STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATERWAYS ) IMPROVEMENT FOUNDATION, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-4285

) STATE OF FLORIDA, DEPARTMENT ) OF NATURAL RESOURCES and the ) BOARD OF TRUSTEES OF THE ) INTERNAL IMPROVEMENT FUND, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Homestead, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 29, 1991, and finished the following day. The Division of Administrative Hearings received the hearing transcript on July 16, 1991. The record closed on August 5, 1991, with the filing of the deposition of Theodore J. Akey.

The parties agreed to file proposed recommended orders twenty days after the hearing transcript and Akey deposition were filed with the Division of Administrative Hearings. See Rule 22I-6.031(2), Florida Administrative Code. Respondents' motion for leave to substitute respondents' proposed recommended order was granted August 14, 1991. Appendix A addresses separately numbered proposed findings of fact by number.

APPEARANCES

For Petitioner: Robert A. Routa, Esquire

P.O. Drawer 6506

Tallahassee, Florida 32314-6506

For Respondent: Brian F. McGrail, Esquire

John W. Corrigan, Esquire

3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether petitioner has standing to request consent of use of marine bottoms? Whether the site in question lies within the John Pennekamp Coral Reef State Park? Whether petitioner's application for consent to dredge in two places east of Angelfish Creek should be granted, under Chapters 253 and 258, Florida Statutes (1989) and Chapters 16D and 18-21, Florida Administrative Code?

PRELIMINARY STATEMENT

In this proceeding, petitioner seeks respondents' consent to dredge state- owned bottom lands. Respondent Department of Natural Resources (DNR) proposed to deny petitioner's application for the following reasons:

1. The proposed activity is expressly prohi- bited within the boundaries of John Pennekamp Coral Reef State Park pursuant to Florida Administrative Code 16D-2.011(3).

   
   

2. There is a viable alternative of moving the channel marker to the edge of the existing channel to accurately delineate the channel that would cause no adverse impacts to sover- eignty land pursuant to Florida Administrative Code 18-21.004(2)(b).

Petitioner's Exhibit No. 16. In response, petitioner filed a request for formal hearing, and the matter was referred to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

Conditioned on obtaining respondents' consent, petitioner already holds a permit issued by the Department of Environmental Regulation (DER) authorizing dredging of some 65 cubic yards of bottom in or near Angelfish Creek in Monroe County. See Petitioner's Exhibit No. 18. At hearing, petitioner amended its application for consent to use state lands to conform to the conditions set out in the DER permit, Petitioner's Exhibit No. 20.

FINDINGS OF FACT

1. Angelfish Creek in Monroe County runs virtually due east from Card Sound (which opens into Biscayne Bay just north of Angelfish Creek) to Hawk Channel, which hugs the upper Florida Keys at the edge of the Atlantic Ocean. The "creek" or strait separates Key Largo and Angelfish Key on the south from Palo Alto Key to the north. Three flashing red lights and other navigational aids mark a channel traversing the saltwater pass between sound and ocean.

   
   

2. Petitioner South Florida Waterways Improvement Foundation, Inc. (SFWIF) is a non-profit corporation owing its existence chiefly to John A. Bott, a public spirited boater known in some circles as the "king of luggage racks."

   T.134. Mr. Bott, whose home at the Ocean Reef Club fronts on Card Sound, (T.145), owns "a 63 Ocean Sports fisherman, a 22 Mako and a 16-foot dinghy." Id. He once ran aground in his big boat in the Angelfish Creek channel.

   
   

3. Respondents are state agencies charged with managing state lands in general, including submerged lands like those underlying Angelfish Creek and further east where petitioner proposes to dredge; and state parks in particular, including the John Pennekamp Coral Reef State Park, a pioneering and world- renowned "underwater park," about whose northern boundary the parties are in dispute.

   
   

   Petitioner Named for Predecessor

   
   

4. Boats navigated Angelfish Creek as early as March 13, 1945, the date of an aerial photograph received as petitioner's Exhibit No. 8. But Angelfish Creek was first dredged (T.154) only after the Army Corps of Engineers issued a

   permit in the wake of approval by Trustees of the Internal Improvement Trust Fund (Trustees) on March 12, 1968, approval which is reflected on page 469 of Volume 36 of the official minutes. Petitioner's Exhibit No. 10.

