STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

HOWARD and EUGENIA VOGEL,

Petitioners,

vs. OGC CASE NO.: 99-0019

DOAH CASE NO.: 99-0289

GEORGE WENTWORTH and DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/ KENNETH and LYNDA URBAN,

Petitioners,

vs. OGC CASE NO.: 99-0019

DOAH CASE NO.: 99-0290

GEORGE WENTWORTH and DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/

AMENDED FINAL ORDER

On August 25,1999, an Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted her Recommended Order to the Department of Environmental Protection ("Department") in these consolidated formal administrative proceedings. A copy of the Recommended Order is attached hereto as Exhibit A. The Recommended Order indicates that copies were served upon counsels for Petitioners, Howard and Eugenia Vogel and Kenneth and Lynda Urban ("Petitioners"), and upon counsel for Co-Respondent, George Wentworth ("Wentworth"). Exceptions to the Recommended Order were timely filed on behalf of the Department and Wentworth. Responses to Wentworth's Exceptions were subsequently filed on behalf of the Department and Petitioners.

On October 7,1998, a Final Order was entered by the Department in these consolidated cases.

NECESSITY AND AUTHORITY FOR THE AMENDED FINAL ORDER

This Amended Final Order is being entered sua sponte because of certain governing legal authorities that were overlooked in the preparation of the initial Final Order. It is

in the public interest that agency final orders follow precedent and be consistent in their legal rulings based on similar facts. See, e.g., Nordheim v. Dept. of Environmental Protection, 719 So. 2d 1212,1214 (Fla. 3d DCA 1998), rev. den., 729 So. 2d 393 (Fla.

1999); Plante v. Dept. of Business and Professional Renulation, 716 So. 2d 790, 792 (Fla 4th DCA 1998), rev. den., 727 So. 2d 909

(Fla. 1999).

In the leading case of Peoples Gas System v. Mason, 187 So.

2d 335, 338 (Fla. 1966), the Florida Supreme Court ruled that Florida is among those jurisdictions holding that administrative agencies do have inherent authority to reconsider final orders which are still under their control. In these consolidated cases, no notice of appeal has been filed seeking appellate review of the Final Order entered herein on October 7,1999.

Therefore, the Department still has control over the Final Order and possesses the inherent power to make changes which are necessary to bring the legal rulings in the Final Order in alignment with existing statutory and administrative case law of Florida.

BACKGROUND

The following procedural and factual matters pertinent to these proceedings are essentially uncontroverted. Wentworth owns residential property on Hutchinson Island in Stuart, Martin County, Florida. Wentworth's property is adjacent on its western boundary to Indian River Lagoon, which has been classified as an Outstanding Florida Water. In addition, this portion of Indian River Lagoon has been officially designated as the Jensen Beach to Jupiter Inlet Aquatic Preserve. See Rule 62-302.700(9)(h)20, Florida Administrative Code (hereafter "F.A.C."). Petitioners, Kenneth and Lynda Urban, are owners of residential property adjacent to the Wentworth property and immediately upland of the Indian River Lagoon. Petitioners, Howard and Eugenia Vogel, own nearby residential property on Hutchinson Island also immediately upland of the Indian River Lagoon.

In June of 1998, Wentworth filed an application with the Department for an environmental resource permit. The original permit application was limited to the proposed construction of a boardwalk through an area of mangroves bordering the Indian River. On August 13, 1998, Wentworth filed another application with the Department, which substantially revised his prior boardwalk project. Wentworth's August application sought permission to construct a single-family dock structure consisting of an access pier through the mangroves leading to a U-shaped terminal platform and boat lift located on sovereign submerged lands in Indian River Lagoon. (Petitioner's Ex. No. 3) This application was subsequently modified by Wentworth as to shape

and dimensions and ultimately included a proposed boathouse attached to the waterward end of the access pier.

Wentworth's single-family dock application was reviewed by Bruce Jerner, a Department supervisor of permitting and compliance enforcement programs at the branch office located in Port St. Lucie, Florida. On September 23, 1998, an unsigned letter with attachments addressed to Wentworth was apparently placed in the outgoing mail by Mr. Jerner from the Department's Port St. Lucie branch office. This unsigned letter indicated that Wentworth's proposed dock project met the requirements for a noticed general permit under Rule 62-341.427, F.A.C. (Petitioner's Ex. No. 4)

This unsigned letter of September 23, 1998, also advised Wentworth that it constituted authorization on behalf of the Board of Trustees of the Internal Improvement Trust Fund for a consent to use sovereign submerged lands in the Indian River Lagoon in connection with the proposed dock project. The letter also contained several obvious errors, including a purported determination that Wentworth's proposed dock project was entitled to an exemption from regulatory permitting requirements pursuant to a South Florida Water Management District rule exemption provision. 1/ On May 10,1999, the Department's Port St. Lucie branch office issued a revised letter to Wentworth correcting these errors and deleting the references to an exemption from permitting requirements. (Department's Ex. No. 1)

Wentworth's dock project as approved in the letter of September 23, 1998, was described as "a 1,894 square foot single family structure with a 23' x 50' boat house located over the terminal access and mooring area for a total of 1,894 square feet in Jensen Beach to Jupiter Inlet Aquatic Preserve". This letter also advised Wentworth that he could protect himself from third- party challenges to the Department's actions in approving the dock project by publishing notice in a local newspaper and/or by sending copies by certified mail to any known interested persons.

Wentworth, however, did not give written notice of the Department's approval of his proposed dock project by publication in a newspaper or by certified mail to Petitioners or to anyone else. Instead, the building contractor hired by Wentworth commenced construction of the dock facility. Wentworth was then contacted by Petitioners, who objected to the size of the dock structure as evidenced by the locations and dimensions of the pilings placed in the waters of Indian River Lagoon. Wentworth also received a "stop work" order-against the dock construction issued by Martin County on December 31, 1998. (Petitioners' Ex. 7)

Between January 8-10, 1999, Petitioners filed their administrative petitions with the Department challenging Wentworth's ongoing dock construction. The Department subsequently contacted Wentworth and requested that he cease all dock construction activities pending a final resolution of Petitioners' administrative actions. Wentworth, however, proceeded with construction and completed the dock facility prior to the commencement of the formal hearing on May 20, 1999.

Wentworth's "as built" dock structure consists of a 236' x 4' access pier with a traditional terminal platform on the south side of the access pier. On the north side of the terminus of the access pier is an attached 16' by 30' roofed boathouse with a boat lift. The total area of Wentworth's completed dock facility is approximately 1,594 square feet.

