STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD M. WARD, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5661RX

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on November 6, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ross A. McVoy, Esquire

Fine Jacobson Schwartz Nash Block & England

315 S. Calhoun Street, Suite 348 Tallahassee, Florida 32301

For Respondent: Margaret S. Karniewicz, Esquire

Patricia D. Davenport, Esquire Assistant General Counsel Department of Natural Resources Douglas Building, Suite 1003 Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

This case concerns proposed amendments to Respondent's Rule 16N-22.009,

1. The issues for determination are, 1) whether Petitioner has standing to challenge the proposed amendments, and 2) whether the amendments are an invalid exercise of delegated legislative authority. More specifically, the following issues are raised by the pleadings and presentation of the parties:

   
   

   1. Whether the rule amendments exceed the agency's grant of authority by creating a "no entry" or "motorboat prohibited zone", and by extending that zone into the right of way of the Intracoastal Waterway Channel.

      
      

   2. Whether the agency materially failed to follow rulemaking procedures prescribed by Section 120.54, F.S., by substantially revising the proposed amendments after a challenge had been filed, and by preparing an inadequate economic impact statement; and

      
      

   3. Whether the amendments are arbitrary and capricious because they are unnecessary or unrelated to manatee protection.

      PRELIMINARY STATEMENT

      
      

      On September 22, 1989, the Department of Natural Resources, Division of Law Enforcement, published its notice of intent to amend Rule 16N-22.009, F.A.C., to provide a "motorboat prohibited zone" in a described area of the waters of Lake Worth in Palm Beach County.

      
      

      Gerald M. Ward filed a timely petition with the Division of Administrative Hearings on October 12, 1989. The petition was assigned to a hearing officer on October 19, 1989, and a hearing was set for November 6, 1989.

      
      

      Respondent filed a series of motions directed to the petition, and, after oral argument, in an order entered on November 1, 1989, the motion to strike was partially granted and the motion to dismiss was denied. Respondent's motion for a more definite statement was granted. An amended petition was filed on November 2, 1989.

      
      

      On November 3, 1989, the Marine Industries Association of Palm Beach County, Inc., filed its petition to intervene in the proceeding.

      
      

      Also on November 3, 1989, the Department of Natural Resources, Division of Law Enforcement, published its notice of changes to proposed amendments to various rules affecting manatee protection zones, including the subject amendments to Rule 16N-22.009, F.A.C. The pertinent notice of change deleted the word, "amended", from the title of the rule; provided a corrected legal description of the zone; and deleted the parenthetical, "see accompanying maps for exact locations", from the text of the amendment.

      
      

      The formal hearing commenced, as scheduled, on November 6th. Prior to the taking of testimony there was discussion and argument on the procedural posture of the case and on pending motions. The petition to intervene was granted over Respondent's objection. The parties agreed that the evidence would be presented on the version of the rule published on November 3, 1989, as the earlier version was abandoned.

      
      

      At the request of the parties, official recognition was taken of the following:

      
      

      1. Section 370.12, F.S.

2. Rules 16N-22.001 and .002 FAC

3. Chapter 13664, Laws of Florida, 1929 4. Rule 18-21.005, F.A.C.

5. Florida Administrative Weekly, Volume 15, No. 44, pp. 5141-5146, November 3, 1989.

Petitioner, Gerald M. Ward, testified in his own behalf, and was qualified as an expert in the design, establishment and operation of navigation channels and their boundaries. Petitioner's seven exhibits were received in evidence.

John Sprague, a member of the board of directors of the Marine Industries Association of Palm Beach County, Inc., testified on behalf of the Intervenor.

Respondent presented the testimony of Captain Alan Richard, qualified as an expert in navigational safety and small craft operations; Patrick M. Rose, qualified as an expert in marine biology, with emphasis on the manatee and its habitat; Karen Lewis, a department employee; and Douglas A. Thompson, qualified

as an expert in land surveying. Respondent's six exhibits were received in evidence.

By stipulation, Florida Inland Navigation District aerial photograph, map number PB 14, was received in evidence as Joint Exhibit #1.

Respondent's ore tenus motion to dismiss both Petitioner and Intervenor for lack of standing was taken under advisement for ruling in the final order. The motion as to Intervenor is moot; the motion as to Petitioner is granted for reasons described in the Conclusions of Law.

