STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

LAKE POWELL IMPROVEMENT CORP., ) CAMP HELEN CO., INC. and )

GEORGE W. JETER, )

)

Petitioners, )

)

vs. ) CASE NO. 91-2422RP

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

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 May 20, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Richard Brightman, Esquire

Hopping, Boyd, Green & Sams

123 South Calhoun Street Tallahassee, Florida 32301

For Respondent: Betsy Hewitt, Esquire

Cynthia Christen, Esquire Department of Environmental

Regulation

2600 Blairstone Road, Ste. 654

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

Petitioners have challenged proposed rule 17-302.700(9)(i), F.A.C. which designates Lake Powell as an Outstanding Florida Water - Special Water. The issue is whether the proposed rule is an invalid exercise of delegated legislative authority. More specifically, Petitioners claim that the agency has exceeded its statutory authority, has failed to establish a factual predicate for the designation and has prepared an inadequate economic impact statement.

PRELIMINARY STATEMENT

On March 29, 1991, the proposed rule was noticed in the Florida Administrative Weekly, and was unanimously adopted by the Environmental Regulation Commission on May 9, 1991. Petitioners, Lake Powell Improvement Corp., Camp Helen Co., Avondale Mills, Inc., and George W. Jeter, filed a timely petition for determination of the invalidity of proposed rule on April 19, 1991.

On May 10, 1991, Avondale Mills, Inc., filed a withdrawal of its petition.

As required by prehearing order, the parties filed a joint prehearing stipulation on May 17, 1991.

At the commencement of the hearing, argument was heard on Respondent's motion in limine to exclude evidence regarding the Bay County Comprehensive Plan. The motion was denied, and the evidence was admitted and considered; as more fully explained below, its consideration does not alter the disposition of this case.

At the hearing, Petitioners presented the testimony of Craig Crockard; Tom Swihart; Kifayat Ullah; Frasier Bingham, Ph.D., accepted as an expert in marine ecology; and Terry Jernigan, accepted as an expert in planning. The Respondent presented testimony of Michael Brim, accepted as an expert in marine ecology; Maria Abadal, accepted as an expert in planning; Deborah Tobiason; John Taylor, Ph.D., accepted as an expert in coastal ecology; Edwin James Kepner, Ph.D., accepted as an expert in marine ecology; and Tom Swihart, recalled to testify as an expert in Outstanding Florida Waters designation and rules.

The following exhibits were received without objection: Joint Exhibit #1, the staff report to the ERC; Joint Exhibit #2, the revised economic impact statement; Petitioner's Exhibit #1, a booklet of information in opposition to the designation; and Respondent's Exhibit #1, a letter from the Department of Community Affairs.

The transcript of hearing was prepared and the parties submitted Proposed Final Orders on June 25, 1991. Those proposed orders have been considered and specific rulings on the proposed findings of fact are included in the attached Appendix.

FINDINGS OF FACT

1. Lake Powell Improvement Corporation is a consortium of interested owners of land comprising the majority of the Lake Powell shoreline. Camp Helen Company, one of its members, owns lake property which was formerly operated as a recreational facility for associates of Avondale Mills. Camp Helen Company now holds the property for the possibility of future development.

   
   

   George Jeter is one of approximately 76 persons who sent a form letter to the Department of Environmental Regulation (DER) in opposition to the designation of Lake Powell/Phillips Inlet as an Outstanding Florida Water (OFW).

   
   

2. The rule-making proceeding to designate Lake Powell/Phillips Inlet an OFW was initiated with a petition filed on June 11, 1987, by the St. Andrews Bay Resource Management Association, a private citizens' organization formed in 1986 to help protect wildlife and resources in the St. Andrews Bay area.

   
   

   A public workshop was conducted by DER on September 6, 1990, in Panama City, Florida. Approximately 70 persons attended the workshop, including Bay County residents, Walton County residents, Lake Powell area property owners and representatives from various organizations. Craig Crockard, Vice President of Lake Powell Improvement Corporation, opposed the designation based on alleged degradation of property values and tax base, negative impact on growth and increase in road maintenance costs.

3. Agency staff encouraged workshop participants and members of the public to submit information, including economic information, that would aid in the decision-making process. Only general and speculative information was received, with the exception of a response from the Department of Transportation that costs of future construction and expansion of the Phillips Inlet bridge, part of four-laning Highway 98, would be increased by $1.5 million as a result of the OFW regulations.

   
   

4. DER sent a letter to Craig Crockard, received on April 2, 1991, requesting specifics as to the property owners' development plans and estimated economic impacts by April 5th. Crockard responded that the deadline was too short and that it was obvious that the decision had already been made. At no time, up to and including the hearing before the Environmental Regulation Commission (ERC), did Petitioners or other opponents provide information as to specific economic impacts of the proposed designation.