   
   

5. After expiration of the original permit, a non-profit corporation, South Florida Waterways Improvement Foundation, Inc. (proto-SFWIF) applied for and received permission to dredge "190 cubic yards of material from an area [in the mouth or slightly easterly of Angelfish Creek] 350 feet long by 60 feet wide." T.159. On December 30, 1975, DER issued a dredging permit to proto- SFWIF. Petitioner's Exhibit No. 11.

   
   

6. On January 22, 1976, the Army Corps of Engineers issued a permit to proto-SFWIF for the same project. Petitioner's Exhibit No. 13. After dredging took place as authorized, proto-SFWIF "was allowed to dissolve for failure to pay or failure to file the corporate annual reports." T.164. Proto-SFWIF paid for spoil it removed to uplands (which, when deposited, ceased to belong to it) but "did not [ever otherwise] own any property." T.164.

   
   

7. After Mr. Bott engaged Tallahassee counsel, another non-profit corporation, petitioner SFWIF, was formed, in 1990. SFWIF owns no property in Monroe County, either. Mr. Bott and twelve other members of Key Largo's Ocean Reef Club, some of whose boats draw several feet, are members of SFWIF. Two were also members of proto-SFWIF, and at least one, Mr. Bott, owns waterfront property within a few miles of the proposed site. William J. Roberts, the lawyer who formed SFWIF, together with others in his office, serve as SFWIF's corporate officers.

   
   

   Park Boundaries

   
   

8. The overwhelming weight of evidence adduced at hearing establishes that the site SFWIF proposes to dredge lies within the John Pennekamp Coral Reef State Park. When the then newly formed DER issued a dredging permit to proto- SFWIF, Petitioner's Exhibit No. 11, it did so on the mistaken assumption "that the project was not in an aquatic preserve, and . . . not within the boundaries of John Pennekamp Coral Reef State Park." T.162. (At the time, SFWIF, the petitioner in the present case, was not in existence. Nor did respondents make any representations directly to proto-SFWIF.)

   
   

9. DER may have relied on advice from Jack W. Pierce, then an attorney for DNR, in his letter of August 18, 1975, which stated: "In my opinion, these rules would not affect the maintenance dredging on Angel Fish Creek as that is not on Key Largo." Petitioner's Exhibit No. 17. But, when expressly addressing the question of park boundaries, Mr. Pierce's letter stated simply that "the boundaries . . . are those set out in the Presidential Proclamation of 1960 plus those described as set forth in the Dedication of the Trustees dated September 21, 1967, . . . ." Petitioner's Exhibit No. 17.

   
   

   Successive Dedications

   
   

10. On December 3, 1959, the Trustees dedicated "for park, recreational and preservation purposes, . . . [a] portion of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo." Petitioner's Exhibit No. 23. The Presidential Proclamation of 1960 stated similar federal intentions with respect to the same "portion of the outer Continental Shelf." Known as the Key Largo Coral Reef, this offshore tract has a perimeter of some

    21 miles. The northern end of its landward edge lies slightly north (and three miles east) of the northernmost point of Key Largo.

11. In describing the offshore dedication by metes and bounds, the Trustees put the northwesternmost point at "Can Buoy '21' (approximate Latitude 25o20'06" N., Longitude 80o12'36" W.) southeast of Old Rhodes Key." Id. Can Buoy "21" has since been lost. A new day marker, No. 23, has replaced it, although possibly at a slightly different point, viz.: Latitude 25o 20' 08.58967" N., Longitude 80o 12' 34.5983" W. T.419; Petitioner's Exhibit No. 22.

    
    

12. The current marker is 2.58967 seconds (approximately 260 feet) north and 1.4017 seconds (less than 140 feet) east of what was described as the approximate location of Can Buoy "21" in 1959. If, as a witness testified is likely, the 1959 coordinates were rounded to the nearest tenth of a minute, the apparent discrepancy may be attributable to rounding. In any event, under no analysis advanced, would a difference of 295 feet (to take the hypotenuse) prove significant, for present purposes. T.336.