Petitioner's and Intervenor's motions to extend time to receive evidence and take testimony were granted for the limited purpose of allowing additional evidence related to the November 3, 1989, changes to the proposed amendments and to the economic impact statement, and evidence related to the standing of the Intervenor. The parties were directed to inform the hearing officer by November 13th as to whether they would avail themselves of the opportunity to present additional evidence on November 21, 1989, the date established for continuation of the hearing.

On November 13, 1989, Intervenor filed its notice of withdrawal of request for formal hearing. Petitioner informed the hearing officer that he would not require additional time to be heard on November 21st.

Respondent filed a motion to strike the notice of withdrawal. This motion is denied. Rule 221-6.036, F.A.C. provides that any party may withdraw its request for formal hearing by filing a notice of withdrawal. The rule does not limit when such notice must be filed. Although the hearing had been held, no decision was made at the time of withdrawal. The Intervenor was represented by the same counsel as Petitioner, but no proposed final order was submitted on behalf of that party. Abandonment of Intervenor's interest in affecting the outcome of this proceeding is unequivocal. The testimony presented on behalf of this party can be, and is, disregarded.

A transcript of the final hearing was filed on November 16, 1989. However, in error, all copies were delivered to the Division of Administrative Hearings, and the parties did not receive their copies until the error was discovered on November 21st. Consequently, the deadline for submittal of proposed orders was extended.

Specific rulings on the findings proposed by the Petitioner are found in the attached appendix. Respondent's proposed findings are substantially adopted herein.

FINDINGS OF FACT

1. Petitioner, Gerald M. Ward, is a registered engineer residing in Riviera Beach, Palm Beach County, Florida.

   
   

   He owns a 30-foot Columbia sailboat, with motor power. He uses the boat for recreational purposes exclusively. Since 1973, the boat has been berthed at Old Ship Marina, within the slow speed zone of the existing rule, but approximately one mile outside of the proposed motorboats prohibited zone.

   
   

2. Petitioner does not live on, nor own any real property abutting the proposed motorboat prohibited zone.

3. Since 1979, Rule 16N-22.009, F.A.C. has provided two speed zones for operation of motor boats between November 15 and March 31 in Palm Beach County: an idle speed zone in all waters within one-half mile of the discharge of the Florida Power and Light Riviera Beach Power Plant, including the Intracoastal Waterway; and a slow speed zone for all inland waters lying between one-half mile and one and one-half miles of the power plant discharge, including the Intracoastal Waterway. These zones are within Lake Worth, the body of water between West Palm Beach and Palm Beach and extending both north and south.

   
   

4. The changes proposed for Rule 16N-22.009, F.A.C., would create a third zone, "motorboats prohibited", in a much smaller area within the current idle speed zone, and in and immediately adjacent to the power plant discharge canal.

   
   

5. The full text of the Department of Natural Resources (DNR) proposed rule was published in the Florida Administrative Weekly, Volume 15, No. 38, September 22, 1989, as follows:

   
   

   16N-22.009 Palm Beach County Zones Amended.

   1. For the purpose of regulating the speed and operation of motorboat traffic between the dates of November 15 and March 31 of each year, the Palm Beach County zones are amended as follows:

      1. IDLE SPEED ZONE-All waters lying within one-half mile of the discharge of the Florida Power and Light Riviera Beach Power Plant

         including the Intracoastal Waterway, except those waters posted as a "Motorboats Prohibited Zone" as described in paragraph (c) below.

         (c) MOTORBOATS PROHIBITED ZONE - All waters lying within Lake Worth, commencing at a point

         exactly 300 feet north of the Riviera Beach Power Plant discharge canal and easterly to within 100 feet of the westernmost boundary of the Intracoastal Waterway, lying within Township 42 South and Range 43 East, running southerly to a point exactly 300 feet south of the abovementioned discharge canal and easterly to the westernmost boundary of the Intracoastal Waterway lying within Township 43 South and Range 43 East. The precise boundaries and effective period of the zone will be posted each year between November 15 and March

         31 (see accompanying map for exact locations). (Emphasis in original denotes new text).

         No map was published.

         
         

6. Sometime between September 22nd and October 16, 1989, DNR staff realized that the description of the proposed zone was defective. It failed to "close", and therefore did not adequately describe the area.

   
   

   At the public hearing on the proposed rule amendments, on October 16, 1989, Department staff person, Karen Lewis announced the need to make a technical change to the proposed amendments; she provided the attendees a copy of the revised description and a map depicting the zone.

   
   

   These changes were incorporated into the record of the rulemaking proceedings.

