STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION KANTER REAL EST ATE, LLC, ) ) Petitioner, ) ) ) OGC CASE NOS. 16-1446 ) 16-1447 DEPARTMENT OF ENVIRONMENTAL) DOAH CASE NOS. 17-0666 PROTECTION, ) 17 0667 ) Respondent, ) ) and ) ) CITY OF MIRAMAR AND BROW ARD ) COUNTY, FLORIDA, ) ) Intervenors. ) FINAL ORDER An Administrative Law Judge (ALJ) with the Division of Administrative Hearings (DOAH) on October 10, 2017 , submitted a Recommended Order (RO) to the Department of Environmental Protection (DEP or Department) in the above captioned administrative proceeding . A copy of the RO is attached hereto as Exhibit A. DEP timely filed its Exceptions on October 25 , 2017. The Intervenor Broward County filed its Exceptions untimely after 5 : 00 p.m. on October 25 , 2017. The Intervenor City of Miramar filed a Notice of Joinder in DEP's Exceptions with DOAH untimely on October 27, 2017. On November 1 , 2017 , the Petitioner Kanter Real E s tate , LLC (Kanter) filed a motion to strike the City of Miramar ' s Untimely Notice of Joinder to DEP ' s Exceptions. Kanter filed responses to DEP ' s Exceptions on November 6, 2017. This matter is now before the Secretary of the Department for final agency action . BACKGROUND On November 16, 2016, the Department of Environmental Protection (Department or DEP ) issued a Notice o f Denial Oil & Gas Drilling Application (the Deni a l ). The basis for the Denial was that the Petitioner: failed to provide information show ing a balance of considerations in favor of issuance given the particular criteria specified in Section 3 77.241, Florida Statutes, "C rit er i a for I ssuance of Permits. " Specifica lly , [Kanter]'s informati on did not show a balanc e in favor of issuance when considering the nature, character and locati on of the land s invol ved; the nature , type and extent of ownership of [Kanter]; and the proven or indicated likeliho od of the presence of oil in such quantities as to warran t the exploration and extraction of such products o n a commercially profitable basis. (RO page s 2- 3). On November 16, 2016, the Department also i ssued a notice of denial of an Environmental Resource Permit (the ERP Denial). The basis fo r the ERP Denial was that the Petitioner had not provided reasonable assurance that the proposed activity would comply with various provisions of the statutes, rul es . and Applicant's Handbook applicable to the activity. The P etit ioner timely filed separate p etit ion s challenging the Oil a nd Gas Denial and the ERP D e nial , both of which were dismis sed by the Departm en t with leave to amend. The Peti tioner filed a separate Amended Pet ition for Formal Administrative Hearing for each of the denied permit applications o n January 13 , 2017. Those Amended Petitions were referred to the Division of Administrative Hearings on January 31, 2017, and thereafter consolidated. The hearing was scheduled to be held on May 22 through 26, 2017. On March 14, 2017 , Inter venor C i ty of Miramar (Miramar) filed its Petition to Intervene, which was granted, over objection, on March 24, 2017. On April14, 2017 , Intervenor Broward County, Florida (Broward County), filed its Verified Motion for Intervention, which was granted, over objection , on April 24 , 2017. On May 19 , 2017 , the parties filed a Joint Pre-hearing Stipulation for the Oil and Gas Permit (Pre-hearing Stipulation.), which contained, among other things, 52 stipulations of fact, each of which are adopted and incorporated herein. The Pre-hearing Stipulation identified the issues of fact remaining for disposition to be: 1. Whether the nature, character, and location of the lands involved weighs toward the approval of exploratory drilling. 2. Whether the nature , type , and extent of ownership of the applicant , " including such matters as the length of time the applicant has owned the rights claimed without having performed any of the exploratory operations so granted or authorized," weighs toward the approval of exploratory drilling. 3. Whether, and the degree to which, Kanter can demonstrate "the indicated likelihood of the presence of oil , gas or related minerals in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis. " Pre-hearing Stipulation , pp. 22-23. See§§ 377.241(1) (3) , Fla. Stat. (2017). On May 22, 2017, the Petitioner also filed a Motion in Limine on Historic Ownership and Use of Mineral Rights, which was denied by separate order , with the issues raised therein being subject to further analysis in the parties ' post-hearing submittals. The final hearing commenced on May 22, 2017. During the proceedings, the parties announced a stipulation on the record that all issues related to the environmental resource permit (ERP) had been resolved, and that the parties agreed that the Petitioner had met its burden of demonstrating entitlement to issuance of the ERP. Thus , the parties agreed that they would not submit detailed proposed findings of fact on that issue and would submit proposed recommended orders reflecting the agreement, which they did. A nine- vo lum e Hearing Transcript was filed with DOAH on July 10 , 2017. By agreement of the partie s, 30 days from the date of the filing of the Tran s cript was established as the time for filing po s t-hearing submittals. On August 7, 2017 , the Petitioner filed an unopposed Motion for Exten s ion of Time to Submit Proposed Recommended Orders , which was granted , and extended the date for filing to August 17 , 2017. The parties timely filed Proposed Recommended Orders with the AU , who then issued his RO on October 10 ,2 017. SUMMARY OF THE RECOMMENDED ORDER In the RO , the ALJ r ecommended that the Department enter a final order issuing ERP No. 06-0336409-001 , and i ss uing Oil and Gas Drilling Permit No. OG 1366 with the conditions agreed upon and s tipulated by the Petitioner , including a condition requiring that if water i s to be transported on-site , it will add additional tanks to meet water needs that would arise during the drilling process , and a condition prohibiting fracking. (RO at page s 52 53). On November 16 , 2016 , the Department entered its Notice of Denial of the Oil and Gas Drilling Permit. (RO I 0). The Department denied the oil and gas drilling permit , because the Petitioner failed to provide information showing a balance of considerations in favor of issuance pursuant to Section 3 77.241 of the Florida Statutes. (RO I 0). The Property The ALJ found that the Petitioner holds fee title to all surface righ ts, and title to all mineral rights , including rights to oil , gas, and ot her mineral interests , within Sect ion 23 Township 51 South , Range 38 East, where the exploratory well (Well Site) for the proposed oil and gas drilling permit i s located. (RO 15). The ALJ also found that the Petitioner's property is encumbered by a Flowage Easement held by the South Florida Water Management District (SFWMD). The ALJ found that the Petitioner 's proposed exploratory we ll is consistent with the Petitioner's ownership interest and the SFWMD Flowage Easement , because the Petitioner has th e legal property right to locate and drill an exploratory well. (RO 16-17). The ALJ found that the Petitioner's property, including the proposed Well Site, is in the hjstoric Everglades , where water flowed naturally in a southerly direction. (RO 19) . Beginning in the late 1800s , and extend i ng well into the 1 960s, canals, le vees, dikes , and channels were constructed to drain , impound, or reroute the hi storic flows. (RO 20). The ALJ found that