STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THOMAS D. MCGILL; RONALD J. ) PRITCHARD; DANIEL J. DVORAK; ) ROBERT H. ATKINS; RUSSELL P. ) GENTILE; STANDING WATCH, INC.; ) JIM KALVIN, THOMAS MASON; )
DOUGLAS P. JAREN; STOWELL ) ROBERTSON; and SEA RAY BOATS, ) INC., )
)
Petitioners, )
)
vs. )
)
FLORIDA FISH AND WILDLIFE )
CONSERVATION COMMISSION, )
)
Respondent, )
)
and )
) SAVE THE MANATEE CLUB, INC.; ) FLORIDA WILDLIFE FEDERATION; ) FLORIDA POWER & LIGHT COMPANY; ) CITY OF COCOA BEACH; AND CITY ) OF TITUSVILLE, )
)
Intervenors. )
Case Nos. 01-2114RP
01-2197RP
01-2198RP
)
FINAL ORDER
Pursuant to notice, Fred L. Buckine, Administrative Law Judge of the Division of Administrative Hearings, conducted a hearing in this cause on September 24-28, 2001, in Viera, Florida; on October 22-26, 2001, in Titusville, Florida; and on October 29, 2001, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Thomas D. McGill, pro se
254 Sykes Point Lane
Merritt Island, Florida 32953-3067
Ronald J. Pritchard, pro se
495 Mohawk Trial
Merritt Island, Florida 32953
Daniel J. Dvorak, pro se 1625 Yount Drive
Merritt Island, Florida 32952
Robert H. Atkins, pro se 1290 Girard Boulevard
Merritt Island, Florida 32952
Russell P. Gentile, pro se 6755 South Tropical Trail Merritt Island, Florida 32952
For Petitioner Sea Ray Boats, Inc.:
Gary K. Hunter, Jr., Esquire Kent Safriet, Esquire Hopping, Green, Sams & Smith Post Office Box 6526
123 South Calhoun Street Tallahassee, Florida 32314
For Petitioner Standing Watch, Inc.:
Clayton W. Crevasse, Esquire Robert Pritt, Esquire Kenneth Plante, Esquire Roetzel & Andress
2320 First Street
Fort Myers, Florida 33901 For Intervenor City of Cocoa Beach:
Nicholas F. Tsamoutales, Esquire Gary Sack, Esquire
Nicholas F. Tsamoutales, P.A. 1900 Palm Bay Road, Northeast Suite G
Palm Bay, Florida 32905
For Intervenor City of Titusville:
Dwight W. Severs, Esquire City of Titusville
Post Office Box 2806 Titusville, Florida 32781-2806
For Respondent Florida Fish and Wildlife Conversation Commission:
Ross Stafford Burnaman, Esquire James Antista, Esquire
John Holly, Esquire Florida Fish and Wildlife
Conservation Commission Bryant Building
620 Meridian Street
Tallahassee, Florida 32399-1600
For Interventor Respondent Florida Power and Light Company: Diana Lee Davis, Esquire
Florida Power & Light Company 700 Universe Boulevard
Post Office Box 1400
Juno Beach, Florida 33408
Daniel H. Thompson, Esquire Berger, Davis & Singerman, P.A.
215 South Monroe Street Suite 705
Tallahassee, Florida 32301
For Intervenors Save the Manatee Club, Inc., and Florida Wildlife Federation:
David Guest, Esquire
S. Ansley Samson, Esquire Allison Fenn, Esquire Earthjustice Legal Defense Fund Post Office Box 1329
111 South Martin Luther King Boulevard Tallahassee, Florida 32302-1329
STATEMENT OF THE ISSUE
The issue is whether proposed regulations for Brevard County manatee protection areas by the Florida Fish and Wildlife Conservation Commission (FWCC), which are amendments to Rule 68C- 22.006, Florida Administrative Code, noticed in the
April 20, 2001, Florida Administrative Weekly (F.A.W.)("Proposed Rule"), with a Notice of Change published in the F.A.W. on
June 15, 2001, are an invalid exercise of legislative authority.
PRELIMINARY STATEMENT
On September 6, 2000, the FWCC authorized staff to initiate amendments to the Brevard County Rule 68C-22.006, Florida Administrative Code, at a public meeting in Deland, Florida. On October 6, 2000, the FWCC published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop. On October 26, 2000, the FWCC's staff conducted a rule development workshop in Melbourne, Brevard County, Florida.
On January 24, 2001, the FWCC directed staff to conduct a second rule development workshop in Brevard County. On February 1, 2001, the FWCC published Notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2001.
On March 7, 2001, the FWCC's staff conducted a second rule development workshop in Viera, Brevard County, Florida. On March
30, 2001, the FWCC conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly.
On April 20, 2001, the FWCC published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001. On
May 3, 2001, the FWCC's staff conducted a public hearing on the proposed rules in Melbourne, Brevard County, Florida. On
May 23, 2001, the FWCC held a public meeting and rule hearing in Palm Beach Gardens, Florida, and authorized changes to the proposed rules.
On May 31, 2001, and pursuant to Section 120.56, Florida Statutes, Petitioners, Thomas McGill, Ronald J. Pritchard, Daniel
Dvorak, Robert H. Atkins and Russell P. Gentile ("McGill Petitioners") filed Petitions for Administrative Determination of Invalidity of the Proposed Rule challenging all or a portion of Rule 62C-22.006, Florida Administrative Code, as arbitrary and capricious and an invalid exercise of delegated legislative authority.
On June 1, 2001, Sea Ray Boats, Inc. ("Sea Ray") filed its challenge to only Section 68C-22.006(2)(d)(11), Florida Administrative Code, of the Proposed Rule. On June 28, 2001, Petitioners, Standing Watch, Inc. ("Standing Watch"), Jim Kalvin, Thomas Mason, Douglas Jaren and Stowell Robertson also filed a
Petition challenging provisions of the Proposed Rule. Collectively, these Petitions will be called the "Proposed Rule Challenges."
On June 11, 2001, Florida Power and Light (FPL) filed a Motion to Intervene, and Save the Manatee Club, Inc. (STMC) and the Florida Wildlife Federation (FWF) jointly filed a Motion to Intervene. On June 14, 2001, an Order was entered consolidating the rule challenge Petitions and granting the motions to intervene. On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly.
On August 20, 2001, the City of Cocoa Beach ("Cocoa Beach") filed a Motion To Intervene in support of the Proposed Rule Challenge, and intervention was granted on August 22, 2001.
On September 7, 2001, the City of Titusville ("Titusville") filed its motion to intervene in support of the Proposed Rule Challenges, and intervention was granted on September 11, 2001.
On January 22, 2001, subsequent to the final hearing in this cause, the City of Titusville filed its Notice of Withdrawal of Challenge to Proposed Rule 68C-22.006(d)3, Indian River-Titusville area; and Rule 68C-22.006(d)(4), Indian River, State Road 402 to State Road 405, without prejudice to any other Petitioners.
The following are the more significant procedural matters of this case. On June 6, 2001, FWCC filed its motion to strike the Petition filed by McGill Petitioners, which was granted in part
and denied in part by Order on June 21, 2001. On June 28, 2001, the McGill Petitioners filed an Amended Petition.
On August 21, 2001, Sea Ray entered into a settlement agreement with FWCC providing that FWCC would agreed to enter an intent to issue a permit to Sea Ray to test its boats in the Canaveral Barge Canal. In exchange, Sea Ray agreed to dismiss its Petition with prejudice, with the provisos that no other party challenge the FWCC's intent to issue the permit to Sea Ray Boats and FWCC issue the permit in a timely manner. On September 10, 2001, Sea Ray filed a Motion to Dismiss with Prejudice its petition challenging the rule.
On September 21, 2001, Sea Ray's motion was granted by order dated nunc pro tunc to September 14, 2001, dismissing Sea Ray from the proceedings. Sea Ray Boat ceased participation in the final hearing process.
STMC filed a Petition with the FWCC challenging FWCC's intent to issue to Sea Ray the test permit as agreed upon between the two parties. Upon assignment to DOAH, STMC's permit challenge Petition was assigned DOAH Case No. 01-3992. As the result of STMC's challenge, Sea Ray Boat moved to stay the rule challenge proceedings in Case No. 01-3992 and to reinstate its Rule Challenge Petition in this proceeding.
On October 15, 2001, a telephone conference in this matter was held and on October 17, 2001, an Order was entered granting
Sea Ray's motion to reinstate its Petition in this proceeding because of no prejudice to opposing parties, and granting Sea Rays Boat's request to compel attendance by subpoena witnesses who previously testified during the final hearing between the dates of September 24 and the date that Sea Ray's settlement agreement was filed. On October 18, 2001, Sea Ray filed a motion to consolidate Save the Manatee's Petition, DOAH Case No. 01-3992, challenging FWCC's intended agreement to issue Sea Ray a test permit with the rule challenge proceeding, DOAH Case Nos. 01-2114RP, 01-2197RP and 01-2198RP. By Order of October 19, 2001, these two matters were consolidated.
On November 30, 2001, Petitioner, STMC and Respondent, FWCC filed a Joint Motion For Continuance of DOAH Case No. 01-3992.
Petitioners cited notification on August 10, 2001, that the United States Fish and Wildlife Service published a Proposed Rule in the Federal Register (Vol. 66, Pages 4317-42350) to designate additional manatee protection in Florida, including the Canaveral Barge Canal. The proposed rule allowed a 60-day period for submission of public comment, and the proposed rule indicated that as to the Canaveral Barge Canal the Service intended to "proceed with final rulemaking on this site as expeditiously as possible following careful consideration of all comments received in response to their notice." The proposed rule did not allow any
exception to the slow-speed designation associated with vessel testing.
On December 5, 2001, an Order Granting a Continuance and Placing DOAH Case No. 01-3992 in Abeyance was entered with the instruction that the parties advise, in writing not later than January 21, 2002, of the status of the proposed federal rule. On January 17, 2001, a Joint Status Report was filed stating that the federal final rule established a "slow speed" manatee refuge in the Canaveral Barge Canal, which will not occur sooner than February 6, 2002, and does not immediately allow for Sea Ray Boat to exceed the posted speed for vessel testing. The rule did, however, contain a response to a public comment that provides in relevant part:
At this time we intend to propose amendments to our regulations to incorporate a process by which we may evaluate and authorize specific activities within designated manatee protection areas, provided parties requesting such authorization can demonstrate that their activities will not cause the take of manatees.
No timetable was given for that prospective action. The parties agreed that DOAH Case No. 01-3992 should remain in abeyance and the parties be required to file an additional status report within 15 days after the entry of this Final Order. By Order dated January 31, 2002, DOAH Case No. 01-3992 was continued in abeyance.
On September 7, 2001, FPL filed its Motion for a Partial Summary Order and Motion in Limine. The motion was heard by telephonic hearing on September 14, 2001. On September 24, 2001, an Order was entered Denying the Partial Summary Order and granting the Motion in Limine.
At the commencement of the final hearing on September 24, 2001, and after exhibits were entered into evidence, FPL announced it was voluntarily dismissing its Petition to Intervene, based upon the Denying in Part its Motion for Partial Summary Order and granting the Motion in Limine, upon the stipulation by all parties that no one was challenging Rule 68C-22.006.4, Florida Administrative Code, which granted FPL entry to what is otherwise a no-entry zone created in Subsection (2)(a)2 of the same Rule.
Sea Ray Boat was not present due to its earlier voluntary dismissal, but subsequently concurred with the stipulation. On October 10, 2001, an order dismissing FPL as Intervenor was entered.
On October 11, 2001, Petitioner Dvork filed a Proposed Order that was intended to revise the September 24, 2001, Order Granting in Part and Denying in Part FPL's Motion for Partial Summary Order and Motion in Limine. Petitioner Dvork's proposed order sought to amend those aspects of the Order that excluded certain testimony from Petitioner McGill's witnesses regarding issues affecting FPL. On October 19, 2001, FPL responded with the filing of a Notice of
Filing Transcript and Supplemental Response to Dvork's Proposed Corrected Order, and Alternative Motion to Set Aside its Voluntary Dismissal.
On October 22, 2001, FPL was allowed to reenter these rule challenge proceedings as an Intervenor, with limited participation to the presentation of evidence and cross- examination of Petitioner McGill's witnesses as their testimony related to the concerns raised by FPL in its Petition to Intervene. By Order of November 5, 2001, FPL's motion to set aside its voluntary dismissal was granted, nunc pro tunc to September 24, 2001.
An 11-day Administrative Hearing was conducted on
September 24-28, 2001, in Viera, Florida; on October 22-26, 2001, in Titusville, Florida; and on October 29, 2001, in Tallahassee, Florida.
Petitioners presented the testimony of 12 witnesses: Scott Calleson, FWCC's employee; Captain James B. Ross, qualified as an expert in the areas of fishing guide and local knowledge of waterways, boat handling, boatmanship, water depth, bottom composition, types of fish, and the time of year those fish that are found and where they are found within the area that he's familiar with; James Wood, who was qualified as an expert in the evaluation and assessment of spacing, depth and length of propeller cuts on various surface mammals that provide the most likely identification as to the type of propeller and vessel that
caused the observed cuts and marks; Dr. Warren Compton; Robert Atkins; Linda Granger; Daniel B. Dvorak; William Querry; Tom Mason; Dr. Joseph Blue, who was qualified as an expert in underwater acoustic measurement, underwater acoustics sound research and underwater acoustic sounds; Dr. Edmund Gerstein, who was qualified as an expert in "manatee hearing behavior in general associated with noise in the manatee's environment"; and Donald Walden.
Respondent presented the testimony of seven witnesses: Scott Calleson (through cross-examination); Sharon Tyson; Ann Spellman, who was qualified as an expert in marine biology and manatee rescue and recovery and salvage; Dr. Charles Deutsch, who was qualified as an expert in behavioral ecology based on the telemetry data he analyzed and marine mammalogy and telemetry data analysis; Dr. John Reynolds, who was qualified as an expert in marine mammal conservation and policy, manatee biology and behavioral ecology and marine mammal limitation; Officer Dennis Harrah, who was qualified as an expert in boating safety, marine law enforcement and local knowledge of the water ways of Brevard County; and David Arnold.
Intervenor, STMC, presented the testimony of two witnesses: Dr. James Powell, who was qualified as an expert in marine biology and behavior, and Sandra Clinger, who was qualified as an expert in coastal resource management. Intervenor, FPL, presented the
testimony of one witness, Captain Glenn Singley. Intervenor, Titusville, presented the testimony of three witnesses: Donald Walden, Harold Kennedy and Ronald Pritchard. Two hundred and seventy exhibits were admitted in evidence.
The Transcript of the hearing was filed on December 20, 2001, and the parties, after waving time limitations, were accorded until January 22, 2002, to submit proposed final orders. Proposed Final Orders were timely submitted by the parties and have been duly considered.
On January 22, 2002, a Notice of Withdrawal of Challenge to Propose Rule 68C-22.006(d)3., Indian River-Titusville Area: 68c- 22.006(d)4., Indian River, State Road 402 to State Road 405, without prejudice to any other Petitioner was filed by Intervenor, City of Titusville. That Petition is now moot.
PREHEARING STIPULATED FACTS
Official recognition was taken of the following: Code of Federal Register, 50 C.F.R. Chapter I, Part 17, Subpart J; 17.100- 17.108; Federal Register, September 1, 2000, pages 53222-53223, Advance Notice of Proposed Rule and Request for Comments; Federal Register, November 30, 2000, pages 71329-71330, Notice of Document Availability and Public Comment Period; Federal Register, March 14, 2000, pages 14921-14932, Notice of Document Availability and Public Comment Period; Federal Register, August 10, 2001, pages 42317-42350, Notice of Proposed Rule to Establish Sixteen
Additional Manatee Protection Areas in Florida; Florida Administrative Code Rules 68C-22.001, 68C-22.002, 68C-22.003, 68C- 22.004, and 68C-22.006; Bonita Bay, et al., vs. Department of Environmental Protection, DOAH Case No. 95-2552RP-Final Order; Brevard County, et al. vs. Department of Agriculture and Consumer
Services, DOAH Case No. 00-4520RX, and Thomas McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. 45.
Pursuant to the Prehearing Order, the parties entered into rehearing Stipulation in which they agreed to the facts contained in paragraphs 1-25 of the findings of fact herein.
FINDINGS OF FACT
Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found.
Effective July 1, 1999, Respondent, FWCC became primarily responsible for implementation of the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes (2000) instead of the Department of Environmental Protection, by operation of Section 45, Chapter 99-245, Laws of Florida. FWCC is the State agency responsible for promulgating rules pursuant to Section 370.12, Florida Statutes. Respondent noticed proposed rules, and is a mandatory party to a challenge thereto. Section 120.56(1)(e), Florida Statutes.