RECOMMENDED ORDER

A DOAH formal hearing was conducted in these consolidated cases by Administrative Law Judge Linda M. Rigot ("ALJ"), on May 20-21, 1999. The ALJ's Recommended Order ("RO") contains findings and related conclusions that Wentworth's dock facility violates several of the rule criteria for private residential single-family docks located in an Aquatic Preserve. The Aquatic Preserve violations cited by the ALJ include the following:

1. Wentworth's terminal platform exceeds the maximum size of 160 square feet and maximum width of eight feet authorized by Rule 18-20.004(5)(b)6, F.A.C., and the Indian River Lagoon (Jensen Beach to Jupiter Inlet) Management Plan incorporated by reference into Rule 18- 20.004(7), F.A.C. (RO, paragraphs 16, 38, 42)

   
   

2. Wentworth's access pier is not elevated to a minimum of five feet above mean high water as required by Rule 18-20.004(5)(a)5 and Rule 62-341.427(2)(a),

   F.A.C. (RO, paragraphs 17, 36, 37)

   
   

3. The dock's wood planking is not spaced at least

   one-half inch apart after shrinkage as required by Rule 18-20.004(5)(a)4, F.A.C. (RO, paragraphs 18, 35)

   
   

4. The roof of the attached boathouse is not authorized because it is not "necessary to conduct water dependent activities", does not "minimize adverse impacts", and does not "ensure maximum light penetration" as required by Rules 18-20.004(1)(f), 18- 20.004(5)(a)2, and 18-20.004(5)(b)2, F.A.C. (RO, paragraphs 16, 45)

The ALJ concluded the RO by recommending that the Department enter a final order "granting Wentworth's application for a noticed general permit and for consent to use sovereign submerged lands". The ALJ's recommendation, however, was "conditioned on the entire terminal platform not exceeding 160 square feet, the entire terminal platform not exceeding eight feet in width, the deck plank spacing being at least one-half inch wide, and the access pier being elevated to five feet above mean high water."

RULING ON DEPARTMENT'S EXCEPTION

The Department's Exception consists of a notation of a purported clerical error in paragraph 41 of the RO. The Department asserts that the word "fall" as set forth on line 10 should be replaced with the word "fail". However, one of the secondary meanings of the verb fall is to "utterly fail". In this sense, the verbs "fall" and "fail" are similar.

Consequently, the Department's Exception is denied.

RULINGS ON WENTWORTH'S EXCEPTIONS

Preface

Wentworth has filed various Exceptions challenging most of the ALJ's factual findings and legal conclusions set forth in the RO. Thus, it is appropriate to comment at this point on the standards of agency review of DOAH recommended orders. An agency reviewing a DOAH recommended order may not reject or modify the findings of fact of an administrative law judge "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence". See § 120.57(1)(1), Florida Statutes (Supp. 1998). Accord Dunham v.

Highlands County School Board, 652 So. 2d 894 (Fla. 2d DCA 1995); Dietz v. Florida Unemployment Appeals Commission, 634 So. 2d 272 (Fla. 4th DCA 1994); Florida Dent. of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987); Wash & Dry Vending Co. v. Dept. of Business Regulation, 429 So. 2d 790 (Fla. 3d DCA 1983).

A reviewing agency may not reweigh the evidence presented at a DOAH formal hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. Belleau v. Dept. of Environmental Protection, 695 So. 2d 1305, 1307 (Fla. 1st DCA1997), Maynard v. Unemployment Appeals Commission, 609 So. 2d 143, 145 (Fla. 4th DCA 1992). These evidentiary-related issues are matters within the province of the administrative law judges, as the triers of the facts. Heifitz v. Dept. of Business Regulation, 475 So. 2d 1277,1281 (Fla. 1st DCA 1985); Wash & Dry Vending Co., supra, at 792. Thus, if the record in these consolidated cases discloses any competent substantial evidence

supporting a finding of fact in the ALJ's RO, the Department is bound by such factual finding in preparing this Final Order.

Bradley, supra, at 1123.

Subsection 120.57(1)(1), Florida Statutes (Supp. 1998), provided that a reviewing agency had the authority to "reject or modify [an administrative law judge's] conclusions of law and interpretations of administrative rules over which it has substantive jurisdiction". However, this statutory subsection was amended in the 1999 session of the Florida Legislature by the enactment of § 6 of CS/HB 107. 2/ This 1999 amendment added the following sentence immediately after the above-quoted language:

When rejecting or modifying such conclusions of law or interpretations of administrative rules, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

Wentworth's numerous Exceptions challenge all but three of the 45 combined findings of fact and conclusions of law in the RO on review. Many of these Exceptions are redundant in that they contain the same primary claims asserted by Wentworth throughout these administrative proceedings. Therefore, in an effort to respond to Wentworth's Exceptions in a coherent and orderly fashion, these Exceptions will be consolidated and addressed in this Final Order based on the legal issues presented.

I.

Wentworth's Claim of "Final" Agency Action

A primary contention repeated in many of Wentworth's Exceptions is that the unsigned letter mailed from the Department's Port St. Lucie branch office on September 23,1998, constituted "final" agency action granting him a consent of use of the sovereign submerged lands in Indian River Lagoon where his dock facility is located. Wentworth further contends that he is entitled to a noticed general permit 3/ by "default" due to the Department's failure to notify him pursuant to Rule 62-343.090, F.A.C., that his dock project did not meet the requirements for a noticed general permit under Rule 62-341.427, F. A. C.

Based on these contentions, Wentworth concludes that Petitioners had no legal right to a formal hearing pursuant to §§

120.569 and 120.57(1), Florida Statutes (hereafter "F.S."), to challenge his authorization to rely on the noticed general permit

or his entitlement to a consent of use of sovereign submerged lands. Wentworth thus advances the proposition that the ALJ lacked subject matter jurisdiction to conduct a formal hearing on the claims raised in the petitions filed by Petitioners.

1. The Noticed General Permit Issue

   
   

   Wentworth contends that Petitioners do not have standing to challenge his right to rely on the noticed general permit rule as authorization for the regulatory permit and that the ALJ thus lacks jurisdiction over this issue in these administrative proceedings. This contention is rejected. There is case law holding that a project authorized by a general permit may be accomplished without agency action and without a point of entry for a third party to initiate an administrative contest, unless the Department publishes or requires by rule that the applicant publish notice for a general permit. See, e.g., Hamilton County Commissioners v. TSI Southeast, Inc., 587 So. 2d 1378,1384 (Fla. 1st DCA 1991); City of Bradenton v. Amerifirst Development Corp.,

   582 So 2d 166,167 (Fla. 2d DCA 1991). These appellate decisions are based on judicial interpretations of the language in § 403.814(1), Florida Statutes, stating that "any person complying with the requirements of a general permit may use the permit 30 days after giving notice to the department without any agency action by the department." (emphasis supplied)

   General environmental resource permits authorizing dock projects in waters of this state, however, derive their statutory authority from the provisions of §§ 373.118 and 373.414(9), Florida Statutes, not § 403.814. There are no similar provisions in §§ 373.118 and 373.414(9) authorizing a person to rely on a general permit rule as authority to conduct an activity in state waters "without any agency action by the department." 4/ In addition, these proceedings do not present a factual situation where a dock was constructed by Wentworth in state waters "without any agency action by the department".

   
   

   The September 23, 1998, and May 10, 1999, letters from the Department's Port St. Lucie branch office contained written determinations purporting to grant to Wentworth the noticed general permit pursuant to Rule 62-341.427, F.A.C. (Petitioner's Exhibit No. 4; Department's Ex. No. 1) Therefore, there was preliminary "agency action" in these cases in the form of written determinations from the Department granting the noticed general permit authorized pursuant to Rule 62-341.427. Accordingly, Petitioners do have standing in these proceedings to challenge Wentworth's entitlement to the noticed general permit authorized by Rule 62-341.427. Moreover, as discussed in more detail below, the subject petitions for administrative hearings received by the Department in January of 1999 were timely filed because

   Petitioners were not provided with written notice of this preliminary agency action by newspaper publication, mail, or any other means.