    
    

13. In the dedication of 1959, the Trustees described the southern, as well as the northern, end of the western or landward edge of the original, offshore tract with some specificity. The southern end of the landward edge of the original offshore tract, also some three miles east of the island, lies south of the northern tip of Key Largo, but well north of the island's southern tip. The southern boundary of the original, offshore tract runs approximately east-west, while its northern boundary runs more or less southeast-northwest, as it reaches the northwestern corner.

    
    

14. By the time the Trustees dedicated additional sovereignty lands on September 21, 1967, Key Largo Coral Reef had come to be known as John Pennekamp Coral Reef State Park. On that day, the Trustees added:

    
    

    Those submerged tidal bottom lands in the Atlantic Ocean lying between [what was then] the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo.

    
    

    Petitioner's Exhibit No. 24. While preserving to their owners "any riparian rights and interest," the Trustees extended the park landward from the original offshore tract to the shore of Key Largo, without, however, listing coordinates of latitude and longitude for the northernmost and southernmost points on shore.

    
    

    Lying Between

    
    

15. The southern boundary of the original, offshore tract is on a line approximately perpendicular to Key Largo's Atlantic shoreline. Surveyors who have considered the problem apparently agree that extending the southern boundary of the original tract to the shore of Key Largo appropriately defines the southern edge of submerged lands lying "between" the island and the original, offshore tract. But the northern boundary of the offshore tract, if extended landward, would proceed northwesterly and come ashore somewhere on Rhodes Key, well north of the northernmost point of the offshore tract, and still further north of the northern tip of Key Largo. T.532.

    
    

16. Before the present controversy arose, DNR engaged James Weidener, a professional land surveyor "to survey basically the Pennekamp Park and to provide boundary maps . . . and then as part of that to locate and monument both the north and south boundaries." T. 528. As part of this project, Mr. Weidener

    and others working with him conducted mean high water surveys at points along the eastern shore of Key Largo and extrapolated a boundary between state-owned bottom lands and uplands in private ownership.

    
    

17. In locating the northernmost point on Key Largo, however, Mr. Weidener did not rely on a mean high water study. Instead he chose the northern edge of tidally washed mangroves or "the apparent edge of vegetation" (T.537) that extended probably 40 to 60 feet north of the mean high water line. Nothing in the record raised the possibility that the point he chose was more than 100 feet north of the mean high water line. By joining this point with marker No. 23, he defined the northern boundary of the submerged lands "between" Key Largo and the original tract.

    
    

18. Even before the Weidener survey, a sign had been erected "only 30 or

    40 feet off the line," (T.533) which the surveyors ultimately decided on. The piling holding the sign stands 34.45 feet off the line. Respondent's Exhibit No. 1. The north side of the sign "says entering Pennekamp State Park. On the south side it says entering Biscayne National Park." T.530-531. The line between the northernmost point on Key Largo and marker No. 23 is depicted as (A) in Appendix B to the recommended order.

    
    

19. The site at which petitioner proposes to dredge lies south of the northerly boundary described in the Weidener survey and depicted as (A) in Appendix B. If a point 100 feet further south than the one Mr. Weidener identified as the northernmost point on Key Largo is connected to the marker, the resulting line lies well north of the proposed site. T.565. If a point 260 feet south of marker No. 23 is connected to a point 100 feet further south than the one identified by Mr. Weidener as the northern tip of Key Largo, the resulting line still lies north of the proposed site. The scaled drawing attached as Appendix B requires these inferences, although these variants of line (A) are not depicted there.

    
    

    Forensic Surveying

    
    

20. In preparing for litigation in the present case, petitioner engaged a surveyor, George Cole, who assembled Petitioner's Exhibit No. 22. Citing "Hayes

    v. Bowman, Fla., 91 So.2d 795 and Bliss v. Kinsey, Fla. 233 So.2d 191," Petitioner's Exhibit No. 22, p. 2, Mr. Cole testified that "these cases suggest the best courses [sic] of action is one that's perpendicular to the channel out here if this indeed was a riparian rights case." T.344. But, since the Trustees took care, in expanding the park, to preserve to their owners "any riparian rights and interest," the location of the northerly boundary of the tract dedicated in 1967 has nothing to do with riparian rights; and lines (C) and (D) depicted in Appendix B have no support in the record, aside from Mr. Cole's unfounded speculation.