the proposed Well Site is l ocated in Water Conservation Area (WCA)-3, whlch was constructed as part of the Ce ntral and Southern Florida Flood Control project authorized by Co ngre ss in 1948, and was created primarily for flood control and water supply. (RO 21). The ALJ found that in the early 1960's, two levees , L67-A and L67-C separated WCA-3 into WCA-3A to the west and WCA-3B to the southeast , and that the Well Site is in WCA-3A. (RO 22). The ALJ found that the area between L67 A and L67-C, along with a levee along the Canal Miami , is known as the "Poc ket. " The ALJ found that the proposed Well Site is located within the Pocket , on the southern side ofL67 A. The AU also found that the L67-A and L67- C, and their associated canals, have dramatically disrupted sheet flow , altered h ydro lo gy, and degraded the natural habitat in the Pocket. The ALJ further found that the Pocket is impacted by in vas i ve species, which have overrun the nati ve species and transformed the area into a monoculture of cattails. The AU also found that the L67-A and L67- C, and their associated canals, impede wi ld life movement. (RO 25 27). Furthermore, the ALJ found that the Department has permitted oil wells in the Raccoon Point wellfield within the Big Cypress National Preserve. (RO 28-29). The Biscayne Aquifer The AU found that the Pocket i s not a significant recharge zone for the Biscayne Aquifer. The AU also found that the proposed Well Site is not within any 30-day or 120-day protection zones in places for local water supp l y wells. (RO 32). The Sunniland Formation The ALJ found that the preponderance of the evidence demon strates that active generating source rock capable of producing hydrocarbons exists in the Sunniland Formation beneath the Petitioner' s property. The ALJ also found that within the Sunniland Fonnation reef­ like buildups of shells were buried by other materials that formed an impermeable layer over the porous oyster mounds , and aJlowed these mounds to become "traps" for oil migrating up from lower layers. (RO 36, 38) . Furthermore, the ALJ found that the Sunniland Trend is an area of limestone of greater porosity within the Sunniland Formation, and provide s a reasonable extrapolation of areas that may be conducive to o il traps. (RO 43). The AU found that two separate trends have been identified within the Sunnilan d Trend the rudist-dominant West Felda Trend, and the Felda Trend, both of which are oil-producing stra ta. The AU found that the Felda Trend is more applicable to the Petitioner 's property. (RO 44). The ALJ concluded a preponderance of the evidence indicates that the Petitioner 's property , including the proposed Well Site, is within the Sunniland Trend and its Felda Trend subset. (RO 1j46). The Dollar Bay Formation The ALJ found that the Dollar Bay Format i on, which exists beneath the Petitioner's property at a shallower depth than the Sunniland Formation , has the potential for oil production. (RO 1j51 ). The ALJ found that there have been three oil finds in the Dollar Ba y formation, with at least one commercial production well. (RO 1j52). Initial Exploratory Activities The ALJ found that the Petitioner ' s expert testimony regarding the seismic data supports a conclusion that the site is a " great prospect" for producing oil in such quantities as t o warrant the exploration and extraction of such products on a commercially profitable basis. (RO 62). Seismic Data Analysis The AU found that the seismic li nes purchased by the Petitioner consist ofline 970, which runs southwest to northeast along the L67-A l evee, and a portion of line 998, which runs from northwest to southeast along the Miami Canal l evee. The ALJ also found that the anticline beneath the proposed Well Site is a "prospect ," which is an area with geologica l characteristics that are reasonably predicted to be commercially profitable. Risk Analysis The ALJ found that risk analysis for plays and prospects consists of four primary factors: the trap; the reservoir; the source; and preservation and recovery. Each of the four factors has three separate characteristics. Numeric scores are ass i gned to each of the factors based on se i smic data; published maps and materials; well data, subsurface data, and evidence from other plays and prospects; and other availab le information. Chance of s ucc ess is calculated based on the quantity and qual it y of the data supporting the various factors to determine the likeli hood that the prospect will produce flowable hydrocarbons. (RO 79). The analysis and scoring performed by the Petitioner's expert Mr. Aldrich was found by the ALJ to be a reasonab l e and factually supported assessment of the risk associated with each of the prospects that exist beneath the proposed Well Site. The ALJ found that Mr. Aldrich's calculation that th ere was a four­ percent chance of success , which means a 96 percent chance of failure , at the Well Site for the Dollar Bay prospect was reasonable and supported by the evidence. The AU also found that Mr. Aldrich's calculation that there was a twenty-percent chance of s u ccess, which means an 80 percent chance of failure, at the Well Site for the Upper Sunniland play was reasonable and supported by the evidence. (RO mf 80-82). The AU found that under the industry-accepted means of risk assessment, there is a 23-percent chance of success that at least one zo ne will be producti ve. (RO 83). The ALJ further found that a 23-percent chance that an exploratory well will be productive , is , in the fie ld of o i l exploration and production, a very high chance of success. Commerc i a l Profitability The P e titioner 's expert Mr. Aldrich te s tified that the Petitioner 's project would be commercially self-supporting if it produced 100 , 000 barrel s at $50.00 per barrel. Since his testimony was unrebutted, the ALJ accepted his testimony on this matter. The ALJ found that the evidence su pport s a finding that reserves could r ange from an optimistic estimate of 3 to 1 0 milli on barrels, to a very conservative estimate of 200 barrels per ac re over 900 ac r es, or 180 ,000 barrels. The AU concluded that the preponderance of the ev i dence established the likelihood of the pre s ence of oil in such quantit i es to warrant its exploration and extraction on a commercia ll y profitable basis. ( RO 86-87). STANDARDS OF REVIEW OF DOAB RECOMMENDED ORDERS Section 120.57( 1 )(1) , Florida Statutes, prescri b es t hat an agency reviewing a recommended orde r may not reject or modify the findings of fact ofthe ALJ "u nless the agency first determines from a review of the entire record, and states with particularity in the order, t ha t the findings of fact not were based on competent substan tial evidence. " § 120.57( 1 ){l) , Fla. Stat. (2017) ; Char lotte County v. fMC Phosphat es Co., 18 So. 3d 1 089 (F l a. 2d DCA 2009); Wills v . Fla . Ele c tions Comm ' n , 955 So. 2d 61 (Fla. 1st DCA 2007). The term "c ompetent substantial evidence" does not relate to the quality, character, convincing power , probative value or weight of the evidence. R ather, "competent substantial evide nce " refers to th e existe nce of some evidence as to each essential element and as to it s admissibility u n der l egal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm ' n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1 191, 1192 (F l a. 5th DCA 20 1 0). A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein , or judge the credibility of w itn esses. See, e.g . , Rogers v. Dep ' t of Health, 920 So. 2d 27,30 (Fla. 1st DCA 2005); Belleau v . Dep't ofEnvtl. Prot., 695 So. 2d 1305 , 1307 (Fla. I st DCA 1997); Dunham v. Highlands County School Bd., 652 So. 2d 894 (F la. 2d DCA 1995) . If there is competent substant ial evidence to support an ALJ's fmdings of fact, it is irrelevant that there may also be competent substantial evidence sup porting a contrary finding. See , e.g., A rand Constr. Co. v. Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991 ); Conshor, Inc. v. Roberts, 498 So. 2d 622 (F l a. I st DCA 1986). The ALJ's deci s ion to accept the testimony of one expert witness over that of anothe r expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete l ac k of any competent substantial evidence of record supporti n g th i s decision. See, e.g., Pea ce River / Manasota R eg ' / Water Supply Authority v. fMC Phosphates Co., 18 So. 3d 1079 , 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep ' t of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985) ; Fla. Chapter of Sierra Club v. Orlando Utils. Comm ' n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). In addition, an agency has no authority to make independent or supplem ental findings offact. See, e.g ., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994); Fla. Power &Light Co. v. Fla. Siting Bd., 693 So. 2d 1025 , 1026-1027 (Fla. 1st DCA 1997). Section 120.57(1 )(1), Florida Statutes , authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it ha s substan tiv e jurisdiction. " See Barfi e ld v. Dep ' t of H ea lth, 805 So. 2d 1008 (Fla. 1st DCA 200 I); L.B. Bryan & Co. v. Sch. Bd. of Broward County, 746 So. 2d 1 194 (Fla. 1 s t DCA 1999) ; Deep Lagoon Boat Club , Ltd. v . Sheridan , 784 So. 2d 1140 (Fla. 2d DCA 2001 ). Considerable deference shou l d be accorded to these agency interpretations of statutes and rule s within their regulatory jurisdiction , and such agency interpretations should not be overturned unless "cle arly erroneous." See, e.g. , Falk v . B e ard , 614 So. 2d 1086 , 1089 (Fla. 1993); Dep ' t of Envtl. Reg. v. Goldring, 477 So. 2d 532 , 534 (Fla. 1985). Furthermore , agency interpretations of sta tutes and rules within their regulatory jurisdiction do not have to be the on l y reasonab l e interpretation s . I t is enough i f s u ch agency int erpreta tion s are " permissible " ones. See, e.g., Suddath Van Line s. Inc . v . Dep ' t of Envtl. Prot., 668 So. 2d 209 , 212 (Fla. 1st DCA 1996). I f an ALJ improperly labels a conclusion o flaw as a finding of fact , the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e . g., Battaglia Properties v . Fla . Land and Water Adjudicatory Comm ' n, 629 So. 2d 161, 168 (Fla. 5th DCA 1994). However , neither should th e agency lab e l what is essentially an ultimate factual determination as a " conclusion of law" in o rder to modify or overturn what it ma y view as an unfavorable finding of fact. See, e.g . , Stokes v. State , Bd. of Prof'! Eng ' rs, 952 So. 2d 1224 (Fla. 1 st D CA 2007). Agencies do not have jurisdiction , however , to modify or reject rulings on the adm i ssibili ty of evidence. Evide nt iary rulings of t h e ALJ that deal with "factual issues s u sceptible to ord i nary methods of proof that a r e not infused with [agency] po l icy considerations ," ar e not matters over w hi ch the agency has "s ubstantive juri s diction. " See Martuccio v. Dep ' t of Prof'/ R eg ., 622 So. 2d 607, 609 (Fla. 1 st DCA 1993 ); Heifetz v. Dep ' I of Bus. R eg.,4 75So.2d 1277,1281 (Fla. 1stDCA 1985 ). Evidentiaryrulingsarematterswithin the ALl's sound "p r eroga t ive ... as the finder o f fact " and ma y not be reversed o n agency review. See Martuccio, 622 So. 2d at 609. RULINGS ON EXCEPTIONS In review in g a r ecom mended order and an y written excep tion s, the age nc y's final order "s hall include an explicit ruling on each exce ption. " See§ 1 2 0.57(l)(k) , Fla. Stat. (2017). Howe ve r , the agency ne e d not rule on an except ion that "does not clearly identify the di sp uted porti on of the recommended o rder by page number or par agra ph , that doe s not identify the leg a l basis for the exception, or that does not include appropriate and spec ifi c citations to the record. " I d. A part y that file s no exceptions t o certai n findin gs of fact " has thereby exp ressed it s agreement with, or at lea s t wa iv ed any objection to, those findings of fact. " Envtl. Coal. ofF/a., In c. v. Br oward County , 586 So. 2d 1212 , 1213 (Fla. 1st DCA 1991 ); see also Colonnade Med. Ctr. , In c. v. State of Fla., Agency for Health Care Admin. , 847 So. 2d 540 , 542 (Fla. 4th DCA 2003). However, an agency head reviewing a recommended order is free to modify or rej ect any erron eo u s co nclusion s of law over which t h e agency has s ub stant i ve juri s diction , e v en when excepti ons are not filed. See § 120.57(1 )(I), F la . Stat. (2 01 7); Barfield v. Dep ' t of Health, 805 So. 2d 1008 (Fla . 1st DCA 2001); Fla. Publi c Employee Council, v. Daniels , 646 So. 2d 813, 816 (Fla. 1 st DCA 1994). RULINGS ON DEP ' S EXCEPT IO NS DEP E xception No. I regarding Paragr a ph 62 DEP takes exception to the findin gs of fact in paragraph 62 , stating that the findings are not s upp orted by co mp etent substantial ev id ence. Pa ragraph 62 contains one sente nce summarizing the testimony of Kanter's expert Mr. Pollister r ega rd ing whether the proposed well "si te is a 'g reat prospect ' for producing oi l in such quantities to warrant exp l oration and extraction of such products o n a commercially profitable ba s i s . " (RO 62). D EP co rrectl y noted that counsel fo r Kanter asked Mr. P o ll is t er the following que s tion: So, Mr. P ollister , do you have an opinion of whether there is a proven or indicated li kelihood in the presence of oil in s uch quantities as to wa rr ant the ex pl o r ation and ex tr actio n of such products on a co mmerci ally profitable ba sis at the Kanter proposed oil site? (T. Vol. I , p. 97 lines 1 2-1 7). DEP then acknow l edged that counsel for DEP objected to the que s tion , but was overruled b y th e AU. (T. Vol. I, p 97 lin e 18 p. 98 line 1 7) . DEP argues th at Kanter's co un se l re-phrased the question as fo ll ows: " But what is your op i nion?" (T. Vol. I , p. 98 line 20). The ALJ overru l ed D EP's objection to the question , and the A L J stated "M r. Pollister, yo u may answer the question ." (T. Vol. I , p. 98 lines 1 6 17). Mr. Pollister t est ifi ed t hat h e believe s that the propo se d site is a "great prospect" based on hi s review of two lines of seismic data. (T. Vol. I , p. 99 lin es 8-13). As a re su l t , competent s ub stantial evidence supports the ALJ's fmding i n paragraph 62 , as explai ned above. Furthermore , DEP is required to accept the ALJ's evidentiary rulings , s ince evidentiary rulings are matters withi n the A LJ ' s sound " prerogative ... as the finder of fact" and may not be reversed on agency review. Martuccio v . Dep ' t of Prof'! R egu latio n , 622 So. 2d 607 , 609 (Fla. 1st DCA 1 993). Reading the expert's testimony , D E P 's objection, and the ALJ's rulings as a who le , the first argument in DEP 's exception to paragraph 62 is denied. Next, DEP argues that the findings in paragraph 62 should be rejected for two additional reasons. DEP argues that given the question presented to the witness and his answer, the testimony cannot be construed to express an opinion regarding any likely quantity of oil, or of commercial profitability. However, the AU 's finding is a reasonable inference from