammock.

    
    

64. While there is no requirement that the planted trees survive longer than two years after the initial planting, the 75% survival requirement during the first two years provides reasonable assurance that the revegetation will be done properly and with a high probability of success.

65. General Condition 1 of the Proposed Permit indicates that the Commission will review the Permit periodically and "may initiate enforcement or revocation action for any violation of the Permit Conditions by the Permittee, its agents, its employees, or representatives." There is no provision for enforcement or revocation of the permit for violations of the permit conditions by purchasers of lots or other third parties who obtain title to the property from the Intervenors. This enforcement mechanism will become essentially obsolete if and when the Intervenors transfer their interests in the property.

    
    

66. General Condition 2 of the Proposed Permit indicates that the Permit is valid "only for the specific processes and operations applied for and indicated in the approved drawings or exhibits." This provision is meaningless since there are no "specific processing operations applied for" and there have been no approved drawings or exhibits other than the planting schedules which are part of the revegetation aspect of the mitigation requirements.

    
    

67. There are certain provisions of the Proposed Permit which are vague and/or ambiguous. Special Conditions 4(b) indicates that the requirements of Specific Condition 3(j) are applicable to the restoration of Tract E. Special Condition 3(j) requires the placement of twenty debris piles. However, Specific Condition 4(c) only requires a placement of ten such piles in Tract E. This ambiguity should be clarified. Special Condition 4(d) indicates that there are utility lines in the revegetation area which will have to be maintained. Under this provision, the applicant is allowed to maintain, using hand tools only, a clear path of up to eight feet wide over each utility line. It is not clear from the evidence presented how many utility lines are involved and whether a separate eight foot area can be cleared for each utility line. If several separate utility lines are involved, this provision could effectively prevent the regeneration of the area into high quality hammock habitat.

    
    

68. Free ranging domestic pets, especially cats, are a significant threat to the endangered species. One of the conditions imposed by the Proposed Permit would prohibit free ranging pets within the subdivision pursuant to a subdivision covenant to run with the land. The specific wording of such a covenant has not been provided. The Proposed Permit does not provide for any enforcement mechanism with respect to this covenant. Some enforcement mechanism must be provided in order for this condition to provide any effective protection for the endangered species.

    
    

69. The Proposed Permit requires the Intervenors to hold four lots from sale until the off-site mitigation requirements have been met. If the planting is not accomplished within a five year period, the Intervenors are required to include these four lots as part of the conservation easement in Tract E. The lots being withheld for sale have an average market value in excess of $120,000 per lot. Thus, this requirement places a major incentive on the Intervenors to comply with the terms of the Proposed Permit. However, it is not clear whether this enforcement mechanism can be applied to the provisions of the Proposed Permit regarding the removal of exotic species.

    
    

70. The Proposed Permit does not allow the Intervenors to kill any member of the endangered species. The Proposed Permit does allow the "incidental taking" of the threatened species (Eastern Indigo snake). The term "incidental taking" is interpreted by the Comimssion to include the killing of a member of the threatened species which is incidental to the conduct of otherwise lawful activities. The Commission contends that it has the jurisdiction to issue such an "incidental take" permit for an endangered species under appropriate conditions and mitigation requirements. The Commission did not believe an

    incidental take permit was necessary with respect to the endangered species on this site because the Commission felt that the habitat quality was relatively low and the likelihood of encountering a member of the species at the site was also low.

    
    

71. The evidence established that there is a possibility that some members of the endangered species, i.e., woodrats and cotton mice, will be killed during the development and building of the subdivision. While this possibility is speculative, the chances of such a killing can be minimized by incorporating further protections in the permit. The evidence did not indicate any likelihood that East Indigo snakes or Schaus' swallowtail butterflies will be killed incidental to land clearing and/or development of Harbor Course South.

    
    

72. The U.S.F.W.S. requires a habitat conservation plan ("H.C.P.") before it will issue an incidental take permit. A habitat conservation plan committee was established by the Governor in 1985 to prepare an H.C.P. for the North Key Largo area. The goal of the Committee is to designate areas which would be suitable for development and areas which may be necessary for conservation. A Draft Habitat Conservation Plan has been prepared, but it has not yet been officially approved. Harbor Course South is outside the study area of the Draft Habitat Conservation Plan and therefore is not proposed as a conservation area.

    
    

73. The framework and structure of the Proposed Permit reflects the Commission's desire to apply a comprehensive permitting approach to the Harbor Course South development rather than rely upon a lot-by-lot determination of jurisdiction with each individual lot purchaser at the time clearing or development activities are sought. The evidence established that there is insufficient indicia of woodrat or cotton mouse presence on a number of the lots in Harbor Course South. Thus, if a lot-by-lot approach was used, the Commission would not have the authority under its current rules to require a number of the individual lot owners to obtain a permit before land clearing.

    
    

74. Without question, further fragmentation of the hammock will reduce the quality of the habitat for the endangered species. If a lot-by-lot permitting process is utilized, the owners of the lots that do not show any signs of the presence of woodrats or cotton mice would be able to clear to the maximum extent allowable under the Monroe County development ordinances. Such an approach would not halt the further fragmentation of hammock. By utilizing a comprehensive permit, the Commission can establish uniform standards for development and require stronger mitigative measures to offset the impact of development in the area on the endangered and threatened species. The approach is further justified in view of the Commission's determination that the Harbor Course South property is of only minimal importance as a habitat for the endangered and threatened species. See, Findings of Fact 80-81 below.

    
    

75. In sum, land development and land clearing activities are likely to take place on the Harbor Course South property regardless of whether the Proposed Permit is issued. If the Commission utilizes a lot-by-lot determination of jurisdiction, a large portion of the lots on Harbor Course South would not be required to obtain a permit from the Commission because many of those lots do not have nests or any indication of the presence of the endangered species. Under these circumstances, the Commission would probably not be able to obtain comprehensive mitigation conditions and the habitat for the endangered species would be further fragmented with little or no mitigation.

76. As noted above, the Commission has not adopted any rules setting forth its policies and procedures for issuing an overall blanket permit for the "incidental taking" of endangered species. Similarly, there are no formal guidelines adopted to establish when the Commission has jurisdiction over land- clearing activities.

    
    

77. In determining whether to assert jurisdiction over a particular piece of property, the Commission looks for evidence of existing nests or habitat of an endangered species or the probability that a taking, killing or some other molestation will occur to a particular member of the species.

    
    

78. In connection with the Proposed Permit, the Commission determined that it had the authority under Rule 39-27.002, Florida Administrative Code, to issue permits for clearing and development activities that molest the nests of endangered species. As discussed below, the Commission has issued only one prior permit for land clearing and development activities. That prior permit is was not timely challenged.

    
    

79. No rules or standards have been promulgated by the Commission to set forth the mitigative requirements that can be imposed, if any, upon individual lot purchasers.

    
    

80. An important factor in the Commission's decision to issue the Proposed Permit in this case was the Commission's determination that the overall quality of the Harbor Course South property as habitat for the endangered species was minimal.

    
    

81. In determining that the Harbor Course South property was of minimal importance to the survival of the endangered species, the Commission took into consideration various reports on the sparse density of the population of the endangered species on the subject property. The Commission also took into account what it deemed to be inevitable future development as reflected in the Vested Rights Determination, the fact that the site was not designated for preservation in the Draft Habitat Conservation Plan, and the fact that the site was not part of the North Key Largo CARL acquisition project. Finally, the Commission considered that the site was already a highly fragmented tropical hardwood hammock as demonstrated by Landsat Thematic Mapper Classfied Satellite Imagery.