    
    

21. Line (B) depicted in Appendix B, also proposed by Mr. Cole, reflects the same methodology Mr. Weidener employed (in the sense of joining a point on Key Largo to marker No.23), but proceeds on the assumption that the northernmost point on Key Largo of relevance is at the mouth of an inlet known as Pumpkin Creek. Mr. Cole conceded that "Key Largo does indeed go further to the north, but . . . [testified that] this portion up here is obscured and shielded from the Atlantic Ocean by Angelfish Key and this is Pumpkin Creek and various other creeks. These are distinct, discrete islands. They have their own land mass. They are not Key Largo." T.342-3.

22. But Angelfish Key (and Little Angelfish Key) resemble El Radabob Key in this regard. El Radabob Key is the largest of the small islands lying alongside Key Largo in the Atlantic Ocean. All witnesses testifying on the point agreed that submerged land lying between Key Largo and El Radabob Key fell within the Trustees' 1967 dedication of "submerged land in . . . [the Atlantic Ocean including] the various inlets along the easterly coast of Key Largo."

    
    

23. Similarly, as Key Largo tapers to a northern point, Angelfish Key and Little Angelfish Key lie on its Atlantic side, separated from it (and each other) by narrow, elongated inlets of the ocean. T. 535, 537. The submerged bottoms of these elongated inlets, no less than the submerged bottom lands in Key Largo Sound, comprise part of John Pennekamp Coral Reef State Park.

    
    

    Poorly Marked

    
    

24. Although charts overstate the controlling depth, the channel in Angelfish Creek is already the best channel connecting the Atlantic Ocean to inland waters north of Snake Creek and south of Government Cut. Tavernier Creek to the south and Broad and Caesar Creeks to the north are also navigable by small craft. Of course, weather and low tides make navigation more difficult everywhere they have an effect.

    
    

25. Depicting depths at mean low water, Respondents' Exhibit No. 2B maps the ocean bottom in the vicinity of markers Nos. 2A and 3A, including the eastern end of the channel petitioner seeks to widen. The two formations petitioner proposes to dredge aside, depths within the channel vary from 4.9 to

    13 or 14 feet, at mean low water. The topographical survey features one-foot contours (between five and fifteen feet below mean low water) and reports hundreds of soundings. Respondents' Exhibit No. 2B.

    
    

26. A shoal lies inside the channel about 15 feet from the southerly edge, some 30 feet easterly of green day marker No. 3A. In the worst spot, fossilized coral lies under only 3.5 feet of water at mean low tide. Boats run aground there as well as on another ledge of fossil coral on the other side of the channel, near marker No. 2A. At the latter site, Mr. H. R. Pender once measured the depth at five feet (T.125); and mean low water is shown at 5.4 feet.

    
    

27. Whether dredging would actually increase boat traffic was not established, although dredging would permit the channel to handle more traffic. The narrower and more serpentine a channel becomes, the smaller the vessels it can accommodate. But traffic could be routed around these shoals by repositioning markers Nos. 2A and 3A, or by adding markers. Outside the channel opposite marker No. 2A is a deep hole; there is ample water into which to shift the channel.

    
    

28. Opposite marker No. 3A outside the channel, depths at mean low water are as low as 5.6 feet. Although that is deeper than places in the mouth of the channel, it might be preferable simply to narrow the channel by moving marker No. 3A the few feet necessary to locate it channelward of the out-cropping of "fossil coral [or] calcium carbonate rock," (T.382) petitioner proposes to dredge.

    
    

    Environmental Effects

    
    

29. The DER permit conditions specify turbidity screens, limit dredging to slack and incoming tides, and require deposition of spoil upland. Biota in the vicinity can withstand "spurts of turbidity," in any event. Tidal currents have

    scoured the channel, removing most fine particles, but intermittent northwesters flush slugs of particulate matter from Card Sound through Angelfish Creek.

    
    

30. The project site is on the order of a mile from the nearest active coral reef in the park, but a few small colonies of coral, both hard and soft (gorgonian) grow where petitioner proposes to dredge, as do algae, marine grasses, and perhaps other alcyonarians. Dredging would displace these individuals but create a new and deeper hard substrate for colonization by like organisms. A representative of DER is to help pick which fossil coral to remove.