   
   

   In the last sentence of paragraph 20 of the RO, the ALJ observes that "[a]lthough Wentworth's dock structure meets the criteria for a noticed general permit, it does not meet the criteria for consent to use sovereign submerged lands". I disagree with and reject the ALJ's determination that Wentworth's dock structure "meets the criteria for a noticed general permit". 5/ This Final Order adopts the ALJ's critical finding of fact that Wentworth's main access pier is not elevated a minimum of five feet above mean high water. (RO, paragraphs 17, 36) Consequently, as correctly noted by the ALJ in paragraph 32 of the RO, Wentworth "must elevate the access pier a minimum of five feet above mean high water" to meet the general permit requirements of Rule 62-341.427(2)(a), F.A.C.

   
   

   Even assuming, arguendo, that Wentworth was entitled to rely on Rule 62-341.427 as his permit authority for the dock project, this does not mean that he was authorized to commence construction without "final" agency action by the Department granting consent of use of the sovereign submerged lands in the Indian River Lagoon. Section 253.77(1), F. S., and Rule 62- 341.215(6), F.A.C., both state that a person may not commence any excavation, construction, or other activities involving the use of sovereign lands of the state without obtaining the required lease or other form of consent authorizing the proposed use. As discussed in more detail below, Wentworth did not receive "final" authorization from the Department to use the sovereign submerged lands in the Indian River Lagoon prior to commencement of his dock facility.

2. The Consent of Use of Sovereign Submerged Lands Issue

I concur with the ALJ's conclusion that the Department's action granting Wentworth a consent of use of sovereign submerged lands as indicated in the letter dated September 23, 1998, became a preliminary or proposed agency action upon the filings of Petitioners' administrative challenges in these proceedings.

Accordingly, the "finality of agency action" argument prominently relied upon by Wentworth throughout these proceedings is rejected as it applies to the consent of use of sovereign submerged lands for the following reasons:

1. It is undisputed that a substantial portion of Wentworth's dock facility (as proposed or as built) is located on sovereign submerged lands underlying Indian River Lagoon and located within the Jensen Beach to Jupiter Inlet Aquatic Preserve. (RO, paragraphs 2 and 33) Thus, Wentworth was

   required to obtain from the Department a consent of use of these sovereign submerged lands in order to be entitled to commence the activity of construction of his proposed dock facility. See Rules 18-20.004,18-21.004, and 18-21.005, F.A.C. 6/ Assuming,

   arguendo, that the Department's September 23,1998, letter was legally sufficient to grant a consent of use of sovereign submerged lands to Wentworth, this Department action was relegated to the legal status of proposed agency action by the Petitioners' timely filings of their petitions for administrative hearings.

   
   

2. There is no evidence of record nor even any allegations in these proceedings that Petitioners received the written notice specified in the rules of the decision by the Department's Port St. Lucie branch office to grant Wentworth a consent of use of sovereign submerged lands in connection with his dock facility. See Rules 62-110.106(2), 62-110.106(5), and 62-110.106(8), F.A.C. Therefore, the 21-daytime period for filing an administrative petition challenging the Department decision to grant to Wentworth a consent of use of sovereign submerged lands in Indian River Lagoon never expired with respect to Petitioners. See Rules 28-106.111 (2) and 62-110.106(3)(a)4, F.A.C. 7/

   
   

3. Rule 62-110.106(10)(a), F.A.C., provides in pertinent part as follows:

   
   

   Since persons whose substantial interests are affected by a Department decision may petition for an administrative proceeding within the time provided in this rule (at subsection (3) above) after receipt of notice of agency action, and since receipt of such notice can occur at any time unless notice is given or published as prescribed in this rule, the applicant or other person requesting a particular action by the Department cannot justifiably rely on the finality of the Department's decision unless the notice has been duly published or otherwise provided to all persons substantially affected by the decision. (emphasis supplied)

   
   

   This rule warning of lack of finality of an agency decision where the prescribed written notice is not provided to substantially affected persons is merely a codification of the governing case law of Florida. See, e.g., Dept. of Environmental Protection v. P Z Construction Co., 633 So. 2d 76, 78 n.4 (Fla. 3d DCA 1994); Florida Optometric Assn. v. Dept. of Professional Regulation.

   567 So 2d 928, 935 (Fla. 1st DCA 1990); Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1374 (Fla. 1979).

4. Any suggestion by Wentworth that he was entitled to rely on the Department's letter of September 23, 1998, as "final" agency action for the consent of use of sovereign submerged lands based on the doctrines of "estoppel" or "waiver" is not supported by the governing law of Florida cited above. Consequently, I hereby rule that the action of the Department's Port St. Lucie branch office in purporting to grant Wentworth a consent of use of sovereign submerged lands in connection with his dock project was not "final" agency action under the material facts presented in these cases.

Based on the above, the following rule interpretation and conclusions of law of the ALJ are rejected: 8/

1. The portion of the last sentence of paragraph 20 of the RO ruling that "Wentworth's dock structure meets the requirements for a noticed general permit".

   
   

2. Those portions of paragraphs 28 and 29 of the RO concluding that Wentworth has never requested a consent of use of sovereign submerged lands in connection with his dock project.

I have concluded that the ALJ correctly ruled in paragraph

32 of the RO that Wentworth must elevate the access pier a minimum of five feet above mean high water to meet the requirements of Rule 62-341.427(2)(a), F.A.C. Thus, I deem the inconsistent ruling in the last sentence of paragraph 20 of the RO to be harmless error. I also deem the ALJ's conclusion that Wentworth never requested a consent of use of sovereign submerged lands to be harmless error. It is uncontroverted that Wentworth's dock application filed in August of 1998 was reviewed and processed by the Department's Port St. Lucie branch office as a joint application for a noticed general permit and a consent of use of sovereign submerged lands.

In all other aspects, the portions of Exception Nos. 2, 8,10, 11, 24, 25, 27, 28, 29, 30, 32, 34, and 35 contending that the Department had taken "final" agency action in September of 1998 granting Wentworth a consent of use of sovereign submerged lands and a noticed general permit to construct the dock facility are denied. Furthermore, those portions of the enumerated Exceptions contending that the ALJ lacked jurisdiction to consider Petitioners' claims contesting Wentworth's entitlement to the consent of use and the noticed general permit are also denied.

II.

Wentworth's Alternative Claims that these Proceedings are about "Enforcement" Rather than "Entitlement" or the ALJ Erred by Evaluating the As Built Dock Facility in an "Entitlement" Proceeding.

Another primary contention asserted by Wentworth in his Exceptions is that the subject matter of these administrative proceedings is not really "entitlement" to a noticed general permit and a consent of use, but is "enforcement" of alleged violations of his as built dock facility. This contention is rejected based on the above ruling that there was no "final" agency action by the Department's Port St. Lucie branch office granting Wentworth a consent of use of sovereign submerged lands in Indian River Lagoon. Unless reversed or modified by the appellate courts, this Final Order will constitute "final" agency action by the Department on Wentworth's request for a consent of use of sovereign submerged lands in connection with his dock facility. Consequently, there are no "enforcement" issues presented in these proceedings.