the record testimony. The ALJ can " draw permissible inferences from the evidence." Heifetz v. Dep ' t of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1 51 DCA 1985). S ee also Walk e r v. Bd. of Prof/ Eng ' rs, 946 So. 2d 604 , 605 (F la. 1st DCA 2006) (" It is the hearing officer's function to consider all the evidence presented , resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence."). Therefore, DEP 's exception to paragraph 62 based on its fir st reason is denied. DEP then argues that the findings in paragraph 62 should be rejected , because the AU erred in overruling DEP 's objection regarding the question that resulted in the testimony summarized in paragraph 62 of the RO and from which DEP filed its exception. Agencies do not have jurisdiction to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary method s of proof that are not infused with [agency] policy considerations;· are not matters over which the agency bas "s ubstantive jurisdiction ." See Martuccio v. Dep ' t of Prof'/ Regulation , 622 So. 2d 607, 609 (Fla. 1st DCA 1993); see Barfield v. Dep ' t of Health, 805 So. 2d 1008 (Fla. 1 5 1 DCA 2002). Evidentiary rulings are matters within the ALJ 's sound " prerogative ... as the finder of fact" and may not be reversed on agency review. See Martu c cio, 622 So. 2d at 609. Thus , DEP's exception to paragraph 62 based on the above rea son is also denied . DEP notes that Mr. Pollister's testimony cited in paragraph 62 of the RO is " the only scintilla of evidence that would arguably support a general finding regarding commercial profitability." Section 120.57(1 )(1), Fla. Stat. , states that an agency r eviewing a recommended order may not reject or modify the findings of fact of an administrative law judge, unless the agency determines that the findings of fact were not based on competent substantial evidence. The term "competent substantial evidence " does not relate to the quality, character, convincing power, probative value or we i ght of the evidence; rather it refers to the existence of some quantity of evidence. Scholastic Book Fairs, in c. v. Unemployment Appeals Comm ' n, 671 So. 2d 287, 289 n.3 (F l a 5lh DCA 1996). As a result , "a scintilla of evidence· · constitutes the existence of some quantity of evidence; and thus , competent substantial evidence exists to support the finding in paragraph 62 that the "site is a 'great' prospect for producing oi l in such quantities as to warrant the exploration and extractio n of such products on a commercially profitab l e basis." (T. Vol. I, p. 971 i nes 12-17; T. Vol. I, p. 98line 21). DEP 's exception to paragraph 62 based on the above reason is also denied. Finally, DEP argues that no competent substantial evidence supported any projection of future price. However, the ALJ's findi n g is a reasonable inference from the record test i mony regarding current prices. The ALJ can "draw permissible inferences from the evidence." Heifetz, 475 So. 2d at 1 281. See also Walker, 946 So. 2d at 605 ( " It i s the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw perm i ssible inferences from t he evide n ce, a n d reach ultimate findings of fact based on competent, substantial evidence."). DEP 's exception to paragraph 62 based on its final argument is denied. Therefore , based on the foregoing reasons , DEP 's Exception No. l is denied. DEP Exception No.2 regarding Paragraph 86 DEP take s exception to the findings in paragraph 86, which find that the Kanter project would be commercially self-supporting if it produced 100,000 barrels at $50.00 per barrel. DEP argues that the AU's findings are not supported by competent substantial evidence. However , the ALJ's finding is supported by competent substantial evidence in the form of expert testimony from Jeffrey Aldrich. (T. Vol. V , p. 422 line 21 p. 423 line 9). Therefore, DEP 's exception to paragraph 86 is denied. DEP Exception No. 3 regarding Paragraph 87 and footnote 9 DEP takes exception to the finding s of fact in paragraph 87 and footnote 9 , arguing that no competent substantial evidence supports the find in gs in the first sentence, second sentence, or footnote 9. DEP argues that the finding in the first se nt e nc e is not supported by competent substantia l evidence, because the testimony concerning estimated volumes refers to "fields" and not "reserves" as stated in the findings of fact. However , Kanter 's expert, Mr. Aldrich, refers to " reserves " and not ·'fields·· when he testified that " I wou ld expect [this prospect] to fall along that line trend and that the expected reserve s i ze that you would get would be someplace within the 3 to 10 million barrels , yes." (T. Vol. V , p. 341 line s 8-11) (emphasis added). Therefore, DEP's exception to the first sentence of paragraph 87 is denied. D EP takes exception to the second sentence of paragraph 87 , arguing that no competent substantial evidence supports the commercial profitability from either a single well or a combinat ion of we ll s. DEP argued that the on l y testimony supporting the AU's finding that there was a " lik el ih ood of the presence of oil in such quantities as to warrant its exploration and extraction on a commercially profitable basi s" was related to the installation and associated costs of a sing le exploratory well not a ''field,"' as described in Mr. A ldri ch's testimony. However , as explained above , Mr. Aldrich ' s testimony refers to · ·re serves " and not ''fields' · when he te st ified that the reserve s i ze would get somep l ace within 3 to 10 million barrels. (T. Vol. V, p. 341 lines 8-11 ). Mr. Aldrich specifica lly testified that the proposed drilling prospect would be commercially profitability as follows: Q. Okay . And at curre nt oil prices, i s this prospect worth drilling to an oil production company? A. Yes , sir. It doesn't take much. Q. Which is? A. It would probably be economical at about 100,000. Q. So 100 ,000 barrels, which is much below where you had pegged it? A. Yes, sir. Q . And w h a t price of oil are you u sing in yo ur mind. A. About $50 a barrel. Q. Which is about where it is today? A. Yes, sir. (T. Vol. V, p 422 line 21 p. 423 line 9). DEP further argues that no competent subs tantial evidence supported any projection of the future price per barrel. Howe ver, the ALl's finding i s a reasonab le inference from the record testimony regarding current prices per barrel. As sta ted above, the ALJ can "draw permissible inferences from the evidence." Heifetz, 475 So. 2d at 1281. See also Walker, 946 So. 2d at 605. DEP 's exception to the second sentence in paragraph 87 is thus denied . DEP takes exception to the findings of fact in footnote 9 arguing that the footnote should be construed, in part , as conclus ions oflaw. DEP first argues that there is no competent s ub stantial evidence to support the finding of fact that under the Petroleum Reserve Management System (PRMS) auditing standards, oil companies are not allowed to develop any economic models with re spect to prospective petroleum reserves that have not been proven. However, the ALJ's finding is supported by competent substantia l evidence in the form of expert testimony from Jeffrey Aldrich. (T. Vol. lX, p. 840 line 23 p. 841 line 25). Thus , DEP 's exce ption to footnote 9 for the above reason is denied. Next, DEP argues that footnote 9 contai n s an "erroneous conclusion of law , that an economic projection or analysis is ' inappropriate. "' Howev er, the ALJ's finding i s supported by competent substantia l evidence in the form