    
    

82. The only previous instance in which the Commission has issued a permit to molest or harm the nests or habitat of endangered species pursuant to land clearing or development activities involved another residential sub-division in North Key Largo. In June of 1986, separate permits were issued by the

    U.S.F.W.S. and the Commission to the Nichols/Post Hendrix Corporation to destroy nests and habitat of the Key Largo woodrat and Key Largo cotton mouse. (The permit issued by the Commission in connection with this prior project will be referred to as the "Budd Post Permit.")

    
    

83. The property covered by the Budd Post Permit is south of Harbor Course South. It lies approximately six miles south of the intersection of Old State Road 905 and Card Sound Road. That property consists of approximately ten acres of high quality hardwood hammock located within the project area of the North Key Largo Hammocks, CARL land acquisition program. Thus, the property was essentially surrounded by high quality tropical hardwood hammock.

84. The Budd Post property is similar to the Harbor Course South property in that both areas run from County Road 905 east to the ocean and both tracts contain habitat suitable for use by endangered species. However, Harbor Course South is a lesser quality habitat than the Budd Post property because it is more highly fragmented and is bordered on the north by the highly developed Ocean Reef property.

    
    

85. Overall, there was a significantly greater indication of the presence of the subject endangered species on the Budd Post Property than there is at Harbor Course South.

    
    

86. The Budd Post Permit was the first of its kind issued by the Commission and was processed simultaneously and concurrently with the comparable federal permit from the U.S.F.W.S. As a condition to issuance of the Budd Post Permit, the Commission required the permittee to set aside a preservation area, build debris piles to encourage nesting of woodrats and cotton mice and plant vegetation off-site to mitigate the loss of hammock habitat.

    
    

87. A condition of the Budd Post Permit required the permittee to trap and remove the endangered species during land clearing activities. A similar condition in the Proposed Permit would help reduce the likelihood of any killing of the endangered species.

    
    

88. The results of the mitigation plan for the Budd Post Permit indicate that such a plan can serve to enhance the survivability of the endangered species by providing high quality habitat and accelerating the revegetation of scarified areas. A little more than two years after the mitigation plan for the Budd Post Permit was implemented, it appears that the efforts are achieving their intended results. Specifically, the plants that were planted as a result of the revegetation plan are flourishing and at least some of the debris piles have been colonized by woodrats. Thus, it appears a viable habitat has been created.

    
    

89. There is no definitive method for determining the density of population of woodrats or cotton mice at a given site. In making its jurisdictional determination with respect to the Budd Post property, the Commission looked for the presence of stick nests, (which are widely presumed to be constructed by woodrats) as the primary jurisdictional indicator. Subsequent to the issuance of the Budd Post Permit, the Commission has recognized that stick nests are not the sole indicators of the presence of wood rats and the Commission now considers other factors as well.

    
    

90. The U.S.F.W.S. requires a trapping study of woodrats and cotton mice as part of its permit application. The permittee for the Budd Post Permit provided the U.S.F.W.S. and the Commission with a "trapping report" prepared by Dr. Stout. The Intervenors also hired Dr. Jack Stout, who is a biologist and professor at the University of Central Florida, and a similar report was prepared for Harbor Course South. The same methodology was used to trap woodrats and cotton mice on both sites. Dr. Stout concluded that the Harbor Course South property had a low density population of woodrats and cotton mice.

    
    

91. Dr. Earl Rich, a biologist and ecologist and a former professor at the University of Miami with extensive experience researching woodrat habitat on North Key Largo, also inspected the Harbor Course South property on behalf of the Intervenors. His inspection took place after the date of the Proposed Permit. He determined that the overall quality of the subject property as

    habitat for the endangered species was low because of the fragmented and uneven quality of the hammock. These qualities are largely attributed to the existing intrastructure and the golf course which winds throughout the subject property.

    
    

92. Julie Hovis, a wild life biologist employed by the Commission, performed a site inspection report in connection with the application for the Proposed Permit. While not an expert on the endangered species, she was qualified to identify certain signs of the presence of the species. She found that there was some evidence that woodrats and cotton mice were present on the Harbor Course South property. She noted that the quality of the habitat varies greatly. Her inspection and conclusions were the basis for the Commission's assertion of jurisdiction over the subject site.

    
    

93. Dr. Steven Humphrey and Dr. Numi Goodyear inspected the area on behalf of the Petitioners to determine the presence and/or density of the endangered species populations. While their studies find more evidence of the presence of wood rats and cotton mice on the subject property than the prior studies had indicated, they also conclude that the property is a mixed quality habitat for the endangered species. While there are some areas that appear to be high quality habitat, these experts recognize the fragmented character of the habitat and the effect of the golf course in disrupting the habitat and producing "islands of vegetation." The Goodyear and Humphrey studies confirm that the densities of the endangered species are lowest in areas where the hammock is highly fragmented.

    
    

94. The Goodyear and Humphrey studies do not refute the Commission's conclusion that a significant number of the lots of Harbor Course South do not reflect sufficient indicia of the presence of the endangered species to allow the Commission to assert jurisdiction on all the property if a lot-by-lot permitting process was utilized.

    
    

95. The Commission has concluded that the continuing development of Harbor Course South is inevitable. The Commission has also concluded that its authority over clearing of individual homesites is limited. In view of these conclusions, the Commission has attempted to enhance the survivability of the endangered species by imposing certain mitigation requirements on the Intervenors. The evidence has established that, assuming the development of Harbor Course South is inevitable, and the Commission lacks the authority to halt the development of Harbor Course South, the Commission's comprehensive approach to permitting will be more favorable to the survival potential of the endangered species than a lot-by-lot jurisdictional determination would be.

    
    

    CONCLUSIONS OF LAW

    
    

96. The Commission is authorized and empowered by the Florida Constitution to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life." Article IV, Section 9, Constitution of Florida (1968).

    
    

97. The unique status of the Commission as a constitutionally created agency has been noted by the courts. See, Air Boat Association of Florida, Inc.

    v. Florida Game and Fresh Water Fish Commission, 498 So.2d 629 (Fla. 3rd DCA 1986). In Air Boat, the Third District Court of Appeals held that it did not have jurisdiction over a direct appeal of final action taken by or the rules adopted by the Commission because the Commission was not an administrative agency under Sections 120.52(1) and 120.68, Florida Statutes. 1/ Similarly, it has been held that, because of the Commission's constitutional authority,

    proposed rules promulgated by the Commission are not subject to administrative challenge in a Section 120.54(4), Florida Statutes, rule challenge proceeding. See, Ray Haddock and Greyhound Breeders Association of Florida, Inc. v. Florida Game and Fresh Water Fish Commission, DOAH Case No. 86-3341R, Final Order dated May 19, 1987.

    
    

98. In view of the above cited decisions, there is a question as to the jurisdiction of the Division of Administrative Hearings (DOAH) over disputes involving the Commission. However, none of the parties have challenged DOAH's jurisdiction in this case. Indeed, each of the proposed recommended orders submitted by the parties presupposes that DOAH has jurisdiction.

    
    

99. Pursuant to Section 372.021, Florida Statutes (1989), the Commission "may exercise the powers, duties, and authority granted by s.9 Art. IV. of the Constitution of Florida by the adoption of rules, regulations, and orders in accordance with Chapter 120."

    
    

100. As set forth in more detail below, none of the existing rules adopted by the Commission nor the statutes governing endangered species specifically establish a procedure for issuing or challenging a permit such as the one which is the subject of this proceeding. However, the Proposed Permit specifically provides that enforcement or revocation action for any violation of the permit conditions will be conducted in accordance with Chapter 120, Florida Statutes. In addition, the Proposed Permit provides the Permittees with an opportunity to challenge the conditions of the Proposed Permit in a hearing conducted under Section 120.57. More importantly, as a condition to issuance of the permit, a Notice of Issuance of Permit was published which provided that "any party who desires an administrative hearing on this matter" is entitled to request an administrative hearing to be conducted under the provisions of Section 120.57, Florida Statutes. Thus, the Commission has voluntarily chosen to incorporate the Section 120.57 hearing process as part of the Proposed Permit. Based upon this voluntary choice to incorporate the Section 120.57 hearing process and considering the Florida Constitution's broad grant of authority to the Commission and the statutory recognition of the Commission's ability to carry out its duties pursuant to Chapter 120, it is concluded that DOAH has jurisdiction over this matter.