STANDING OF THE PARTIES
McGill, Pritchard, Dovark, Gentile, Akins, Mason, Jaren, Robertson, Standing Watch, Inc., Save the Manatee Club, Inc., Florida Wildlife Federation, Inc., and Sea Ray Boats, Inc.1, are substantially affected by one or more of the Proposed Rules in that they operate motorboats in one or more of the areas proposed for regulation, or in that they represent the interests of members who operate motorboats in one or more of the areas proposed for regulations, or who desire to protect manatees and manatee habitats on behalf of members who derive aesthetic or other benefits from manatees, and who observe or otherwise enjoy manatees in Brevard County and elsewhere.
Intervenor, Florida Power and Light Company (FPL), is a Florida corporation that owns and operates the Cape Canaveral Power Plant located in Cocoa, Brevard County, Florida. FPL's operations are specifically addressed in the proposed rule in that the proposed rule creates a no-entry zone along an area bordering the FPL Cape Canaveral Power Plant property boundary including easements and right-of-way where electrical generation operating equipment and electrical distribution and transmission equipment are located.
Intervenor, Cocoa Beach is a Florida Municipal Corporation located in Brevard County. The Cocoa Beach Sports Area located with the Banana River Lagoon has been designated
since 1988 as an area for water-related recreational activities for the residents of the City of Cocoa Beach and for the general public. The Proposed Rule seeks to impose speed restrictions for boats operating within this area and, if promulgated, will directly regulate and restrict the boating, fishing and other water-related recreational activities of the public within the area.
Intervenor, Titusville is a Florida Municipal Corporation located in Brevard County, whose elected body has determined that a substantial number of its residents are substantially affected in the Proposed Rule.
The parties alleged facts supported their standing in individual petitions, and the parties stipulated to standing. Therefore, none of the Petitioners presented any evidence regarding their standing.
Petitioners and Intervenors are substantially affected by one or more sections of the proposed rule in that they operate motorboats in one or more of the areas proposed for regulation, or they represent the interests of members who operate motorboats in one or more of the areas proposed for regulation or who desire to protect the manatees and manatee habitat on behalf of members who derive aesthetic or other benefits from manatees and who observe or otherwise enjoy manatees in Brevard County.
ADOPTION PROCESS FOR THE 2001 RULE PROPOSAL
On September 6, 2000, the Commission authorized staff to initiate amendments to the Brevard County rules at a public meeting in Deland, Florida.
On October 6, 2000, the Commission published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop.
On October 26, 2000, the Commission staff conducted a rule development workshop in Melbourne, Brevard County, Florida.
On January 24, 2001, the Commission directed staff to conduct a second rule development workshop in Brevard County, Florida.
On February 16, 2000, the Commission published notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2000.
On March 7, 2000, the Commission staff conducted a second rule development workshop in Viera, Brevard County, Florida.
On March 30, 2000, the Commission conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly.
On April 20, 2001, the Commission published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001.
On May 3, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida.
On May 23, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida.
On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly.
There are no algorithms, formulae, protocols, matrices, math models, or metrics used by the Commission to combine the individual data sources into findings that idle-speed, slow-speed, or no-entry zones were required for any specific zone in question.
Aerial surveys have been conducted by the Florida Marine Research Institute (FMRI) and others.
One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the
best available information about the minimum estimated size of the manatee population in Florida at this time.
The statewide synoptic survey data from the past several years is as follows:
1991 | 1,268 | manatees |
1991 | 1,465 | manatees |
1992 | 1,856 | manatees |
1995 | 1,443 | manatees |
1995 | 1,822 | manatees |
1996 | 2,274 | manatees |
1996 | 2,639 | manatees |
1997 | 2,229 | manatees |
1997 | 1,709 | manatees |
1998 | 2,022 | manatees |
1999 | 2,034 | manatees |
1999 | 2,354 | manatees |
2000 | 1,629 | manatees |
2000 | 2,222 | manatees |
2001 | 3,276 | manatees |
During the most recent statewide synoptic survey, portions of Brevard County were observed in five counts made during January 5, 6, and 7, 2001. Of the 591 manatees observed in Brevard County on January 6, 2001, 457 manatees were adjacent to Florida Power and Light Company's thermal discharge, 38 manatees were in Sebastian River, 16 manatees were in Berkley Canal System, and 8 manatees were along the east Banana River shoreline on the southeastern extension of Merritt Island.
In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. These types of
surveys are used by the FWCC in assessing manatee use of an area and then establishing manatee protection regulations.
The most recent, comprehensive FMRI aerial survey in Brevard County consisted of 45 flights between September 1997 and September 1999. A standardized flight path designed to cover most probable manatee habitats was flown over Brevard County at least once per month during the two-year period at an altitude of approximately 500 feet (except for June 1999, where excessive smoke covered the area); the only area of the county not covered at all was restricted airspace associated with the Kennedy Space Center Complex. The highest number of manatees counted during this survey was 790 manatees in March 1999.
General Description of Brevard County.
Located in east central Florida, Brevard County is approximately 72 miles north-south and approximately 20 miles east-west. The west boundary of the county is the St. Johns River; the east boundary is the Atlantic Ocean. The Indian River Lagoon in Brevard County extends north of the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county.
Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a barrier island running the length of the county, the Indian River Lagoon, and the mainland.
Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west; the Banana River on the east; and the Mosquito Lagoon on the north. At the southern end of Merritt Island, the Banana River joins the Indian River.
Besides Sebastian Inlet at the southern boundary of the county, the only navigable connection between the Indian River Lagoon and the Atlantic Ocean is at Port Canaveral. Port Canaveral cuts across the Canaveral Peninsula; along the west shoreline, the Canaveral Locks permit vessels to pass from the Port into the Banana River.
The Mosquito Lagoon, Indian River and Banana River are located in a transitional zone between the temperate and tropical zones and form one of the most diverse estuaries in North America.
The Indian River Lagoon varies from 0.5 to 5 miles in width and has an average depth of one meter (39.4 inches).
The Indian River Lagoon system is not subject to significant periodic lunar tides. The water depths are depicted as mean lower low water, while the shorelines are represented in terms of approximate mean high water.
In the lagoon system in Brevard County, the relative water levels rise and fall as influenced by wind, rainfall,
storms, and tides. Expert witnesses with local knowledge of the waters acknowledged the variation in water level or relative depth and testified that the water level fluctuates in the Indian River Lagoon by more than three feet and fluctuates by two or two and one-half feet or greater annually.
The Indian River Lagoon contains extensive sea grass beds, which are the preferred food for manatees. A bathymetric survey commissioned by the St. Johns River Water Management District determined the acreage of submerged land within the lagoon that can be potentially vegetated with submerged aquatic vegetation at a depth of six feet below mean sea level.
Brevard County is the hub of the Atlantic Coast manatee population with a large year-round and a large migratory transient manatee population present throughout the year.
THE MANATEE
The West Indian manatee (Trichechus manatus) is one of endangered marine mammals in coastal waters of the United States. The West Indian manatee is presently classified as an "endangered species" by the federal Endangered Species Act and has protected status under the Marine Mammal Protection Act.
The West Indian Manatee is one of the four living species of the mammalian Order Sirenia, the other three are the West African manatee, the Amazonian manatee and the dugong; the fifth species, Stellar's sea cow, was hunted into extinction.
In the southeastern United States, manatees are limited primarily to Florida and Georgia and this group forms a separate subspecies called the Florida manatee (T. manatus latirostris). The Florida manatee (hereinafter "manatee") is a migratory species with a large range of movement along the Atlantic and Gulf Coasts of the United States. During the winter, cold temperatures keep the population concentrated in peninsular Florida, but during the late spring and summer they expand their range and are seen infrequently as far north as Rhode Island, and as far west as Texas.
Manatees demonstrate "site fidelity" with some individual mammals adjusting their behavior to take advantage of changes in the availability of resources. Manatees often return to the same winter thermal refuges and the same summer habitats year after year.
Manatees prefer water temperatures above 68 degrees F and when ambient water temperatures drop below 68 degrees, they seek warm water refuges, such as spring-fed rivers and power plans discharge outs.
Florida Power and Light Company and Reliant Energy Power Plants and the Sebastian River are the primary warm water refuges sought by manatees in Brevard County.
For feeding, resting, cavorting, mating and calving, manatees prefer shallow sea grass beds in coastal and riverline
habitats with ready access to deep channels, particularly near the mouths of creeks, embayments and lagoons. Manatees sometimes prefer vegetation growing along the banks of waterways, instead of submerged or floating aquatic vegetation.
Manatees seek and find sources of fresh water for drinking. In brackish or estuarine environment, they locate fresh water sources, either natural or artificial. They have been observed drinking fresh water at marinas, from air conditioning condensate discharge, from pockets of fresh water floating on the surface of the saltier water, from storm water outfalls and from springs.
Typically, six-to-eight hours per day are spent on feeding, usually at one-hour intervals. Intermittently, between two and 12 hours per day are spent resting or sleeping either at the surface of the water or on the bottom. Time not devoted to feeding or sleeping is spent in traveling, socializing or exploring during both day and nighttime hours.
The basic social unit consists of a female manatee and her dependent calf. Manatees, apart from winter aggregations at warm water resources and transient mating herds, are semi-social or mildly social mammals.
Manatees usually prefer to swim below the surface at one to three meters (3.28 to 9.84 feet) depth, surfacing every few minutes to breathe. They typically have a swimming cruising speed
between four and ten KM/HR (2-6 MPH), but can swim in short bursts at up to 25 KM/HR (15 MPH). Manatees have been seen in shallow waters with their backs and heads out of the water and on occasion have been observed fully or partially out of the water to feed or escape pursuing male manatees.
Female manatees reach sexual maturity by age five years and males at the age of three to four years. Mating occurs when estrous females are successfully approached by dynamic epherimal mating herds of between five and 20 males (lasting up to four weeks). Female manatees will swim to very shallow water when pursued by mating herds of males as a preventive measure from mating.
Manatees have a low reproductive rate and a long life expectancy. Manatee's gestation period is 11 to 14 months with usual birthing of one calf. Dependent calves remain near their mother's side from one to two years, swimming parallel to its mother, directly behind her flipper. Life expectancy for a manatee is in excess of 50 years. A significant decrease in adult survivorship due to, among other things, watercraft collisions could contribute to a long-term population decline.
The manatee population in Florida has shown yearly increases resulting in more manatees now than there were in 1976 in the areas of Brevard County that are subject to the Proposed Rules.
MANATEE PROTECTION PLANS
The United States Fish and Wildlife Service developed an initial recovery plan for West Indian manatees in 1980, primarily for manatees in Florida. The plan was revised in 1989 and 1996.
A third revision to the Recovery Plan was noticed for public comment in November 2000, and in July 2001.
The recovery plans hereinabove recognized the major human-related cause of manatee mortality is collisions with watercraft. The existing and draft recovery plans state:
Because watercraft operators cannot reliably detect and avoid hitting manatees, federal and state managers have sought to limit watercraft speed in areas manatees are most likely to occur to afford boaters and manatees time to avoid collisions.
Avoidance technology research is ongoing for deterrent devices designed to "avoid collisions"; however, no device or combination of devices has gained acceptance and approval by the Marine Biological Scientific Community.
The Florida Legislature has designated the entire State a refuge and sanctuary for the manatee--the Florida State marine mammal. Section 370.12(2)(b), Florida Statutes.
HISTORY OF MANATEE PROTECTION IN BREVARD COUNTY
The Florida Legislature initially authorized the adoption of manatee protection rules for Brevard County effective July 1, 1978, when it required the (former) Florida Department of
Natural Resources to adopt rules regulating the speed and operation of motorboats between November 15 and
March 31, 1978, in those portions of the Indian River within 3/4 mile of the then Orlando Utilities Commission (now Reliant) and Florida Power and Light Company power plant effluents. These rules became effective on March 19, 1997 (former Rule 16N-22.06, Florida Administrative Code ("Brevard County Manatee Protection Rules" or "BCMPR").
In 1989, a strategy to improve manatee protection in 13 key counties was approved by the Governor and Cabinet. The strategy called for development of manatee protection plans, for boat facility siting criteria, for priority land acquisition of critical manatee use areas, and improved aquatic preserve management for sea grass protection. Guidelines for implementation included new or expanded speed zones, refuges or sanctuaries for the regulation of boat speeds in critical manatee areas. Financial assistance was given Brevard County for its manatee protection plan in 1993.
After creation of the FWCC, effective July 1, 1999, the BCMPR and other manatee protection rules were transferred from Florida Department of Environmental Protection (FDEP) to the FWCC, and the Secretary of State renumbered the prior rules to Chapter 68C-22, Florida Administrative Code.
In 1994, FDEP amended BCMPR to establish manatee protection zones in the Canaveral Barge Canal and portions of adjacent areas of the Indian and Banana Rivers; to expand the existing "slow speed" zone in Sykes Creek (north of "S Curve") to include the channel; to establish a maximum 25 MPH zone in the Sykes Creek channel between Sykes Creek Parkway and the "S Curve"; and to renumber and correct map inconsistencies. This site- specific rule-making action was taken in response to proposed additional threats to manatees resulting from development of Abby Marina (now Harbortown Marina), pending completion of Brevard County comprehensive countywide manatee protection plan.
In 1998, FDEP amended the BCMPR to establish seasonal "motorboats prohibited" and "no-entry" zones at the then Orlando Utilities Commission's (now Reliant) power plant and a seasonal "no-entry" zone at Florida Power and Light Company's power plant.
THE PROPOSED MANATEE
PROTECTION RULE AMENDMENTS FOR BREVARD COUNTY
1906 Section II - Proposed Rules
THE FULL TEXT OF THE PROPOSED RULES IS:
(Substantial rewording of Rule 68C-22.006 follows. See Florida Administrative Code for present text.) 68C-22.006 Brevard County Zones.
The Commission hereby designates the waters within Brevard County, as described below, as areas where manatee sightings are frequent and where it can be assumed that manatees inhabit on a regular, periodic or continuous basis. The Commission has further determined that a likelihood of threat to manatees exists in these waters as a result of manatees and motorboats using the same areas.
The primary purpose of this rule is to protect manatees from harmful collisions with motorboats and from harassment by regulating the speed and operation of motorboats within these designated areas. A secondary purpose is to protect manatee habitat. In balancing the rights of fishers, boaters, and water skiers to use these waterways for recreational and commercial purposes (as applicable under 370.12(2)(j), F.S.) with the need to provide manatee protection, the Commission has examined the need for unregulated areas or higher speed travel corridors through regulated areas. Such areas or corridors are provided in those locations where the Commission determined, on the basis of all available information, (1) there is a need for the area or corridor and (2) the area or corridor will not result in serious threats to manatees or their habitat. Unregulated areas or higher speed corridors are not provided in locations where both of the above findings were not made.
The following year-round and seasonal zones are established, which shall include all associated and navigable tributaries, lakes, creeks, coves, bends, backwaters, canals, and boat basins unless otherwise designated or excluded. As used in this rule, ICW means the Intracoastal Waterway. Access to the NO ENTRY and MOTORBOATS PROHIBITED zones designated in paragraphs (2)(a) and (b) will be provided in accordance with procedures set forth in subsection (4), hereunder, and applicable provisions of Rule 68C-22.003.
NO ENTRY (November 15 – March 31)
Indian River, Reliant Corporation Delespine Power Plant Area: All waters within the discharge canal of the Reliant Corporation Delespine power plant, and; All waters southerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of the
jetty on the north side of the power plant intake canal.
Indian River, FPL Frontenac Power Plant Area: All waters in the vicinity of the Florida Power and Light (FPL) Frontenac power plant southerly of a line connecting the northern guy wires of the power poles immediately north of the FPL Unit 2 discharge area from the western shoreline of the Indian
River to the third power pole east of the western shoreline (approximately 1,650 feet east of the shoreline), and westerly of a line running from said third power pole to the easternmost point (approximate latitude 28º 28' 07" North, approximate longitude 80º 45' 19" West) of the jetty on the north side of the FPL intake canal.
MOTORBOATS PROHIBITED (All Year, except as noted)
Indian River, Reliant Corporation Delespine Power Plant Area: All waters in the vicinity of the Reliant Corporation Delespine power plant southerly of a line bearing 90º from a point (approximate latitude 28º 29' 41" North, approximate longitude 80º 46' 35" West) on the western shoreline of the Indian River
95 feet north of the northernmost seawall of the power plant discharge canal, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º. This zone is in effect from November 15 through March 31.
C-54 Canal: All waters of the C-54 Canal (South Florida Water Management District Canal
54) east of the spillway (approximate latitude 27º 49' 50" North, approximate longitude 80º 32' 24" West) and west of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway.