of expert testimony from Jeffr ey Aldrich, and s hould not be reclassified as a conclus ion of law. {T. Vol. IX, p. 840 line 23 p. 841 line 25). Specifically, Kanter 's expert Jeffrey Aldrich testified that the Petroleum Re serve Management System auditing standards contain three auditing classifications standards for commercial reserves, standards for discovered reserves that are not commercial yet, and standards for prospective resources , known as prospects . He explained that "we have whole guidelines on them (prospective resources] , and they do not have any economics run on th em. We ' re actually not allowed to state any economics on them under the PRMS gu ideline s." The ALJ's finding is supported by competent substantial evidence in the form of expert testimony from Jeffrey Aldrich . {T. Vol. lX, p. 840 line 23- p. 841 line 18). Thus , D E P 's exception to footnote 9 for the above reason is denied. Next, DEP argues that footnote 9 contains an erroneous conclusion oflaw that economic projections s hould be made after the project i s complete. Contrary to DEP 's argument , the ALr s finding is supported by competent su b stan tial evidence in the form of expert testimony from Jeffrey Aldrich, and should not be reclassified as a conclusion oflaw. (T. Vol. IX, p. 840 line 23 p. 841 line 18 ). As explained by Kanter's expert witness Jeffre y Aldrich economic runs are not allowed to be conducted for prospective resources under the Petroleum Reserve Management System that establishes auditing standards for the petroleum industry. Thus , DEP 's exception to footnote 9 for the above reason is denied. Therefore, based on t h e foregoing reasons, DEP's exceptions to both sente nces in paragraph 87 and footnote 9 are denied. DEP Exceptions N o.4, S, 6, 7, and 8 regarding Paragraphs 99 , 100 , 103, 109 , and 110 DEP takes exception to conclusions of l aw in p aragraphs 99, 100 , 103, 109, a nd 11 0. The ALJ has interpreted Section 377.241, Florida S tatu tes, i n P a r agraphs 99, 100 a nd 1 03, to place an "overr iding legislat i ve concern'' with the effect of divided mineral interests on rights of s u rface ow n e r ship. (RO 99 and I 00). Furthermo r e, the ALJ, cite d to a DOAH permit challenge in which the applicant withdrew i ts app li cation before the deadline for the final order, and thu s DEP 's Secretary did not have the opportunity to accept or reject counsel's a r guments or the ALJ's l egal conclus i ons when the ALJ quote d that " When enacted in 1961 , the overa ll purpose of the statute was to institute a permit process in order to protect landowners from undue burden s from mineral leases." Mosher v. Dep ' t ofEnvtl. Prot ., Case No. 13-4254 and 13-4920 (DOAH Recommended Order June 3, 2014; Application withdrawn by Stipulat i o n b ef or e DEP 's Secretary wrote the F i n al Order) (RO 103). "T h e r ev i ewing agency is not bound by the legal arguments mad e or legal positions advocated by it s attorn eys of r e cord in the DOAH pro ceedings." Haile Cmty. Ass 'n v. Florida Indu s. & Dep ' t of Envtl. Prot., Case No. 95-5531, 1996 WL 533801, at *9, n . 1 (F l a. D EP Se pt ember 5, 1996, Fla. DOAH July 23, 1996), citing Ridgewood Properties v. Dep ' t ofCmty. Affairs, 562 So . 2d 322, 323 (Fla. 1990); Cordes v. D ep ' t of Envtl. Regulation, 582 So. 2 d 652, 655 (Fla. pt DCA 1991); Tamaron Utilities, Inc . v. Dep 't ofEnvtl. Prot., 16 F.A.L.R. 31 1 2,3124 n. 3 (Fla. DE P 1994). Accordingly, argume n ts of counsel in a formal proceeding, w h en not later endorsed by th e agency head in a final order, are of no va lu e in p roviding agency practice or previou s interpretations of rules or statutes. Thus, arguments made in the Mosher case hold no value in DEP's interpretation of Chapter 377, F lorida Statutes. In s tead , I conclude that the overall purpose of Section 3 77.24 1 , F l orida Statutes, is to identify seve r a l factors for DEP to weigh and balance w h en evaluating whet he r to i ss u e an oi l or gas permit. Coastal Petroleum Co. v. Florida Wildlife Fed ' n, In c. 766, So. 2d 226, 228 (Fla. 1st DCA 1999) (Appellate court agreed that D EP is to weigh and balance the cr i teria in Sect i on 377.421 to d e t ermine whether to issue an oi l drilling pennit). The int erpretat i o n of Section 377.241 in this Final Order is more rea so nable than that of the ALJ in RO paragraphs 99, 100, and 10 3. See§ 120.57(1)(1), Fla . Stat. (2017). Thus , DEP 's exceptions No.4, 5 , and 6 t o c on cl u sions of l aw in paragraphs 99 , 100, and 103 of the RO are granted. The ALl's co n c lu s ions are accord i ngly modified in this Final Order. S ee § 3 77.2 4 1 (2), Fla. Stat. (20 17) . DEP 's exception No. 7 take s exception to conc l usion of l aw in paragraph 109 of the RO . D EP argues that the ALJ 's conclusion of law in paragraph 1 09 is inco nsistent with existing administrative and judicia l interpretation. The ALJ conclu d ed that the " property upon which the Well Site i s t o be loc ated h as no special characteristics that would make it susce ptible to pollution" and that "t h e area i s far less l ikely to impact natural resources t han ot h er D epartment­ permitted we ll s." (RO 1 09). DEP administers and enforces the provisions of both c h apter 373 and chap ter 377, Florida Statutes, and the rule s promulgated thereunde r , i ncl udi ng those applicable to oil and gas permitting . ( RO 2 on page 8); see also § 1 20.57(1 )( 1 ), Fla. Stat. (2017) (agency can reject or modify a judge's conclusions of la w and in terpre tation s of a dmini strative rules " over which it has subs tantive jurisdiction."): MacPherson v. Sch. Bd . of Monroe County, 505 So. 2d 682, 683 (Fla. 3d D C A 1987); Sie ss v . Dep ' t of H e alth & Rehab. S e rv s ., 468 So. 2d 4 78 , 4 78 (Fla. 2d DCA 19 8 5) ; All es v . De p ' t of Prof ' l R eg ulation , 423 So. 2d 6 2 4 , 626 (Fla. 5th DCA 1982). I conclude that the overall purpose of Section 3 77.24 I (I) of the Florida Statutes is to weigh and balance the " nature, character and location ofthe lands involved " when evaluating whether to issue an oil or gas permit. Coastal Petroleum, Final Order at 6 , citing § 377.241, Fla. Stat. (2017) ( " The first crit e rion to be considered by the Department is the 'nature , character, and location of the lands involved. '" ). The lands proposed for the Well Site are located in the endangered Everglades ecosystem, which is world renowned for its unique environmental characteristics. In accordance with the Everglades Forever Act, the Florida Legislature has dedicated the Everglades to l ong term restoration. See§ 373 .4 592, Fla. Stat. (2017) (Section 373.4592(17) , Florida Statutes , shall be known as the Everglades Forever Act). Thus , DEP ' s exception No.7 to conclusions oflaw in paragraph 109 of the RO is granted. The interpretation in this Final Order i s more reasonable than that of paragraph 109 in the ALJ ' s RO. See§ 120.57( 1 )(l), Fla. Stat. (2017). The ALJ"s conclusions are accordingly modified in this Final Order. DEP takes exception to conclus i on oflaw in paragraph 110 of the RO , conc luding that it should be rejected, because it is inconsistent with existing administrative and judicia l interpretation. As explained above, DEP administers and enforces the provisions of chapter 377, Florida Statutes , and the rules promulgated thereunder , including those appl i cable to oil and gas permitting. (RO 1\ on page 8) ; see also§ 120.57(1)(1) , Fla. Stat. (2017) (agency can reject or modify a judge's conclusions of law and interp r etations of admin i strative rules "over which it has substantive jurisdiction."); MacPherson, 505 So. 2d at 683 Siess, 468 So. 2d at 478; Alles , 423 So. 2d at 626. ln paragraph No . 