     
     

101. Neither the Florida Constitution nor the Florida Endangered Species Act specifically prohibit the taking, molesting or harming of endangered or threatened species or their habitat. The only prohibitions regarding endangered and threatened species are found in the rules of the Commission.

     
     

102. The Florida Endangered and Threatened Species Act of 1977 (the "Florida Endangered Species Act") has been codified at Section 372.072, Florida Statutes (1989). Subsection 2 of that statute provides as follows:

     
     

     (2) DECLARATION OF POLICY. - The Legislature recognizes that the State of Florida harbors a wide diversity of fish and wild life and that it is the policy of this state to conserve and wisely manage these resources, with particular attention to those species defined by the Game and Fresh Water Fish Commission, the Department of Natural Resources, or the U.S. Department of Interior, or successor agencies, as being endangered

     or threatened. As Florida has more endangered

     and threatened species than any other continental state, it is the intent of the Legislature to provide for research and management to conserve and protect these species as a natural resource.

     
     

103. Subsection (4)(a)1 of the Florida Endangered Species Act notes that the Commission is the agency responsible for research and management of upland species.

     
     

104. The Commission has adopted general rules regulating the "taking" of any wildlife in this state. "Taking" is defined for purposes of all the Commission's rules to include "taking, attempting to take, pursuing, hunting, molesting, capturing or killing any wildlife or fresh water fish, or their nests or eggs by any means whether or not such actions result in obtaining possession of wildlife or fresh water fish or their nests or eggs." Rule 39-1.004(72), Florida Administrative Code.

     
     

105. Rule 39-4.001 provides:

     
     

     39-4.001 GENERAL PROHIBITION. - No wildlife

     or fresh water fish or their nests, eggs, young, homes or dens shall be taken, transported, stored, served, bought, sold, or possessed in any manner or quantity at any time except as specifically permitted by these rules nor shall anyone take, poison, store, buy, sell, possess or wantonfully or willfully waste the same except as specifically permitted by these rules.

     
     

106. Chapter 39-5, Florida Administrative Code, sets forth the general requirements for the issuance of licenses and permits by the Commission. Rule 39-5.002 provides:

     
     

     39-5.002 OTHER PERMITTED ACTIVITIES

     1. The Executive Director may issue permits without fees as provided in this title for the following activities:

        * * *

        (c) 39-9.002 - Taking fish or wildlife for justifiable purposes.

        * * *

        (r) 39-27.002 - Capture, possess or transport any endangered or threatened species or species of special concern.

        
        

107. The Commission has adopted specific rules regarding endangered and threatened species. These rules are set forth in Chapter 39-27, Florida Administrative Code.

     
     

108. The Key Largo woodrat, the Key Largo cotton mouse and the Schaus' swallowtail butterfly are endangered species for purposes of these rules. See, Rules 39-1.004(23) and 39-27.003(29), (31) and (41), Florida Administrative Code.

109. Indigo Snakes are a threatened species for the purposes of these rules. See, Rules 39-1.004(73) and 39-27.004(11), Florida Administrative Code.

     
     

110. Pertinent provisions of the rules relating to endangered or threated species provide as follows:

     
     

     39-27.0011 KILLING ENDANGERED SPECIES. No

     person shall kill, attempt to kill or wound any endangered species as designated in Rule 39-27.003.

     39-27.002 GENERAL PROHIBITION: PERMITS.

     1. Endangered Species - No person shall pursue, molest, harm, harass, capture or possess any endangered species or parts thereof or their nests or eggs except as authorized by specific permit, permits being issued only when the permitting activity will clearly enhance the survival potential of the species.

     2. Threatened Species - No person shall take, possess, transport, or sell any threatened species or parts thereof or their nests or eggs except as authorized by specific permit from the Executive Director, permits being issued only for scientific or conservation purposes and only upon a showing by the applicant that the permitted activity will not have a negative impact on the survival potential of the species.

        
        

111. In the Proposed Permit dated July 24, 1989, the Commission cited to Rules 39-27.002(1) and 39-27.002(2) as authority for the issuance of the permit.

     
     

112. The only other rules adopted by the Commission regarding permitting are set forth in Chapter 39-9, Florida Administrative Code. Rule 39-9.002 provides as follows:

     
     

     39-9.002 PERMITS TO TAKE WILDLIFE OR FRESH WATER FISH FOR JUSTIFIABLE PURPOSES.

     1. The Executive Director may issue permits authorizing the taking or possession of wildlife or fresh water fish or their nests or eggs for scientific, educational, exhibition, propagation, management or other justifiable purposes. Such permits shall be subject to such terms, conditions, and restrictions as may be prescribed therein... Failure to abide by all terms and conditions stipulated in any written permit issued by the Executive Director shall be a violation of this Section.

        
        

113. Rule 39-9.002 is not specifically made applicable to endangered or threatened species. The Intervenors have suggested that Rule 39-9.002 may serve as additional authority for the issuance of the permit involved in this case. However, the Commission did not cite to this rule and has not relied upon it in the presentation of its case. Furthermore, the provisions of Rule 39-9.002 are

     not consistent with the prohibitions contained in Rules 39-27.0011 and 39-

     27.002. Therefore, the subject permit relating to endangered and threatened species cannot be issued under the authority of Rule 39-9.002.

     
     

114. Unlike the Federal law and regulations governing endangered species, the existing rules of the Commission do not specifically provide for habitat protection for endangered species or for the issuance of an "incidental take" permit. Cf. Chapter 39-27, Florida Administrative Code with 16 U.S.C. 1533(a)(1)(A) and 50 C.F.R. 17.3. While the Commission argues that the Proposed Permit in this case fits within its existing rules, it is clear that the current rules did not anticipate an "incidental take" permit for the destruction of nests or habitat. Attempting to fit the Proposed Permit within the existing rule framework is somewhat like trying to place a square peg in a round hole.

     
     

115. The rules do not specifically recognize development and land clearing as activities for which permits may be granted under Rule 39-27.002, Florida Administrative Code. Moreover, the rules do not delineate the factors to be considered when determining whether a permitting activity clearly enhances the survival potential of a species.

     
     

116. The Commission is essentially attempting to develop habitat protection requirements and a modified version of an "incidental take" permit process through incipient agency policy. The Intervenors concur with the Commission's position that the Proposed Permit can issue under the Commissions's existing rules. They further argue that the Commission can develop the standards and procedures for an "incidental taking" of endangered and threatened species on an incipient basis. See, McDonald v. Department of Banking and Finance, 346 So.2d

     569 (Fla. 1st DCA, 1977); St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d. 1351 (Fla. 1st DCA 1989). (dealing with the development of incipient agency policy by a Chapter 120 administrative agency.)

     
     

117. The unique and broad power granted to the Commission by the Florida Constitution is an important factor to be considered in this case. Neither the Florida Constitution, nor any existing Florida Statute specifically requires a permit for development activities that impact upon endangered species. The need for a permit in this case is based solely upon the rules promulgated by the Commission. The Commission's interpretations and application of these rules must be given great weight. Nonetheless, the Commission should not simply ignore the clear language of its existing rules.