IDLE SPEED (All Year, except as noted)
Indian River, Power Plant Area: All waters west of the western boundary of the ICW channel, south of a line bearing 90° from a point (approximate latitude 28º 30' 13" North, approximate longitude 80º 46' 48" West) on the western shoreline of the Indian River approximately three-fourths of a mile north of the Delespine power plant discharge canal, and north of a line bearing 90° from a point (approximate latitude 28º 27' 27" North, approximate longitude 80º 45' 43" West) on the western shoreline of the Indian River approximately three-fourths of a mile south of the Frontenac power plant discharge canal, except as otherwise designated under (2)(a) and (b)1. This zone is in effect from November
15 through March 31.
Banana River, Cape Canaveral Area: All waters north of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude
80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude
80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 331° from
said point in the Banana River to a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 38' 19" West) on the State Road 528 Causeway (west of State Road 401).
Section II - Proposed Rules 1907
Banana River, Manatee Cove Area: All waters of Manatee Cove (on the east side of the Banana River, just south of State Road
520) east of a line at the mouth of the cove running between a point (approximate latitude 28º 21' 21" North, approximate longitude 80º 36' 52" West) on the northern shoreline and a point (approximate latitude 28º 21' 09" North, approximate longitude 80º 36' 51" West) on the southern shoreline.
Turkey Creek: All waters of Turkey Creek north and east (downstream) of Melbourne- Tillman Drainage District structure MS-1 and
south and west of a line at the mouth of Turkey Creek that runs from the southeasternmost point (approximate latitude 28º 02' 21" North, approximate longitude 80º 34' 48" West) of Castaway Point to the northeasternmost point (approximate latitude 28º 02' 14" North, approximate longitude 80º 34' 43" West) of Palm Bay Point.
Sebastian Inlet Area: All waters of the cove on the northern side of Sebastian Inlet (commonly known as Campbell Cove) northwest of a line running between the two rock jetties at the entrance to the cove.
Sebastian River Area: All waters of the North Prong of Sebastian River, and; All waters of the North Fork Sebastian
River (also known as Sebastian Creek) and the C-54 Canal west of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong and east of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway.
SLOW SPEED (All Year)
Mosquito Lagoon: All waters west of the ICW channel, south of the Volusia County/Brevard County line, and north of
ICW channel marker “43,” and; All waters of Mosquito Lagoon (including the ICW channel) south of ICW channel marker “43,” southwest of a line commencing at ICW channel marker “43” and then running to ICW channel marker “45” and then on a bearing of 132° for a distance of 1,000 feet to the line’s terminus at a point in Mosquito Lagoon (approximate latitude 28º 44' 35" North, approximate longitude 80º 44' 35" West), and north of a line running from said point in Mosquito Lagoon on a bearing of 221° to the western shoreline of Mosquito Lagoon.
Indian River, Turnbull Basin Area: All waters south and east of a line commencing at a point (approximate latitude 28º 44' 36"
North, approximate longitude 80º 46' 19" West) on the eastern shoreline of Turnbull Basin (about one mile north of Haulover Canal) and then bearing 193° to a point 1,500 feet northwest of the ICW channel, then running in a southwesterly direction 1,500 feet northwest of and parallel with the ICW channel to a point (approximate latitude 28º 41' 22" North, approximate longitude 80º 49' 05" West) 1,500 feet northwest of ICW channel marker “12,” and then running in a southerly direction 1,500 feet west of and parallel with the ICW channel to the Florida East Coast Railroad Bridge, including all waters west of the ICW channel and south of an east-west line 1,500 feet north of the point where the Florida East Coast Railroad Bridge crosses over the ICW, but excluding the ICW channel as designated under (2)(e)2.
Indian River, Titusville Area: All waters south of the Florida East Coast Railroad Bridge, east of the ICW channel, and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the
ICW, and; All waters west of the ICW channel south of the Florida East Coast Railroad Bridge and north of the State Road
402 Bridge and Causeway.
Indian River, State Road 402 (Max Brewer Causeway) to State Road 405 (NASA Parkway): All waters within 2,000 feet of the general contour of the western shoreline of the Indian River, excluding the ICW channel where the channel is less than 2,000 feet from the western shore; All waters within one mile of the general contour of the eastern shoreline of the Indian River south and east of a point (approximate latitude 28º 36' 04" North, approximate longitude 80º 44' 44" West) on the western shoreline of Peacock’s Pocket (northwest of Banana Creek), and; All waters south of an east-west line 3,400 feet
north of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.
Indian River, State Road 405 (NASA Parkway) to State Road 528 (Bennett Causeway):
All waters north of an east-west line 3,000 feet south of the point where the State Road
405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.; All waters west of the ICW channel and north of the overhead power transmission line that crosses the western shoreline of the Indian River approximately 1,200 feet north of State Road 528, excepting those areas otherwise
designated for seasonal regulation under (2)(a), (b)1., and (c)1. when said seasonal zones are in effect; All waters south of said overhead power transmission line and
west of a north-south line running through the second power pole east of the western shoreline; All waters within one-half
mile of the eastern shoreline of the Indian River north of a point (approximate latitude 28º 25' 47" North, approximate longitude 80º 43' 24" West) on the eastern shoreline of the Indian River 1,500 feet south of the canal on the southern side of Meadow Lark Lane, including all waters of Rinkers Canal,
and; All waters east of the ICW channel and south of the overhead power transmission line that crosses the eastern shoreline of the Indian River approximately 3,900 feet north of State Road 528.
Indian River, State Road 528 (Bennett Causeway) to State Road 518 (Eau Gallie Causeway): All waters within 1,000 feet of the general contour of the western shoreline of the Indian River; All waters south of State Road 528 and within 1908 Section II - Proposed Rules 500 feet of the State Road 528 Causeway, within 500 feet of the State Road 520 Causeway, within 500 feet of the State Road
404 Causeway, and north of State Road 518 and within 500 feet of the State Road 518 Causeway; All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River between State Road 528 and State Road 520; All waters east of the ICW channel from State Road 520 to an east-west line 300 feet south of the southernmost point (approximate latitude 28º 19' 22" North, approximate longitude 80º 42' 00" West) of the
spoil island east of ICW channel marker “80,” and; All waters within 500 feet of the general contour of the eastern shoreline of the Indian River south of the aforementioned east-west line and north of State Road 404 (Pineda Causeway).
Indian River, State Road 518 (Eau Gallie Causeway) to Cape Malabar: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River; All waters south of State Road 518 and within 500 feet of the State Road 518 Causeway and within
500 feet of the State Road 192 Causeway; All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of State Road 518 and north of the easternmost point (approximate latitude 28º 02' 24" North, approximate longitude 80º 34' 48" West) of Castaway Point (including all waters of the Eau Gallie River and Crane Creek), and; All waters south of said easternmost point of Castaway Point, north of Cape Malabar, and west of a line commencing at a point (approximate latitude 28º 02' 29" North, approximate longitude 80º 34' 38" West) in the Indian River 1,000 feet northeast of said easternmost point of Castaway point, then bearing 130° to the westernmost point (approximate latitude 28º 02' 15" North, approximate longitude 80º 34' 19" West) of the spoil site west of ICW channel marker
“14,” then bearing 153° to the westernmost point (approximate latitude 28º 01' 32" North, approximate longitude 80º 33' 55" West) of the spoil site southwest of ICW channel marker “15,” then bearing 138° to the line’s terminus at a point (approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar.
Indian River, Cape Malabar to Grant: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River south of Cape Malabar and north of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek); All waters south of
Cape Malabar, north of the spoil island between ICW channel markers “25” and “27,” and west of a line commencing at a point approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar, then bearing 157° to the easternmost point (approximate latitude 28º 00' 26" North, approximate longitude 80º 33' 13" West) of the spoil site between ICW channel markers “16” and “17,” then bearing 152° to the easternmost point (approximate latitude 27º 59' 21" North, approximate longitude 80º 32' 35" West) of the spoil island west of ICW channel marker “22,” then bearing 166° to the line’s terminus at the easternmost point (approximate latitude 27º 57' 50" North, approximate longitude 80º 32' 10" West) of the spoil island between ICW channel markers “25” and “27;” All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of said spoil island between ICW channel markers “25” and “27,” and north of ICW channel marker “35,” and; All waters west of the ICW channel between ICW channel markers "35" and “38.”
Indian River, Grant to the Indian River County Line: All waters west of the ICW channel between ICW channel marker "38" and the Brevard County/Indian River County line, including those waters east of the centerline of the U.S. 1 Bridge over the Sebastian River, and: All waters within 1,500 feet of the general contour of the eastern shoreline of the Indian River, south of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek) and north of an east-west line running through ICW channel marker “59” (approximate latitude 27º 51' 38" North, approximate longitude 80º 28' 57" West), including those waters within 1,500 feet west of the westernmost edge of the Mullet Creek Islands, within 1,500 feet west of the westernmost edge of the islands south of Mathers Cove, within 1,500 feet west of the
westernmost edge of Long Point, and within 1,500 feet west of the westernmost extensions of Campbell Pocket south to said east-west line running through ICW channel marker “59,” and; All waters of the Indian River and Sebastian Inlet east of the ICW channel, south of said east-west line running through ICW channel marker “59,” north of the Brevard County/Indian River County line, and west of a line 200 feet southwest of and parallel with the centerline of the State Road A1A Bridge, except as otherwise designated under (2)(c)5. and excluding the marked Sebastian Inlet channel.
Sebastian River Area: All waters of the Sebastian River (including waters also known as San Sebastian Bay), the South Fork San Sebastian River (also known as St. Sebastian River, Sebastian River and Sebastian Creek), and the North Fork Sebastian River (also known as Sebastian Creek) within Brevard County west of the centerline of the U.S. 1 Bridge and east of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong of Sebastian River.
Canaveral Barge Canal: All waters of the Canaveral Barge Canal east of the general contour of the eastern shoreline of the Indian River and west of the general contour of the western shoreline of the Banana River.
Sykes Creek and Kiwanis Basin: All waters of Sykes Creek and Kiwanis Basin south of the Canaveral Barge Canal and north of the centerline of State Road 520.
Section II - Proposed Rules 1909
Newfound Harbor: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Bridge and Causeway; All waters within 1,000 feet of the general contour of the western shoreline of Newfound Harbor north of the runway for the Merritt Island Airport (approximately one mile south of State Road 520), and; All waters within 1,000 feet of the general contour of the eastern shoreline of
Newfound Harbor and an extension of said shoreline to a point 1,000 feet south of Buck Point.
Banana River, North of State Road 528: All waters within 1,500 feet of the general contour of the western shoreline of the Banana River south of a point (approximate latitude 28º 26' 10" North, approximate longitude 80º 39' 35" West) on the shoreline near Kars Park on the boundary of the federal No Motor zone; All waters south of an east-west line running through the westernmost point (approximate latitude 28º 24' 42" North, approximate longitude 80º 38' 34" West) of the first spoil island north of the Canaveral Locks (commonly known as Ski Island), including those waters in Port Canaveral west of State Road 401, and; All waters east and south of a line commencing at the northernmost point (approximate latitude 28º 24' 44" North, approximate longitude 80º 38' 32" West) of Ski Island, then running to the southernmost point (approximate latitude 28º 24' 55" North, approximate longitude 80º 38' 31" West) of the second spoil island north of the Canaveral Locks, then following the eastern shoreline of said spoil island to its northernmost point, then bearing 6° to a point (approximate latitude 28º 25' 09" North, approximate longitude 80º 38' 29" West) in the Banana River underneath the overhead power transmission line south of the third spoil island north of Canaveral Locks, then following said transmission line (which is the boundary of the federal No Motor zone) in an easterly direction to the line’s terminus at a point (approximate latitude 28º 25' 16" North, approximate longitude 80º 36' 13" West) on the eastern shoreline of the Banana River.
Banana River, State Road 528 to State Road 520: All waters south of State Road 528 and north of an east-west line 1,000 feet south of the point where the State Road 528 Bridge crosses over the main Banana River channel, except as otherwise designated under (2)(c)2.; All waters west of a line
running from a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 39'
30" West) on the State Road 528 Causeway east of the western State Road 528 Relief Bridge to a point (approximate latitude 28º 21' 26" North, approximate longitude 80º 39' 32" West) on the State Road 520 Causeway approximately 1,200 feet west of the water storage tanks, and; All waters south of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point
in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 174° from said point in the Banana River to a
point (approximate latitude 28º 21' 28" North, approximate longitude 80º 37' 35" West) on the State Road 520 Causeway approximately 1,000 feet west of Cape Canaveral Hospital Complex.
Banana River, Cocoa Beach Area: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Causeway, excluding the main Banana River channel; All waters within 1,000 feet of the general contour of the western shoreline of the Banana River, south of State Road 520 and north of Buck Point and an extension of said shoreline to a point 1,000 feet south of Buck Point, excluding the main Banana River channel where the channel is less than 1,000 feet from the western shoreline, and; All waters east of a line commencing at a point (approximate latitude 28º 21' 25" North, approximate longitude 80º 38' 30" West) on the State Road
520 Causeway (approximately 2,000 feet east of the State Road 520 Bridge over the main Banana River channel), then bearing 190° to a point (approximate latitude 28º 19' 15" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,900 feet west of the northwesternmost point of the Cocoa Beach Municipal Park, then bearing 270° to a point (approximate latitude 28º 18' 38" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,700 feet west of the southwesternmost point of the Cocoa Beach Municipal Park, then bearing 171° for
approximately 3,000 feet to a point (approximate latitude 28º 18' 07" North, approximate longitude 80º 38' 50" West) in the Banana River east of channel marker “15,” then bearing 124° to a point (approximate latitude 28º 16' 52" North, approximate longitude 80º 36' 45" West) in the Banana River 1,000 feet west of the eastern shoreline of the Banana River, then heading in a southerly direction 1,000 west of and parallel with the eastern shoreline of the Banana River to the line’s terminus at a point (approximate latitude 28º 15' 51" North, approximate longitude 80º 36' 38" West) in the Banana River near the northern boundary of Patrick Air Force Base.
Banana River, South of Cocoa Beach to State Road 404 (Pineda Causeway): All waters south of an east-west line running through the southernmost point (approximate latitude
28º 16' 19" North, approximate longitude 80º 39' 25" West) of the more southerly of the two islands east of Macaw Way (on Merritt Island) and west of a line bearing 162° from said southernmost point to State Road 404; All waters south and east of the overhead power transmission line in the Banana River
adjacent to Patrick Air Force Base, and; All waters north of the centerline of State Road
404 and within 2,000 feet of the State Road
404 Bridges and Causeway, excluding the main Banana River channel as designated under (2)(e)5.
Banana River, South of State Road 404 (Pineda Causeway): All waters south of the centerline of State Road 404, including those waters east of a line bearing 270° from the southernmost point (approximate latitude 28º 08' 32" North, approximate longitude 80º 36' 15" West) of Merritt Island 1910 Section II - Proposed Rules (commonly known as Dragon Point) to the Eau Gallie Causeway, excluding the main Banana River channel as designated under (2)(e)5.
25 MPH (All Year)
Mosquito Lagoon: All waters in the ICW channel south of the Volusia County/Brevard County line and north of ICW channel marker “43” (north of Haulover Canal).
Indian River, Turnbull Basin and Titusville Area: All waters in the ICW channel southwest of ICW channel marker “1” (southwest of Haulover Canal) and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW.
Indian River, State Road 405 (NASA Parkway) Area: All waters in the ICW channel south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW and north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW.
South Indian River Area: All waters in the ICW channel south of ICW channel marker “59” and north of the Brevard County/Indian River County line.
South Banana River Area: All waters in the main Banana River channel south of a point in the channel 2,000 feet north of the State Road 404 Bridge, and north of a point (approximate latitude 28º 09' 15" North, approximate longitude 80º 36' 32" West) in the channel on the northern boundary of the local Idle Speed zone approximately 1,900 feet north of the Mathers Bridge.
Commercial Fishing and Professional Fishing Guide Permits: The following provisions pertain to the issuance of permits to allow individuals engaged in commercial fishing and professional fishing guide activities to operate their vessels
in specified areas at speeds greater than the speed limits established under subsection (2) above. Procedures related to the application for and the review and issuance of these permits are as set forth in 68C-22.003, Florida Administrative Code.
Permits shall be limited as follows:
Permits shall only be available for the zones or portions of zones described under (2)(d)1. through (2)(d)9., and (2)(d)13. through (2)(d)18.
Permits shall not apply on weekends or on the holidays identified in s. 110.117, F.S.
