STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

BRENDA B. SHERIDAN,

Petitioner,

vs.

OGC CASE NO. 99-0619

DEEP LAGOON BOAT CLUB, LTD., d/b/a DOAH CASE NO. 99-2234 DEEP LAGOON MARINA and

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/

FINAL ORDER

On January 21, 2000, an Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order to the Department of Environmental Protection ("Department") in this administrative proceeding. The Recommended Order indicated that copies were served upon counsels for Brenda B. Sheridan ("Petitioner") and Save the Manatee Club ("intervenor") and upon counsel for Co-Respondent, Deep Lagoon Boat Club, Ltd. ("Applicant"). A copy of the Recommended Order ("RO") is attached as Exhibit A. Exceptions to the RO were filed on behalf of Petitioner, Intervenor, Applicant, and the Department. Petitioner and Intervenor also filed a Motion to Abate this proceeding. Responses in opposition to the Motion to Abate were subsequently filed on behalf of Applicant and the Department. The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

Applicant is the owner and operator of Deep Lagoon Marina (the "Marina"), presently consisting of 61 wet slips, 200 dry slips, and other marina-related buildings. The Marina encompasses uplands and three dead-end canals located south of downtown Fort Myers in Lee County, Florida. The canals terminate at their eastern ends a short distance from MacGregor Boulevard and connect with Deep Lagoon to the west. Deep Lagoon is a short Class 111 waterbody intersecting with the Caloosahatchee River less than one-half mile to the north. The Caloosahatchee River flows westward from Lake Okeechobee past the City of Fort Myers into the Gulf of Mexico. The three canals at issue in these

cases were originally dredged in the 1950s or 1960s, and the Marina has existed at this location since that time.

In 1989, the Department of Environmental Regulation ("DER") entered a final order issuing a dredge and fill permit to a predecessor in title of Applicant authorizing a major renovation and expansion of the Marina, including additional boat slips and other related activities. See Sheridan v. Deep Lagoon, 11

1. 4710 (Fla. DER 1989). The DER final order in the original Sheridan case was appealed and the portion thereof issuing the dredge and fill permit was subsequently affirmed by the appellate courts in Sheridan v. Deep Lagoon, 576 So.2d 771 (Fla. 1st DCA 1991). A permit was ultimately issued by the Department in October of 1995 (the "Original Permit") after the conclusion of the appellate proceeding. The Original Permit was modified by the Department in November of 1995 and again in April of 1997.

   
   

   This 1989 DER final order in the original Sheridan case adopted the hearing officer's findings that the waters of the Marina canals violated water quality standards for dissolved oxygen, oils and grease, total and fecal coliform, copper, lead, and mercury. Sheridan, supra, at 11 FALR 4727. These persistent water quality violations in the Marina canals in the 1 980's were the impetus for specific conditions set forth in the Original Permit issued by the Department in 1995 to ensure a "net improvement" to water quality. Specific Condition 5B of the Original Permit, as revised in 1997, requires that a "stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be permitted and phased in prior to use of the parking lot and the new boat slips." (Petitioner's Ex. 1)

   
   

   In order to meet these requirements of Specific Condition 5K of the Original Permit, Applicant filed an application with the Department in December of 1997 for an environmental resource permit to construct a surface water management system at the Marina site. The Department executed a Notice of Intent to Issue Applicant's requested permit for the surface water management system (the "SWMS" permit) in November of 1998.1 In March of 1998, Applicant also gave the Department written notice that it intended to "maintenance dredge" the internal canals at the Marina site. The Department's South District Office then issued a letter determining that Applicant's proposal to maintenance dredge the Marina's internal canals was exempt from environmental resource permitting requirements. Upon receipt of this letter from the Department, Applicant's contractor proceeded with the "maintenance dredging" of the three canals.

   Petitioner and Intervenor then filed petitions challenging the Department's notice of intent to issue the SWMS permit and the Department's maintenance dredging exemption determination. These petitions were forwarded to DOAH and were consolidated for final hearing in Sheridan v. Deep Lagoon Boat Club, DOAH Case Nos. 98-3901 and 98-5409 ("Sheridan II"). A recommended order was entered in Sheridan ll in November of 1999 by a DOAH administrative law judge ("ALJ"). The Department subsequently entered a final order in January of 2000 in the Sheridan 11 consolidated cases. See Sheridan v. Deep Lagoon Boat Club, OGC Case Nos. 98-1184 and 983047 (Fla. DEP, January 28, 2000). In its final order in Sheridan ll, the Department adopted the ALJ's conclusion that Applicant failed to establish at the final hearing that the already completed dredging of the three Marina canals complied with two of the statutory requirements for entitlement to a "maintenance dredging" exemption. The Sheridan II final order also adopted the ALJ's conclusion that Applicant failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian manatee. The Sheridan ll final order of the Department thus disapproved the prior determination of Department staff that Applicant was entitled to a permit exemption for maintenance dredging of the Marina Canals and denied Applicant's SWMS environmental resource permit application.