An alternative contention raised in Wentworth's Exceptions is that, even if these proceedings are about his "entitlement" to a consent of use of sovereign submerged lands, the ALJ erred by not limiting the scope of the formal hearing to the dock project as proposed in his application and supporting documents.

Wentworth thus concludes that the ALJ should not have considered any evidence or made any findings or conclusions based on the specifications and dimensions of the completed dock facility as it existed at the time of the DOAH formal hearing. This contention and related conclusion of Wentworth are also rejected.

A formal administrative hearing challenging an agency action proposing to grant a license, permit or other request is not merely an administrative review of prior preliminary agency action, but is a de novo proceeding intended to formulate final agency action. See, e.g., Hamilton County Commissioners v. State Dent. of Environmental Regulation, 587 So. 2d 1378, 1387 (Fla.

1st DCA 1991); Florida Dept. of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 785 (Fla. 1st DCA 198-1); and McDonald v.

Dept. of Banking and Finance, 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

A de novo formal hearing wherein a party is challenging a Department action proposing to grant or deny a permit or other request is not restricted to the matters set forth in the application documents or in the Department's written notice of intent to issue or deny the regulatory permit or proprietary authorization. Hamilton County Commissioners, supra, at 1387-

1388; DeCarion v. Dept. of Environmental Regulation, 445 So. 2d 619, 621 (Fla. 1st DCA 1984). Therefore, it was entirely appropriate for the ALJ to have considered evidence relating to Wentworth's dock facility as it existed at the time of the formal hearing. Hamilton County Commissioners, supra, at 1387-1388; McDonald, supra, at 584.

These proceedings involve challenges by Petitioners to a de facto request by Wentworth for an "after-the-fact" consent of use of sovereign submerged lands to construct a dock facility built prior to the commencement of the formal hearing without final agency action by the Department. In such "after-the-fact" permit or proprietary authorization cases, the appropriate test is not whether the Department properly evaluated the original project as proposed in the application, but whether the project as presented at the formal hearing complies with the applicable environmental standards. See e.g., Bevan v. Cowart, 17 FALR 319, 327 (Fla. DEP 1994); Clarke v. Melton, 12 FALR 4946, 4949 (Fla. DER 1990). In

the Bevan case, supra, at 17 FALR 327, a predecessor Secretary of this Department concluded as follows:

Clearly, the best evidence of whether the seawall was within the requirements of the exemption was evidence of the actual construction thereof, rather than proposals for construction that were arguably superceded by the actual construction. (emphasis supplied)

I concur with this conclusion in the Bevan Final Order. I am also of the opinion that the same rationale applies to this "after-the-fact" request for a consent of use of sovereign submerged lands in connection with an existing dock facility constructed by Wentworth prior to the formal hearing. The best evidence of whether Wentworth complied with the standards and criteria for private residential single-family docks in the Jensen Beach to Jupiter Inlet Aquatic Preserve is evidence of the dock as actually constructed, not as proposed in the application.

The ALJ also made several factual findings and related conclusions concerning whether Wentworth's dock project described in his application filed with the Department on August 13, 1998, complied with the rules relating to private residential single- family docks located in Aquatic Preserves. It is also undisputed that the dock facility constructed by Wentworth prior to the formal hearing was substantially different from the one proposed in this application and supporting documents filed with the Department.

If this were a typical "after-the-fact" permit or consent of use case, the propriety of the ALJ's findings and conclusions

dealing with whether Wentworth's dock project as proposed in his application complied with applicable rule standards and criteria would be questionable. However, Wentworth has claimed throughout these proceedings that the Department's written response in September of 1998 to his August 13, 1998, dock application constituted "final" agency action not subject to challenge by Petitioners in an administrative hearing. Thus, it was Wentworth, himself, who "opened the door" and made evidence relating to the dock facility as proposed in his application documents and the Department's written response thereto arguably relevant to his "final" agency action claim.

In view of the above, those portions of Wentworth's Exception Nos. 19, 20, 22, 24, 31, 34, 36, and 37 contending that these proceedings are about "enforcement" rather than "entitlement" and that-the ALJ erred by considering whether Wentworth's as built dock facility complied with the applicable rules governing docks built in Aquatic Preserves are denied.

III.

Wentworth's Claim that his Dock Facility Complies with the Criteria for Private Residential

Single-family Docks in Aquatic Preserves.

Exception Nos. 17, 18, 19, 20, 21, and 34 (or portions thereof) take exception to the ALJ's factual findings and related legal conclusions determining that Wentworth's dock facility (as proposed or as built) does not comply with the applicable standards and criteria for private residential single-family docks located in Aquatic Preserves. Wentworth also argues that some of these designated findings of fact of the ALJ are actually conclusions of law and that some of the conclusions of law are actually findings of fact. I agree with this contention.

I conclude that portions of some of the challenged paragraphs of the RO labeled by the ALJ as "findings of fact" do contain legal conclusions and that portions of the ALJ's "conclusions of law" contain some factual findings. I further conclude that some of the challenged paragraphs of the RO are essentially mixed questions of fact and law where the ALJ applies the pertinent rule standards and criteria to the facts as found based on the evidence presented at the formal hearing. However, on administrative or judicial review, neither the agency nor the court is bound by the labels affixed by an administrative law judge designating various portions of a recommended order as "findings of fact" or "conclusions of law". See, e.g., Battaqlia Properties v. Land and Water Adjudicatory Commission, 629 So. 2d 161, 168 (Fla. 5th DCA 1993. Thus, the ALJ's failure to properly

label some of the challenged findings of fact or conclusions of law is harmless error.

Excluding the last sentence of paragraph 16 of the RO, I otherwise concur with the findings and conclusions of the ALJ challenged in these Exceptions. Wentworth's basic contention that the ALJ should have evaluated his dock project as proposed in his application submittals rather than as built was rejected in the preceding portion of this Final Order. Wentworth's various arguments that his as built dock facility does not violate applicable standards for private residential single- family docks in an Aquatic Preserve are also rejected on the grounds set forth hereafter.

1. The Terminal Platform and Boathouse Issues

   
   

   A key issue in these cases relating to whether Wentworth's as built dock facility complies with the criteria for a private residential single-family dock in the Jensen Beach to Jupiter Inlet Aquatic Preserve is the definition of a "terminal platform". A "terminal platform" within the purview of the Aquatic Preserves rules is defined as "that part of a dock or pier, including finger piers, that is connected to the access walkway, is located at the terminus of the facility, and is designed to secure and load or unload a vessel or conduct other water dependent activities". Rule 18-20.003(67), F.A.C. The ALJ found and concluded that the boathouse portion of Wentworth's dock facility is attached to the dock access walkway and is located at the terminus of the facility. (RO, paragraphs 15-16,

   41) These critical findings and related conclusion are amply

   supported by the evidence of record and are not directly challenged in Wentworth's Exceptions.