110 , the AU concluded that the " greater weight ofthe evidence establishes that the potential for hannful discharges and the potential for harm to groundwater and the public water supply are insignificant " and that impos s ibility cannot be the permitting standard. (RO 1j 11 0). DEP argues that the degree of risk has no bearing on application of Section 377.241 (1 ); instead , the nature of the lands involved is what is at issue. In sup p ort of this position , DEP quoted the Florida Wildlif e Federation v. Coastal Petrol e um Co. Final Order: Apparently the ALJ reaches her conclusion that Coa s tal ' s permit ' meets ' the first criterion on the basis that the chance of an oil spill is remote. (Finding of Fact 38). However, Petitioners correctly point out that the relevant criterion is not the chance of a blowout , but the nature ofthe l ands involved." Fla . Wildlife Fed ' n , Inc . v . Coastal Petroleum Co. , Case Nos. 96-4222 and 96-5038 , 1998 WL 30004 7 at * 5 (Fla. DOAH April 8, I 998; Fla . DEP May 22, 1998) (Coastal Petroleum Final Order). I agree with the ALJ ' s conclusion that " impossibility of risk " from an oil and gas exploratory drilling operation is not the permitting standard. (RO 1111 0). However, I also agree with DEP ' s conclusion that it is not the degree of risk that has bearing on application of Section 377.241 (I). I nstead, Section 377.241 (1 ) , Florida Statutes , directs the Department t o consider the " nature , character, and location of the lands involved." § 377.241 (1 ), Fla. Stat. (2017). The ALJ's conclusions of law in paragraph 110 are inconsistent with existing administrative , judicial and statutory interpretation. See Coastal P e trol e um Final Order , 1998 WL 300047 at *5. Therefore, DEP ' s exception No.8 to the conclusion of law in paragraph 110 of the RO is granted in part, and denied in part. The ALJ 's conclusion s are modified in thi s Final Order to weigh the "nature, character , and location of the lands involved'. in accordance with§ 377.241 , F l orida Statutes. The interpretation in this Final Order i s more reasonab l e than that of paragraph I 09 in the ALJ's RO. See§ 120.57(1 )(1) , Fla. Stat. (2017). The ALJ's conc lu s i ons are accordingly modified in this Final Order. DEP Exceptions No.9, 10 and 11 regarding Paragraphs 113 , 115, and 116 DEP takes exception to conclusions of law in paragraphs 1 1 3, 115, and 116 ofthe RO , w hi c h interpret Section 377.241, Florida Statutes, when DEP i s determining whether to i ssue an oil and gas permit. Spec ifi cally, Section 377.241(2) , Florida Statutes , directs DEP to consider the following fac t ors "(2) The nature , type and exten t of ownership of the applicant, in cluding s ch u matters as the length of time the applicant has owned the rights claimed without having performed any of the exploratory operations so granted or authorized."§ 377.24 1(2) , Fla. Stat. (2017). DEP administers and enforces the provisions of chapter 377 , Florida Statutes, and the rules promulgated thereunder, including those applicable to oi l and gas permitting. (RO 2 o n page 8); see also§ 12 0.57(1)(1), Fla. Stat. (2017) (agency can reject or modify a judge 's conclusions of law and interpretations of administrative rules "over which it has s ubstantive jurisdiction. " ); MacPh e rson, 505 So. 2d at 683 Siess, 468 So. 2d at 478; Alles, 423 So. 2d at 626. In paragraph 11 3 , the ALJ concludes that t he primary co n sidera ti on of Section 377.241(2) is the balance between the le gal interests of the fee simple owner versus the interests of the mineral rights owners, s tating tha t a balance is unnecessary, si n ce Kanter holds the surface interests and the mineral rights to the prop osed Well Site. (RO 113). DEP argues that Kanter has conveyed away virtually all rights to surface development through conveyance of th e flowage easement over the subject property . I reject the ALJ's interpretation of Section 377.241 (2) that the primary consideration of Section 377.241(2) is the balance between the legal interests of the fee simp le owner versus t h e interests of the mineral right owners and the ALJ's conclusion that a balance is unnecessary, since Kanter holds the surface interest and mineral rights to the proposed well site. I conclude that whether the permit applicant holds both the surface interest and the mineral rights to the proposed well sit e is but one factor to balance when determining whether to issue an oil and gas permit. Section 3 77.241 (2) also requires DEP to weigh the " l e ngth of time the applicant has owned the rights claimed without having performed any ... exploratory operations." § 377.241 (2), Fla. Stat. (2017). The interpretation of Section 377.241 in this Final Order is more reasonable than that of the ALJ. See § 120.57(1 )(1), Fla. Stat. (20 17). The ALJ's int erpretat ion of Section 377.42 1 , Florida Statutes, implies that the three criteria to be considered by DEP when determining whether to issue an oil and gas permit are a checklist. The three criteria do not constitute a pass-fail checklist for an applicant; rather , they are guidelines for balancing interests. Instead, Section 377.421, Florida Statutes, should be interpreted as calling for a weighing process where each criterion is evaluated and then weighed against the other factors. See Coastal Petroleum Final Order, 1 998 WL 300047 at *10 (DEP's Final Order concluded that the ALJ's "Conclusions of Law again misread the statutory criterion as a pass-fail test. ... The Department is charged instead with balancing interests .") The First District Court of Appeal approved thi s weighing and balancing process on appeal in Coastal Petroleum Co. v. Florida Wildlife Fed ' n, Inc. 766, So. 2d 226, 228 (Fla. l st DCA 1999). Furthermore, the canon of statutory construction known as the reenactment canon direct s an agency that when a court has interpreted part of a statute, subsequent reenactment of the same statutory provisions may be considered legislative approval of the previous judicial interpretation. Remington v. City of O ca la / United Self Insur ed, 940 So. 2d 1207, 1 210 (Fla. 1 s t D CA 2006); Sam's Club v. Bair , 678 So. 2d 902, 903-04 (Fla. 1st DCA 1 996). Following Coastal Petroleum, the legislature amended or " reenacted " Section 377.241, Florida Statutes, without changing the text of the three factors. Ch. 2013-205 , § 12 , at 11 , Laws of Florida. See also, e.g., Music City, Inc. v. Duncan 's Estate, 185 Colo. 245,248,523 P . 2d 983 , 985 ( 1 975) (" [W]here a legislature re-enacts or amends a statute and does not change a sect ion previously interpreted by settled judicial construction, it must be concluded that the legislature has agreed with the judicial construction."). Therefore, DEP 's exception No.9 to the conclusions of law in paragraph 11 3 of the RO is granted. The interpretation ofSection 377.241 in this Final Order is more reasonable than that of the ALJ. See§ 120.57(1)(1), F l a. Stat. (2017). The ALJ's conclusions are modified in this Final Order to reflect that DEP must consider the length of time the permit applicant has owned the rights claimed without having performed any exploratory operat ion s, evaluate each criterion listed in Section 377.421(1) (3), Florida Statutes, and then weigh and balance each of the three criteria against each other.