   While Sheridan ll was pending, DEP issued a notice of intent in March of 1999 to further modify the specific conditions of the 1995 Original Permit. These modifications would allow Applicant to construct and operate a boat travel lift at a new location within the Marina and to install flushing culverts in lieu of the previous requirement of a flushing channel between the north and middle Marina canals. These 1999 modifications to the Original Permit were timely challenged by Petitioner and the matter was referred to DOAH, resulting in the formal administrative proceeding now on review in this Department Final Order. Administrative Law Judge J. Lawrence Johnston ("ALJ") was assigned to conduct a formal administrative hearing, which was held in Fort Myers on September 29-30, 1999.

   
   

   The ALJ entered his Recommended Order ("RO") in this case on January 21, 2000. On page 35 of his RO, the ALJ recommended that four additional Original Permit modifications be made to supplement the Department's 1999 proposed modifications. With these recommended additional modifications, the ALJ concluded that any adverse impacts of the proposed boat travel lift and flushing culverts on water quality would be negligible and that the impacts on manatees would be minimal. The ALJ ultimately recommended that the Department enter a final order granting the modifications for the boat travel lift and the flushing culverts

   as supplemented by his recommended additional permit modifications. The ALJ further recommended that the Department final order waive certification as a condition precedent to federal permitting.

   
   

   RULING ON MOTION TO ABATE

   
   

   On February 7, 2000, Petitioner and Intervenor filed a Motion to Abate the Proceedings with the Department. The Motion to Abate requests the Secretary of the Department to enter an order abating this administrative proceeding pending the final disposition of the related Sheridan II consolidated cases discussed above and a determination of the ownership of the lands beneath the Marina canals.2 This Motion to Abate is denied for the following reasons:

   
   

   1. The time period for entry of an agency final order issuing or denying a permit after a DOAH recommended order is submitted to the agency is controlled by § 120.60(1), Florida Statutes.3 These statutory provisions direct that an application for a "license" resulting in an administrative proceeding under

      §§ 120.569 and 120.57 must be approved or denied within 45 days after a recommended order is submitted to the agency and the parties. There are no provisions in Chapter 120, Florida Statutes, or in Chapter 28, Florida Administrative Code, authorizing the Department to enter an order tolling the statutory 45-day time period for approving or denying the subject permit modifications.

      
      

   2. An administrative proceeding is not the proper forum to resolve disputes related to title to real property. See Buckley v. Dent. of Health and Rehabilitative Services, 516 So.2d 1008,1009 (Fla. 1st DCA 1988); Miller v. Dept. of Environmental Regulation, 504 So 2d 1325 (Fla. 1st DCA 1987); Haneman v. Carter, 17 F.A.L.R. 3684, 3690 (Fla. DEP 1995); Powell v. Alabama Electric Cooperative, 15 F.A.L.R. 325, 326 (Fla. DER 1992). The circuit courts of this state have exclusive jurisdiction over "all actions involving titles or boundaries or right of possession of real property". Art. V, Sec. 20(c)(3), Fla. Const.; § 26.012(2)(g), Florida Statutes.

      
      

   3. In Finding of Fact 2 of the RO on review, the ALJ found that the "parties have stipulated that ownership of the submerged bottom is not being litigated or decided in this proceeding and that, subject to the issue's being decided adverse to the Applicant in other proceedings, sufficient ownership is presumed for purposes of this proceeding." This factual finding of the ALJ was not taken exception to by Petitioner or Intervenor and is adopted in this Final Order.

   4. Petitioner's and Intervenor's reliance on the pending Sheridan 11 consolidated cases as support for their Motion to Abate is misplaced. In his Finding of Fact 7 in the Sheridan 11 Recommended Order, the administrative law judge found that Applicant "either owns the submerged bottoms of the [Marina] canals or has a legitimate claim to such ownership". In the related Finding of Fact 9, the administrative law judge concluded that the proof presented by Applicant in the Sheridan 11 cases "is sufficient to demonstrate the requisite ownership interest to seek the exemption and permit that are the subject of these cases".