     
     

118. Because of the unique constitutional status of the Commission, it is not clear to what extent the Commission is obligated to adopt rules setting forth its policies and procedures. As noted above, in Section 372.021, Florida Statutes, the Legislature authorized the Commission to "exercise the powers, duties, and authority granted by s.9 Art. IV of the Constitution of Florida by the adoption of rules, regulations, and orders in accordance with Chapter 120." However, this provision has been interpreted as making the adoption of rules by the Commission in accordance with Chapter 120 merely permissive rather than mandatory. See, Ray Haddock and Greyhound Breeders Association of Florida, Inc., supra. Viewed in this context, the cases interpreting the "inevitability and desirability of refining incipient agency policy through adjudication of individual cases," McDonald, supra at 581, are arguably not binding on the Commission. Nonetheless, the cases analyzing an administrative agency's authority to develop policy on a case by case basis provide a useful framework for reviewing the Commission's actions in this case.

119. While existing case law clearly affirms that an administrative agency is not limited to those policies and procedures which have been formally adopted as rules, the unwritten policies of an agency can not be contrary to its existing rules. See, Gar-Con Development, Inc. v. Department of Environmental Regulation, 468 So.2d 413 (Fla. 1st DCA, 1985) rev. den. 479 So.2d 117; Ganson

     v. Department of Administration, 554 So.2d 516 (Fla. 1st DCA, 1989.) Applying this principle in the context of the Commission's existing rules, the Commission should only issue a permit with respect to endangered species "when the permitted activity will clearly enhance the survival potential of the species." Likewise, the Commission should only issue a permit with respect to threatened species when "the permitted activity will not have a negative impact on the survival potential of the species."

     
     

120. In sum, the Commission is not precluded from issuing a permit in this case simply because it has not adopted any specific rules regarding habitat protection or development and land clearing activities. The Commission is authorized to develop incipient policy within the framework of its existing rules.

     
     

121. The Commission contends that the on-site and off-site mitigation conditions outlined in the July 24, 1989 Proposed Permit provide some benefits that enhance the survival potential of the endangered species and that no benefits would otherwise result from the development and land clearing of Harbor Course South which the Commission views as inevitable.

     
     

122. There is no dispute that the Commission considered the Vested Rights Determination, among other things, in deciding to issue the Proposed Permit. Petitioners contend that the Vested Rights Determination should not be considered in evaluating Intervenors application. However, the Commission was justifiably concerned regarding its jurisdiction over any land clearing activities at Harbor Course South. As noted above, the Commission has no habitat protection rule. Furthermore, there is considerable question whether the Commission has constitutional or statutory authority to halt or prohibit the development. Faced with these problems and the on-going development that was taking place, the Commission appropriately considered the likelihood of future development and took the Vested Rights Determination into account in attempting to formulate an overall policy regarding development at Harbor Course South that will best enhance the survival potential of the endangered species.

     
     

123. A key issue in this case is whether the "permitted activity" clearly enhances the survival potential of the species. Essential to making this determination is defining the "permitted activity." Petitioners argue that the "permitted activity" is development and land clearing and the actual destruction of habitat as part of the development process. Intervenors and the Commission contend that development at Harbor Course South has already occurred to the extent that the existing habitat is fragmented and of low quality. In addition, they contend that further development is inevitable in view of the Vested Rights Determination and the limited jurisdiction and questionable authority of the Commission to halt development. Thus, they contend that the "permitted activity" is simply the incidental disturbance of nests and habitat that may result from continuing development. The evidence established that development at Harbor Course South is on-going and will continue in the future. While the issuance of the Proposed Permit may remove some temporary obstacles to the sales of lots and development of them (thereby significantly increasing the value of the property,) sales and development are going to occur at Harbor Course South regardless of whether the Proposed Permit is issued. Through negotiations with

     the developer, the Commission has been able to avoid disputes over jurisdiction and require on-site and off-site mitigation to enhance the survival potential of the species. Taken as a whole and with the modifications suggested herein, the long term survival potential of the species is greater under the agreement reached by the Commission with the Intervenors than it would be if the Commission had to establish its jurisdiction on a lot-by-lot basis.

     
     

124. Nonetheless, there are significant problems with the format of the Proposed Permit. The existing rules clearly contemplate the issuance of a permit to a specific person for a particular activity. In order to issue the Proposed Permit, the Commission has seriously distorted and/or ignored the language of its existing rule. The Proposed Permit will grant a potentially unlimited number of persons, of over whom neither the Intervenors nor the Commission has any meaningful control, the right to harm or molest nests and habitat for an unlimited period of time and for undefined development and land clearing activities. The Proposed Permit would enable individual lot purchasers to proceed with land clearing and development without ever having to specifically apply to the Commission for a permit. Such a general permit is simply not compatible with the existing permitting scheme established for endangered species.

     
     

125. Quite simply, the existing rule structure does not anticipate the issuance of a permit to allow activity by a non-party to the permit. Thus, under the existing rules, the Commission cannot totally avoid issuing a permit on a lot-by-lot basis. Nonetheless, the Commission under its incipient policy is entitled to enter into an agreement with the Intervenors whereby it agrees in advance and for a certain specific time period to issue a permit for the incidental harming or molestation of the habitat and/or nests of the endangered or threatened species as a result of development or clearing of specific lots in return for the mitigation and other conditions set forth in the agreement.

     
     

126. Certainly, there are some outside limits beyond which the Commission cannot go in exercising its constitutionally delegated authority. In addition, the development of incipient agency policy should not be inconsistent with the policies adopted in rules that have been formally promulgated by the Commission. However, an agreement such as the one outlined above, is consistent with the existing rules and would be an appropriate step in the development of incipient agency policy.

     
     

127. There are several specific aspects of the Proposed Permit that are inconsistent with the Commission's existing rules and/or which the evidence established will not further the survival potential of the species. To the extent the Proposed Permit serves as a basis for an agreement between the Commission and the Intervenors as set forth above, the terms and conditions of the Proposed Permit should be modified to reflect the following:

1. The Commission's existing rules clearly prohibit the killing of an endangered species under any circumstances and prohibit the killing of threatened species for other than scientific or conservation purposes. These policies should not be ignored or modified by incipient agency policy and/or the Proposed Permit. The Commission's agreement with the Intervenors should not authorize the "taking" of any endangered or threatened species, including the Eastern Indigo snake because no scientific or conservation purpose has been provided. Furthermore, the Agreement should require more specific efforts to guard against the potential killing of endangered species. In this regard, the Commission should specify the types of land clearing activities that will be authorized and should also require specific efforts to capture and transport any

   existing endangered species from a lot prior to actual clearing. (Precedent for capturing and transporting endangered species prior to land-clearing can be found in the Budd Post Permit.)

   
   

2. The July 24, 1989, Proposed Permit indicates that the permit will be for Intervenors, and their "successors in title or their agents." However, General Condition 1 of the Proposed Permit only authorizes the Commission to seek enforcement or revocation "for any violation of the permit conditions by the Permittee, its agents, employees, or representatives." In other words, violations of the permit by successors in title to the Intervenors do not provide a basis for enforcement or revocation by the Commission. This gap in enforcement authority is potentially a very significant limitation on the effectiveness of the mitigation requirements set forth in the Proposed Permit. Moreover, it is not clear what enforcement steps could be taken or what benefit revocation would provide after development has been allowed to proceed and the nests and habitat are destroyed. Hypothetically, the Intervenor could transfer the property to third parties shortly after the issuance of the permit and those third parties would be able to proceed with development without fear of revocation of the permit. Therefore, in order for the mitigation provisions of the Permit to be effective, meaningful enforcement provisions must be included.

   
   

3. General Condition 2 indicates that the Permit is valid only for the "specific processes and operations applied for and indicated in the approved drawings or exhibits." The evidence did not establish that there are any such "approved drawings and exhibits." Therefore, the specific processes and operations allowed under the Proposed Permit have not been appropriately defined. Certain land clearing processees are more likely to result in the killing of the endangered species. By limiting the types of land clearing that can occur or prohibiting certain types of land clearing, i.e. bulldozing, the Commission can better ensure no killing of the endangered will occur during the land clearing process.