Permit applications may be obtained at the Commission’s Law Enforcement office at 1-A
Max Brewer Memorial Parkway in Titusville or by contacting the Commission at Mail Station OES-BPS, 620 South Meridian Street, Tallahassee, Florida 32399 (850-922-4330).
Access to the NO ENTRY and MOTORBOATS PROHIBITED zones is allowed for Reliant Corporation employees or their authorized agents (for the zones designated under (2)(a)1. and (b)1.) and for Florida Power and Light Company employees or their authorized agents (for the zone designated under (2)(a)2.) provided that entry into the zones is necessary to conduct activities associated with power plant maintenance, emergency operations or environmental monitoring. The Commission must receive notification of the activity prior to its commencement. In the event of an emergency activity, the Commission shall be notified no more than one week after the activity has been commenced. All vessels used in the operation or associated with the activity shall be operated at no greater than Idle Speed while within the zones and must have an observer on board to look for manatees.
The zones described in 68C-22.006(2) are depicted on the following maps, labeled “Brevard County Manatee Protection Zones.” The maps are intended as depictions of the
above-described zones. In the event of conflict between the maps and descriptions, the descriptions shall prevail.
DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE
FWCC's staff who were primarily responsible for the development of the recommended revisions to the BCMPR to the FWCC included: Scott Calleson, who holds a Bachelor of Science degree in Marine Science and a Masters of Science degree with emphasis on Environmental Planning and Natural Resource Management, and has worked with manatee protection rules since 1992; David Arnold, who
holds both a Bachelor of Science degree in Biology and a Master of Science degree in Biological Oceanography, and who supervised the Department of Environmental Protection's marine turtle protection program prior to becoming Chief of the Bureau of Protected Species Management in 1995; and Dr. Charles Deutsch, who has both a Bachelor of Science and a Doctorate degree in Biology with specialization in biology of marine mammals and behavior, animal behavior and behavioral ecology, and worked for the United States Geological Survey (USGS) in a number of analyses of manatee radio tracking along the Atlantic Coast. The verbal, narrative and graphical presentations of the experts were relied upon in making recommendations to the FWCC for the proposed rule revisions.
FWCC's staff gave good faith consideration to the experts' opinions, publications, articles, data analysis, and reasonable inferences and predictions.
MANATEE MORTALITY DATA
FWCC relied upon manatee mortality data in evaluating manatee inhabitation (Brevard County Mortality Information and Brevard County Misc. Information), including FMRI manatee salvage database for Brevard County from January 1974 to December 2000 (including carcass recovery location and cause of death).
AERIAL SURVEY DATA
In evaluating manatee inhabitation, FWCC relied upon manatee aerial survey data in existing manatee inhabitations.
Included in this process were: information on aerial surveys performed for Kennedy Space Center by Dynamic Corporation; Geographic Information System information for FMRI's 1997-1999 Brevard County aerial survey along with data in "Seasonal Manatee Distribution and Relative Abundance in Brevard County, Florida, 1997-1999"; Geographic Information System data from earlier Brevard County aerial surveys; and aerial surveys conducted by the Florida Marine Research Institute and others.
Aerial Surveys
Aerial surveys have been conducted by the Florida Marine Research Institute and others using various techniques.
One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as stated in Finding of Fact 23 herein above.
In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. The commission in
assessing manatee use of an area and then establishing manatee protection regulations uses these types of surveys.
SYNOPTIC AERIAL SURVEYS
Considered by FWCC was the statewide synoptic survey for the period 1991 to 2001. These surveys are used for monitoring winter aggregation of manatees and provide a minimum estimate of the number of manatees observed. Population biologists view synoptic survey results as the best available information source to estimate the minimum size of the manatee population in Florida at the present time. The statewide synoptic survey data for the years 1991-2001 are detailed in paragraph 22 herein above.
The Berkeley Canal system location, where manatees were observed on January 6, 2001, has four connecting canals to the eastern shoreline of the Banana River; the northernmost connection is just south of the Pineda Causeway and the southernmost connecting canal is located about three and three-fourths miles to the south between Carter's Cut and the Mathers Bridge.
The West Banana River shoreline locations where manatees were observed on January 6, 2001, is the Banana River Marina.
MANATEE DISTRIBUTION AND RELATIVE ABUNDANCE
Targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance.
They are used in assessing manatee use of an area and then in establishing manatee protection regulations in those areas.
Forty-five flights between September 1997 and September 1999 are the most comprehensive and recent FMRI aerial surveys in Brevard County. Aerial surveys possess an inherent bias because the location of animals can only be seen during daylight hours and do not account for nighttime locations.
FWCC's aerial survey data were presented in various forms: raw data entry sheets completed by the surveyors; a composite, GSI plot of the data points for Brevard County; small- format GIS plots of data points that depicted manatees seen by month; and small-format GIS plots of data points that depicted manatees seen during each flight, along a flight path.
Before the 1997-1999 Bervard survey, relative abundance and distribution surveys for portions of Brevard County were conducted in late-1985 through early-1987. The 1985-87 Banana River surveys included only the area between Launch Complex 39B and Eau Gallie, but included portions of Canaveral Barge Canal, Sykes Creek and Newfound Harbor.
Flights were flown over the Cocoa Beach area during morning hours for a nine-month period (March 3, 1990-
November 27, 1990), and showed more than one manatee during each flight, with one exception on March 3, 1990.
SATELLITE TELEMETRY DATA AND VHF RADIO TELEMETRY DATA
The FWCC relied upon manatee telemetry data in evaluating manatee inhabitation for Brevard County. Included in the satellite and VHF radio telemetry data relative to inhabitation was a GIS database obtained from the "United States Geological Survey (USGS) Biological Resources Division, Florida Carribean Science Center, Sirenia Project, Gainesville, Florida," and reports authored by Dr. Charles Deutsch who analyzed the USGS data.
The USGS Sirenia Project data analyzed by Dr. Deutsch were collected from May 1986 to May 1998, and included both VHF radio and telemetry and satellite telemetry data for the 78 manatees that were tagged for varying amounts of time during that period along the lower East Coast of the United States, excluding data for manatees that were born and raised in captivity. This data was considered by Dr. Deutsch as the best telemetry data available.
Of the full USGS Sirenia Project data evaluated by Dr. Deutsch, 61 manatees were tracked at some time during the study period in Brevard County, including 16 manatees that were
only tracked using VHF radio tracking and not satellite telemetry. The maximum number of tagged manatees observed in Brevard County during the study period was 12 manatees at one time. Dr. Deutsch
opined that about one or two percent of the documented East Coast manatee sub-population was tracked each year.
The radio telemetry data subsets from the Sirenia Project covered a ten-year period from May 1986, and included over 6,000 manatee observations for 54 individual tagged manatees. Of those 6,000 observation points, three-quarters (almost 5,000) were actual visual sighting of manatees made by persons on shore or in vessels. Of those visual sightings, approximately ten percent were made by non-government employees.
The satellite telemetry data evaluated by Dr. Deutsch included data for 45-tagged manatees that was collected from April 1987 to May 1998, with over 34,000 location records of Class 1, 2, or 3 accuracy. Of the 61-tagged manatees that were observed in Brevard County during the 12-year study period, the median tracking period was 135 days, with some animals tracked for several years while others were tracked for shorter periods of time.
Of the 61 manatees tracked in Brevard County, approximately one-half were fitted with radio or satellite telemetry transmitters (tags) while in Brevard County, the other half were tagged in different areas of northeast Florida, in southeast Georgia, or in southeast Florida. A majority of the animals tagged outside of Brevard County were observed in Brevard
County, and Dr. Deutsch opined that this data demonstrated Brevard County to be the hub of manatee activity along the Atlantic Coast.
MIGRATORY RANGE OF TAGGED MANATEES
The size of the migratory ranges of tracked manatees varied with considerable variation of movement by individual manatees in Brevard County. Some manatees would spend eight months of the year near Canaveral Sewer Plant (Banana River) and spend each winter near Port Everglades (Ft. Lauderdale). Many tagged manatees displayed strong site-fidelity, returning to the same seasonal locations yearly while others did not.
Telemetry data points are not precisely a depiction of the actual and true location of the manatee at the time of data transmission from the tag to the satellite. Services Argos, the company that administers the hardware, assigned 68 percent of the data points within 150 meters of the true location in class three locations. In 1994, USGS performed accuracy experiments in Brevard County of satellite telemetry and found location class 3 data points to be within 225 meters of the true location, and 95 percent within 500 meters of the true location.
In addition to Dr. Deutsch's reports, FWCC considered various telemetry papers and publications pertaining to Brevard County: "Tagged Manatee Use of the Cocoa Beach/Thousand Island Area;" "Winter Movements and Use of Warm-water Refugia by Radio- tagged West Indian Manatees Along the Atlantic Coast of the United
States;" and "Easton, Tagged Manatee Movement through the Canaveral Barge Canal, Brevard County Florida" (February 14, 1997).
MANATEE SIGHTING DATA
FWCC relied upon manatee sighting data in its evaluation of manatee inhabitation. Included in the sighting data was the Brevard County 2001 Rule Development and Trip Notes of February 6- 7, 2001; Sea Ray Boats, Inc. Water Test Re-Run Manatee Sighting Records for 2000-2001; Canaveral Barge Canal Boater Activity and Compliance Study; Sharon Tyson's Sykes Creek Observation Records; and cold-seasons sighting logs for the C-54 canal structure.
STUDIES AND REPORTS PERTAINING TO MANATEE DISTRIBUTION, RELATIVE ABUNDANCE, HABITAT, BEHAVIOR, OR OTHER MANATEE INFORMATION.
FWCC considered and relied upon the Brevard County Manatee Protection Plan that included an inventory and analysis section about manatees, analysis of manatee mortality data, manatee legislation and protection, law enforcement, habitat issues, existing boat facilities, Brevard County boating activity patterns, and an inventory of present manatee education programs.
The existing Federal Manatee Recovery Plan, to which members of the Bureau of Protected Species and Florida Marine Research Institute contributed, was relied upon.
SCAR CATALOG DATA
FWCC considered and relied upon scar catalog data in evaluating manatee protection needs with Brevard County Misc. Information as the source provider.
EXPERT OPINIONS
FWCC relied upon expert opinions in evaluating manatee inhabitation. A staff meeting with manatee experts, as part of the process, included, but was not limited to, meetings with Jane Provancha and Sharon Tyson in December 2000, meetings and discussions with Dr. Charles Deutsch between November 2000 and May 2001, and various discussions with members of the federal Recovery Plan Team.
OTHER AVAILABLE SITE-SPECIFIC INFORMATION
FWCC considered site-specific information that was available, principally drafts of the Brevard County Manatee Protection Plan. FWCC also considered site-specific information about water skiing areas and prospective additional travel times in various waters proposed for new, or changed, regulations.
DATA ANALYSIS
Threat Analysis
Rule 68C-22.001(3), Florida Administrative Code, contemplates a qualitative assessment and exercise of discretion by taking into consideration a balancing of manatee protection needs, including an assessment of relative threats to manatees,
with the right of boaters, fishers and water skiers. In assessing where threats to manatees may exist from motorboats, the manatee death database provides information on confirmed interactions, such as locations where manatee carcasses have been recovered.
Manatee deaths, carcass recovery and confirmed interactions locations are maintained in FMRI's database.
From January 1974 to December 2000, 728 manatees died in Brevard County and 184 of those deaths were because of interactions with watercrafts. Watercraft related deaths account for 23.5 percent of all manatee deaths recorded in Brevard County between 1974 and 2000. Approximately 19 percent of all watercraft related deaths of manatees in Florida have occurred in Brevard County.
FWCC has determined that manatee death from watercraft interaction is due to blunt trauma more than 50 percent of the time. Deaths from propeller cuts account for less than 50 percent.
Often injury instead of immediate death from motorboat strikes is the case. Many manatees have scars from previous sub- lethal motorboat strikes, and manatees have been observed with more than 30 different strike patterns.
Where the cause of death is classified as watercraft related, carcass recovery may or may not be where the collision occurred depending upon the acuteness of the injury at the time of
collision. Acuteness of the injury, wind, current, tide, and decomposition all affect the location of the carcass at the time of salvage. Additionally, operation of motorboats can disrupt essential manatee behaviors such as warm water sheltering, feeding, sleeping, mating, and nursing. This harassment can lead to cold-related illnesses and increase mortality risk by driving manatees from warm water refuges. The increase in the Atlantic Coast manatee population and the increase of the number of boat registrations result in an increase in the threat of harmful collisions between boats and manatees.
Geographic Scope of Threat Analysis
Section 370.12(2)(m), Florida Statutes, does not specifically describe the geographic scope of the FWCC's evaluation of "other portions of state waters" for manatee sightings and assumed inhabitation on a periodic or continuous basis. Subsection 370.12(2)(g), Florida Statutes, suggests that the evaluation of manatee sightings is appropriate for large portions of navigable waterways, such as the Indian River between St. Lucie Inlet and Jupiter Inlet. A "waterway" is generally defined as "a navigable body of water." (Webster's Ninth New Collegiate Dictionary, p. 1333.)
Rule 68C-22.001(3)(a)2.f., Florida Administrative Code, contemplates a qualitative assessment of the "likelihood of threat" to manatees. The only reference is to the
"characteristics of the waterway in question." The rule does not mandate the geographic scope of a "threat evaluation."
The FWCC analyzed various data on different scales depending upon the nature of the inquiry - the evaluation of sighting "frequency" generally considered a large geographical area such as a section of a river. Conversely, the regulatory alternatives to protect manatees were evaluated at a smaller or finer scale. The Commission also considered segments of waterways divided by causeways or natural barriers.
The Commission considered research that divided Brevard County (north of Eau Gallie) into 12 zones for purposes of analysis. In the Brevard County Manatee Protection Plan, the waterways were analyzed in terms of seven "planning zones," to include review of physical characteristics such as bathymetry and sedimentological conditions, shoreline conditions, and water quality; Manatee Habitat Features, including sea grass, mangrove/salt marsh, freshwater sources, warm water refugia, calving and resting areas, feeding areas, travel corridors, and habitat protection; Manatee Data including manatee abundance and distribution and manatee mortality; boat facilities; boating activity patterns; waterspouts areas; and manatee zones.
The Commission's consideration of waterway characteristics and manatee behavior during the Brevard County rule-making process, including the geographic scope of manatee
inhabitation and threat from watercraft, was reasonable and consistent with the approach taken by other resource management agencies and researchers as contemplated by the statutory purpose.
Proximity and Degree of Known Boating Activities
FWCC evaluated available boating activity information in assessing threat. Staff considered the general analysis of boating activity and detailed analysis of boating activity in specific portions of Brevard County as provided in the County's MPP; included therein were maps that show locations of the County's 72 marinas and 65 boat ramps, of which 27 are public ramps.
Also considered was the study of Brevard County-Wide Boating Activity by Dr. J. Morris, of the Morris of Florida Institute of Technology. Dr. Morris' inquiry resulted in the following specific finding. First, Brevard County residents are the primary ones who launch at boat ramps, followed by residents of Orange, Osecola, Seminole, Indian River and Volusia counties. Second, the Inter Costal Waterways experiences increases in transient traffic during late fall and winter months, including out-of-state boats. Third, Class One boats (16 to 25 feet) are the most observed type, followed by Class A (less than 16 feet) vessels. Fourth, most boating activity occurs during weekends. Fifth, the greatest concentrations of boats were in specific areas such as NASA causeway (SR 405, Indian River), East Canaveral Barge
Canal, SR 520 and the Banana River (the Merritt Island Causeway), the Pineda Causeway (SR 404, Banana River), the Melbourne Causeway (Indian River), near Grant Island Farm, the Sebastian River and the Sebastian Inlet. Dr. Morris concluded that the boating public preferred to cruise the waters of the lagoons with the marked channels and use Indian and Banana Rivers as highways for recreational boating purposes.
The United States Fish and Wildlife Service (USFWS) closed a portion of the northern Banana River within the Merritt Island National Wildlife Refuge to public boat entry, limiting public entry to wading or by non-motorized vessels. The closed area has one of the largest concentrations of manatees in the United States, and recently has been the most important springtime habitat for the east coast manatee population. As a result of the March 1990 closing to motorized boats, an average increase of manatee use observed during the summer months in the area increased by 60 percent. The increased use is attributed to improved habitat quality aided by the lack of human disturbance and reduced propeller scarring of sea grass.
In December of 1994, Dr. Morris submitted a report, "An Investigation of Compliance to Boat Speed Regulations in Manatee Protection Zones in Brevard County, Florida." This report contained an analysis from on-water and aerial observations in
both "slow speed" and "idle speed" zones in various areas of Brevard County for a one-year period of April 1993 to April 1994.