    
    

31. Marine life, if established at a greater depth, would less likely suffer interference from boats' 60- to 100-feet long running aground. Petitioner's Exhibit No. 14. Groundings entail the risk of fuel spills. Traces of presumably toxic bottom paint have been found on fossil coral near the surface. But these hazards would also be greatly reduced if markers Nos. 2A and 3A were repositioned, or additional markers placed, to mark the outcroppings, so boaters could avoid them.

    
    

    CONCLUSIONS OF LAW

    
    

32. Since DNR referred petitioner's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

    
    

33. Initially, DNR contends that petitioner lacks standing to request authorization to dredge marine bottoms, because it has no riparian rights on which to base its claim. Section 253.77(1), Florida Statutes (1989) provides:

    
    

    No person may commence any excavation, con- struction, or other activity involving the use of sovereign or other lands of the state, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under this chapter, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use.

    
    

    Not all state-owned lands are submerged. The statute contem-plates title in one of the respondents, and does not require any private ownership or property interest as a prerequisite to a "lease, license, easement, or other form of consent."

    
    

34. In accordance with Section 253.03(7), Florida Statutes (1989), and in furtherance of its duty to administer all state-owned lands, the Trustees have adopted Rule 18-21.004, Florida Administrative Code, "Management Policies, Standards and Criteria," which provides, in part:

    
    

    1. General Proprietary

       (a) For approval, all activities on sover- eignty lands must be not contrary to the

       public interest, except for sales which must be in the public interest.

       . . .

    2. Resource Management

       . . .

       (g) Severance of materials from sovereignty lands shall be approved only if the proposed dredging is the minimum amount necessary to accomplish the stated purpose and is designed to minimize the need for maintenance dredging.

       . . .

       (i) Activities on sovereignty lands shall be designated to minimize or eliminate adverse impacts on fish and wildlife habitat. Special attention and consideration shall be given to endangered and threatened species habitat.

       . . .

    3. Riparian Rights

       (a) None of the provisions of this rule shall be implemented in a manner that would unrea- sonably infringe upon the traditional, common law riparian rights of upland property owners adjacent to sovereignty lands.

       
       

       With respect to riparian rights, the rule forbids unreasonable infringement, but does not require that an applicant for consent to use the bottom have the right to do so, before respondents grant the right. No proof established in the present case any riparian right in others to use of the proposed site.

       
       

35. In at least one other case, a non-profit corporation which owned no property, Wiggins Pass Conservancy, Inc., was formed for the purpose of obtaining, and did obtain, authorization from DNR and others to dredge. Inland navigation districts and various local governmental entities have received authorization to dredge without any showing of riparian or other property rights.

    
    

36. Petitioner can be viewed as an incorporated association of park users whose recreational interests are being determined by agency action, an entity of the same legal type as, for example, the appellant in Friends of the Everglades, Inc. v. State, 496 So.2d 181 (Fla. 1st DCA 1986). Cf. In re Matter of Surface Water Management Permit No. 50-01420-5, 515 So.2d 1288 (Fla. 4th DCA 1986) and Schatz v. Environmental Regulatory Commission, 500 So.2d 167, 169 n.3 (Fla. 1st DCA 1986). See generally Florida Society of Ophthalmology v. State Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988).

    
    

37. On the merits, the case is controlled by provisions of Rule 16D- 2.011(3), Florida Administrative Code, entitled "John Pennekamp Coral Reef State Park." Under the rule, the question is not an open one. The pertinent language is:

    
    

    Unless specifically initiated by the Division, all construction activities of any kind are prohibited. No dredging, excavating, or fill- ing operations are permitted in this state park; no materials of any kind may be deposited in or on the waters thereof. No structure of any kind shall be erected; no public service

    facility shall be constructed or extended into, upon or across this state park.

    
    

    (Emphasis supplied.) The rule is clear that dredging not "initiated by the Division" is proscribed. Here the Division of Parks and Recreation which, after all, is responsible for managing the park, vigorously opposes petitioner's proposal.