7. On November 3, 1989, the DNR, Division of Law Enforcement, published a "notice of change" in the Florida Administrative Weekly, Volume 15, No. 44. The notice affected several other rules establishing zones in other counties, and the following text was published for proposed Rule 16N-22.009, F.A.C.:

   
   

   * * *

   2. For proposed rule 16N-22.009, Palm Beach County Zones the word "amended" has been deleted from the title, and subsection (1)(c) has been corrected to read as follows:

   (c) MOTORBOATS PROHIBITED ZONE - All waters lying within Lake Worth, commencing at a point exactly

   300 feet north of the northeast corner of the Riviera Beach Power Plant discharge canal, thence easterly to a point 100 feet west of the western boundary of the Intracoastal Waterway channel, lying within Township 42 South and Range 43 East; thence running southerly parallel to and 100 feet west of the western boundary of the Intracoastal Waterway channel for a distance of 700 feet to a point within Township 43 South and Range 43 East; thence westerly to the shoreline to a point 300 feet south of the southeast corner of the discharge canal; thence northerly 300 feet to the southeast corner of the discharge canal; thence westerly 150 feet, northerly 100 feet, and easterly 150 feet to the northeast corner of the discharge canal (inclusive of the entire waterbody comprising the Riviera Beach Power Plant discharge canal); thence northerly 300 feet to the point of origin. The precise boundaries and effective period of the zone will be posted each year between November 15 and March 31.

   The words "(see accompanying map for exact locations)" have been removed from subsection (1)(c).

   * * *

   
   

   A map depicting the three zones in Lake Worth was published at page 5144 of the Nov. 3rd Florida Administrative Weekly.

   
   

8. The Intracoastal Waterway is a federal Corps of Engineers project extending the Atlantic coast length of Florida. In Palm Beach County the waterway consists of a main channel approximately 125 feet wide with 187.5 feet of right of way on each side. The waterway runs north and south in the waters of Lake Worth, hugging the mainland coast, east of Riviera Beach.

   
   

   The waterway is regulated by the Florida Inland Navigation District (FIND). An easement for maintenance of the project was granted by Chapter 13664, Laws of Florida (1929), and by a conveyance from the Trustees of the Internal Improvement Trust Fund to the United States, dated June 8, 1942.

   
   

9. Petitioner has suggested, but failed to prove, that FIND has withheld necessary permission for DNR to establish its zone within a portion of the right of way. Maintenance or repair of a property owner's facilities is exempt from the prohibition of the motorboat prohibited zone. Rule 16N-22.003(3), F.A.C.

   The Department has received no objection nor written comment from the U.S. Army Corps of Engineers and U.S. Coast Guard, and its comment from FIND was simply that the draft map was inconsistent with the text of the September 22, 1989 version of the proposed rule.

   
   

10. The Department has consistently intended that the zone extend into the right of way, but not into the waters of the Florida Intracoastal Waterway channel. The revised description of the boundaries of the zone, published on November 3rd, plainly effectuates that intent.

    
    

11. There are no marinas in the area of the proposed motorboat prohibited zone. There is an existing dock owned by the U.S. Coast Guard within the zone, but arrangements have been made with the Coast Guard regarding their non-use of the dock during the posted months.

    
    

12. The proposed zone is a very small area within an already limited speed zone. There is ample room for motorboats to navigate east of the zone, within the right of way, in the channel of the Intracoastal Waterway, and in the wide waters of Lake Worth lying east of the waterway. The proposed motorboat prohibited zone will not interfere with navigation or boats engaged in interstate commerce.

    
    

13. The zone will be marked by signs installed by the department during the relevant months. While the exact type of marker has not been established, they will be obvious to boaters and will be easily removed by department staff.

    
    

14. The increase in signs will not automatically increase boating accidents.

    
    

15. In the record there are two versions of an economic impact statement accompanying the proposed rule. They do not materially differ; the revised version simply provides an expanded narrative without altering the estimated costs or the underlying conclusions.

    
    

16. The Department estimates the cost of signs to be approximately $125.00 each, for four; and an additional $320.00 each for the pilings, for a total quantifiable cost of $1780.00. This is for signs to be attached to a piling structure. The department is currently investigating the possibility of using buoys which would be cheaper to install and remove.

    
    

    The $1780.00 is a one-time cost and the department anticipates that installation and removal each year will be routinely accomplished by existing field staff who are already working in that area.