At Mosquito Lagoon, of 1,214 boats observed, speeds were clocked for 98 percent of the boats and 11 percent of those exceeded the posted Inter Costal Waterways 30 MPH speed limit, all of which were recreational boats.
At the Indian River site between Grant and Sebastian, 2,511 boats were observed, speeds were clocked for 97 percent of the boats and 16 percent of those exceeded the posted ICW 30 MPH speed limit. In posted "slow speed" zones outside the ICW channel, 25 percent of boats observed underway were deemed non- compliant with the speed zone limitation. Of those non-compliant Class A powerboats, the violators were typically personal watercrafts ("Jet Ski" type vessels.)
A detailed boater activity study was made of the Canaveral Barge Canal and Sykes Creek Area. The study found, in part, that: highest boating use occurred during holidays, except during bad weather; most use occurred on weekends; and in Canaveral Barge Canal and Sykes Creek 63 percent of the vessels were Class 1 boats and 74.3 percent of the vessels were Class 2 or Class 3 boats.
INCREASED LEVEL OF BOATING ACTIVITY IN BREVARD COUNTY
In general, the level of boating activity in Brevard County continues to increase with the increasing population,
launching facilities, and boat registrations in Brevard County and nearby counties, including Orange and Seminole counties.
In 2000, 34,316 vessels were registered in Brevard County. In the preceding year there were 31,842 vessels registered. In 1995, 28,147 boats were registered and in 1987, 23,352 boats were registered in Brevard County. In 2000, Florida registered 840,684 recreational vessels, an increase over the 695,722 vessels registered in 1994. Boating accidents increased with the increased registration of vessels with Brevard County ranking 10th out of the state's 67 counties with the number of boating accidents.
Brevard County, since mid-1990's, has registered an increased number of "flats skiffs" which are shallow draft, low profile motorboats capable of speeds up to 50-60 MPH while operating in shallow (about 1 foot) water and often used for sight-fishing in shallow sea grass flats.
SEASONAL AND/OR YEAR-ROUND PATTERNS OF MANATEE USE AND THE NUMBER OF MANATEES KNOWN OR ASSUMED
TO OCCUR IN, OR SEASONALLY USE THE AREA
FWCC staff evaluated whether seasonal restrictions could or would be effective. Staff concluded that the only seasonal regulation of motorboats justifiable by the data was at the power plant discharges in the Indian River. At those locations, extreme concentrations of manatees are regular during the cold season. Year-round manatee protections were proposed for
this area, but they would have to be more restrictive during the winter months. During the coldest periods of winter, following a strong cold front, manatees have been observed in large concentrations in: the power plant discharges at Florida Power and Light Company's Indian River plant and at the adjacent Reliant Energy Plant and the Sebastian River Canal.
The congregation of manatees at thermal refuges on cold winter days was not for the duration of the winter season. They have been known to leave the thermal refuge for a part of a day, a day, or for many days at a time. Sharon Tyson, observer, performed a detailed Brevard County Manatee Photo-Identification Project during late 1999 and early 2000 at the Brevard County power plants, and documented a number of manatees in the FPL discharge zone between December 24, 1999, and March 4, 2000. During that period the number of manatees in the zone varied greatly, through late-December to mid-January (from 7 to 57 manatees). On January 16, 2000, no manatees were present. On January 17, 2000, 10 manatees were present. On January 23, 2000,
29 manatees were counted. Two weeks later, February 6, 2000, 111 manatees were present. Similar sightings made at the C-54 Canal Structure (near Sebastian Creek), during the same time-period, found as few as 11 manatees to as many as 90 manatees.
Apart from the extreme concentration of manatees during extremely cold periods, manatees are distributed through the
county waterways during each season of the year. The 1997-1999 Brevard County Aerial Survey GIS Plots gave a clear representation of year-round manatee distribution patterns varying greatly.
MANATEE MORTALITY TRENDS WITHIN THE AREA
Only in rare cases is the approximate or actual location of a manatee and motorboat collision known. The FWCC considered and relied upon a review of the general trend of watercraft-related (and other) mortality County-wide to assess a generalized increased mortality trend. In doing so as part of the rule-making process, FWCC reviewed total manatee mortality for Brevard County for the period for which records existed from 1974 to 2000. That data base source indicated increasing watercraft mortality in recent years. FWCC evaluated manatee salvage data for January-March 2001 and preliminary information for April-May 2001. Staff employee, Scott Calleson's working file mortality information was reviewed and considered as was Dr. Ackerman's "Mortality Rates White Paper," which concluded that human-caused manatee mortality levels were at an unsustainable rate in the Atlantic, Brevard County, Tampa Bay, and Southwest Florida Regions.
The Florida Inland Navigation District provided documentation that was considered in the FWCC rule making that included a regional evaluation of "Watercraft Related Manatee Deaths in the Nine Critical Counties of FIND" from 1990-1999. Of
these nine critical east coast counties, Brevard County had the highest mortality trend.
During the last two-to-three years, there has not been a clear trend of increased manatee mortality in Brevard County, but the number of watercraft-related mortalities is capable of being reduced, in part, through improved regulations. Historical manatee mortality data for Brevard County from 1977 through 2000 demonstrates a clearly increasing trend in watercraft-related manatee mortality. For each five-year increment, water-related manatee mortality has increased as follows: from 1977-1979 there were an average of 1.9 water-related mortalities/year; 1980-1985 there were 4.6 mortalities/year; 1986-1990 there were 7 mortalities/year; 1991-1995 there were 8.8 mortalities/year; and 1996-2000 there were 11.8 mortalities/year.
EXISTENCE OF FEATURES WITHIN THE AREA THAT ARE ESSENTIAL TO THE SURVIVAL OF, OR KNOWN TO ATTRACT, MANATEES SUCH AS SEAGRASSES, FAVORABLE WATER DEPTHS, AND FRESH OR
WARM WATER SOURCES
Dr. Deutsch stated that his telemetry analysis indicated that the most important habitat correlation for Brevard County manatees was with sea grass, and in particular, often with outer edge of sea grass beds. Manatees prefer feeding on submerged, emergent and floating vegetation, generally in that order.
Manatees extensively use Brevard County sea grass beds for feeding. Sea grass coverage is depicted on the Florida Department of Environmental Protection's Boater's Guide to Brevard County, which has no date, but was prepared by the DEP. Sea grass coverage in 1989 is depicted in the 2000 maps prepared by the STMC, using the Atlas of Marine Resources, Versions 1.2 and 1.3b. The most recent St. Johns River Water Management District sea grass coverage data for the Indian River Lagoon indicates a strong correlation between sea grass coverage in waters with an average depth of 66.93 inches (1.7 meters) or less.
As of 1992, of the estimated 46.190 acres of sea grass in Brevard County, nine percent of the sea grass suffered light scarring from boat activity; 4.2 percent of the sea grass suffered moderate scarring; and 13.4 percent of the sea grass suffered severe scarring. Areas with boat scarring of sea grass included a number of areas that are included within proposed "slow speed" zones: the eastern portion of Turnbill Basin; the eastern shoreline of the Indian River between the NASA railroad bridge and Rinkers Canal; the Banana River around Manatee Cove and south of the City Golf Course; the northwest part of Newfound Harbor; and the western shoreline of the Banana River, between Newfound Harbor and Pineda Causeway.
The location of the proposed manatee protection zones corresponds well to the location of sea grass beds, deeper waters
and channels adjacent to sea grass beds or established migratory routes, and fresh warm water sources.
FAVORABLE WATER DEPTHS
Dr. Deutsch stated that his telemetry analysis indicated that bathymetry is an important habitat correlate for Brevard County. Generally, tagged manatees were observed in the area from a two-meter (6.65 feet) depth contour to the shoreline.
FWCC consideration of "favorable water depths" took into account the fact that water levels fluctuate in the Indian River Lagoon. However, unlike many coastal areas of Florida, the Indian River Lagoon does not experience significant daily tidal fluctuation. On an annual basis, however, the water level fluctuates about 2.5 to 3 feet in response to environmental conditions. It was determined to be impractical to amend manatee protection rules (and to move regulatory signs implementing the rules) in response to changing water levels.
Manatees usually swim between one to three meters (3.28 to 9.84 feet) below the surface, surfacing every few minutes to breathe, and typically feed at just below the surface to a depth of three meters. Manatee experts, including persons with extensive experience observing manatee behavior in Brevard County, all testified that manatees used areas where the water level at the time was less than three feet for mating, feeding, fleeing a pack of male manatees, and resting.
The FWCC used a bathymetric survey prepared on behalf of the St. Johns River Water Management District for purposes of establishing preferred sea grass habitats during the rule-making and considered the bathymetry in conjunction with other data to predict areas where manatees are likely to inhabit. The St. Johns District advised the FWCC staff that the 1.7-meter depth on its bathymetric survey was the rough depth limit for sea grass, and provided the FWCC staff with a GIS file on the bathymetric survey at 0.3-meter depth intervals for most areas, although the approximate sea grass contour was shown as 1.5 to 1.7 meters. Surveys are tied to a horizontal datum and a vertical datum. A survey depicts the three-dimensional lagoon basin, part of the spheroid planet Earth, on a two-dimensional map.
The hydrographic survey data used by the FWCC in the rule-making was based upon a survey tied to a horizontal datum - North American Datum (NAD) 83/90; and a vertical datum - North American Vertical Datum of 1988 (NAVD-88). The horizontal and vertical accuracy of the survey differs. Positional accuracy of horizontal (e.g. shorelines) points is within 1 to 5 meters (3.28 to 16.4 feet). Vertical accuracy of depth data points averages within .03 feet.
The hydrographic survey states that it is not to be used for navigation - - "The use of NAVD-88 for the bathymetric survey gives the impression of deeper water than is actually
present within the lagoon since the "0" contour of NAVD-88 is located on dry land approximately 1 foot above the ordinary water line."
Manatee distribution from aerial surveys and 1992 bathymetry data was graphically depicted by the STMC and confirms manatee use of areas proposed for regulation in the proposed rules.
FRESH WATER SOURCES
FWCC considered and relied upon major fresh water sources that have been historically used by manatees such as: Turnbull Creek; Titusville Marina/POTW; Addison Canal; the two Indian River power plants; two wells along the eastern shoreline of the Indian River approximately two miles south of Rinkers Canal; the intersection of Bacardi and Dakar Drive in Sykes Creek; the Cape Canaveral POTW (sewer plant); the Banana River Marina; the outfall into the Indian River from the east shore of Merritt Island westerly of the south end of Newfound Harbor; the Indian River Isles; the Eau Gallie River; Crane Creek; Turkey Creek; and the Sebastian River. Also considered were less significant sources of fresh water found at many marina basins, at the Sear Ray Boats, Inc. facilities and in residential canals.
WARM WATER SOURCES
FWCC considered major warm water sources in the two Indian River power plants and the Sebastian River Canal. Minor
sources of warm water include deeper water and areas with artesian springs such as: Port Canaveral; a basin off Wynar Street in Sykes Creek; the Banana River Marina; and the Berkeley Canals.
CHARACTERISTICS OF THE WATERWAY IN QUESTION IN RELATION TO KNOWN BOATING ACTIVITY PATTERNS
FWCC considered, as its basic source document, Morris' Final Report for Brevard County Boating Activity Study. Boating activity patterns in Brevard County are dependent upon weather, economic conditions, and other factors. Larger motorboats (including tug/barge combinations) are constrained in movement to deeper water--in some areas, primarily within marked or maintained navigation channels including the Canaveral Locks, Canaveral Barge Canal, ICW, and Banana River main channel.
In the Indian River, south of the NASA railroad bridge, the deeper area outside of the marked channel widens to between half-a-mile to a mile with depths ranging from seven to 12 feet MLLW, all the way to Rock Point, just north of Grant. For most of the length of the County, larger boats have sufficient water depth to travel adjacent to the ICW channel. Waters outside the main channel in the Banana River are relatively shallow. The Canaveral Barge Canal is dredged to maintain a depth of approximately 15 feet.
Barges and escorting tugs navigate through the Canaveral Locks and into the ICW. Some barges proceed northward from the Canaveral Locks into the Banana River channel to make
deliveries to the Space Center, according to the Lockmaster, Mr. Querry.
Sea Ray Boats, Inc.'s, design and production facilities located along the Canaveral Barge Canal use the Canal to access testing areas to the west in the Indian River ICW, to the east in the Banana River channel, and in the Atlantic Ocean. Limited retests are permitted in an area adjacent to the Canaveral Barge Canal facilities.
Recreational motorboats and personal watercrafts can be operated outside of marked channels. Some of these recreational motorboats can navigate "on plane" and up to 60 MPH in water about one-foot deep. Motorboat users engage in a variety of activities having differing operational patterns. Fishers might prefer to travel at relatively high speed enroute to preferred fishing areas, and then operate with a push pole, trolling motor or adrift, in order to hunt certain species of fish. If no fish are located, then high-speed operation to another spot is used, repeating the pattern of locating fish by sight. Water-skiers usually operate at high speed in a relatively small area, usually protected from the wind, and often located near an island or park.
BOAT-MANATEE INTERACTIONS
FWCC considered that manatees display varying reactions to motorboats. Higher speed motorboat operation in relatively shallow water presents a greater threat to manatees than operation
at slow speed or idle speed or than operation in relatively deeper waters, since manatees have fewer opportunities to avoid the collision.
Manatees can swim or rest at the surface or underwater and must come to the surface to breathe air every two to three minutes for smaller, active manatees and up to 20 minutes for large, resting manatees. Their general cruising speed is two to six miles per hour, but they can travel at short bursts up to 15 MPH.
Boats operated at "slow speed" vary in miles-per-hour over the bottom within a range of about seven to eight miles-per- hour. At "slow speed," the manatee and vessel operator have more time to avoid collision, or the manatee can avoid serious blunt trauma injury from collisions with most vessels.
The ability of manatees to avoid being hit by motorboats has diminished in Brevard County as a result of an increase in the manatee population, increase of motorboats, increase in boating access points, and development and use of faster boats that operate in less-predicable (non-linear) patterns in relatively shallow waters where manatees often feed on submerged vegetation.
TESTIMONY REGARDING MOTORBOAT-MANATEE INTERACTION
Officer Dennis Harrah, qualified as expert in boating safety, marine law enforcement, and local knowledge of the
waterways of Brevard County, testified that "slow speed" zones provide greater reaction time for the vessel operator to avoid collision than unrestricted speed areas and than the "25 MPH maximum speed" areas. He further testified that "idle speed" zones provide greater reaction time for vessel operators to avoid collision than "slow speed" areas.
Dr. John Reynolds, qualified as expert in marine mammal conservation and policy, manatee biology and behavioral ecology of marine mammals, opined, based on frequent observation of motorboat-manatee interactions, review of videotapes of such interactions, and review of studies on the subject, that there is an increased threat to manatees associated with boats that operate in planing speeds as opposed to slow speeds. His opinion is based, in part, on "common sense" that objects moving faster have greater momentum and therefore greater magnitude of impact, and on the reduced reaction time of both vessel operators and manatees to avoid collision. Dr. Reynolds was not aware of any evidence to suggest that the majority of watercraft strikes to manatees are from vessels operating at "slow speed," and it is his belief that "a good percentage of manatee mortality was from fast-moving vessels."
Ms. Spellman, qualified as expert in marine biology and in manatee rescue and salvage, testified that she had observed considerable variability in manatees' reactions to kayaks, canoes
and windsurfers, including manatees approaching the vessel, manatees not reacting at all, and manatees swimming away. She has observed manatee reactions to small motorboats as highly variant, depending upon the animal, including: swimming under a slow-moving motorboat, moving just as a motorboat approaches at idle speed, or diving and leaving the area as soon as a motorboat got anywhere near. Ms. Spellman testified, based upon her presence in the waters of the Canaveral Barge Canal or in the Port east of the Locks, that she has been in the water with manatees on five occasions when a barge/tug combination came by and in all cases the manatees reacted to the barge well in advance of the barge coming near her and the manatee, and that in each instance the manatee swam to within 15 to 20 feet of the shoreline. Of the thousands of times that she has seen manatees, she estimated that
95 percent of the time the manatees had scars from boat propellers or skegs.
Dr. Powell testified, based upon over 30 years of observation of boat-manatee interactions, that the typical reaction is a flight or startle response, often to dive to deeper water. The diving response may take the manatee under the boat, away from the boat, or across the path of the boat. Based on his observations, including manatees reacting to motorboats moving at "idle-speed," "slow-speed" and at "faster-speeds," Dr. Powell
opined that the manatees' reactions resulted from acoustical cues, visual cues, and perhaps pressure cues.
Captain Singley, tugboat operator in Brevard County for over 30 years, observed a group of manatees react to a fast moving planing hull; some animals broke the surface, others scattered to the right or left, and others dove to the bottom.