   
   

4. The condition in the Proposed Permit regarding the planting of torchwood in the area of the road bed of Tract E should be modified in order to prevent the possibility of attracting the Schaus' swallowtail butterfly to an area that may be subject to mosquisto spraying or other chemical insect control. The planting of torchwood should be required at an off-site location that is more remote from development and possible insecticide spraying. Furthermore, effort should be made to avoid placing all of the torchwood in a monoculture where the trees and insects could be subject to contagious diseases.

   
   

5. Some enforcement provisions should be included to ensure that the monitoring and removal of exotic species is accomplished. An acceptable way to achieve this goal would be to extend the requirement of the bonds over the period that the Intervenors are required to meet this requirement. Since the cost of inspecting the site semi-annually and removing invasive exotic plants should not be all that significant, the amount of the bonds could appropriately be reduced to an amount that will enable the Commission to assume the Intervenors obligations if necessary. The Commission should also insist upon some requirement that will ensure that the individuals assigned the responsibility for removing the exotic species are sufficiently able to identify the species.

   
   

6. Special Condition 4(b) should delete any reference to Special Condition 3(j) to avoid any confusion as to the number of debris pile that should be installed. Furthermore, the provisions regarding clearing of utility lines

   should be reviewed to determine whether it will preclude effective regeneration of the hammock.

   
   

7. The prohibition against free-ranging pets in this subdivision should be strengthened to include an effective and enforcement mechanism. Such a mechanism could be provided by granting the Home Owners Association the right to access a fine or lean against individual homeowners who violate the provision.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Game and Fresh Water Fish Commission enter a

Final Order setting forth the terms and conditions for an Agreement with the

Intervenors for a specific period of time as set forth in Paragraph 30 of Conclusions of Law, whereby permits will be issued for the incidental destruction and/or molestation of the nests and habitat of the subject endangered species in accordance with the terms and conditions of the Proposed Permit as modified in accordance with the provisions of Paragraph 32 of the Conclusions of Law above.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of October, 1990.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990.

ENDNOTES

1/ In Commission on Ethics v. Sullivan, 489 So.2d 10 (Fla. 1986), the Florida Supreme Court reviewed the nature of certain constitutionally created agencies. It is not clear whether this decision implicitly alters the result reached in Air Boat. In view of the conclusions reached herein, it is not necessary to resolve that issue in this case.

APPENDIX TO RECOMMENDED ORDER

All parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioners' Proposed Findings of Fact, Conclusions of Law and Recommended Order includes a section entitled Findings of Fact. However, the Proposed Findings have not been numbered. The paragraph numbers below refer to the sequential ordering of the paragraphs in Petitioners' Unnumbered Findings of Fact Section.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. (Including Included in the preliminary statement. Appearances)

   
   

2. Included in the preliminary statement. "HARDWOOD HAMMOCK"

3. Adopted in substance in Findings of Fact 19.

   
   

4. Adopted in substance in Findings of Fact 19.

   
   

5. Adopted in substance in Findings of Fact 22.

   
   

6. Adopted in substance in Findings of Fact 20.

   
   

7. Rejected as irrelevant.

   
   

8. Rejected as irrelevant except for the fourth sentence which is adopted in Findings of Fact 20.

   
   

9. Adopted in relevant part in Finding of Fact 19.

   
   

10. Adopted in relevant part in Findings of Fact 20.

    
    

11. Adopted in relevant part in Findings of Fact 61.

1. The first sentence is rejected as constituting argument. The second sentence is adopted in relevant part in Findings of Fact 91 and 93. The third sentence is rejected as constituting speculation and subordinate to Findings of Fact 90 and 93.

   
   

2. Adopted in relevant part in Findings of Fact

   29 and 52.

   
   

   "THE DEVELOPMENT"

   
   

3. Adopted in substance in Findings of Fact 1, 2, 5, 7, and 12.

   
   

4. Adopted in relevant part in Findings of Fact 6, 12, 91 and 93.

1. Included in the preliminary statement.

   
   

2. Adopted in substance in Findings of Fact 44.

   
   

3. Rejected as constituting legal argument rather a finding of fact.

   
   

4. Rejected as constituting legal argument.

29.-34. Rejected as constituting legal argument.

This subject matter is addressed in

71.-90. Rejected as constituting argument rather than a proposed finding of fact. It should be noted that all of the legal authorities cited by Petitioner's arose under the Federal Endangered Species Act, which is not at issue in this case.

"VESTED RIGHTS AND ACTIONS OF OTHER AGENCIES"

91.-92. Included in the preliminary statement. 93.-99. Rejected as constituting legal argument.

This subject matter is address in Findings

of Fact 23, 24, and 73-75.

100.(a) Rejected as constituting legal argument.

This issue is addressed in the conclusions of law.

100.(b) Rejected as constituting legal argument.

This issue is addressed in the conclusions of law.

100.(c) Subordinate to Findings of Fact 80-81. 100.(d) Rejected as not established by competent

substantial evidence and subordinate to

Findings of Fact 80 and 81.

100.(e) Subordinate to Findings of Fact 70 and 71. 100.(f) Subordinate to Findings of Fact 73-75 and

the Conclusions of Law.

100.(g) Subordinate to Findings of Fact 52. 100.(h) Rejected as constituting legal argument.

This issue is addressed in the Conclusion of

Law.

100.(i) Rejected as constituting argument.

100.(j) Rejected as overly broad.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 41.

   
   

2. Adopted in substance in Findings of Fact 26 and 27.

   
   

3. Adopted in substance in Findings of Fact 26.

   
   

4. Subordinate to Findings of Fact 42.

   
   

5. Subordinate to Findings of Fact 1, 2, 3, and 4.

   
   

6. Adopted in substance in Findings of Fact 1.

   
   

7. Subordinate to Findings of Fact 1, 6, and 13.

   
   

8. Subordinate to Findings of Fact 8.

   
   

9. Adopted in substance in Findings of Fact 5, 6, 7, 8, and 12.

   
   

10. Subordinate to Findings of Fact 9.

    
    

11. Adopted in substance in Findings of Fact 11.

12. Adopted in substance in Findings of Fact 31.

    
    

13. Adopted in relevant part in Findings of Fact

    34 and 72.

    
    

14. Adopted in relevant part in Findings of Fact 82-87.

    
    

15. Adopted in relevant part in Findings of Fact 82-87.

16.-19. Subordinate to Findings of Fact 73-75.

20.-22. Adopted in relevant part in Findings of Fact 89-90.

1. Adopted in substance in Findings of Fact 70.

   
   

2. Adopted in relevant part in Findings of Fact 70.

   
   

3. Subordinate to Findings of Fact 37, 71, 73- 75.

   
   

4. Adopted in substance in Findings of Fact 92.

   
   

5. Adopted in substance in Findings of Fact 89 and 92.

   
   

6. Adopted in relevant part in Findings of Fact 77, 80, 81 and 92.

   
   

7. Adopted in relevant part in Findings of Fact 90.

   
   

8. Adopted in relevant part in Findings of Fact 91.

   
   

9. Subordinate to Findings of Fact 93 and 94.

   
   

10. Rejected as unnecessary. The subject matter is addressed in Findings of Fact 93 and 94.

    
    

11. Rejected as unnecessary. The subject matter is addressed in Findings of Fact 93 and 94.

    
    

12. Subordinate to Findings of Fact 93 and 94.

    
    

13. Subordinate to Findings of Fact 93 and 94.

    
    

14. Subordinate to Findings of Fact 93 and 94.

    
    

15. Adopted in substance in Findings of Fact 15 and 81.

    
    

16. Adopted in substance in Findings of Fact 81.

17. Adopted in substance in Findings of Fact 80, 81, 90-94.

    
    

18. Subordinate to Findings of Fact 89.

    
    

19. Subordinate to Findings of Fact 93 and 94.

    
    

20. Subordinate to Findings of Fact 93 and 94.

    
    

21. Adopted in relevant part in Findings of Fact 44.

    
    

22. Subordinate to Findings of Fact 65.

    
    

23. Adopted in substance in Findings of Fact 47, 53, 56-64, and 68.

    
    

24. Subordinate to Findings of Fact 48.

    
    

25. Subordinate to Findings of Fact 47, 50 and 88.

    
    

26. Adopted in relevant part in Findings of Fact

1. Rejected as constituting argument and speculation. The subject matter is addressed in Findings of Fact 54.

   
   

2. Subordinate to Findings of Fact 95.

   
   

3. Adopted in relevant part in Findings of Fact

   64 and 88.