    
    

17. The zone will be enforced by the Florida Marine Patrol who already enforces the existing zones. Any associated increase in law enforcement costs will be absorbed into the existing operating budget.

    
    

18. No small nor minority businesses are operating in the area within the proposed zone and no evidence was presented to disprove the department's estimate of no cost to those groups or to competition and open market for employment or to persons directly affected by the proposed action.

    
    

19. The stated purpose of the proposed rule is for ". . . regulating the speed and operation of motorboat traffic to needed protection for the Florida manatee." (Notice of proposed rulemaking published in the Florida Administrative Weekly, Volume 15, No. 38, September 22, 1989.)

20. The manatee is an endangered species, one of the original species identified in the Federal Endangered Species Act. Its estimated population is approximately 1,200 for the entire United States; many of whom are found in the waters of Florida.

    
    

21. In 1978, the Florida Legislature passed the Manatee Sanctuary Act declaring the state to be a refuge and sanctuary for manatees. The act has also been amended at least three times since 1978, giving the department additional authority to protect the species.

    
    

22. Motorboats kill, maim and disturb manatees. In the past five years there has been an 85 percent increase in the incidents of manatee deaths from collision with vessels. In 1988, 133 manatees were found dead in Florida; 43 were determined to have been killed by boats. In 1989, those figures had both been surpassed at the time of the hearing in this case.

    
    

23. Since 1978, there have been 12 boat-related manatee deaths in Palm Beach County, including two deaths in 1988. No deaths have been observed this year.

    
    

24. Manatees congregate in the winter months in the Florida Power and Light Riviera Beach power plant discharge canal and surrounding waters. The warm waters there are a refuge. Each year their numbers fluctuate according to the weather conditions. In warmer years fewer numbers are observed, and the totals range from a maximum one-day count of 60 in 1983-84, to 277 in 1987-88.

    
    

25. The proposed rule is reasonably expected to fulfill the purpose of protecting the manatee. Prohibiting motorboat traffic in the limited area immediately in and surrounding the discharge canal will not only prevent deaths and harassment in that area, but will also keep the motorboats from scattering the animals into the busier, highly trafficked area further east and in the channel of the Intracoastal Waterway.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.54, F.S. and 120.57, F.S.

    
    

    Standing

    
    

    Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Subsection 120.54(4)(a), F.S.

    
    

27. The test for standing in a Section 120.54(4), F.S., challenge to a proposed rule is whether the petitioner would be substantially affected by the proposed rule when it became effective. Department of Health and Rehabilitative Services v. Alice P., et. al., 367 So.2d 1045 (Fla. 1st DCA 1979). The threat of injury must be both real and immediate, and not conjectural or hypothetical. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985). Furthermore, it is the Petitioner who must be the injured party, "...for it is this requirement which gives a litigant a direct stake in the controversy and prevents the judicial power from becoming no more than a

    vehicle for the vindication of value interests of concerned bystanders." Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1234 (Fla. 1st DCA 1978), cert. den. 359 So.2d 1215 (Fla. 1978).

    
    

28. Petitioner does not live in an area abutting the proposed zone, nor does he keep his boat within that area. Moreover, he neglected to establish that he regularly brings his boat into that zone, although he has sailed in the general vicinity.

    
    

29. Petitioner has failed to prove his standing to challenge the proposed rule.

    
    

    Validity of the Proposed Rule

    
    

30. Assuming that he had met the threshold standing test, Petitioner still failed to meet his burden of proving the proposed rule is invalid. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. den. 376 So.2d 74 (Fla. 1979).

    
    

31. A rule is an "invalid exercise of delegated legislative authority",

    if:

    
    

    1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

    3. The rule enlarges, modifies or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

    4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    5. The rule is arbitrary or capricious.

       
       

       Section 120.52(8), F.S.

       
       

32. Failure to provide an adequate economic impact statement is also

    ground for holding a rule invalid. Section 120.54(2)(d), F.S.

    
    

33. The "Florida Manatee Sanctuary Act", Section 370.12(2), F.S. provides in pertinent part:

    
    

    * * *

    1. In order to protect manatees or sea cows from harmful collisions with motorboats, the Department of Natural Resources shall adopt rules under 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:

    * * *

    5. In Palm Beach County: the discharges of the Florida Power and Light Riviera Beach power plant and connecting waters within 1-1/2 miles thereof.