      
      

   5. None of the above-referenced Findings of Fact in the Sheridan 11 Recommended Order were taken exception to by Petitioner or Intervenor and these critical factual findings were adopted in the Department's Final Order entered on January 28, 2000. Consequently, there are no remaining disputed issues of fact in the Sheridan 11 cases pertaining to the Applicant having the requisite interest in the lands underlying the Marina canals to be entitled to file an application for an environmental resource permit proposing to conduct dredging and related activities in these canals.

In view of the above, the Motion to Abate the Proceedings is denied.

RULINGS ON APPLICANT'S EXCEPTIONS

Notwithstanding the ALJ's favorable recommendation that the Original Permit modifications at issue in this proceeding be granted, Applicant still filed Exceptions to the RO. Applicant did not object to the ALJ's ultimate recommendation in this case. Instead, Applicant took exception to Findings of Fact 30 and 34 of the RO reciting portions of the findings of fact of Administrative Law Judge Robert Meale in the Sheridan ll Recommended Order discussed above.

Applicant's Exception to Finding of Fact 30 is partially granted. The quoted statements of the first and last sentence of paragraph 23 of the Sheridan II Recommended Order were rejected in the Department's Final Order as not being based on competent substantial evidence of record. Therefore, Finding of Fact 30 in the RO now on review is modified accordingly. The remainder of Applicant's Exceptions to Findings of Fact 30 and 34 of the RO on review are denied for the reasons set forth in the Department's Final Order entered in the Sheridan II consolidated cases on January 28, 2000.

RULINGS ON THE DEPARTMENT'S EXCEPTIONS

Exception Nos. 1, 2, and 3

These three Exceptions of the Department take exception to portions of Findings of Fact 14, 15, and 17 of the RO. The Department correctly observes that these paragraphs of the RO contain certain erroneous factual findings resulting from the failure of the ALJ to consider the terms of subsequent modifications made to the Original Permit in April of 1997. (See Joint Exhibit 2, April 16, 1997, modification letter) I have reviewed the entire record and have determined that there is no competent substantial evidence to support the current expiration date, the total number of currently authorized wet slips, and the current language of Specific Conditions 5B, 5D, and 5K as set forth in Findings of Fact 14, 15, and 17 of the RO respectively. Consequently, the first sentence of Finding of Fact 14 is modified to reflect the current October 9, 2000, expiration date of the Original Permit, and Finding of Fact 15 is modified to reflect the current total authorized number of wet slips of 150. Also, Finding of Fact 17 is modified to reflect the current provisions of Specific Conditions 5B, 5D, and 5K of the Original Permit containing the modifications made on April 16, 1997.

Exception No. 4

This Exception of the Department takes exception to a portion of the ALJ's Finding of Fact 30 on the same ground asserted by Applicant in its Exceptions discussed above. The Department's Exception No. 4 is granted for the reasons set forth in the above ruling partially granting Applicant's Exceptions, and Finding of Fact 30 of the RO on review is modified as noted above.

Exception No. 5

The Department's fifth Exception points out an apparent clerical error in the last sentence of Finding of Fact 58 of the RO. In this finding, the ALJ refers to the proposed flushing "canal" when the context clearly calls for the proposed flushing "culverts" instead. Consequently, this clerical correction requested in the Department's Exception No. 5 is granted.

Exception No. 6

The Department's sixth Exception challenges the correctness of the ALJ's citations in his Conclusions of Law 68, 69, and 70 to three rules set forth in Chapter 62312, F.A.C. The Department correctly observes that the Chapter 62-312 rules cited by the ALJ are not applicable in the geographic region of the South Florida

Water Management District where Applicant's Marina is located. See 62-312.010, F.A.C. The Department also correctly notes that the appropriate rule citations for Conclusions of Law 68 and 69 are Rules 62-343.100 and 62-343.070 respectively; and that the appropriate rule citations for Conclusion of Law 70 are Rules

40E-4.301 and 40E-4.302, F.A.C. The Department's Exception No. 6 is granted and the ALJ's Conclusions of Law 68, 69, and 70 are modified accordingly.

The Department's various Exceptions to the RO have all been granted. Nevertheless, the Department's Exceptions also contains a representation that the counsel for the Department agrees with the ALJ's recommendations that Applicant's proposed Original Permit modifications at issue in this proceeding be granted and that the water quality certification under 33 U.S.C. § 1341 be waived as a condition precedent to federal permitting. Since this Final Order also concurs with the ultimate recommendations made by the ALJ in his RO, these erroneous factual findings and legal conclusions of the ALJ challenged in the Department's Exceptions are deemed to be "harmless" errors not affecting the ultimate disposition of this proceeding.