Mr. Walden, Sea Ray's Boat, Inc.'s, performance and water test specialist, testified that he had observed manatees in the Barge Canal, and sometimes the manatees would react to the motorboat. The majority of time when the boat was operating at planing speed or faster the manatee would dive and go deeper, and would began evasive action, upon hearing and noticing the motorboat a couple of hundred feet away.
Dr. Gerstein testified that fast moving boats can hit manatees and that he was not aware of any physical evidence, eye- witness account, or law enforcement report of a slow-moving boat hitting a manatee.
STUDIES ABOUT MOTORBOAT-MANATEE INTERACTION KNOWN BOAT STRIKES
FWCC considered that watercraft collisions with manatees are rarely reported to authorities, and, as a result, it is difficult to directly assess the circumstances of such collisions, such as boat size, type and speed at the time of collision.
A summary entitled "Watercraft-related Manatee Deaths Where the Responsible Vessel is Known," indicates that barges, displacement hull vessels, and planing hull vessels are known to have been in fatal collisions with manatees. In those planing- hull incidents where the vessels and estimated speed are known, the speed of the vessel ranged from getting-up-on-plane (45-foot boat with twin 425 HP outboard motors) to 35 MPH (18-foot boat with 150 outboard motor). Two other incidents were a 46-foot boat with twin inboard motors operating at 18 knots and a 20- foot boat with 200 HP outboard operating at 20 MPH.
The only indication that a slow-moving planing-hull vessel struck a manatee is a report from an individual who was operating at estimated five MPH in a flat hull vessel and reported to have "felt a bump on aft hull, saw two animals (manatees) swam off."
PROTECTION OF MANATEE-SEA GRASS HABITAT
FWCC considered protection of sea grass habitat a secondary purpose in the Proposed Rule for areas subject to Section 370.12(2)(m), Florida Statutes.
The Florida Guide To Recreational Boating notes that:
Sea grass beds have been severely scarred (torn up) by boats operated in extremely shallow water. This is due, in part, to the "flats fishing craze" and the rising popularity of vessels designed to operate in shallow water.
The Guide recommends that operators set the boat's drive unit at the highest possible setting and that the operator "proceed at idle speed when moving through shallow grass beds."
Dr. Reynolds testified that "idle speed" or "slow speed" shoreline buffer zones provide greater sea grass protection (and manatee conservation) than higher motorboat speeds.
The Executive Director of the Indian River Guides Association testified that the group is promoting "pole and troll" areas within the Merritt Island National Wildlife refuge portions of the Indian River Lagoon. He stated that many people from Orlando and elsewhere bring their boats by trailers to Brevard County, or move to Brevard County, and operate their boats so as to tear up seagrass beds. FWCC correctly concluded that "slow speed" and "idle speed" zones provide a greater measure of protection to shallow seagrass beds than do higher speeds for motorboats.
DATA SOURCES CONSIDERED BY FWCC IN
PROMULGATING THE PROPOSED RULE
Differing Opinions About Manatee Protection Areas FWCC's Opinion
The FWCC, based on the following, took the position that the proposed rules are more likely to protect manatees from motorboat impacts than the existing rules, and that the proposed rules take advantage of the available science of manatee biology and conservation, using the same basic approach used in manatee
conservation by officials in Australia to protect dugongs (another Sirenian) from motorboats.
The FWCC postulates that "idle speed" and "slow speed" zones provide greater protection to manatees than do higher motorboat speeds. "Maximum 25 MPH" speed zones in deeper water areas provide greater manatee protection than do unregulated waters. Most motorboats observed operating in unregulated areas (outside "slow speed" or "idle speed" zones) in Brevard County, during Dr. Morris' boating compliance study, were operating at or below 25 MPH. The FWCC correctly concludes that "maximum 25 MPH" speed was reasonable in light of research into the minimum planing speed of most recreational motorboat models, the observations of typical motorboat speed and operation in unregulated waters of Brevard County.
The FWCC considered 1997 DEP-solicited information from motorboat manufacturers to determine minimum planing speeds and maximum planing speeds, and draft on- and off-plane for various sizes and types of motorboats. Considered also by the FWCC was boating test literature to determine that most boat models could reach planing speed at or slightly below 25 MPH.
The FWCC considered information that was submitted showing that many production boats reached planing speed between 20-25 MPH. For example, Scout Boats' 11 models planed between 20-
25 MPH, and Shamrock's 13 models planed between 20-25 MPH. The
Florida Marine Research Institute's 1992 information on this topic found a range of minimum planing speed between 14 and 24 MPH.
Motorboats operating at speeds higher than 25 MPH are many. Ranger Boats offered several models with maximum speed in the "upper 60's" to "low 70's"; Scout Boats' models had top speeds of 35-60 MPH; Shamrock's models ran at the top end between 36-41 MPH; Donzi Boats operate at speeds in the 70 MPH range; and Bayliner's Capri 1700LS had a top speed of 46 MPH, as did Stingray's 180RS.
Since the FWCC's creation, speed zone rules adopted for Lee County included maximum 25 MPH zones. Rule 68C-22.005, Florida Administrative Code for Brevard County has regulated motorboats with a "maximum 25 MPH" speed in channels.
Commission staff applied their professional judgment in developing recommendations on manatee protection areas, and presented those recommendations to the FWCC, who considered staff recommendation, in context with public comment, to determine what manatee protections were warranted.
PETITIONERS' OPINIONS
The various Petitioners advocate manatee protection zones that, in many cases, are similar to the FWCC's proposed rules, including "slow speed" shoreline buffer zones and "maximum
25 MPH channels." Petitioners' challenge to many of the
protection zones alleges that FWCC's basic regulatory mechanisms
are flawed.
FEDERAL LAWSUIT-SETTLEMENT AGREEMENT
On or about January 13, 2000, STMC and other related environmental groups filed a lawsuit in the Federal District Court against Alan Egbert as Executive Director of the FWCC. The suit alleged, inter alia, that the FWCC is in violation of the Endangered Species Act by permitting the unauthorized taking of manatees in the State of Florida. During the pendency of the litigation, FWCC engaged in a series of mediations resulting in a settlement agreement approved by FWCC and executed by the parties in April 2001. The agreement contained a series of maps with draft manatee (speed) zones for Brevard County.
Petitioners alleged that "the genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Petitioners' speculative conclusion regarding this suit was tendered without one iota of evidence.
Mr. Calleson, FWCC's staff employee, acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with speed zones in maps of the proposed rule.
Mr. Calleson acknowledged that the FWCC did not direct staff to conduct negotiated rule-making on the proposed rule, and staff participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes, which provides, in pertinent part:
(d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutually acceptable proposed rule.
* * *
3. The agency's decision to use negotiated rulemaking, its selection of the representative groups, and approval or denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing in this subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developed under this paragraph in accordance with s. 120.56(2).
THOMAS MCGILL PETITIONERS
Most of the McGill Petitioners support the adoption of rules that are consistent with the Citizens for Florida Waterway, Inc. (CFW), proposal submitted on December 29, 2000. The CFW proposal endorsed the use of "slow speed" zones, the use of
"maximum 25 MPH zones," existing power plants "idle speed" and "motorboat prohibited" zones, and the use of shoreline buffers.
The CFW proposal differed from the proposed rules primarily in scope of the proposed zones, rather than the nature of the proposed zones. The CFW proposal recommended numerous 25 MPH channels (in marked channels) through protected areas: from the Canaveral Locks through the Canaveral Barge Canal to the Indian River (except for three slow-speed boating safety zones); in North Sykes Creek; in the Banana River north of State Road 528 and between Bicentennial Park to the State Road 520 Relief Bridge.
STANDING WATCH, INC.
Stowell Robertson, one co-Petitioner of Standing Watch, Inc., is Executive Director of the Indian River Guides Association, Inc. (Guides). Mr. Robertson wrote the Guides' Recommendations, but his personal recommendation differed in two respects: in the North Indian River between NASA railroad bridge and the State Road 405 bridge, he would establish a "slow speed" zone from the western shoreline out to 500 feet (instead of 300); and he would impose a maximum 25 MPH speed in the Canaveral Barge Canal instead of 20 MPH.
The Guides recommended that motorboat speed and operation be limited as follow:
Mosquito Lagoon-make no changes to existing rule
Turnbull Basin, North Indian River
Create two "slow speed" zones in Turnbull
- one in the Mimms Scottsmoor Canal, another from Jones Road boat ramp to Little Flounder Creek from the shore to 100 feet into the Basin;
Set a new "slow speed" zone on the north side of the NASA railroad causeway and bridge out to 250 feet;
Set a maximum 25 MPH in the ICW from Haulover Canal to the NASA railroad bridge;
Take no further action [to change regulations].
Indian River, NASA railroad bridge to S.R. 402
Place "slow speed" zones on the south side of the NASA railroad bridge and causeway out to 250 feet;
Reduce the [existing] west shoreline "slow speed" zone so that the western boundary is 350 feet from the ICW between markers R2 and G1;
Set a maximum 25 MPH in the ICW;
Take no further action [to change regulations]
Indian River, State Road 406 to State Road 402
(1) and (2) Replace eastern "slow speed" zone with reduced "slow speed" zone extending from Peacock's Pocket to the existing "slow speed zone north of the State Road 405 Causeway, extending from shore to 250 feet west of the sand bar/drop off or three feet of water;
Reduce the size of the "slow speed" zone north of State Road 405 Causeway to 300 feet;
Reduce the size of the existing western shoreline "slow speed" zone to 500 feet from shoreline;
Take no further action [to change regulations].
Indian River, State Road 405 to State Road 528 Bridge
Close the warm water refuge sites at the power plants to manatees, not to boats;
Deliver fuel to the power plants by land;
Reduce the existing "slow speed" zone on the western shoreline to 1,000 feet from the shore;
Take no further action [to change regulations].
Canaveral Barge (and Banana River to Locks)
Maximum 20 MPH channel from Indian River to entrance to Canaveral Locks with "slow speed" zones at 100 feet either side of State Road 3 bridge, Sea Ray docks, Harbor Square Marina;
Take no further action (to change regulations).
Banana River
(1) (2) All waters of Banana River, including channels, not otherwise regulated at "slow speed" should have 25 MPH limit;
Reduce all existing "slow speed" zones along east and west shorelines, causeways, and bridges to 500 feet of shore;
Retain existing "slow speed" zones in the two channels into "Long Point"[north and south ends of Canaveral Sewer Plant area];
Take no further actions [to change regulations].
Newfound Harbor
(1) (2) All waters of Newfound Harbor, including channels, not otherwise regulated at "slow speed" should have a 25 PMH daytime limit and 20 MPH nighttime limit;
Establish a "slow speed" zone along western shoreline from State Road 520 south to Two Islands;
Establish a "slow speed" zone along eastern shoreline from State Road 520 south to the inside point north of Buck Point;
The east and west "slow speed" zones be
500 feet from shorelines, and 200 feet[along northern shore] from S.R. 520;
Take no further action.
Sykes Creek North State Road 520
Set speed limit in marked channel at 20 MPH;
All residential canals should be "slow speed";
Take no further action.
Indian River State Road 528 to State Road 520
Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges;
Take no further action.
Indian River State Road 520 to State Road 404
Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeway bridges;
Take no further action.
Indian River State Road 404 to State Road 518
Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges;
Take no further action.
Indian River State Road 518 to State Road 192
Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges;
Establish Eau Gallie River "slow speed" zone with 20 MPH speed limit in marked channel daytime only, "slow speed" at night;
Take no further action.
Indian River
(1) Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges;
(2)-(5) Crane Creek, Turkey Creek, St. Sebastian River, C-54 canal should be "slow speed";
Take no further action.
Mr. James Kalvin, Standing Watch co-Petitioner and also President of Standing Watch, Inc., testified at deposition that neither he, nor the corporation, had any objection to the existing Brevard County manatee protection rules.
SPECIFIC PROPOSED ZONES CHALLENGED
The Petitioners' Challenge
All Petitioners challenged the validity of Proposed Rule 68C-22.006, as "an invalid exercise of delegated legislative authority" as that phrase is defined in Section 120.52(8), Florida Statutes.
MCGILL PETITIONERS
The McGill Petitioners challenged the proposed rule amendment for Brevard County manatee protection areas, Proposed Rule 68C-22.006 (2)(d)2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, and 18, as an invalid exercise of delegated legislative authority. They allege that additional slow speed zones in Brevard County are invalid because the FWCC exceeded the authority granted in Section 370.12(2), Florida Statutes.
McGill Petitioners based their allegations on the FWCC's lack of definable principles or data and an erroneously assumed cause-effect relationship for boat-manatee collisions, failure by the FWCC to consider the hearing limitations and capabilities of manatees in their environment, and a failure by the FWCC to employ standards and definitions for critical terms in its rule promulgation.
At the final hearing, McGill Petitioners agreed that they do not object to that portion of Proposed Rule 68C- 22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels.
The McGill Petitioners' position as set forth in their Prehearing Stipulation states:
The Florida Fish and Wildlife Commission has exercised unbridled discretion and acted
beyond the authority delegated in 370.12(2)(m), Florida Statutes, and has developed the proposed rule in an arbitrary and capricious manner. The proposed rule exceeds the delegated legislative authority because it is not based on scientifically definable principles or data. By failing to understand the root cause of watercraft mortality such as the manatee's inability to hear slow moving vessels, the Commission cannot deem their actions "necessary" to justify imposing speed restrictions as required by Section 370.12(2)(m), Florida Statutes. The Commission continues to impose speed motorboat restrictions even after finding that such restrictions are ineffective at preventing manatee mortality. The Commission relies on a flawed mortality database, a poor understanding of the limitations and applicability of satellite telemetry data, and lack of standards and definitions for critical terms. [emphasis added]
The McGill Petitioners' Amended Petition alleged in paragraph 6:
The Commission has not employed the best available science or even reasonable science.
. . . aerial survey and telemetry data were misapplied. . . . in that areas that did not reflect frequent usage
. . . were designated . . . slow speed zones. Also, the use of inaccurate telemetry tracking information was used as the basis for justifying areas where aerial survey data showed no manatee
activity. . . .
In support of their alleged inaccuracy of the satellite telemetry data, Petitioners presented the testimony of
Mr. Dvorak and his Power-point Presentation of Aerial Survey Mortality, Telemetry and Bathymetry Assessment, and other
technical papers. Mr. Dvorak did not include in his presentation/analysis survey data available on the Atlas or Marine Resources and did not include all telemetry data available from the United States Geological Survey, which was included in Dr.
Deutsch's analysis presented for Respondent, FWCC.
The Amended McGill Petition, paragraphs 10 and 12, stated:
The McGill Petitioners advised the FWCC that creation of new "slow speed" zones was based upon incorrect assumption "that such slow speed zones alleviate collisions between vessels and manatee" and they suggested that "slow moving vessels are responsible for the majority of documented manatee collisions."
McGill Petitioners' evidence proffered to demonstrate that "slow moving vessels are responsible for the majority of documented manatee collisions," consisted of inclusive studies and undocumented theories to demonstrate that slow speed zones do not alleviate collisions between vessels and manatees. FWCC considered an abundance of the best evidence of known or suspected collisions between vessels and manatees that demonstrated that "fast moving motorboats" are a known major source of manatee- vessel collisions.
The McGill Petitioners further stated in paragraph 11
that:
The rule does not consider the acoustic realities of the manatee's hearing limitations and its environment.
McGill Petitioners presented the testimony of Dr.
Edmund Gerstein regarding his measurements of the manatees' ability to hear noises. Dr. Gerstein concluded from his research that manatees have difficulty hearing and locating low-frequency sounds (below 400Hz), and they have difficulty detecting sounds of any frequency when it is not sufficiently louder than the ambient noise level.
The testimony of Dr. Joseph Blue was given in support of the McGill Petitioners' position that low-frequency sounds are quickly attenuated in shallow water because of the Lloyd Mirror effect. Upon this foundation, Dr. Blue testified that since sound is shadowed ahead of the barge(s), the tugs that push the fuel oil barges between Prot Canaveral and the power plants on the Indian River emit low-frequency sound that is shadowed in the forward direction by the barge(s) and it would be undetectable to animals. Thus, the McGill Petitioners' witnesses concluded that there are acoustic consequences associated with slowing down boats. According to Dr. Gerstein, requiring motor boats to travel a slow speed deprives manatees of acoustic information they can use to detect, localize, and avoid boats. It is this "science of acoustics" Petitioners alleged that the FWCC gave no weight in promulgating the proposed rule.