    * * *

    (j) It is the intent of the Legislature through adoption of this paragraph to allow the Department of Natural Resources 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 department to post and regulate boat speeds in the above-described inlets, bays, rivers, creeks, thereby unduly interfering with the rights of fishermen, 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.

    * * *

    
    

34. The department has interpreted its statutory mandate to include the authority to establish motorboat prohibited zones where manatee sightings are frequent. The term "motorboat prohibited zone" has been defined in Rule 16N- 22.002(6), F.A.C. since 1979. The department has adopted two other administrative rules, not at issue here, which create motorboat prohibited zones in two other counties.

    
    

35. The Florida Supreme Court described the standard for review in rule challenge cases in General Telephone Company of Florida v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984) as follows:

    
    

    We adopt as the proper standard of review one set forth by the First District Court of Appeal upon review of similar rulemaking:

    Where the empowering provision of a statute states simply that an agency may `make such rules and regulations as may be necessary to carry out the provisions of this act,' the validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary and capricious. Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978),

    cert. den. 376 So.2d 74 (Fla. 1979); Florida Beverage Corporation v. Wynne,

    306 So.2d 200 (Fla. 1st DCA 1975).

    
    

36. 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. [Emphasis in original] 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 rules must be upheld if it is reasonably related to the purposes of the legislation interpreted and is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978) [cert. den. 376 So.2d 74 (Fla. 1979)];

    Florida Beverage Corporation v. Wynne, 306 So.2d

    200 (Fla. 1st DCA 1975); Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; 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).

    
    

37. The department has been mandated to adopt rules which regulate the operation and the speed of motorboat traffic in the discharge waters of the Florida Power and Light Riviera Beach power plant and its surrounding waters. The proposed amendment which will establish a motorboat prohibited zone falls within the legislative delegation of powers to the Department.

    
    

38. The department's interpretation of Section 370.12(2), F.S., 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 v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). Petitioner has failed to show that the department's interpretation of Section 370.12(2)(f), F.S., 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 (Fla. 1st DCA 1989); Durrani, Supra.

    
    

39. The Petitioner has 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 will only be effective for the period from November 15th to March 31st, 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.

    
    

    The Economic Impact Statement

    
    

40. The Petitioner argues that the department did not adequately address the cost to the agency and the (cost to persons directly affected as required by Section 120.54(2)(b), F.S. More specifically, he claims that the department failed to consider the costs resulting from an increase in boat accidents which occur when the signs or buoys marking the zone are posted.

    
    

41. The evidence established that an increase in the number of signs or buoys will not necessarily result in an increased number of boating accidents and that any such increase in accidents would depend on a number of various factors. In this regard, it is noted that the economic impact statement did not quantify such costs but merely concluded that a reduction in injuries and/or damage to humans, manatees and boats is anticipated. Such costs are obviously speculative or incapable of precise estimation. Brewer Phosphates v. Department of Environmental Regulation, 444 So.2d 483, 487 (Fla. 1st DCA 1984).

    
    

42. The Petitioner also disputes the department's estimate of the cost of the signs to mark the proposed motorboat prohibited zone and the manner in which the signs will be posted. It is sufficient that the Department estimated the cost of the signs in the economic impact statement. The economic impact statement also provided that if a more cost efficient means could be found for posting the zone, that method would be utilized by the department. The amended economic impact statement issued by the department adequately addresses all areas required by statute even though the conclusions therein may be subject to debate. Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985), rev. den. 486 So.2d 596 (Fla. 1986).

    
    

43. Chapter 120, F.S., does not require the agency adopting a rule to specifically identify every possible detrimental effect of a proposed rule under every conceivable set of circumstances. State, Department of administration v. Herring, 530 So.2d 962, 967 (Fla. 1st DCA 1988). An agency rule or proposed rule will not be declared invalid merely because the economic impact statement may not be as complete as possible, and any deficiency in the statement must be so grave as to impair the fairness of the proceeding or the correctness of the action. Health Care and Retirement Corp. of America v. Department of Health and Rehabilitative Services, 463 So.2d 1175, 1178 (Fla. 1st DCA 1984). The Petitioner has failed to establish that the fairness of the proceeding or correctness of the proposed action was impaired by any of the alleged deficiencies in the economic impact statement.

    
    

44. Department's Authority to Change Proposed Rule 11. Section 120.54(4)(c), F.S., provides in part:

    
    

    No rule shall be filed for adoption until 28 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be. However, the agency may proceed with all other steps in the rulemaking

    process, including the holding of a fact finding hearing pursuant to subsection (3).