RULINGS ON EXCEPTIONS OF PETITIONER AND INTERVENOR

Exceptions IC and ID

These related Exceptions take issue with Findings of Fact 57-61 of the RO. In these challenged Findings of Fact, the ALJ interprets and weighs the evidence of record concerning the comparative hydrographic characteristics of the flushing channel between the north and middle Marina canals designated in the

Original Permit with the flushing culverts proposed in the permit modifications at issue in this administrative proceeding. These Exceptions of Petitioner and Intervenor are denied on the following grounds:

1. 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 subsection 120.57(1)(1), Florida Statutes. 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 Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). I conclude that the challenged factual findings of the ALJ are based on competent substantial evidence of record including the expert testimony at the DOAH final hearing of marine engineer, Hans Wilson, and the

   Department's environmental resource permitting specialist, Peggy Grant.

   
   

2. My review of the record of the DOAH proceeding reflects that all or substantially all the hydrographic or flushing evidence now challenged on administrative review was admitted into evidence at the final hearing without objections from Petitioner or Intervenor. 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 Florida Power & Light v. State of Florida Siting Board, 693 So.2d 1025,1028 (Fla. 1st DCA 1997) (Benson, J. concurring) (Siting Board should not entertain evidentiary objection lodged for the first time on administrative review of DOAH recommended order); 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).

   
   

3. Petitioner and Intervenor apparently disagree with the weight given by the ALJ to the testimony and documentary evidence presented at the DOAH final hearing on the flushing issue. Petitioner and Intervenor also disagree with the interpretations made and factual inferences drawn by the ALJ from the evidence with respect to the projected impacts of the proposed flushing culverts on water quality in the Marina canals and on manatees. However, it is the ALJ's responsibility to weigh the evidence presented in the DOAH proceeding, resolve conflicts, judge the credibility of witnesses, and draw permissible inferences from the evidence. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Thus, 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 DCA 1997); Maynard v. Unemployment Appeals Commission, 609 So.2d 143, 145 (Fla. 4th DCA 1992).

   
   

4. A reviewing agency also does not have the authority to reinterpret the evidence or to draw inferences therefrom in a manner different from the interpretations reasonably made and inferences reasonably drawn by the administrative law judge from competent substantial evidence of record. Heifetz, supra, at 1281-1282. I conclude that the ALJ's Findings of Fact 57-61 appear to be reasonable inferences drawn from competent substantial evidence of record. This substantial competent evidence of record includes (but is not limited to) the expert testimony at the final hearing of marine engineer, Hans Wilson, and environmental resource permitting specialist, Peggy Grant. I

thus decline to substitute my judgment for that of the ALJ on these evidentiary matters.

Based on the above, Petitioner's and Intervenor's Exceptions IC and ID are denied, and the ALJ's Findings of Fact 57-61 are adopted.

Exception llA1 b(2)

In this Exception, Petitioner challenges the assertion of the ALJ in the second sentence of paragraph 77 of the RO that, with the additional permit modifications suggested in the RO, "the impact of the proposed new travel lift on manatees would be minimal if not speculative." I conclude that the challenged assertion of the ALJ is not a conclusion of law, but is actually a finding of fact reflecting the ALJ' s evaluation of the evidence submitted at the DOAH final hearing.4 This factual finding of the ALJ is adopted.

As discussed above, the findings of fact in a DOAH recommended order may not be rejected or modified 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. Moreover, as also discussed above, a reviewing agency does not have the authority to reinterpret the evidence or to draw inferences therefrom in a manner different from the inferences reasonably drawn by the administrative law judge from the evidence of record. I conclude that the challenged finding of the ALJ appears to be a reasonable factual interpretation and inference supported by competent substantial evidence of record, including the final hearing testimony of the manatee expert, Richard Frohlich. I again decline to substitute my judgment for that of the ALJ as to his factual findings and inferences drawn from the evidence of record in the DOAH proceeding.

In addition, the challenged factual finding in paragraph 77 of the RO essentially repeats the ALJ's prior finding in his Finding of Fact 49 that the "risk of danger to the manatees from use of the proposed new travel lift can be characterized as being minimal if not speculative, especially in view of the manatee protections in Specific Condition 15 of the 1995 Permit." Petitioner did not take exception to this related Finding of Fact

49. Therefore, Petitioner has waived her right to challenge the ALJ's factual funding that any adverse impact of the new travel lift on manatees "is minimal, if not speculative". See, e.g., Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). For the above reasons, Petitioner's and Intervenor's Exception IlA1b(2) is denied.