The FWCC considered the issues raised by acoustic studies. The FWCC's Executive Director was advised on the subject
by the Manatee Technical Advisory Committee (MATC) whose recommendation resulted from a workshop on acoustic research and technology with presentations of the work of Drs. Gerstein and Blue. No reliable scientific sources, professional literature, expert opinions, and direct observations of manatee reactions to motorboats, supports the proposition of Drs. Gerstein and Blue that manatees cannot hear slow-moving motorboats. The FWCC rejected the studies of Drs. Gerstein and Blue.
McGill Petitioners' alleged in paragraphs 3, 4, 13, and 14, of their Amended Petition that the FWCC did not provide a reasonable opportunity for and ignored much of the public's input. In their Prehearing Stipulation, the McGill Petitioners' acknowledgement of public hearings held by FWCC and the opportunity for pubic input during those hearings.
There is an abundance of evidence in the record that demonstrates that the FWCC staff held non-mandatory pre-rule development meetings with interested persons, including some of the McGill Petitioners. The Staff held two rule development workshops in Brevard County. Staff held a public hearing specifically on the Proposed Rules in Brevard County. Staff considered the rule adoption at many hours of public hearings on three different dates and locations. Staff mailed special notices regarding the Proposed Rules to all identified waterfront property owners of whom many are the McGill Petitioners, and Staff mailed a
series of survey documents to identified boaters and businesses in conjunction with the preparation of a statement of estimated regulatory cost. (CSERC)
In paragraphs 7 and 9 of their Amended Petition, the McGill Petitioners alleged that the FWCC entered into a Negotiated Rule-Making Process with litigants to the exclusion of a balanced committee in violation of 120.54(2)(d)1., Florida Statutes.
Section 120.54(2)(a), Florida Statutes, authorizes an agency to engage in development of a "preliminary text" or "preliminary draft" of proposed rules prior to the publication of a notice of rule development. Preliminary maps of amendments to the BCMPR were similar to maps being discussed as part of the federal mediation. This fact alone is not a basis to conclude violation of the above-cited statutes. A second rule development workshop was noticed to discuss a preliminary copy of the Staff's "zone configuration" being considered. Subsequent to the second workshop, the FWCC authorized publication of Notice of Proposed Rule-making that incorporated changes to the preliminary draft maps that were discussed at the workshop.
The McGill Petitioners, during the hearing, agreed that they do not object to that portion of Proposed Rule
68C-22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520
causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels.
Petitioners offered no testimony in support of this allegation, choosing rather to adopt the evidence and position proffered by Standing Watch, Inc., herein below addressed.
In paragraphs 5 and 15 of their Amended Petition, the McGill Petitioners alleged that the Commission did not properly address the consideration of lower cost regulatory alternatives.
The "lower cost regulatory alternatives" submitted by McGill, Pritchard and Dvorak were considered and were discussed in the draft SERC. The draft SERC gave reasons for the rejection of each of the proposed "lower cost regulator alternatives," primarily because none would substantially accomplish the objectives of the law being implemented. The SERC was finalized, as required by Sections 120.541(1)(a) and (c); and 120.56(2)(b), Florida Statutes, before filing for adoption with the Secretary of State.
In paragraph 17 of their Amended Petition, the McGill Petitioners alleged that the FWCC failed to employ metrics or standards that could be used to validate the effectiveness of both proposed and existing rules, in rule promulgation, and that without the use of metrics, the FWCC had no way to determine and verify that speed zones they propose are necessary to protect harmful collisions with motorboats.
The McGill Petitioners proffered no evidence of specific "metrics or standards" that would validate the effectiveness of the existing and or the proposed rule they contend the FWCC could have or should have used in the Proposed Rule development.
The FWCC relied upon the best available and reliable information in its rule-making, including opinions of experts. To the information available to it, the FWCC applied its professional judgment, gave consideration to public comments/concerns provided during public meetings, and considered the estimated regulatory costs and other applicable rule-making requirements.
In paragraph 18 of their Amended Petition, the McGill Petitioners alleged that the FWCC repeatedly ignored requests to sub classify watercraft-related mortalities in order to properly identify appropriate corrective action. The FWCC considered all available data regarding manatee injury and death resulting from the speed of motor boats and rejected Petitioner's contention that boat size, large boats such as tugs and barges, were more dangerous to manatees than smaller and faster motorboats.
Sea Ray Boat, Inc.
Petitioner, Sea Ray Boats, Inc., challenged only Proposed Rule 68C-22.006(2)(d)(11) that modifies the existing manatee protection speed zones in the Canaveral Barge Canal (that is 200 feet wide with a 125-foot navigation channel maintained at
a depth of 12.5 feet) such that the entire Canal will now be designated a "slow speed" zone.
Sea Ray does not argue that the FWCC did not consider all available information or that FWCC's consideration of the information was not complete. Sea Ray's position is, were one to consider the information presented to the FWCC, as balanced against the federal lawsuit filed by Save the Manatee Club, Inc., the challenged Proposed Rule is the result of the latter not the former and, therefore, is an invalid delegation of legislative authority.
Sea Ray alleges that the FWCC did not analyze nor address the adequacy of the existing rule and speed zones in effect in the Canaveral Barge Canal. Sea Ray alleged that the FWCC did not consider the alternative (with weekend boating increases over weekdays) whether the risk to manatees would be reduced by "restricting slow speed zones in the channel to weekend and holidays."
Sea Ray alleged that the FWCC failed to apply "properly" the mandatory balancing test of the impact of the proposed rule on the rights of commercial and recreational boaters. Section 370.12(2)(j), Florida Statutes. Sea Ray argues that the FWCC's consideration of information in formulating the Proposed Rule was devoid of "ascertainable quantitative criteria,
standards or analytical processes," that Sea Ray maintains is required by Section 370.12, Florida Statutes.
Standing Watch, Inc.
Standing Watch, Inc.'s, Second Amended Petition challenged and alleged that the proposed speed in proposed Rule 68C-22.006(2)(e) 1-5 is not based upon "competent, substantial evidence" and does not comport with Section 370.12(2), Florida Statutes. Paragraphs 38 and 39 alleged that the proposed speeds in the Proposed Rule 68C-22.006(2)(c) 1-6 and (2)(d) 1-18 are not based upon "competent, substantial evidence" and do not comport with Section 370.12(2), Florida Statutes. Standing Watch, in essence, challenges all "idle," "slow" and "25 MPH" maximum speed zones proposed.
Standing Watch argues that the FWCC failed to "quantify" by rule or working definition such terms such as "frequent" and "seasonal" and failed to define the term "periodic." Therefore, without working definitions the FWCC had no "threshold" from which to determine whether manatees were "frequently sighted," and the proposed rule is, accordingly, invalid in its entirety. Thus, it is alleged that the FWCC made no independent findings based upon the data reviewed that manatees were "frequently sighted" in any specific area of Brevard County.
Standing Watch alleged, "The genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and
there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement."
Mr. Calleson acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with the speed zones in maps of the Proposed Rule.
The FWCC declined to direct staff to conduct negotiated rule-making on the Proposed Rule. Accordingly, staff's participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes.
Continuing their argument, Standing Watch alleged that the FWCC without algorithms, formulae, protocols, matrices, mathematical models, or metrics made no separate determination for each zone and/or area (of the proposed rule) and had no factual basis for the identification of separate speed zones, rendering all determinations made by the Commission as arbitrary and capricious.
Based upon the foregone foundation, Standing Watch challenged Proposed Rule 68C-22.006 in its entirety as arbitrary and capricious.
City of Cocoa Beach Watersports Area
Cocoa Beach intervened to challenge that portion of Proposed Rule 68C-22.006(2)(d)16, that "reduces allowable speeds in the area known as Banana River, Cocoa Beach Waterspouts Area."
In support of its challenge, Cocoa Beach adopted the Proposed Final Order submitted on behalf of Petitioners, Standing Watch, Inc., Jim, Kavin, Thomas Mason, Dougals P. Jaren and Stowell Robertson. Additionally, Cocoa Beach relied upon "facts" particularly applicable to the Cocoa Beach (Waterspouts Area).
Cocoa Beach alleged that prior to the Proposed Rule and subsequent to 1988 the FWCC had no evidence of manatee deaths attributed to watercrafts having occurred in the Watersports Area; that two years prior to the proposed rule only one or two manatees were sighted in that area; that the sea grass preferred by manatees is not found in the area, and that the Watersports Area does not have the depth [bathymetry] preferred by manatees.
Petitioners contend that a "sub-classification" would corroborate Mr. James Wood's view "a majority of watercraft collisions are caused by large, slow-moving vessels, not by small, recreational motorboats." Mr. Wood's analysis was inconclusive as to the characteristics of watercraft that caused manatee injury. The reliable and available evidence, including documentation on known or suspected boat strikes, scar catalog data, and affidavits of persons who perform manatee necropsies, does not support the
view held by Mr. Wood. To the contrary, evidence and testimony of experts herein presented, established that small, fast moving motorboats kill and injure manatees and their habitat.
The sub-classification of watercraft-related mortalities is not required for rule adoption. The proposition set forth by McGill Petitioners, and adopted by other Petitioners, that larger vessels and barge/tugs were responsible for Brevard County manatee mortalities was raised in an earlier rule challenge filed by McGill, and was rejected, as it is herein rejected. DOAH Case No. 99-5366, page 18 (officially recognized); Final Order, McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. (DOAH 2000).
All data, 1997-1999 Brevard County relative abundance and distribution aerial survey, 2000 synoptic aerial survey, telemetry analyses, other data considered, and professional literature indicated that Brevard County is an important year- round habitat for manatees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.56(1), Florida Statutes (All references to Sections are to Florida Statutes). The Uniform Rules of Procedure in Chapter 28-106, Florida
Administrative Code, apply to this proceeding. (All references to Rules are to the Florida Administrative Code.)
The Fish and Wildlife Conservation Commission is the State Agency responsible for adopting rules pursuant to Section 370.12, Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Florida Manatee Sanctuary Act.
Subsections 120.56(1)(a) and (b) provide:
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
STANDING
Standing as a person "substantially affected by . . . a proposed rule" is dependent upon a showing of a real and sufficiently immediate injury in fact and that the alleged interest is arguably within the zone of interest to be protected or regulated. See, e.g., Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 96 (Fla. 1st DCA 1999).
The manatee speed zones imposed by the rule and/or which does repeal or modify existing speed zones, extend transit time, and deny entry into certain waterways to the waters that Petitioners regularly use for commercial and/or recreational purposes. The effect thereof is that recreational and commercial boating interests are the interests regulated for the protection of manatees by the challenged rule.
The parties stipulated that Petitioners and Intervenors has standing to intervene and to challenge the Proposed Rule. Palm Beach Community College v. Department of Administration, Division of Retirement, 579 So. 2d 300, 303, (Fla. 4th DCA 1991):
When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other different facts will be presumed to exist. Accord: Lopez v. Dublin Company, 489 So. 2d 805, 808, (Fla. 3rd DCA
1986).
Troup v. Bird, 53 So. 2d 717 (Fla. 1951); Burnsed v.
State, 743 So. 2d 139 (Fla. 2nd DCA 1999).
In a challenge to a proposed rule the proposed rule is not presumed to be valid or invalid. Section 120.56(2)(c), provides:
When any substantially affected person seeks determination of the invalidity of a proposed rule. . .the proposed rule is not presumed to be valid or invalid.
Section 120.56(2)(a), provides:
[T]he petitioner has the burden of going forward. The agency then has the burden to prove by a preponderance of the evidence that the proposed ruled is not an invalid exercise of delegated legislative authority as to the objections raised.
Thus, Petitioners have the burden of initially going forward. The FWCC then has the burden to prove, by a preponderance of the evidence, that the Proposed Rule is not an invalid exercise of delegated legislative authority as to the objections raised by Petitioners. St. Johns River Water Management District v. Consolidated-Tomoka Land Co, 717 So. 2d (Fla. 1st DCA 1998), superceded on other grounds, as stated in Southwest Florida Water Management District v. Save the Manatee
Club, 773 So. 2d 594 (Fla. 1st DCA 2000).
In this proceeding, the ultimate burden lies with the FWCC to demonstrate, by a preponderance of the evidence, that the proposed rule with respect to the issues raised by the Petitioners is not an invalid exercise of delegated legislative authority.
The rule challenge proceeding is a de novo proceeding, and not a review of the evidence that was before the FWCC when it noticed the challenged Proposed Rule. The Section 120.52(8)(f) "competent, substantial" evidence standard is considered in light of the record developed in the rule challenge proceeding. The record in this proceeding, including testimony and documentary
evidence, supports the validity of the Proposed Rule as to each challenge raised by Petitioners.
CHALLENGES
Petitioners, pursuant to Section 120.56, collectively asserted all the grounds listed in Section 120.52(8), as the bases for their challenge of the Proposed Rule 68C-22.006, to regulate motorboat speed in Broward County, pursuant to Section 370.12. On its face, the challenged rule purports to regulate motorboat speed in the waterways throughout Brevard County. The speed zones imposed by the rule are designated as "idle speed," "slow speed," "maximum 25 MPH speed," "maximum 35 MPH speed," "maximum 30 MPH," "motorboat prohibited," "no entry," and "exemptions."
If otherwise valid, the challenged rule does not exceed its grant of rule-making authority to make such rules not inconsistent with law as are required to carry out the duties and authority conferred upon the FWCC by Subsection 370.12(2)(f)2.
The Petitioners have alleged that the Proposed Rule is an invalid exercise of delegated legislative authority.
Subsection 120.52, provides:
An invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious;
The rule is not supported by competent substantial evidence; or
The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.
In support of this challenge, Petitioners' reliance on Marine Industries Association of South Florida, Inc. v. Florida Department of Environmental Protection, 672 So. 2d 878 (4th DCA 1996), for the proposition that Section 370.12(2)(m), imposes upon
the FWCC an obligation to define by rule the terms "frequently," "periodically," or "continuous" is misplaced.
In Marine Industries the court disagreed with appellant's claim that "frequently sighted" was too vague a standard to be any standard at all. Preferring the ordinary meaning of the word "frequently," the court held:
Whether the manatee is seen "frequently" is a quantifiable measurement which can be made by the Department applying its expertise to its data collection. (emphasis added) Id. at 882.
In the instant case, the record contains an abundance of evidence that to all data made available from every source, including Petitioners' participation in public hearings, manatee mortality data, aerial survey data, satellite telemetry, manatee sightings, scar catalogs, input from Petitioners, and expert opinions of both the FWCC's and Petitioners' experts, the FWCC applied its collective and historical expertise in developing the Proposed Rule to protect the manatees the Brevard County waterways from collisions with motorboats and from harassment.
The "Florida Manatee Sanctuary Act," Subsection 370.12(2), is the statutory authority for the adoption of motorboat speed limits necessary to protect manatees from harmful collisions with motorboats and from harassment, and provides, in relevant part, for speed limits:
In order to protect manatees or sea cows from harmful collisions with motorboats or from harassment, the Fish and Wildlife
Conservation Commission shall adopt rules under chapter 120 regarding the expansion of existing, or construction of new, marine facilities and mooring or docking slips, by the addition or construction of five or more powerboat slips, and regulating the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis:
* * *
2. In Brevard County: those portions of the Indian River within three-fourths of a mile of the Orlando Utilities Commission Delespine power plant effluent and the Florida Power and Light Frontenac power plant effluents.
* * *
The Fish and Wildlife Conservation Commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis within that portion of the Indian River between the St. Lucie Inlet in Martin County and the Jupiter Inlet in Palm Beach County. In addition, the commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis within the Loxahatchee River in Palm Beach and Martin Counties, including the north and southwest forks thereof. A limited lane or corridor providing for reasonable motorboat speeds may be identified and designated within this area.
The commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it
can be generally assumed that they inhabit these areas on a regular or continuous basis within the Withlacoochee River and its tributaries in Citrus and Levy Counties. The specific areas to be regulated include the Withlacoochee River and the U.S. 19 bridge westward to a line between U.S. Coast Guard markers number 33 and number 34 at the mouth of the river, including all side channels and coves along that portion of the river; Bennets' Creek from its beginning to its confluence with the Withlacoochee River; Bird's Creek from its beginning to its confluence with the Withlacoochee River; and the two dredged canal systems on the north side of the Withlacoochee River southwest of Yankeetown. A limited lane or corridor providing for reasonable motorboat speeds may be identified and designated within this area.
If any new power plant is constructed or other source of warm water discharge is discovered within the state which attracts a concentration of manatees or sea cows, the Fish and Wildlife Conservation Commission is directed to adopt rules pursuant to Chapter
120 regulating the operation and speed of motorboat traffic within the area of such discharge. Such rules shall designate a zone which is sufficient in size, and which shall remain in effect for a sufficient period of time, to protect the manatees or sea cows.