   
   

   Rule 18-20.004(5)(b)6, F.A.C., prescribes that the size of a terminal platform in an Aquatic Preserve "shall be no more than

   160 square feet". The ALJ determined that Wentworth's as built boathouse constitutes part of the terminal platform. (RO, paragraphs 38-41) The ALJ also found that the terminal platform (including the boathouse) is approximately 650 square feet, far in excess of the maximum allowed size of 160 square feet. (RO, paragraph 15) Wentworth contends that the ALJ erred by concluding that the boathouse constitutes part of the terminal platform for purposes of determining the maximum permissible size of the terminal platform under Rule 1820.004(5)(b)6, F.A.C. However, l concur with and adopt this rule interpretation of the ALJ for the following reasons:

   
   

   1. Only two of the witnesses who testified at the formal hearing in these cases had any expertise in the permitting of docks in sovereign submerged lands. These two witnesses, Melissa

      Meeker and Bruce Jerner, were initially called to testify on behalf of Petitioners. Ms. Meeker has a master's degree in environmental resource management and was the Department's administrator of the Port St. Lucie branch office at the time Wentworth's dock application was reviewed and processed. (Tr. Vol. l, pages 39-40) Ms. Meeker testified that she was the Aquatic Preserve manager for the Department in the past and stated that she definitely included a boathouse as a part of a terminal platform located in an Aquatic Preserve in construing and applying the rules of the Department to such cases. (Tr. Vol. l, pages 59-60)

      
      

   2. Bruce Jerner, who has a bachelor's degree in environmental technology, is a supervisor over the Department's permitting and compliance enforcement programs at the Port St. Lucie branch office. (Tr. Vol. l, pages 69-71) Mr. Jerner was accepted by the ALJ to testify at the formal hearing as an expert in the areas of environmental resource permitting and state lands regulation. (Tr. Vol. l, pages 131-132) Mr. Jerner repeatedly testified that, in his opinion, the boathouse was a part of the terminal platform as defined in the Aquatic Preserves rules.

      (Tr. Vol. l, pages 81-82,105, 138-139)

      
      

   3. The record does not reflect any testimony of other witnesses having expertise in the permitting or construction of docks in Aquatic Preserves which contradicts this testimony of Melissa Meeker and Bruce Jerner that Wentworth's boathouse constituted part of the terminal platform under the Aquatic Preserves rules. Wentworth did present the testimony of Roger Baber, the professional engineer who signed the August 13, 1998, dock application submitted to the Department. Mr. Baber, however, was not accepted by the ALJ as an expert witness. Furthermore, Mr. Baber did not render an opinion as to whether or not Wentworth's boathouse (as proposed or as built) was a part of the terminal platform within the meaning of the Aquatic Preserves rules. In fact, Mr. Baber testified that he only "partially" designed Wentworth's boathouse and did not know who built it. (Tr. Vol. 111, pages 267-268) Mr. Baber further testified that he had not seen the constructed boathouse and did not know its size as built. (Tr. Vol. 111, pages 268-269)

      
      

   4. The ALJ also found that the "traditional" terminal platform located across the access pier from the boathouse is ten feet wide and 170 square feet in size. (RO, paragraph 15; Wentworth's Ex. 7) Thus, even disregarding the boathouse portion of the dock facility, Wentworth's terminal platform exceeds the maximum width of eight feet and maximum size of 160 square feet for a terminal platform located in the Jensen Beach to Jupiter Inlet Aquatic Preserve. See Rules 18-20.004(5)(b)6 and 18- 20.004(7), F.A.C. 9/

   5. These findings and conclusions of the ALJ as to the definition and maximum dimensions of a terminal platform located in the Jensen Beach to Jupiter Inlet Aquatic Preserve adopt the rule interpretations of Department personnel having expertise in the permitting of docks in sovereign submerged lands. In his Exceptions, Wentworth disagrees with these rule interpretations of the ALJ and the Department. However, as noted above, Wentworth did not present conflicting testimony at the formal hearing of other witnesses having expertise in the permitting or construction of docks located in Aquatic Preserves.

      
      

   6. It is an established rule of administrative law in this state that considerable deference should be accorded to an agency's interpretation of its own rules which it is required to enforce, and that such agency rule interpretations should not be overturned unless clearly erroneous. See, e.g., Faik v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); State Contracting v. Dept. of Transportation, 709 So. 2d 607, 610 (Fla. 1st DCA 1998). Furthermore, an agency's interpretation of its own administrative rules does not have to be the only reasonable interpretation; it is enough if the agency interpretation is a permissible one. Suddath Van Lines, inc. v. Dept. of Environmental Protection, 668 So. 2d 209, 212 (Fla. 1st DCA 1996); Golfcrest Nursing Home v. State, Agency for Health Care Administration, 662 So. 2d 1330,1333 (Fla. 1st DCA 1995).

   
   

   I conclude that this Department rule interpretation adopted by the ALJ concluding that Wentworth's attached boathouse is a part of the "terminal platform" as defined in the Aquatic Preserves rules is a permissible rule interpretation which is not clearly erroneous. There is not a single reference to the term "boathouse" in the Aquatic Preserves rules pertaining to private residential single-family docks. Consequently, l agree with the ALJ's observation in paragraph 41 of the RO that if the boathouse "were not part of the terminal platform, it could not be built". I also concur with the Department rule interpretation adopted by the ALJ that the "traditional" platform on the opposite side of Wentworth's access pier exceeds the maximum allowable width and total size of a private residential single-family dock terminal platform in the Jensen Beach to Jupiter Inlet Aquatic Preserve.

2. The Boathouse Roof Issue

   
   

   The ALJ also found and concluded that the roof of Wentworth's as built boathouse is not permissible because the roof is not necessary for Wentworth to gain access to his boat or to the water to conduct water-dependent activities within the purview of Rule 18-20.003(72) and 18-20.004(1)(0, F.A.C. (RO,

   paragraph 16) In paragraphs 19 and 45 of the RO, the ALJ also found and concluded that the roof produces extra shading which

   could cause adverse impacts to the natural resources in the area, and that removal of the roof would comply with the requirement that "adverse impacts [to these resources] be minimized in aquatic preserves".

   
   

   I conclude that the ALJ's pure "findings of fact" related to the boathouse roof are supported by competent substantial evidence of record. 10/ I also agree with that portion of the ALJ's Conclusion of Law 40 determining that Wentworth's boathouse roof and boat lift "fall within the meaning of a water dependent activity". See Rules 18-20.003(72) and 18-21.003(57), F.A.C. This rule interpretation of the ALJ is consistent with prior administrative case law of the Department holding that dock structures having roofs "not completely closed in and/or climatized for human habitation are deemed to be water dependent activities". Sutton v. Hubbard, 17 FALR 3492, 3497 (Fla. DEP 1995). 11/ I reject, however, the ALJ's seemingly inconsistent rule interpretation in the last sentence of paragraph 16 of the RO that the boathouse roof is not included within the rule definition of a "water dependent activity". 12/

   
   

   I thus conclude that Wentworth's boathouse roof is within the purview of a "water dependent activity" as defined in the Department's rules pertaining to Florida Aquatic Preserves.

   However, as discussed in more detail hereafter, the ALJ made a factual finding in paragraph 19 of the RO that the boathouse is located in a Resource Protection Area 2. 13/ This critical factual finding of the ALJ is adopted in this Final Order.