    
    

38. Petitioner has proven a need for respondents, perhaps in conjunction with the United States Coast Guard, to take steps to eliminate or mitigate the existing hazard to navigation. While it was suggested that moving markers Nos. 2A and 3A, or adding new ones, might itself constitute a type of dredging or filling, the evidence of record will not support such an interpretation of the rule. See Gar-Con Development, Inc. v. State, Department of Environmental Regulation, 468 So.2d 413 (Fla. 1st DCA 1985).

    
    

39. The rule allows "construction activities," when "specifically initiated by the Division," Rule 16D-2.011(3), Florida Administrative Code, in conformity with Rule 18-21.004(2), Florida Administrative Code. Surely such "construction activities" include the appropriate placement of navigational aids, in the interests both of safety and of protecting the submarine environment.

RECOMMENDATION

It is, accordingly recommended:

1. That respondents deny petitioner's application for consent to dredge.

   
   

2. That respondents specifically initiate relocation of markers Nos. 2A and 3A or take other steps to mark the channel appropriately.

RECOMMENDED this 13th day of November, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991.

APPENDIX A TO RECOMMENDED ORDER, CASE NO. 90-4285

Petitioner's proposed findings of fact Nos. 1, 6, 7, 8, 9, 10, 11, 13, 14, 15,

16, 17, 19, 20, 22, 23, 24, 25, 26, 29, 31, 34, 35, 42, 43, 44, 45, 46, 47, 48,

49, 51, 52, 56, 57, 78, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94,

95 and 97 have been adopted, in substance, insofar as material.

Petitioner's proposed findings of fact Nos. 2, 3, 4, 5, 58, 59, 60 and 71 are immaterial.

With respect to petitioner's proposed finding of fact No. 12, no causal connection between the letter and the permit was proven.

With respect to petitioner's proposed finding of fact No. 18, the owner's testimony was largely hearsay.

With respect to petitioner's proposed finding of fact No. 21, the shallows are a hazard on account of the markers' location.

With respect to petitioner's proposed finding of fact No. 27, the adequacy of the width would depend on the vessel.

With respect to petitioner's proposed finding of fact No. 28, no fatality occurred from grounding.

With respect to petitioner's proposed finding of fact Nos. 30 and 32, see finding of fact No. 24.

With respect to petitioner's proposed finding of fact No. 33, such an event blocked the channel for "another large vessel." T.38.

With respect to petitioner's proposed finding of fact No. 36, Mr. Bott had only one grounding.

Petitioner's proposed finding of fact No. 37 has been adopted, in substance, but proto-SWFIF is now defunct.

With respect to petitioner's proposed finding of fact No. 38, a new corporation was organized.

With respect to petitioner's proposed finding of fact No. 39, at least one nonprofit corporation obtained such permits.

Petitioner's proposed findings of fact Nos. 40, 50, 70, 74 and 76 have been rejected.

With respect to petitioner's proposed finding of fact No. 41, while apparently accurate, the proposed finding is not supported by the citation to the record. With respect to petitioner's proposed findings of fact Nos. 53 and 73, the evidence showed that the new marker was likely at the same spot as the old.

Petitioner's proposed findings of fact Nos. 54, 55, 72, 75 and 77 pertain to subordinate matters.

With respect to petitioner's proposed finding of fact No. 79, the effect of possibly increased traffic in larger vessels was not considered.

With respect to petitioner's proposed finding of fact No. 81, the testimony was "on the order of" a mile.

Petitioner's proposed finding of fact No. 96 so-called is actually a proposed conclusion of law.

With respect to petitioner's proposed findings of fact Nos. 98 and 99, the proposed dredging is contrary to administrative rules which, at least in the absence of a rule challenge, express public policy definitively.

Respondents' proposed findings of fact were not separately numbered, but have been addressed, in substance, in the findings of fact.

APPENDIX B TO RECOMMENDED ORDER, CASE NO. 90-4285

(From Petitioner's Exhibit No. 22)

COPIES FURNISHED:

Robert A. Routa, Esquire

P.O. Drawer 6506 Tallahassee, FL 32314-6506

Brian F. McGrail, Esquire John W. Corrigan, Esquire

3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000

Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300

Tom Gardner, Exec. Director Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300

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. 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.

Docket for Case No: 90-004285

Orders for Case No: 90-004285