   
   

4. Subordinate to Findings of Fact 56-58.

   
   

5. Subordinate to Findings of Fact 59, 60, 61,

   62 and 95.

   
   

6. Subordinate to Findings of Fact 63, 88 and 5.

7. Rejected as unnecessary. The testimony of George Gann-Matzen has been considered in preparation of this Recommended Order.

74.-75. Rejected as irrelevant. While the

Commission may have considered the CARL acquisitions in determining the mitigation requirements, the impact of those acquisitions are irrelevant to the issues in this case. The conditions of the Proposed Permit must stand on their own grounds.

1. Adopted in substance in Findings of Fact 76 and 82.

   
   

   77.(a) Adopted in relevant part in Findings of Fact 31.

   
   

   77.(b) Subordinate to Findings of Fact 50.

   
   

   77.(c) Subordinate to Findings of Fact 68.

   
   

   77.(d) Subordinate to Findings of Fact 53-55.

   
   

   77.(e) Rejected as vague, ambiguous and unnecessary.

   
   

   77.(f) Subordinate to Findings of Fact 56-64.

   
   

   77.(g) Subordinate to Findings of Fact 56-64. 77.(h) Rejected as irrelevant and unnecessary.

   77.(i) Rejected as unnecessary. This issue is

   addressed in Findings of Fact 55.

   
   

   77.(j) Rejected as vague and irrelevant.

   
   

   77.(k) Adopted in irrelevant part in Findings of Fact 29 and 30.

   
   

   The Intervenor's Proposed Findings of Fact

   
   

   Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

   Reason for Rejection.

   
   

   1. Adopted in substance in Findings of Fact 3.

      
      

   2. Adopted in substance in Findings of Fact 1 and 5.

      
      

   3. Adopted in substance in Findings of Fact 4.

      
      

   4. Subordinate to Findings of Fact 33 and 40- 42.

      
      

   5. Subordinate to Findings of Fact 70.

      
      

   6. Subordinate to Findings of Fact 70.

      
      

   7. Adopted in substance in Findings of Fact 36.

      
      

   8. Subordinate to Findings of Fact 34, 35 and 73-75.

      
      

   9. Adopted in substance in Findings of Fact 28.

      
      

   10. Adopted in substance in Findings of Fact 28.

       
       

   11. Adopted in substance in Findings of Fact 12.

       
       

   12. Adopted in substance in Findings of Fact 1, 6 and 12.

       
       

   13. Subordinate to Findings of Fact 5.

       
       

   14. Adopted in substance in Findings of Fact 6 and 8.

       
       

   15. Adopted in substance in Findings of Fact 31.

       
       

   16. Adopted in substance in Findings of Fact 31.

       
       

   17. Adopted in substance in Findings of Fact 14 and 32.

   18. The first sentence is adopted in substance in Findings of Fact 14 and 32. The remainder of this proposal is rejected as hearsay that was not corroborated by competent substantial evidence.

       
       

   19. Adopted in substance in Findings of Fact 11.

       
       

   20. Rejected as constituting argument rather than a proposed finding of fact. The subject matter is addressed in Findings of Fact 5, 7 and 11.

       
       

   21. Subordinate to Findings of Fact 15, 33 and 37.

       
       

   22. Adopted in substance in Findings of Fact 33.

       
       

   23. Adopted in substance in Findings of Fact 31.

       
       

   24. Adopted in substance in Findings of Fact 73- 75.

       
       

   25. Subordinate to Findings of Fact 73-75.

33. Subordinate to Findings of Fact 31.

34.-35. Subordinate to Findings of Fact 44, 47-71,

73-75 and 95.

1. Subordinate to Findings of Fact 73-75.

   
   

2. Subordinate to Findings of Fact 70-71.

   
   

3. Adopted in substance in Findings of Fact 29 and 30.

   
   

4. Adopted in substance in Findings of Fact 71.

5. Subordinate to Findings of Fact 70 and 71.

   
   

6. Subordinate to Findings of Fact 70 and 71.

1. Rejected as constituting a conclusion of law rather than a finding of fact.

   
   

2. Rejected as constituting a conclusion of law rather than a finding of fact. This subject matter is addressed in Findings of Fact 76 as well as the conclusions of law.

1. Rejected as vague, overly broad and unnecessary.

   
   

2. Adopted in substance in Findings of Fact 9.

   
   

3. Adopted in substance in Findings of Fact 10.

COPIES FURNISHED:

Colonel Robert H. Brantly Executive Director

Game and Fresh Water Fish Commission

Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

James Antista General Counsel

Game and Fresh Water Fish Commission

Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

Michael F. Chenowith, Esquire

P. O. Box 236

Homestead, Florida 33090

William J. Roberts, Esquire Tom R. Moore, Esquire

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

GAME AND FRESH WATER FISH COMMISSION

MANGROVE CHAPTER OF IZAAK WALTON LEAGUE OF AMERICA, INC.,

Petitioner,

vs. DOAH Case No. 89-4901

FLORIDA GAME AND FRESH WATER

FISH COMMISSION, an agency of the State of Florida,

Respondent.

and

DRISCOLL PROPERTIES, INC., and DRISCOLL FOUNDATION,

Intervenors.

/

FRIENDS OF THE EVERGLADES, INC.,

a non-profit Florida Corporation,

Petitioner,

vs. DOAH Case No. 89-4902

FLORIDA GAME AND FRESH WATER

FISH COMMISSION, an agency of the State of Florida,

Respondent.

and

DRISCOLL PROPERTIES, INC., and DRISCOLL FOUNDATION,

Intervenors

/

FINAL ORDER

THIS MATTER now comes before me for the entry of a Final Order. On October 17, 1990, a Hearing Officer of the Division of Administrative Hearings entered his Recommended Order in thin proceeding, a copy of which is attached hereto and

incorporated herein by reference as Exhibit A. Exceptions to this Recommended Order have been filed by Petitioners and Intervenors.

Background

This proceeding concerns Petitioners' challenges to the agency's proposed issuance of a permit to Driscoll Properties, Inc., and the Driscoll Foundation to take the nests and habitat of woodrats and cotton mice, to harm or molest Schaus' swallowtail butterflies and to take Eastern Indigo snakes incidental to land-clearing operations and building construction of single family homes on certain property located on North Key Largo, Florida. The proposed permittees timely sought to intervene herein, and these cases were consolidated for hearing before the Division of Administrative Hearings.

Pursuant to notice, a formal hearing in this proceeding was conducted on December 13-15, 1989, before a duly designated Hearing Officer of the Division of Administrative Hearings. The Hearing Officer's Recommended Order in this matter was rendered on October 17, 1990, and filed with the Clerk of the Division on the following day.