   Accordingly, l also conclude that the boathouse roof violates the "Submerged Lands & Environmental Resources Private Residential Single Docks/Piers Within Aquatic Preserves" standards requiring that "[o]verhead structures, such as roofs, shall not be authorized in RPA 1 or 2 [areas]". (Wentworth's Ex. No. 12, page 3, paragraph 4.D)

3. The Dock Elevation Issue

   
   

   In paragraphs 17, 32, and 36 of the RO, the ALJ found and concluded that the dock access pier is not elevated a minimum of five feet above mean high water as prescribed by Rules 18- 20.004(5)(a05 and 62-341.427(2)(a), F.A.C. Wentworth contends in his Exception Nos. 33 and 34 that this finding and these conclusions of the ALJ are erroneous because they apply to the as built dock facility rather than the proposed dock design as set forth in the applications documents. This contention of Wentworth is rejected.

   
   

   I have already ruled herein that it is entirely appropriate in these de novo proceedings for the ALJ and the Department to evaluate Wentworth's existing dock facility in order to determine

   if the as built structure complies with the standards and criteria for private residential single-family docks in the Jensen Beach to Jupiter Inlet Aquatic Preserve. The record indicates that Bruce Jerner, the Department permitting specialist who reviewed Wentworth's dock application, made a site inspection of the constructed dock facility on February 5,1999. At that time, Mr. Jerner made certain measurements, including the elevation of the dock structures and determined that the access pier and terminal platform were only about four feet above mean high water. (Tr. Vol. l, pages 87-88, 114-116; Petitioner's Ex. 5; Wentworth's Ex. 7)

   
   

   In addition, notwithstanding Wentworth's assertion to the contrary, "Sheet 4 of 4" of the engineering drawings attached to his dock application clearly indicates that the designed elevation of the proposed dock structure is only four feet above mean high water. (Petitioner's Ex. 3, Sheet 4 of 4) I thus adopt the ALJ's finding and related conclusion that Wentworth's dock-access pier (as proposed or as built) is not elevated five feet above mean high water as prescribed by Rule 18- 20.004(5)(a)5, F.A.C.

4. The Spacing of the Dock Planking Issue

The ALJ also found and concluded that the spacing between the dock walkway planking on Wentworth's access pier is less than one-half inch after shrinkage, in violation of Rule 18- 200.004(5)(a)4, F.A.C. (RO, paragraphs 18 and 35) This finding and conclusion appear to be based on a reasonable inference drawn by the ALJ from the expert testimony of Bruce Jerner related to his site inspection of the constructed dock facility in February of 1999. (Tr. Vol. l, pages 87-89) Moreover, Wentworth, himself, testified that some of the dock planking was spaced less than

one-half inch apart at the time of the formal hearing on May 20, 1999. (Tr. Vol. II, pages 236-237)

Based on the above rulings, the portion of the last sentence of paragraph 16 of the RO suggesting that Wentworth's boathouse roof is not included within the rule definition of a "water dependent activity" is rejected. 14/ In all other aspects, Exception Nos. 17, 18, 19, 20, 21, 34, and 36 challenging the ALJ's findings and conclusions that Wentworth's dock facility violates specified criteria for private residential single-family docks in the Jensen Beach to Jupiter Inlet Aquatic Preserve are denied.

IV.

Wentworth's Exceptions Challenging the Relevancy and/or Sufficiency of Various Factual Findings of the ALJ in the RO.

Wentworth's Exception Nos. 4, 5, 6, 7, 8, 9,12, 13, 14, 15,

16,18,19, 20, 21, 22, and 23 (or portions thereof) all deal with evidentiary related issues. Wentworth basically disagrees with the ALJ as to the relevancy and/or sufficiency of various factual findings set forth in paragraphs 1, 2, 3, 5, 6, 7, 9,10,11,12,13,16,17,18,19, 20, and 21 of the RO. I do concur with one of Wentworth's Exceptions addressing what I deem to be one minor factual matter having no bearing on the final disposition of these proceedings.

I have reviewed the entire record of these proceedings and have determined that there is no competent substantial evidence of record supporting the ALJ's factual finding in numbered paragraph 1 of the RO that Wentworth requested a "standard general permit" in his initial application filed on June 26,1998. The Department acknowledges in its Response to Wentworth's Exceptions that the initial application requested an individual environmental resource permit, not a standard general permit.

The remainder of these Exceptions objecting to the relevancy and/or sufficiency of the challenged factual findings of the ALJ are denied on the following grounds:

1. The case law of Florida holds that standard factual matters such as admissibility, relevancy, and weight of evidence presented at a formal administrative hearing usually constitute "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations". Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 862 (Fla. 4th DCA 1997) Martuccio v. Dept. of Professional Regulation, 622 So 2d 607, 609 (Fla. 1st DCA 1993); McDonald, supra, at 579. As discussed in the Preface above, a reviewing agency may not reweigh evidence presented at a DOAH formal hearing or resolve conflicts therein, as those are evidentiary matters within the province of the administrative law judges. Heifetz, supra, at 1281.

   
   

2. It is the function of the ALJ (as the "fact finder" in these administrative proceedings) "to consider all the evidence presented, resolve conflicts, judge the credibility of witnesses, and reach ultimate findings of fact based on competent substantial evidence". See, e.g., Goin v. Commission of Ethics, 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995). I am not authorized to reevaluate the quantity and quality of the evidence presented at the formal hearing in these proceedings beyond making a determination that the evidence is competent and substantial. Bronan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 1996). With the exception of the first sentence of Finding of Fact No. 1, I otherwise conclude that there is competent substantial evidence of record in this case supporting the remaining challenged

   factual findings of the ALJ. This competent substantial evidence includes the testimony at the DOAH formal hearing of Melissa Meeker and Bruce Jerner.

   
   

3. The record of the DOAH proceedings reflects that most of the testimony and documentary evidence supporting the challenged factual findings of the ALJ was not objected to by Wentworth's counsel at the formal hearing. Therefore, this evidence is now a part of the record in these cases and is entitled to be considered along with any other evidence in the record. See Tri- State Systems. Inc. v. Dept. of Transportation, 500 So. 2d 212` 213 (Fla. 1st DCA 1985), rev. denied, 506 So. 2d 1041 (Fla. 1987) (evidence admitted without objection at a DOAH hearing became part of the evidence in the case and was usable as proof just as any other evidence); BAPCO v. Unemployment Appeals Commission, 654 So 2d 292, 297 (Fla. 5th DCA 1995) (concluding that it is unfair to a party whose evidence is received at a DOAH hearing without objection from the opposing party only to discover that its evidence was later rejected).

   
   

4. The ALJ also found in numbered paragraph 1 of the RO that Wentworth's "revised application was [for] a notice of intent to use a noticed general permit rather than a standard general permit". The revised application shows on its face that Wentworth did check the respective boxes indicating that he was applying for both a noticed general permit and a standard general permit. (Petitioners' Ex. 3) It is undisputed, however, that the Department treated Wentworth's August 13, 1998, application as a joint request for a noticed general permit and a consent of use of sovereign submerged lands. It is also undisputed that Wentworth has not claimed in these proceedings that he is entitled to a standard general permit to construct his dock facility. Consequently, this finding of the ALJ is affirmed.

In view of the above rulings, the first sentence of the ALJ's Finding of Fact No. 1 is modified as set forth above. The remainder of the portions of Wentworth's Exception Nos. 4, 5, 6, 7, 8, 9, 12, 13, 14, 15,16,18,19, 20, 21, 22, and 23 contending

that the challenged factual findings of the ALJ are not relevant or are not based on competent substantial evidence are denied.