§§ 377.241 (I) (3), Fla. Stat. (2017). DEP takes exception to conclusions of law in paragraphs 115, and 116 , which interpret Section 3 77.241, Florida Statutes. In paragraphs 115 and 1 1 6, the ALJ conc lude s that there is no factual or legal basis to give any weight to the fact that Kanter has owned its property, including the Well Site, si nce 1975. DEP argues that there is no dispute that Kanter owned the land but has not applied for a permit for at least 39 years. DEP also points out that in the Coastal Petroleum oil and gas permit application final order, the second factor weighed against the permit applica nt , because the applicant h ad delayed seeking an oil and gas permit for "many years." DEP argued that the Coastal Petrol e um final order analysis focused on the applicant's delay in exploring for petroleum , rather than the type of interest held by the appl i cant. I reject the ALJ ' s interpretation of Sectio n 3 77.241 (2), Florida Statutes, that no weight should be given to the fact that Kanter has owned its property, including the Well Site , since I975 without performing any exploratory operations. The correct interpretation of Sect io n 377.241(2) requires DEP to consider the length of time the permit applicant ha s owned the rights claimed without having perfonned any exploratory opera tion s. § 377 .24I (2), Fla. Stat. (2017). The interpretation of Section 3 77.241 in this Final Order i s more reasonable than that of the ALJ . See § I 20.57(1)(1) , F l a. Stat. (20I7). Therefore , DEP 's exceptions No.9 , 10, and II to the conclu s ions of l aw in paragraphs 113 , 1I5, and 116 of the RO are granted. The ALJ ' s conclusions are modified in this Final Order to reflect that DEP must weigh t h e length of time the perm it applicant has owned th e rights claimed without having performed any exploratory operations, eva lu ate each criterion listed in Section 377 . 24I , Florida Statutes , and then weigh and balance each of the three criteria agai n st each other.§ 377.241, Fla. Stat. (20I7). DEP Exception No. 12 regarding Paragraph 119 DEP takes exception to the ALJ ' s conclusions of la w in paragraph 119 that " Section 377.241 ( 3) requires con s idera tion of whe th er there is an ' indicated likelihood· of the presence of oil in commercially-profitable quantities. Subsection (3) does not require a guarantee. " (RO 119). DEP argues that paragraph 1 19 shou ld be r ejected in its entirety. The rulings in DEP Except ion s No. 1, 2 and 3 above are incorporated herein. Thus , D E P 's exception No. I2 to paragraph I 19 of the RO i s denied. DEP Exceptio n No. 13 regarding Paragraph 120 and the ALJ's recommendations DEP takes exception to the ALJ's conclusion in paragraph 120 and his recommendation , arguing that each of the factors weigh against the applicant obtaining a permit. Alternatively, DEP argues that if a contrary conclusion is reached, then DEP shou ld reweigh the factors in Section 377.241, Florida Statutes, and deny the application for Oil and Gas Permit No. OG 1366. The rul i ngs above in DEP Exceptions No. 1 through 12 are incorporated herein. Thus, DEP's exception to the ALJ's conclusion of law in pa r agraph 120 , and DEP's exception to the ALl's recommendation , are granted to the extent that DEP is directed to evaluate each of the three factors in Section 377.241 and then weigh each ofthe factors against the other factors. This interpretation of Section 3 77.241 in this Final Order is more reasonable than that of the AU. See § 120.57(1 )(1), Fla. Stat. (20 17). U pon re-weighing the three factors in Section 3 77.241, Florida Statutes, against each other, I conclude that the proposed oil and gas exploratory permit must be denied. R U LINGS ON BROW ARD COUNTY'S EXCE PTIONS Broward Co un ty Exception No .1 Broward County takes except i on to the ALJ's Conclusion of Law in paragraph 109 that "T h e property upon which the Well Site is to be located ha s no special characteristics that would make it suscept i ble to pollution." The deadline to file exceptions expired at 5:00p.m. on October 25, 2017. S ee Fla. Admin. CodeR. 28-106.217(1) (Exceptions and Re spo n ses) ('·Part ie s may file exceptions to findings of fact and conclusions oflaw contained in recomm ended orders with the agency responsible for rendering final agency action within 15 days of entry of the recommended o rder. ' ') and Fla. Admin. CodeR. 28-106.104(3) ("Any document recei ved by the office ofthe agency clerk before 5:00p . m. shall be filed as of that day but any document received after 5:00 p.m. sha ll be filed as of 8:00a.m. on the next regular bus i ness day: '). Broward County filed its excep tion s with DEP after 5:00p.m. on October 25 , 20 17 ; and thus , Broward County ' s exceptions were filed late. Because Broward Coun ty 's exceptions were filed late , B roward County 's Exception No. 1 is rejected. Broward County Except ion No. 2 Broward County takes exception to the l ast sentence of the conclusion of law in paragraph 120 , which states that '"balancing policy interests is the province of the [Department)' [Id. at 12] , the Department is nonetheless constrained by the evidence in this case, which establishes no reasonable basis in fact or law to deny the App li cation. " The dead li ne to file exceptions expired at 5:00p.m. on October 25, 2017. See Fla. Admin. CodeR. 28-106.217 (Exceptions and Response s) ("Parties may file exceptions to findings of fact and conclusions oflaw contained in recommended orders with the agency responsible fo r rendering final agency action within 15 days of entry of the recommended order.") and Fla. Admin. CodeR. 28-106.1 04(3) ("Any document received by the office of the agency clerk before 5:00 p.m. s hall be filed as of that day but any document r eceive d after 5:00 p.m. shall be filed as of 8:00a.m. on the next r egular business day."). Broward County filed its exceptions with DEP after 5:00p.m. on October 25, 2017; and thus, Broward County's exceptions were filed late . Because Broward County's exceptions were filed late, Broward County ' s Exception No. 2 is rejected. R ULINGS ON CITY OF MIRAMAR'S NOTICE OF JOINDER IN DEP ' S EXCE P TIONS The City of Miramar filed a Notice of J oinder in DEP 's Exce ption s with the Division of Administrative Hearings on October 27, 2017. Parties may file exceptions with the agency responsible for issuing the final order within I 5 days after entry ofDOAH ' s recommended order. The deadline to file except i ons with DEP expired at 5:00p.m. on October25, 2017. See Fla. Admin. CodeR. 28-106.2 1 7(1) (Exceptions and Responses) ("Part i es may file exceptions to findings of fact and conclusions oflaw contained in recommended o rder s with the agency responsible for rendering final agency action within 15 days of entry of the recommended order.") and Fla. Admin. Code R. 28 -1 06.1 04(3) ("Any document received by the office of the agency clerk before 5:00p.m. s hall be filed as of that day but any document received after 5:00p.m. shall be filed as of 8:00a.m. on the next regular business day.'