    Section 120.54(13)(b), F.S., provides in part: After the notice required in subsection (1) and prior to adoption, the agency may withdraw the rule in whole or in part or may make such changes in the rule as are supported by the record of public hearings held on the rule, technical changes which do not affect the substance of the rule, changes in response to written material relating to the rule received by the agency within

    21 days after the notice and made part of the record of the proceeding, or changes in response to a proposed objection by the committee . . . The agency shall give notice of its decision to withdraw or modify a rule in the first available issue of the publication in which the original

    notice of rulemaking was published . . . [emphasis supplied].

    
    

45. It is evident from both of the foregoing statutory provisions that an agency announcing a proposed rule may make changes to the rule when the change is provided for in Section 120.54(13)(b), F.S. This is so even if a substantially affected person has filed a rule challenge petition with the Division of Administrative Hearings. Nothing prohibits an agency from changing or withdrawing a proposed rule once a rule challenge petition is filed with the Division of Administrative Hearings. The only prohibition is that the agency cannot file the rule for adoption with the Secretary of State's Office. See, Adam Smith Enterprises, Inc. v. State, Department of Environmental Regulation, 14 FLW 2549, 2551 (Fla. 1st DCA November 10, 1989). Section 120.54(11)(b), F.S., provides that the filing of a petition will toll the 90-day period during which a rule must be filed for adoption until the hearing officer has filed his order with the clerk.

    
    

46. The change which the Department made to its description of the zone is a technical change, as well as a change which is supported by the record of public hearings held on the rule. The original description made no sense. The confused letter from FIND (Respondent's Exhibit #3, a part of the rulemaking record, underscores this conclusion.

    
    

47. It is unnecessary to determine in this proceeding whether the original notice was so defective that it should have been republished as a new proposal rather than a "change".

ORDER

Based on the foregoing, it is hereby ordered, that Gerald M. Ward's petition for determination of the invalidity of a proposed rule is DISMISSED.

DONE and ORDERED this 5th day of January, 1990, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990.

APPENDIX TO FINAL ORDER, CASE NO. 89-5661RX

Pursuant to Section 120.59(2), F.S., the following constitute specific rulings on the findings of fact proposed by Petitioner.

1. Adopted in substance in paragraph 1.

   
   

2. Adopted in part in paragraph 4. The "motorboats prohibited zone" is not substituted for what is now an idle speed zone, but will displace a small portion of that existing zone.

   
   

3. Adopted in substance in paragraph 19.

   
   

4. Rejected as uncorroborated hearsay and irrelevant.

   
   

5. Rejected as uncorroborated hearsay and irrelevant.

   
   

6. Rejected as unnecessary.

   
   

7. through 9. Rejected as irrelevant. The weight of evidence did establish a correlation between motorboat traffic and harm to manatees.

1. Adopted in part in paragraphs 5 and 7, although it is impossible to determine from its text what were the precise boundaries of the zone described in the rule notice of September 22, 1989.

   
   

2. Adopted in paragraph 8.

   
   

3. Rejected as contrary to the weight of evidence.

   
   

4. Adopted in substance in paragraph 9.

   
   

5. through 18. Rejected as unnecessary.

1. (1) Adopted in paragraphs 6 and 7.

   (2) - (3) Rejected as contrary to the weight of evidence.

   (4) Adopted in paragraph 15.

   
   

2. through 26. Rejected as unnecessary.

27. and 28. The removal of the signs is addressed in paragraph 16. The proposed finding regarding cost of the signs is rejected as contrary to the weight of evidence.

29. through 33. Rejected as irrelevant.

1. Rejected as contrary to the weight of evidence.

   
   

2. through 42. Rejected as unnecessary.

COPIES FURNISHED:

Ross A. McVoy, Esquire

315 S. Calhoun St., Suite 348 Tallahassee, FL 32301

Margaret S. Karniewicz, Esquire Patricia E. Davenport, Esquire Department of Natural Resources Douglas Building, Suite 1003 Tallahassee, FL 32399-3000

Tom Gardner, Executive Director Dept. of Natural Resources

3900 Commonwealth Blvd.

Tallahassee, FL 32399-3000

Ken Plante, General Counsel Dept. of Natural Resources 3900 Commonwealth Blvd.

Tallahassee, FL 32399-3000

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, FL 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND 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.

Docket for Case No: 89-005661RX

Orders for Case No: 89-005661RX