Rulings on Exceptions

1. Petitioners' Exceptions to Recommended Order

   
   

   1. In their first exception (stated as paragraphs 1, 2 and 4 of Petitioners' Exceptions to Recommended Order), Petitioners take issue with the Hearing Officer's reference that the "development of Harbor Course South is inevitable and the Commission lacks the authority to halt the development of Harbor Course South...." (Finding of Fact 95). Petitioners contend that this assumption concerning future events is without evidentiary support in the record. While the prediction of future events is by its nature an uncertain endeavor, there is nevertheless ample evidence in the record of this proceeding to support this finding of fact concerning the agency's inability to halt all development within the subject property (See, e.g., Findings of Fact 73-75, 81, and 89-94). On this basis, Petitioners' first exception is rejected.

      
      

   2. Petitioners next take exception to the Hearing Officer's admission of the Intervenor's "Vested Rights" documents. For the reasons set forth in Conclusion of Law 27 of the Recommended Order, and finding no error in the Hearing Officer's discretionary ruling in this regard, Petitioners' second exception is rejected. However, it is noted that the evidence objected to by Petitioners clearly Constituted but one factor in the agency's consideration of the proposed permit. A more important factor was the limited jurisdictional ability of theagency to unilaterally halt all development of the subject property, irrespective of any vested rights determination.

      
      

   3. Finally, without making reference to a specific finding of fact, Petitioners take exception to reference to the 1986 "Budd Post Permit," contending that the Hearing Officer has ascribed to that permit some "precedential value" to which Petitioners do not believe it is entitled. However, it is evident from the Findings of Fact that consideration of the Budd Post Permit centered around the degree to which the conditions and requirements of that permit had operated to enhance the survival potential of the affected species (See, Finding of Fact 88), as well as the extent to which experience acquired in association with that permit had affected agency decision making in this case. (See, Finding of Fact 89). To the extent similar biological

concerns and permit conditions are at issue in this proceeding, Petitioners' exception in this regard is rejected.

1. Intervenors' Exceptions to Recommended Order

   
   

   1. Intervenors' first exception relates to the "recommended approach" set forth in the Hearing Officer's Recommended Order. In this respect, Intervenors state, in pertinent part, that:

      
      

      The Permittees object to the Hearing Officer's recommendation that the Final Order anticipate some future "agreement" between the Intervenors and the Commission concerning the subject land-clearing activities.... The Permittees object to the recommendation that permits "will be issued" as opposed to the entry of a Final Order of the Commission that constitutes a permit for the land-clearing activities.

      
      

      In making this exception, Intervenors fail to clearly identify any specific finding of fact or conclusion of law to which this objection is directed. A thorough review of the Recommended Order would indicate that Intervenors' exception is seemingly directed to Conclusions of Law 29, 30, and 31.

      Essentially, these conclusions entail the Hearing Officer's belief that, in order to be consistent with existing rules, the Commission should enter into some manner of "agreement" with Intervenors whereby a number of permits will subsequently be issued to individual lot owners to conduct land clearing activities consistent with this agreement. The specific rule at issue provides in pertinent part that:

      
      

      No person shall [engage in specified prohibited acts] except as authorized by specific permit. ...

      
      

      Rule 39-27.002(1), F.A.C.

      
      

      The Hearing Officer has chosen to read the subject rule to require that the permit be issued directly to the person engaging in the permitted acts.

      However, this conclusion is not supported by the quoted language. Equally reasonable is the conclusion that the permit may authorize a party and those in some specified form of agency or privity with that party to engage in permitted acts. Such is the case here, where the permit applies to the Intervenors and their "successors in title or their agents." Such an application by. the agency is consistent with both agency rules and the approach adopted in the companion permit from the United States Fish and Wildlife Service. On the other hand, the Hearing Officer's recommendation concerning some "agreement" with Intervenors far the issuance of subsequent lot-by-lot permits falls wholely outside the existing rule structure of the agency, and thus potentially jeopardizes the acknowledged benefits achieved through the Commission's assertion of jurisdiction on a property-wide rather than lot-by-lot basis. For the foregoing reasons, and to the extent Conclusions of Law 29, 30, and 31 contained in the Recommended Order are rejected and/or modified in this Final Order, Intervenors' first exception is hereby accepted.

      
      

   2. Intervenors' second exception pertains to Finding of Fact 68, wherein the Hearing Officer finds that "[s]ome enforcement mechanism must be provided in order for this condition [prohibiting free-ranging pets] to provide any effective protection for the endangered species." A review of the record herein discloses that the first three sentences of Finding of Fact 68 are adequately

      supported factual findings. However, as Intervenors contend, the final two sentences of this finding are not supported by competent substantial evidence. As is recognized in the second sentence of this finding, the prohibition against free-ranging pets will be accomplished through imposition of a subdivision covenant running with the land. Such a mechanism provides varied and adequate private enforcement opportunities in the event of violation. Furthermore, even apart from any permit considerations, violations of this restriction which result in harm to listed species may likewise implicate criminal enforcement considerations by this agency. On this basis, Intervenors' second exception is granted to the extent that the final two sentences of Finding of Fact 68 are determined to not be based on competent substantial evidence. 1/

      
      

   3. Intervenors' third and final exceptions relate to the Hearing Officer's proposed modifications to the permit, as set forth in Conclusion of Law 32. 2/ Specifically, these exceptions include the following:

      
      

      1. Intervenors take exception to that portion of paragraph 32(a) which recommends that, in an effort to guard against the potential killing of endangered species, the permit should specify the types of land-clearing authorized and require efforts to capture and transport any endangered species present on the subject property prior to clearing. For the reasons expressed more fully in the modifications to paragraph 32(a) set forth in the Conclusions of Law of this Final Order, Intervenors' exception is rejected as to specification of land-clearing methodology, but is accepted as to the recommendation concerning capture and relocation conditions.

         
         

      2. Intervenors take exception to paragraph 32(b), which recommends that the permit include enforcement provisions adequate to ensure compliance with the specified mitigation provisions by those who succeed Intervenors in title to the property. To the extent paragraph 32(b) is modified in the Conclusions of Law of this Final Order, and for the reasons expressed in connection therewith, Intervenors' exception in this regard is rejected.

         
         

      3. Intervenors next take exception to paragraph 32(c), relating to the Hearing Officer's recommendation concerning the permits definition of the types of operations and activities authorized thereby, and paragraph 32(e), relating to enforcement of the permit conditions governing the monitoring and removal of exotic plant species. To the extent paragraphs 32(c) and (e) are modified in the Conclusions of Law of this Final Order, and for the reasons expressed in connection therewith, Intervenors exception to these paragraphs are rejected.

         
         

      4. Finally, Intervenors take exception to paragraph 32(g), which includes the Hearing Officer's recommendation concerning enforcement of the prohibition on free-ranging pets. For the reasons previously set forth in connection with the ruling on Intervenors' exception to a Finding of Fact 68, this exception is accepted.

         
         

         FINDINGS OF FACT

         
         

         1. Findings of Fact 1 through 67 of the Hearing Officer's Recommended Order are hereby adopted and incorporated herein by reference.

            
            

         2. The first three sentences Of Finding Fact 68 of the Hearing Officer's Recommended Order are hereby adopted and incorporated herein by reference. As more fully expressed in the previous ruling on Intervenors' exception thereto, the fourth and fifth sentences of Finding of Fact 6 are hereby rejected as not being supported by competent substantial evidence.

         3. Findings of Facts 69 through 95 of the Hearing Officer's Recommended Order are hereby adopted and incorporated herein by reference.

CONCLUSIONS OF LAW

1. Conclusions of Law 1 through 18 of the Recommended Order are hereby adopted and incorporated herein by reference.

   
   

2. Conclusion of Law 19 of the Recommended Order is hereby rejected, and in lieu thereof, the following Conclusion of Law is adopted:

   
   

   19. Unlike the Federal law and regulations

   governing endangered species, the existing rules of the Commission do not specifically provide for habitat protection for endangered species or for the issuance of an "incidental take" permit. See, Chapter 39-27, Florida Administrative Code; compare, 16 U.S.C.