V.

Wentworth's Exceptions Requesting the Department to Enter a Final Order Containing Additional Findings of Fact.

Wentworth's Exceptions contain several requests that various factual findings of the ALJ be supplemented in this Final Order by including additional findings suggested by Wentworth.

However, the case law of Florida holds that agencies reviewing

recommended orders of DOAH administrative law judges have no authority to make independent and supplementary findings of fact in the agencies' final orders. North Port v. Consolidated Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994); Inverness Convalescent Center v. Dept. of H. R. S., 512 So. 2d 1011, 1015 (Fla. 1st DCA 1987); Cohn v. Dept. of Professional Regulation,

477 So. 2d 1039, 1047 (Fla. 3d DCA 1985). The scope of agency review of findings of fact in DOAH recommended orders is limited to ascertaining whether the existing findings of facts are supported by competent substantial evidence of record. North Port, supra, at 487. Accordingly, those portions of Wentworth's Exception Nos. 4, 6, 7,16, 18, 22, and 23 requesting that the Department's Final Order include additional findings of fact are denied.

VI.

Wentworth's Miscellaneous Exceptions Exception Nos. 20 and 21

In portions of Exception Nos. 20 and 21, Wentworth asserts that there was no testimony presented at the DOAH hearing that "the area waterward of the boathouse is an RPA 2" (Resource Protection Area 2). I agree with this assertion. However, the ALJ did not make any factual findings in paragraph 18 of the RO relating to a Resource Protection Area 2 as asserted in Wentworth's Exception No. 20. Furthermore, the ALJ did not make a factual finding in paragraph 19 of the RO that "the area waterward of the boathouse" was a Resource Protection Area 2 as asserted by Wentworth in Exception No. 21.

No mention is made by the Al J in paragraph 19 of the RO as to which one of the three categories of Resource Protection Areas applies to the area of Indian River Lagoon "waterward" of the boathouse portion of Wentworth's terminal platform. The ALJ did find in paragraph 19 of the RO that "the potential for resources under the remaining access pier, the terminal platform, and the boathouse places that part of the structure in a Resource Area 2". This finding appears to be a reasonable inference drawn by the ALJ from the expert testimony presented at the formal hearing by Bruce Jerner concerning the migratory nature of the seagrasses existing landward of Wentworth's terminal platform and is adopted in this Final Order. (Tr. Vol. I, pages 100, 136, 155-156) Consequently, the portions of Wentworth's Exception Nos. 20 and

21 asserting that the ALJ erred by finding that "the area

waterward of the boathouse is an RPA 2" are denied.

Exception Nos. 26 and 27

These two Exceptions take issue with paragraphs 25 and 26 of the RO wherein the ALJ determines that the review of Wentworth's dock application was not processed in accordance with the Department's internal procedures. I do agree with Wentworth's conclusion that the assertions of the ALJ in these paragraphs are not pure "conclusions of law". These assertions consist of a mixture of factual findings and legal conclusions. However, these mixed assertions of fact and law appear to be supported by the testimony of Melissa Meeker and Bruce Jerner at the formal hearing.

In any event, I have ruled above that these are de novo proceedings and the primary issue is Wentworth's entitlement to an "after-the-fact" consent of use of sovereign submerged lands in connection with an as built dock facility. Therefore, the internal procedures followed by personnel at the Department's Port St. Lucie branch office in reviewing Wentworth's dock application have no substantial effect on the final disposition of these cases. The ultimate determination to be made in this Final Order is whether Wentworth's as built dock facility complies with the standards and criteria for a private residential single-family dock located in the Jensen Beach to Jupiter Inlet Aquatic Preserve. Accordingly, Wentworth's Exceptions 26 and 27 are denied.

Exception No. 31

Exception No. 31 takes exception to the legal conclusions of the ALJ in paragraph 30 of the RO. The ALJ concludes therein that Petitioners, as adjoining or nearby property owners who use Indian River Lagoon, are substantially affected by Wentworth's dock facility and are thus proper parties to these administrative proceedings. I agree with and adopt these legal conclusions of the ALJ. Petitioners are adjacent or nearby residential property owners who have alleged adverse environmental impacts to Indian River Lagoon and to their riparian properties due to Wentworth's dock construction. See e.g., Friends of the Everalades v.

Trustees, 595 So. 2d 186,189 (Fla. 1st DCA 1992); Town of Palm Beach v. Dept. of Natural Resources, 577 So. 2d 1383,1388 (Fla. 4th DCA 1991). Consequently, Petitioners are parties whose "substantial interests" are determined under §§ 120.569(1) and 120.57(1), F. S., by a decision of the Department to grant Wentworth a consent of use of sovereign submerged lands to construct his dock facility. Wentworth's Exception No. 31 is thus denied.

CONCLUSION

In these proceedings, the record reveals that there were some errors made by Wentworth in preparing his dock application filed with the Department on August 13, 1998. The record also indicates that there were some mistakes and violations of internal procedures made by the Department's Port St. Lucie branch office in the course of reviewing and processing Wentworth's dock application. However, the issue in these de novo proceedings is not what Wentworth or the Department did or failed to do in the preparation and review of the subject dock application. The primary issue here is whether the as built dock facility complies with the applicable standards and criteria for docks located in the Jensen Beach to Jupiter Inlet Aquatic Preserve, thereby entitling Wentworth to an after-the-fact noticed general permit and consent of use of sovereign submerged lands.

Wentworth's as built dock facility is located in Indian River Lagoon, which has been classified as an Outstanding Florida Water. As an Outstanding Florida Water, Indian River Lagoon is "worthy of special protection" because of its natural attributes and is entitled to "the highest protection" against degradation of its waters. Rules 62-302.200(17) and 62-302.700(1), F.A.C.

In addition, the portion of Indian River Lagoon where Wentworth's dock facility is located has been officially designated an Aquatic Preserve. As an Aquatic Preserve, the site of Wentworth's dock facility is to be"preserved in an essentially natural or existing condition . . . for the enjoyment of future generations". Rule 18-20.001 (2), F.A.C.

This Final Order adopts the findings and conclusions of the ALJ determining that Wentworth's as built dock facility violates several of the stringent rule standards and criteria needed to protect the outstanding waters of Indian River Lagoon and to preserve the pristine natural resources in the Jensen Beach to Jupiter Inlet Aquatic Preserve. I also concur with the recommendation of the ALJ that a noticed general permit and a consent of sovereign submerged lands be granted to Wentworth, subject to his compliance with some additional conditions and clarifications necessary to bring the existing dock facility into compliance with the Aquatic Preserves rules.

It is therefore ORDERED:

1. Paragraphs 16, 20, 28 and 29 of the RO are modified as set forth in the above rulings. These modifications, however, are viewed as harmless error for the reasons discussed above.

2. As modified in paragraph A above, the RO is adopted and incorporated herein by reference.

   
   

3. An after-the-fact noticed general permit and consent of use of sovereign submerged lands is hereby GRANTED to Wentworth in connection with his dock facility (File No. 43-0082228-001) located in Indian River Lagoon (Jensen Beach to Jupiter Inlet Aquatic Preserve). The noticed general permit and the consent of use of sovereign submerged lands are subject to the respective rule criteria and standards and the conditions set forth in the Department's letter to Wentworth (with attachments) dated May 10, 1999, which are incorporated by reference herein.