} Not only did the City of Miramar untimely file its Notice of Joinder in DEP's Exceptions, but it filed its notice with the wrong e ntit y. The Notice of Joinder shou ld have been filed with DEP; however, the city incorrectly filed its notice with DOAH. Because the Ci t y of Miramar's Notice of Joinder in DEP' s Except ion s was filed lat e and incorrectly with DOAH instead of DEP, the City of Miramar's joinder in DEP's exceptions is rejected. CONCLUSION DEP must weigh and balance the three factors identified in Section 377.421, Florida Statutes, against each other to determine whether the proposed exploratory well drilling permit for oil should be issued . In accordance with Section 377.24 1 , Florida Statutes, the "lands involved" are located in the environmentally sensitive Everglades. (RO 19). In addition, the permit applicant has chosen not to exercise its mineral rights for a long time, which weighs against issuanc e of the permit. (RO 114). In weighing and balancing the three factors in Section 377.24 I (1) (3), DEP must consider the significance of the environmentally sensitive Everglades. The Florida Legislature emphasized the significance of the Everglades , when it stated in Section 373.4592) known as the Everglades Forever Act, that: (a) The Legis l ature finds th a t the Everg l ades ecological system not only contributes to South Florida)s water supply , flood control, and recreation, but serves as the habi t at for diverse species of wi ld life and plant life. The sys t em is unique in the world and one of Florida's great treasures. The Everglades eco l ogical system is endangered as a result of adverse changes in water quality, and in the quantity, distribution, and timing of flows, and, therefore, must be restored and protected. (e) It is the intent ofthe Le gislature to pursue comprehensive and innovative solutions to issues of water quality , water quantity, hydroperiod, and invasion of exotic species which face the Everglades ecosystem. The Legislature recognizes that the Everglades ecosystem must be restored both in terms of water quality and water quantity and must be preserved and protected i n a manner that is long term and comprehensive. The Legislature furthe r recognizes that the EAA and adjacent areas provide a base for an agricultural industry, which in tum provides important products, jobs, and income regionally and nationally. It is the intent of the Legislature to preserve natural values in the Everglades while also maintaining the quality of life for all residents of South Florida, including those in agriculture, and to minimize the impact on South Florida jobs, including agricu ltural , tourism, and natural resource-related jobs, all of which contribute to a robust regional economy. § 373.4592(1)(a) and (e), Fla. Stat. (2017). See also§ 373.4592( 1 7), Fla. Stat. (2017) (Section 373.4592 shall be known as the "Everglades Forever Act"). In the Coastal Petroleum Final Order, DEP concluded that the balancing test in Section 3 77.241, Florida Statutes, weighed against issuance of an oil and gas exploratory permit to the permit applicant, Coasta l Petroleum Company. DEP concluded as follows: Weighing evidence is the province of the trier of fact, but balancing policy interests is the province of the agency. Cross v. Dep 't of Health & Rehab. Servs., 658 So. 2d 1139, 1143 (Fla . 1st D CA 1 995) ("Striking the proper balance between . . . competing policy considerations" is a decision to be made by an agency, as guided by the l egis l ature); Florida Power Corp. v. Dep ' t of Envtl. Regulation, 638 So. 2d 545, 546 (Fla. 1st DCA), review denied, 650 So. 2d 149 (Fla. 1994) (affmning DER's determination "that the public interest in the extent of the impact on the environment ... was a policy matter for its detennination and not a question of fact to be resolved by the hearing officer."). In the present case, the balance tips against issuance of a permit to drill an exploratory well nine miles south of St. George I sland. Fla. Wildl(fe Fed ' n , Inc. v. Coastal Petroleum, Case Nos. 96-4222 and 96-5038, 1998 WL 300047 at *12 (Fla. DEP May 22, 1998). Similarly , in the pre sent case using the same criteria in Section 377.241, Florida Statutes, the balance tips against issuance of an oil and gas permit to drill an exploratory well in the environmentally sensitive Everglades. DEP ha s not issued an oil and gas exploration permit since 1967 within the Everglades lands subject to co n servation and restoration under§ 373.4592, Florida Statutes. Thus, the last oil and gas exploration permit within such lands was 50 years ago , 1 well before Section 3 73.4592, known as the Eve rglade s Forever Act, was enacted by the Florida Legis lature in 1991. See ch. 91-80, §§ 1, 2 (1991). The Florida Legislature has not amended it s position regarding the need to preserve and restore the Everglades since 1991, nor has D EP issued an oil and gas exploration permit within this boundary of the Everglades once such lands became subject to restoration under the Everglades Forever Act. See§ 373.4592, Florida Statutes. Having considered the applicable law in light of the ruling s on the above Exceptions, and being otherwise duly advised, it is ORDERED that: A. The Recommended Order (Exhibit A) is adopted , except as modified by the above rulings on Exceptions , and is incorporated by reference herein; B. ERP Permit No. 06 -0 336409-001 i s APPROVED; and DEP acknowledges t h at the RO does not identify when the last permit was issued in the Everglades. According l y , this specific information did not form the basis of the agency's decision, but merely reflects that DEP has not changed its long-standing policy to deny oil and gas permits within lands subject to Everglades restoration. C. Oil and Gas Drilling Permit No. OG 1366 i s DE N IED. JUDICIAL REVI E W Any party to this proceeding h as the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes , by the fil i ng of a Not i ce of Appeal pu r sua nt to Rul e 9. 1 1 0 , Florida Rule s of Appellate Procedure, with the clerk of the Department in the Office of General Counsel , 3900 Commonwealth Boulevard , M.S. 35 , Tallahassee , Florida 32399-3000; and by filing a copy of the Not i ce of Appeal accompanied by the applicab l e filing f ees with the appropriate D istrict Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. DONE AND ORDERE D this Q'1\\t- day ofNovember , 2017, in Tallahassee , F l orida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION / / z NOAH V ALENSTEIN Secretary Matjory Stoneman Doug l as Building 3900 Commonwealth B ou l evard Tallahassee , Florida 32399-3000 FILED ON THIS D ATE PURSUANT TO § 120.52 , FLORIDA STATUTES , WITH THE DESIGN ATED DEPARTMENT CLERK, RECEIPT OF WHI CH I S HEREBY ACKNOWLEDGED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the forego in g Final Order has been sent by electronic mail to: Douglas P. Manson , Esquire Adam Abraham Schwartzbaum , Esquire Brian Bolves , Esquire Weiss Serota He l fman Cole & Bi erman Christine Senne, Esquire 200 East Bro ward Boulevard , Suite 1900 Chris R. Tanner , Esquire Fort Lauder dale , Florida 33301 Paria Shirzadi, Esquire Aschwartzbaum@wsh-law .com Manson Bolves Donaldson V am , P .A. 1101 West Swann Avenue Michael Christopher Owens, Esqu ire Tampa, Florida 33606-2637 County Attorney's Office dmanson@mansonbol ves.com Government Center bbolves@rnansonbol ves.com 115 South Andrews Avenue , Suite 423 csenne@Ma n sonBol ves.com Fort Lauder dale , Florida 33301 ctanne r@man sonbo l ves.com mowens @ broward.org pheeter@MansonBolves.com Jeffrey Brown , Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399 3000 Jeffrey.brown@dep.state.tl.us and by electronic filing to: Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 v- this .2 .' 1 day ofNovember, 2017. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION sT ACEY n : WLEY Administrative Law Counsel 3900 Commonwealth Blvd ., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 17-000666

Orders for Case No: 17-000666