Exceptions lB, llA1a, and lllB

These related Exceptions all pertain to the claim of Petitioner and Intervenor that the ALJ erred by relying on the de minimis rationale in this case as a legal basis for concluding that Applicant is entitled to the requested Original Permit modifications. This major claim of Petitioner and Intervenor was expressly rejected by the ALJ. The ALJ found and concluded in paragraph 75 of the RO that:

While Applicant did not provide reasonable assurance of a "net improvement of the water quality," the evidence proved that the environmental impact of the proposed modifications, together with some additional modifications, would be negligible. The direct impacts of the proposed new travel lift is minimal, and secondary impacts are minor if not speculative. Likewise, as compared to the alternative of a flushing channel, the impacts of the proposed flushing culverts are minimal. It is appropriate to grant a dredge and fill (sic) permit where environmental impacts are de minimis. (citations omitted)

I adopt the ALJ's conclusion that Applicant is entitled to the requested permit modifications based on the de minimis rationale. The grounds for my concurrence with the ALJ are as follows:

1. There are no findings by the ALJ or claims by Petitioner or Intervenor in this case that the proposed flushing culverts would have an adverse impact on water quality. To the contrary, the ALJ's Finding of Fact 58 finds that the proposed flushing culverts would actually result in a minor improvement in the flushing characteristics of the Marina canals as has been previously adopted in this Final Order. Furthermore, the ALJ also properly relied on the testimony of marine engineering expert, Hans Wilson. Mr. Wilson essentially testified that, when viewed in the context of the overall Marina expansion activities previously authorized, the net improvement difference between the flushing channel and the requested flushing culverts alternative is "insignificant". (Tr. Vol. 1, pages 132-135, 147)

   
   

2. In his Finding of Fact 47, the ALJ observed that there was a "possibility" that vessels utilizing the new travel lift for repair purposes could leak oil or gasoline, but also found that there was "no evidence from which to predict or quantify the

   impacts". In his Findings of Fact 48 and 49, the ALJ also observed that there was a "possibility of injury to manatees from use of the new proposed travel lift," but the ALL found that the risk of danger to manatees from use of the travel lift would be "minimal if not speculative". These critical Findings of Fact of the ALJ were not challenged in the Exceptions to Recommended Order filed on behalf of Petitioner and Intervenor.

   
   

3. A permit applicant is not required to disprove all "possibilities", "theoretical impacts", or "worst case scenarios" raised by a permit challenger in order to be entitled to a permit. Lake Brooklyn Civic Association, Inc. v. Florida Rock Industries, 15 F.A.L.R. 4051, 4056 (Fla. LWAC 1993); Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972, 4987 (Fla. DER 1990). The reasonable assurance standard only requires a permit applicant to deal with "reasonably foreseeable" environmental impacts.

   Florida Audubon Society v. South Florida Water Management District, 14 F.A.L.R. 5518, 5524 (Fla. SFWMD 1992); Rudloe v.

   Dickerson Bayshore, Inc., 10 F.A.L.R. 3426, 3440-41 (Fla. DER 1988). Based on the ALJs evaluation of the evidence presented in this case, the reasonably foreseeable impacts of Applicant's requested permit modifications are "negligible" as to water quality in the Marina canals and are "minimal if not speculative" as to manatees.

   
   

4. The ALJ correctly concluded in paragraph 75 of the RO that there is ample legal precedent in this state supporting reliance on the de minimis rationale to authorize the issuance of a proposed dredge and fill permit (now "environmental resource permit") where the projected adverse impacts on the environment have been determined to be negligible or insignificant. The de minimis rationale has been incorporated into the Department's rules for some time and has also been adopted into statutory law by the Legislature. See Rule 62-4.040(1)(b), Florida Administrative Code; § 373.406(6), Florida Statutes.

   
   

5. The de minimis rationale has also been approved in the judicial and administrative case law of Florida. See, e.g., Friends of the Everglades v. Dept of Environmental Regulation,

   496 So.2d 181, 183-184 (Fla. 1st DCA 1986); Caloosa Property Owners' Assn. v. Dept. of Environmental Regulation, 462 So.2d 523, 526 (Fla. 1st DCA 1985); Pacetti v. Smith, 8 F.A.L.R. 4050, 4054-55 (Fla. DER 1986). Petitioner's and Intervenor's attempt to distinguish these cases approving the "de minimis" rationale as a ground for issuing a permit where there is only a negligible adverse environmental impact is not persuasive.