   
   

4. The noticed general permit and consent of use of sovereign submerged lands are also subject to the following conditions and clarifications:

   
   

   1. The entire terminal platform (including the attached boathouse) shall not exceed eight feet in width or 160 square feet in total size calculated without deducting any portion thereof at the terminus as being part of the main access pier.

      
      

   2. The roof over the boathouse portion of the terminal platform shall be removed.

      
      

   3. The dock main access pier shall be elevated to five feet above mean high water.

      
      

   4. The spacing between the walkway planking shall be a minimum of one-half inch apart after shrinkage.

   
   

5. If Wentworth is not willing to comply with the conditions and clarifications set forth in paragraphs C and D above, then all the existing dock structures at the project site shall be removed no later than sixty (60) days from this date.

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule

9.1 10, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department.

DONE AND ORDERED this 28th day of October, 1999, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

For DAVID B. STRUHS, Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT FILED, ON THIS DATE, PURSUANT TO §12O 52 FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.

Cynthia Kinsy 10/28/99 Deputy Clerk DATE

ENDNOTES

1/ With respect to private docks located in areas designated as Outstanding Florida Waters, the statutory law of Florida only grants an exemption from regulatory permitting requirements for docks having "500 square feet or less of over-water surface area". See § 403.81 3(2)(b), F.S. Wentworth's dock facility (as proposed or as built) far exceeds the statutory maximum size for permit exemption purposes. In addition, the rule provisions dealing with requirements for obtaining a consent of use of sovereign submerged lands in Aquatic Preserves do not authorize any exemptions for any proposed activities. See Rule 18- 21.005(1)(a), F.A.C. In any event, Wentworth's Exceptions to Recommended Order do not assert any claim that his dock facility (as proposed or as built) is entitled to an exemption from regulatory permitting or proprietary authorization requirements.

2/ Section 8 of CS/HB 107 states that "[t]his act shall take effect upon becoming a law." CS/HB 107 was signed into law by the Governor on June 18, 1999, and was subsequently designated as Chapter 99-379, Laws of Florida.

3/ "Noticed general permits" are granted pursuant to Chapter 62- 341, F.A.C., "for those activities which have been determined to have minimal impacts to the water resources" of this state and are only valid for the specific activities set forth in the

respective rules. See Rules 62-341.201(1 ) and 62-341.215(2), F.A.C.

4/ The critical absence in §§ 373.118 and 373.414(9) of the language "without any agency action by the department" was overlooked in the initial Final Order entered in these consolidated cases.

5/ I conclude that the portion of the last sentence of paragraph

20 of the RO determining that "Wentworth's dock structure meets the criteria for a noticed general permit" is not a "funding of fact". Rather, it actually constitutes an interpretation by the ALJ of an administrative rule (Rule 62-341.427, F.A.C.) over which the Department has substantive jurisdiction under § 120.57(1)(1), F.S. I also find that the Department's interpretation of the administrative rule in question in this Final Order is as reasonable or more reasonable than the ALJ's rule interpretation which is rejected.

6/ It is true that Wentworth's application filed with the Department's Port St. Lucie branch office on August 13, 1998, did not have the appropriate box marked indicating that he was requesting authorization to use sovereign submerged lands.

However, Bruce Jerner, the Department official who reviewed and processed this application, testified that he knew that Wentworth's proposed dock project required authorization to use sovereign submerged lands and that he treated this application as requesting such authorization. (Tr. Vol. III, pages 295-296) Furthermore, the Department has never contended in these proceedings that a consent of use of the subject sovereign submerged lands should be denied on the ground that Wentworth's dock application did not contain a legally sufficient request for such proprietary authorization.

7/ Wentworth concedes in his Exceptions that he did not provide Petitioners the specified written notice of the Department's actions as suggested in the September 23, 1998, letter from the Port St. Lucie branch office. Instead, Wentworth correctly concludes that there is no mandatory requirement that he provide the written notice. However, this conclusion does not support a determination that Petitioners waived their right to challenge Wentworth's entitlement to a consent of use of sovereign submerged lands by not filing their petitions for administrative hearings within 21 days of receipt of written notice of the Department's decision since they never received such written notice.

8/ For the reasons set forth in detail on pages 8-13 above, I find that the substituted conclusions of law or interpretations of the administrative rules by the Department in this Final Order

are as reasonable or more reasonable than those of the ALJ which are rejected. I also conclude that the ALJ's observation in paragraph 20 of the RO that "Wentworth's dock structure meets the criteria for a noticed general permit" is not a finding of fact, but is an interpretation by the ALJ of an administrative rule over which the Department has substantive jurisdiction under § 120.57(1)(1), F.S.

9/ Rule 18-20.004(7), F.A.C., incorporates by reference the standards and criteria set forth in various Aquatic Preserves, including the Indian River Lagoon (Jensen Beach to Jupiter Inlet Aquatic Preserve) where Wentworth's as built dock facility is located. One of the criteria for private docks in the "Indian River Lagoon Aquatic Preserves Management Plan" is that a terminal platform shall not exceed eight feet in width. (Petitioner's Ex. 6)

10/ Portions of paragraph 16 of the RO designated by the ALJ as "findings of fact" appear to be mixed statements of law and fact where the ALJ construes the governing rule provisions in light of the applicable facts.

11/ The ruling in the Sutton case adopting the Department's rule interpretation that dock structures having roofs that are not completely closed in and/or climatized for human habitation are "water dependent" structures was overlooked in the initial Final Order entered in these consolidated case.

|2/ I conclude that the portion of paragraph 16 of the RO determining that Wentworth's boathouse roof is not included in the rule definition of a "water dependent activity" is not a finding of fact, but is an interpretation by the ALJ of administrative rules over which the Department has substantive jurisdiction under § 120.57(1)(1), F.S. I also find that the Department's interpretation of the administrative rules in question is as reasonable or more reasonable than the interpretation of the ALJ which is rejected.

13/ A "Resource Protection Area 2" is defined in the Department's rules as "[a]reas within the aquatic preserves which are in transition with either declining resource area 1 resources or new pioneering resources within protection area 3." Rule 18- 20.003(55), F.A.C. A "Resource Protection Area (RPA) 1 " is defined in part as "[a]reas within the aquatic preserves which have resources of the highest quality and condition for that area." Rule 18-20.003(54), F.A.C. A "Resource Protection Area 3" is defined as "[a]reas within the aquatic preserve that are characterized by the absence of any significant natural resource attributes". Rule 18-20.003(56), F.A.C

14/ For the reasons discussed above, I find that the substituted rule interpretation set forth in this portion of the Final Order is as reasonable or more reasonable than the ALJ's set forth in the last sentence of paragraph 16 of the FO.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:

Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197

Stuart, FL 34995

William E. Guy, Jr., Esquire

Law Offices of William E. Guy, Jr. Post Office Box 3386

Stuart, FL 34995

Ann Cole, Clerk and

Linda M. Rigot, Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550 and by hand delivery to:

Ricardo Muratti, Esquire

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

this 28th day of October, 1999.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/488-9314

Docket for Case No: 99-000289

Orders for Case No: 99-000289