It is the intent of the Legislature through adoption of this paragraph to allow the Fish and Wildlife Conservation Commission to post and regulate boat speeds only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis. It is not the intent of the Legislature to permit the commission to post and regulate boat speeds generally in the above-described inlets, bays, rivers, creeks, thereby unduly interfering with the rights of fishers, boaters, and water skiers using the areas for recreational and commercial purposes. Limited lanes or corridors providing for reasonable
motorboat speeds may be identified and designated within these areas.
The commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic all year around within Turkey Creek and its tributaries and within Manatee Cove in Brevard County. The specific areas to be regulated consist of:
A body of water which starts at Melbourne-Tillman Drainage District structure MS-1, section 35, township 28 south, range 37 east, running east to include all natural waters and tributaries of Turkey Creek, section 26, township 28 south, range 37 east, to the confluence of Turkey Creek and the Indian River, section 24, township 28 south, range 37 east, including all lagoon waters of the Indian River bordered on the west by Palm Bay Point, the north by Castaway Point, the east by the four immediate spoil islands, and the south by Cape Malabar, thence northward along the shoreline of the Indian River to Palm Bay Point.
A triangle-shaped body of water forming a cove (commonly referred to as Manatee Cove) on the east side of the Banana River, with northern boundaries beginning and running parallel to the east-west cement bulkhead located 870 feet south of SR 520 Relief Bridge in Cocoa Beach and with western boundaries running in line with the City of Cocoa Beach channel markers 121 and 127 and all waters east of these boundaries in section 34, township 24 south, range 37 east; the center coordinates of this cove are 28 degrees 20' 14" north, 80 degrees 35' 17" west.
The commission shall promulgate regulations pursuant to chapter 120 relating to the operation and speed of motor boat traffic in port waters with due regard to the safety requirements of such traffic and the navigational hazards related to the movement of commercial vessels.
The commission may designate by rule adopted pursuant to chapter 120 other portions of state waters where manatees are frequently sighted and it can be assumed that manatees inhabit such waters periodically or continuously. Upon designation of such waters, the commission shall adopt rules pursuant to chapter 120 to regulate motorboat speed and operation which are necessary to protect manatees from harmful collisions with motorboats and from harassment. The commission may adopt rules pursuant to chapter
120 to protect manatee habitat, such as seagrass beds, within such waters from destruction by boats or other human activity. Such rules shall not protect noxious aquatic plants subject to control under s. 369.20.
The commission may designate, by rule adopted pursuant to chapter 120, limited areas as a safe haven for manatees to rest, feed, reproduce, give birth, or nurse undisturbed by human activity. Access by motor boat to private residences, boat houses, and boat docks through these areas by residents, and their authorized guests, who must cross one of these areas to have water access to their property is permitted when the motorboat is operated at idle speed, no wake.
Petitioners' argument, that as a condition precedent, the Commission is required to quantify "necessary" to prove that the proposed rule is "necessary" to protect manatees from harmful collisions with motorboats and from harassment. Based on the above-quoted authority, Petitioners' second argument also fails. See McGill v. FWCC, DOAH Case No. 99-5366, August 23, 2000.
Petitioner's reliance on Merritt v. Department of Professional Regulation, Board of Chiropractic, 654 So. 2d 1051 (Fla. 1st DCA 1995), is misplaced.
In Merritt, the court addressed the central issue on appeal: whether the challenged rule establishes valid criteria to govern the Board's action. The statute restricted the criteria to conform to medically accepted standards and defines that term by reference to "a reasonable prudent similar health care provider." Section 460.403(6).
Because there was no evidence taken below, there was no evidence in the record to determine if the Rule does, in fact, conform to that statutory standard. The Administrative Law Judge dismissed Merritt's petition having found no basis to invalidate the challenged Rule. The court reversed the Administrative Law Judge ruling finding that the challenged rule (without evidence having been taken): fails to establish adequate standards, and vests unbridled discretion in the committee; the Rule from which the statutes demand guiding criteria was vague; the Rule itself defies a deliberative reading; the Rule served to obfuscate the statutory language than to elaborate statutory criteria or standards, and was not rational to elaborate statutory standards to guide the discretion of the committee with a rule that depends upon the judgment of the committee members for its determination; and therefore, the Rule was arbitrary and capricious. [Emphasis Added]
In Merritt, the court declined to address Merritt's second issue: (that Petitioners now read into its ruling) whether
the challenged rule should elaborate statutory standards as rules in addition to the statutory definition of medically accepted standards. Petitioners' reliance on their reading into the Merritt decision that as a matter of law, the Commission "shall elaborate statutory standards as rules in addition to the statutory definition" is misplaced and not applicable to the factual situation presented herein by their challenge to Proposed Rule 68C-22.006.
Rule 68C-22.006(1) identifies the waterways in Brevard County on which motorboat speed is regulated: Subsection (a) establishes Idle Speed Zone (seasonal) in all the waters of Indian River; Subsection (b) establishes Idle Speed Zone (year-round) in all the waters in North Prong of the Sebastian River; Subsection
establishes slow speed zone in all waters of the Indian River Lagoon, Tinkers and Sam's Creek Canals and Sebastian River; Subsection(d) establishes slow speed zone (Channel-included) all waters from Cape Canaveral to Banana River, Skyes Creek, Kiwanis Island, Canaveral Barge Canal, Banana River, Indian River; Subsection (e) establishes Slow Speed Zone (Channel exempt) all waters of Banana River, Pineda Causeway, and Grand Canal; and Subsection(f) establishes year round Maximum 25 MPH speed zones in channels throughout Brevard County waterways. In promulgating this Proposed Rule, the Commission relied upon Subsections 370.12(2)(m) and (n).
As has been the law in Florida for more than 20 years, the department's interpretation of Section 370.12(2), is entitled to great weight and cannot be overturned unless clearly erroneous, unreasonable, or in conflict with the State Constitution or plain intent of the statute. Shell Harbor Group, Inc. v. Department of
Business Regulation, 487 So. 2d 1141 (Fla. 1st DCA 1986); ABC Liquors Store No. 126 v. Department of Business Regulation, 397 So. 2d 696 (Fla. 1st DCA 1981).
In this proceeding the Petitioners have failed to show that the Department's interpretation of Section 370.12(2)(f), is erroneous, unreasonable, or in conflict with the state constitution or the plain intent of the statute. The Department's interpretation of the statutory phrase "operation and speed of motorboat traffic" to include the establishment of motorboat prohibited zones is within the range of possible interpretations. Florida League of Cities, Inc. v. Department of Insurance and
Treasurer, 540 So. 2d 850, 857 (Fla. 1st DCA 1989).
The Petitioners have not shown that the proposed Rule amendment is not reasonably related to the purpose of enabling legislation, nor has he shown that the proposed amendment is arbitrary or capricious. The evidence established that manatees do congregate in the warm discharge waters of the Florida Power and Light Riviera Beach power plant during the winter months. The evidence also established that boat-related manatee deaths are
increasing each year as the number of boats increases within the state.
Furthermore, the Proposed Rule amendment does not unduly interfere with the rights of fishermen, boaters, and water skiers since the motorboat prohibited zone will be established in a small area and the no entry zone will only be effective for the period from November 15 through March 31, the period of time when manatees congregate in the warm discharge waters of the power plant. Accordingly, the proposed amendment is a valid exercise of delegated legislative authority.
Additional standards applicable to the review of a rule challenge proceeding are articulated in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515,
517 (Fla. 1st DCA 1984) as follows:
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So. 2d 1251 (Fla. 1st DCA 1982). An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716 (Fla. 1983); Barker v. Board of Medical Examiners, 428 So.
2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and is not arbitrary
and capricious. Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need be only within the range of possible interpretations. Department of Health and Rehabilitative Services v. Wright,
439 So. 2d 937 (Fla. 1st DCA 1983)(Ervin, C.J. dissenting); Department of Administration v. Nelson, 424 So. 2d 852 (Fla. 1st DCA 1982); Department of Health & Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 238 (Fla. 1st DCA 1981).
(Emphasis in Original.)
In this case there is an abundance of substantial and competent evidence in the record to support the conclusion that after consideration of all available data, consultation with and consideration of expert opinions, public hearings and consideration of public input, the FWCC, in developing Proposed Rule 68C-22.006, applied its expertise to the data and exercised its discretion when "may" was permissible and appropriate and complying with the statutory "shall" when required, as set forth in Section 370.12(2)(m).
The manatee is an endangered marine mammal residing in the southern United States, principally in Florida and the Brevard County waters.
The FWCC has adopted valid administrative rules, including the Broward County rule now amended by the proposed rule, and others rules not at issue here, which create motorboat speed zones and motorboat prohibited zones in counties throughout the state for the protection of manatees and their habitat. In
Broward County, Marine Industries Association of South Florida v.
Florida Department of Environmental Protection, DOAH Case No. 93- 5932; in Volusia County, Citizens For Responsible Boating, Inc. v. Department of Environmental Protection, DOAH Case No. 93-5699, and in Brevard County, Thomas McGill vs. Fish and Wildlife
Conservation Commission, DOAH Case No. 99-5366.
In promulgating Rule 68C-22.006, that amends and/or modifies and/or extends the existing rule, the FWCC did not exceed it rulemaking authority under Section 120.54(3)(a)1., and the Proposed Rule does not enlarge, modify or contravene the specific provisions of Section 370.12(2).
Petitioners' assertions of vagueness, inadequate standards and/or unbridled discretion and arbitrary or capriciousness is, in essence, an argument that the FWCC erred in accepting its data and rejecting that from Petitioners. Both sources of data were predicated on competent evidence in the record. The FWCC was responsible for rejecting or accepting one version of the available data or the other.
Based on Petitioners' Prehearing Stipulation, testimony and documentary evidence in the record, Petitioners and the Commission agreed to the following:
there exist motorboat speed zones in Brevard County;
there exist no entry zones;
there has been an increase in the manatee growth and population;
there has been an increase in manatee deaths since implementation of the existing speed zones;
there has been an increase in motorboat registrations, boats slips and boat traffic;
there is a need for improved law enforcement;
slower speed zones lengthen the travel time for all boaters;
as boat traffic and manatee population increases, manatee deaths will continue to increase, and
(ix) that Rule 68N-22.006(1)(d)4,7,8, and 9 and (f)7 (former Rule 62N-22.006(1)(d)4,7,8, and 9 and (f)7, F.A.C. which designated three manatee speed zones in Brevard County, and the language on the signs implementing those speed zones are a valid exercise of delegated legislative authority.
The challenged Propose Rule is neither vague, arbitrary nor capricious within the meaning of Section 120.52(8)(e). The Proposed Rule has a rational basis and a legitimate purpose. It is based on fact, logic and experience, and seeks to curtail and/or prevent harm and death to manatees resulting from collisions with motorboats in the Brevard County waterways. The Legislature granted the FWCC authority to increase the safety for manatees by "regulating the speed of motorboats" in waterways where manatees are frequently sighted. The Proposed Rule does not vest unbridled discretion in the Commission. See McGill vs. Fish and Wildlife Conservation Commission, DOAH Case No. 99-005366, August 23, 2000.
Sea Ray Boat, Inc.'s, allegation that the proposed Rule imposes regulatory cost on Sea Ray Boat which could be reduced by
the adoption of less costly alternative that substantially accomplish the statutory objectives is problematic.
Sea Ray argues that the FWCC ignored the following less costly alternatives for the Barge Canal and Skyes Creek of slow speed zones only on weekends and holidays instead of slow speed zones everyday of the week. In support of its position, Sea Ray relied upon St John's River Water Management District v. Modern, Inc., 1999 WL 1483613 (DOAH June 15, 1999). In Modern Inc., the Administrative Law Judge found that the regulatory expense that must be incurred to show that excavation is routine custodial maintenance can be substantial, and was excessive when it was required to satisfy an exemption requirement not found in the statute under consideration. Sea Ray's reliance is misplaced.
Under the existing speed zone in the Barge Canal, Sea Ray Boat is benefited by an exemption pursuant to Rule 68C-22.003, Florida Administrative Code, which allows 40 retests of its boats per month of speeds not exceeding 35 MPH. Sea Ray Boat, by agreement with the FWCC (currently being challenged by Save the Manatee Club, Inc. DOAH Case No. 01-3992RP in abeyance) was granted an exemption permit from the proposed speed limit in the Barge Canal upon the expiration of its current exemption permit.
Having considered the less costly alternative of only weekend and holiday speed zones option and having considered the exemption availability option, the FWCC determined the exemption
availability option would best accomplish the statutory objectives of protecting the manatee and its habitats.
Respondent produced an abundance of evidence that manatees were "frequently sighted," in and about the waterways included in the Proposed Rule.
The first legal argument of Petitioners is that the Commission failed to assign a "quantifiable" measurement standard to "frequency" ignores the "and it can be assumed that manatees inhabit such waters periodically or continuously," dictate of Subsection 370.12(2)(n), which provides:
(n) The department may designate by rule other portions of stats waters where . . . it can be assumed that manatees inhabit such waters periodically or continuously.
Relying primarily on Marine Industries, the Petitioners argue that the Commission is required to establish a numerical standard in defining the term "frequent." Carrying their argument further, Petitioners read Marine Industries to impose a requirement upon the Commission to establish a quantifiable measurement in defining the term "frequently sighted" with respect to the manatee population of Brevard County, and its failure to do so renders the Proposed Rule arbitrary, capricious, and an invalid exercise of delegated legislative authority.
Petitioners include in their argument that the Commission failed to establish a "scientific basis" or "rational basis" for the 25 MPH maximum, the idle, the slow speed, and
motorboat prohibited (or no entry) zones in the proposed rules. Concluding their argument, Petitioners alleged that the entire proposed rule is "arbitrary and capricious" because it: failed to define "critical terms"; "contains no formula . . . by which an individual could determine how the information . . . was utilized in promulgating the Proposed Rule; has no ascertainable criteria .
. . which be applied to determine how or where manatee speed zones should be established . . . (or) . . . establishment of . . . set back buffer areas . . . (or ) for determining acceptable watercraft mortality rates. . . . The terms "frequent," "regular," or "continuous" are vague and vest the Commission with unbridled discretion. Therefore, the Commission's Proposed Rule 68C-22.006 does not exceed the scope of its delegated legislative
authority.
FINAL ORDER
It is ORDERED that based upon the foregone Findings of Fact and Conclusions of Law, the individual challenges by each Petitioner to Proposed Rule 68C-22.006, Florida Administrative Code, for regulation of Brevard County manatee protection areas are DISMISSED.
DONE AND ORDERED this 17th day of April, 2002, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2002.
COPIES FURNISHED:
Robert H. Atkins 1290 Girard Boulevard
Merritt Island, Florida 32952
Ross Stafford Burnaman, Esquire James Antista, Esquire
John Holly, Esquire Florida Fish and Wildlife
Conservation Commission Bryant Building
620 South Meridian Street Tallahassee, Florida 32399-1600
Clayton W. Crevasse, Esquire Robert Pritt, Esquire Kenneth Plante, Esquire Roetzel & Andress
2320 First Street
Fort Myers, Florida 33901
Diana Lee Davis, Esquire Florida Power & Light Company 700 Universe Boulevard
Post Office Box 1400
Juno Beach, Florida 33408
Daniel J. Dvorak 1625 Yount Drive
Merritt Island, Florida 32952
David Guest, Esquire
S. Ansley Samson, Esquire Allison Fenn, Esquire Aliki Moncrief
Earthjustice Legal Defense Fund Post Office Box 1329
111 South Martin Luther King Boulevard Tallahassee, Florida 32302-1329
Russell P. Gentile
6755 South Tropical Trail Merritt Island, Florida 32952
Gary K. Hunter, Jr., Esquire Kent Safriet, Esquire Hopping, Green, Sams & Smith Post Office Box 6526
123 South Calhoun Street Tallahassee, Florida 32314
Thomas D. McGill 254 Sykes Point Lane | |
Merritt Island, Florida | 32953-3067 |
Ronald J. Pritchard 616 Limerick Drive Merritt Island, Florida | 32953 |
Dwight W. Severs, Esquire City of Titusville
Post Office Box 2806 Titusville, Florida 32781-2806
Daniel H. Thompson, Esquire Berger, Davis & Singerman, P.A.
215 South Monroe Street Suite 705
Tallahassee, Florida 32301
Nicholas F. Tsamoutales, Esquire Gary Sack, Esquire
Nicholas F. Tsamoutales, P.A.
1900 Palm Bay Road, Northeast, Suite G Palm Bay, Florida 32905
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 28, 2003 | Mandate | |
| Mar. 18, 2003 | Opinion | |
| Apr. 17, 2002 | DOAH Final Order | Challenges to proposed rule are dismissed. Proposed rule not vague and does not exceed delegated legislative authority. |