   
   

6. One of the arguments raised in the Exceptions of Petitioner and Intervenor is that the 1985 Caloosa Property Owners' Assn. decision was entered prior to the enactment of the

   statutory "net improvement" provisions at issue in this case. This argument is fallacious. The net improvement provisions were initially created pursuant to the enactment of Chapter 84-79, § 1, Laws of Florida (1984), effective October 1, 1984. These provisions were originally codified into § 403.918(2)(b), Florida Statutes. In the year 1993, these net improvement provisions were transferred substantially intact to section 373.414(1)(b), Florida Statutes, where they have remained to this date.

   
   

7. I also do not see any conflict or inconsistency between the de minimis rationale and the statutory "net improvement" provisions. The de minimis rationale has been relied upon by the Department and the courts to allow permits for in-water activities to be issued where adverse impacts on water quality are so inconsequential as to be essentially "theoretical". The net improvement provisions were enacted by the Legislature to allow permits for in-water activities to be issued at sites where the water quality is already substandard and the applicants are willing to implement mitigation measures providing some improvement to the existing poor water quality. Both concepts reflect a practical regulatory approach to the permitting of in- water activities.

   
   

   In view of the above rulings, Exceptions lB, llA1a, and llB are denied.

   
   

   CONCLUSION

   
   

   In Friends of the Everglades, supra, at 183, the court expressly rejected appellants' contention that the applicant for the permit modification had "the burden of providing reasonable assurance anew with respect to the original project already constructed". In this case, I likewise reject any suggestion that Applicant is required to provide reasonable assurance anew with respect to the Marina expansion activities already authorized in the 1995 Original Permit.

   
   

   In this Final Order, I have adopted the ALJ's finding in paragraph 58 of the RO that the proposed flushing culverts would actually have a positive impact on the flushing characteristics of the Marina canals, albeit a minor one. I have also adopted the ALJ's finding in paragraph 75 of the RO that the differences in the impacts on water quality in the overall Marina canal system of the flushing channel as compared to the requested flushing culverts modification are "minimal". With respect to the proposed new travel lift modification, I have adopted the ALJ's unchallenged Findings of Fact 49 that the risk of danger to manatees from the operation of this travel lift is "minimal if not speculative". Consequently, I accept the ALJ's

   recommendation that the permit modifications should be granted, subject to the additional modifications suggested in the RO.

   
   

   It is therefore ORDERED:

   
   

   1. The RO, as modified above, is adopted and incorporated herein by reference.

      
      

   2. The South District Office is directed to ISSUE to Applicant the permit for the flushing culverts and new travel lift modifications in File No 36-0128502-003, subject to the conditions set forth in the Notice of intent to Issue entered on March 26, 1999, and subject to the additional permit modifications set forth on page 35 of the attached RO.

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 9.110, 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 6th day of March, 2000, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Kirby B. G.

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

Tallahassee, Florida 32399-3000

ENDNOTES

1/ Deep Lagoon Marina is located within the geographical territory of the South Florida Water Management District ("SFWMDn). By agreement with the SFWMD, the Department is the agency with permitting jurisdiction in DOAH Case No. 98-5409 and in this case.

2/ The Department's Sheridan II Final Order was entered on January 28, 2000.

3/ The subject matter of this statutory section is "licensing". However, the statutory definition of a license includes a "permit". See § 120.52(9), F.S.

4/ A reviewing agency or court is not bound by the labels affixed to "findings of facts" and "conclusions of law" in a DOAH recommended order. If a finding of fact or conclusion of law is improperly labeled by an administrative law judge, the label is disregarded and the item is treated as though it were properly labeled. Battaglia Properties v. Land and Water Adj. Commission, 629 So.2d 161, 168 (Fla. 5th DCA 1 994).

CERTIFICATE OF SERVICE

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

T. Elaine Holmes, Esquire

14502 North Dale Mabry, Suite 200

Tampa, FL 33618

David Gluckman, Esquire Gluckman and Gluckman

541 Old Magnolia Road Crawfordville, FL 32327

Mathew D. Uhle, Esquire Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, FL 33901

Ann Cole, Clerk and

J. Lawrence Johnston, Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

and by hand delivery to: Francine M. Ffolkes, Esquire

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

Tallahassee, FL 32399-3000 this 7th day of March, 2000.

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: 99-002234

Orders for Case No: 99-002234