   1533(a) (1) (a) and 50 C.F.R. 17.3. However, the existing rules of the Commission likewise do not prohibit the issuance of a permit for the taking of a listed species incidental to some other activity, provided the appropriate standard of Rule 39-27.002, F.A.C., is met.

   
   

3. Conclusions of Law 20 and 21 of the Recommended Order are hereby adopted and incorporated herein by reference.

   
   

4. The first four sentences of Conclusion of Law 22 of the Recommended Order are hereby adopted and incorporated herein by reference. The final sentence of Conclusion of Law 22 is hereby rejected.

   
   

5. Conclusions of Law 23 through 28 of the Recommended Order are hereby adopted and incorporated herein by reference; provided that the last sentence of Conclusion of Law 28 is hereby modified to delete the word "suggested," and to substitute in lieu thereof the word "adopted."

   
   

6. For the reasons expressed in the previous ruling on Intervenors' first exception, Conclusions of Law 29, 30, and 31 of the Recommended Order are hereby rejected. In lieu thereof, the following conclusion of law is hereby adopted:

   
   

   29. In furtherance of the benefits achieved through assertion of the Commission's jurisdiction on a property-wide basis, the permit will authorize Intervenors, their successors in title or their agents to engage in the acts authorized thereunder. Thus, purchasers of lots from the Intervenors will be authorized to engage in tide specified activities, subject to all conditions of the permit, without the necessity of obtaining additional permits from the agency.

7. Conclusion of Law 32 of the Recommended Order is hereby rejected in part, modified in part, and renumbered to provide:

   
   

   1. On the basis of the foregoing findings of fact and conclusions of law, and in order to provide enhanced protection and benefit for the wildlife resources involved herein, the proposed permit should be modified in the following respects:

      1. In view of Finding of Fact 30 pertaining to the lack of evidence of the presence of the Eastern Indigo snake on the property, the permit should be modified to delete reference to this species. In addition, in order to further minimize any potential of the unintentional killing of listed species during

         land-clearing operations, the proposed permit should be modified to require that all lots initially be cleared to a level of one (1) foot above the ground using hand tools only (e.g., chain saws, machetes, etc.). Final site preparation, through the use of bulldozers or other mechanical means, may not be commenced sooner than fourteen (14) days following completion of the hand-clearing stage. Because woodrats are arboreal and obligate forest dwellers, the removal of forest canopy prior to any mechanical disturbance to nest sites, together with the 14-day waiting period, should allow adequate time for any resident woodrats to leave the site before more intensive and potentially harmful clearing operations are undertaken. 3/

      2. General Condition 1 of the permit should be modified to provide for enforcement authority in the event of violation of the permit by "the Permittee, its successors in title, their agents, employees or representatives."

      3. General Condition 2 of the permit should be modified to indicate that the permit is valid only for the "specific processes and operations applied for with respect to land-clearing operations and the construction of single family and cluster homes associated with the Harbor Course South Development project North Key Largo, and indicated in the approved drawings or exhibits accompanying the application."

      4. The condition of the permit requiring the planting of torchwood in the old service road (between the main road and the 3d green) in Tract E should be modified to require that the mix of trees identified for planting on the main road right-of-way in Tract E also apply to the old service road where torchwoods were originally to be planted. This approach will prevent the presence of monocultures of torchwoods, and the attendant potential risk to Schaus' swallowtail butterflies.

      5. The permit should be modified to require that the bonding period be extended to cover the entire period during which the permittee is required to monitor and remove exotic plants. During that portion of the required monitoring and removal period which exceeds the period necessary to meet planting

         requirements, a bond of $2,000 should be required in order to assure compliance with monitoring and removal requirements.

      6. In order to avoid confusion, the reference to Special Condition 3(j) in Special Condition 4(b) should be deleted.

Summary

In summary, while not explicitly addressed therein, the granting of permits for the taking (other than killing) of endangered species or their nests incidental to otherwise lawful activities is clearly permissible to the extent the explicit provisions and requirements of agency rules can be met. See,

Rule 39-27.002(1), Florida Administrative Code.

Furthermore, under the circumstances present here, assertion of the Commission's jurisdiction on a property-wide basis, as opposed to lot-by-lot permitting, will result in significantly enhanced protection for the wildlife species involved. Such an approach allows the agency to adopt a comprehensive resolution which will assure an integrated and effective mitigation plan.

As modified herein, the subject permit will impose reasonable restrictive conditions intended to minimize any potential for harm to any resident species. In addition, the permit will require the dedication of land providing useable and suitable woodrat and cottonmouse habitat, which land is adjacent to tracts presently slated for acquisition by the state as preservation and resource lands. Thus, the evidence presented in this proceeding demonstrates that, as modified herein, the restrictive conditions and mitigative requirements of the proposed permit are sufficient to result in the reasonable conclusion that the permitted activity will enhance the survival potential of the affected species.

CONCLUSION

On the basis of the foregoing, it is hereby ORDERED that, as modified in accordance herewith, the permit to Driscoll Properties, Inc., and the Driscoll Foundation to take the nests and habitat of Key Largo woodrats and Key Largo cottonmice, and to harm or molest Schaus's swallowtail butterflies incidental to land-clearing operations and the construction of single family and cluster homes associated with the Harbor Course South Development project is hereby ISSUED. A copy of said permit, as modified in accordance with this Final Order, is attached hereto and incorporated herein by reference as Exhibit B.

DONE AND ORDERED this 9th day of January, 1991, in Tallahassee, Florida.

COLONEL ROBERT M. BRANTLY

Executive Director

Florida Game and Fresh Water Fish Commission

Farris Bryant Building 620 South Meridian Street

Tallahassee, FL 32399-1600

ENDNOTES

1/ While recognizing the limitations on rejecting a finding of fact on this basis (see, B.B. v. Department of Health and Rehabilitative Services, 542 So.2d 1362 (Fla. 3d DCA 1989)), it would appear that apart from being unsupported by the evidence and inconsistent with other findings of fact, the Hearing Officer's opinion concerning the necessity of some enforcement mechanism other than that contemplated is more in the nature of a conclusion of law.

2/ To the extent Intervenors exceptions have indicated no objection to the proposed modifications set forth in the Hearing Officer's Conclusions of Law""32(d), (f), and a portion of (a), the instant rulings will not address those matters, except to the extent same are modified in the Conclusions of Law of this Final Order.

3/ In adopting this conclusion, due consideration has been given to Finding of Fact 87, wherein the Hearing Officer opined that a permit condition requiring the trapping and removal of endangered species during land clearing activities "would help reduce the likelihood of (mortality)." However, it is concluded that under the facts of this case, where lots will be cleared on an individual basis, the methodology adopted above is a preferable alternative in lieu of a trap and removal condition, which carries its own risks and limitations.

NOTICE OF APPEAL RIGHTS

Any party to this Final Order has the right to seek judicial review of same pursuant to 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Fla. R. App. P. 9.110 with the Agency Clerk, Florida Game and Fresh Water Fish Commission, 620 South Meridian Street, Tallahassee, Florida 32399-1600, and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fee, with the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days from the date this Order is filed with the Agency Clerk.

FILED with the Agency Clerk and copies furnished to the following addressees this 9th day of January, 1991:

Office of the General Counsel

Florida Game and Fresh Water Fish Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

Michael F. Chenowith, Esq.

P.O. Box 236

Homestead, Florida 33090

William J. Roberts, Esq. Tom R. Moore, Esq.

217 South Adams Street

P.O. Box 1386

Tallahassee, Florida 32302

ATTEST: (SIGNED) Susan Wilkes Agency Clerk

(Commission Seal)

Docket for Case No: 89-004901

Orders for Case No: 89-004901