   
   

5. The proposed rule would add the following area to rule 17- 302.700(9)(i), F.A.C. specifying special waters under the OFW designation:

   
   

   1. Special Waters

      * * *

      Lake Powell, Phillips Inlet, and all tributaries to Lake Powell as bounded by the following described line: Begin at the Northwest corner of Section 26, Township 2 South, Range 18 West; thence East to the Northwest corner of Section 29, Township 2 South, Range 17 West; thence South to the Northwest corner of the SW 1/4 of Section 29, Township 2 South, Range 17 West; thence East to the West line of Section 27, Township 2 South, Range 17 West, thence South to the mean high water line of the Gulf of Mexico; thence meander Northwest along the mean high water line to the West line of Section 35, Township 2 South, Range 18 West; thence North to the point of beginning ( - - 91).

      * * *

      
      

      In making its determination to recommend OFW designation for Lake Powell to the ERC, the Department compared Lake Powell to other water bodies. Lake Powell was found to be exceptionally ecologically and recreationally significant in terms of size, water quality and recreational usage. The Department makes its determination as to whether the proposed water body is exceptional by making direct comparisons to features of other water bodies, and by relying on the professional judgements of others familiar with the particular class of water bodies. Lake Powell has been compared by professionals familiar with other water bodies in the area and in their opinion it has exceptional value as an ecosystem. The Department relied on professional judgement of this type as well as its own findings when making the determination that Lake Powell was exceptional.

      
      

6. Lake Powell is located in Bay and Walton Counties in Northwest Florida adjacent to the Gulf of Mexico. Its total surface area of 737 acres makes it the largest by far of any of a series of similar lakes in the area.

   Seven small streams provide fresh water to the lake; periodically Phillips Inlet, connecting the lake to the Gulf of Mexico, opens or closes. When the inlet is open, the lake becomes estuarine in nature.

   
   

7. Most of the shoreline of Lake Powell is still undeveloped and the lake is significant in that it has experienced only minimal adverse impact from human activity. There are no permitted point source discharges to Lake Powell. It is basin-shaped, with a shallow shell, steep sandy slopes, and a flat bottom ranging from approximately 10 to 20 feet deep.

   
   

   Silty, high organic sediments in the water are amenable to degradation and are uniquely sensitive to pollution. Restricted flushing and the opportunity for development growth in the area add to that sensitivity.

   
   

8. Lake Powell is a Class III waterbody. Water quality in the lake is good, and meets Class III standards; some parameters are as good as Class II standards. The low dissolved oxygen level in the lake is a result of natural conditions, is not a result of pollution, and is therefore not a violation of the Class III standard for dissolved oxygen. Lake Powell is one of the lakes in the state that is part of the water quality sampling effort known as Lake Watch. A benefit of OFW designation to this effort will be that Lake Powell, absent degradation, can serve as a control lake to compare other Lake Watch lakes throughout the State.

   
   

9. At least 170 species of birds, (trust resources of the US Fish and Wildlife Service), have been observed and are dependent on Lake Powell. Unusual species include the piping plover (federally and state designated threatened), snowy plover (state designated threatened), least tern (state designated threatened), and bald eagle (federally designated endangered and state designated threatened). These species have a direct dependence on Lake Powell for habitat, feeding, or nesting areas. They are dependent on non-trust species such as small fishes which could be impacted by chemicals introduced to the lake.

   
   

10. Edwin James Kepner, a biologist for the National Marine Fisheries Service, has identified three new species of nematodes which so far have been uniquely found in Lake Powell. Although nematode species are among the most abundant on earth (97,000 individuals may be found in a single rotting apple), they are a highly significant part of an ecological system and must be understood and studied for any understanding of marine communities.

    
    

11. The lake supports a diversity of animals. At least 87 species of macrobenthic invertebrates and 67 species of fin fish inhabit the lake, a diversity based on the system's intermittent connection to the Gulf and the lake's relatively pristine condition compared to other lakes. One would expect to find even more diversity, 3 to 4 times more species, if better and more accurate sampling methods were employed.

    
    

    Lake Powell presents a unique nursery area, since most large predator fishes do not have access to it.

    
    

12. The lake presently supports a variety of recreational activities, including canoeing, sailing, windsurfing, water-skiing, fishing, crabbing and picnicking. This recreational use has increased during the last five years.

    
    

    Lake Powell is ranked 36th out of 361 lakes statewide in a 1982 study of recreational usage.

13. In terms of potential to the public for recreational usage, Lake Powell has three public access points to the lake, and a possible fourth. Public access is gained by a Bay County public park and by way of Gulf View

    Drive, which is owned by Bay County and used to launch boats. There is a public dock in Walton County which is also used extensively. The fourth access is currently the subject of an inquiry by the Bay County Audubon Society.

    
    

    The unusual quality of recreational experience lies in the pristine nature of the lake and the fact that it is located not far from the Miracle Strip in Panama City Beach. The ERC Commissioners, who were taken on a tour of the lake, were able to contrast the two areas and found that Lake Powell had unusual recreational value.

    
    

14. Lake Powell provides an exceptional educational opportunity, and with its many different types of habitat it is a compact, manageable educational laboratory. As compared to the St. Andrews Bay System it would be much easier to collect samples, obtain information on biotic communities and generally conduct research on the effectiveness of regulatory programs, due to the manageable size of the lake.

    
    

15. The proposed amendment to Rule 17-302.700(9)(i), F.A.C., to designate Lake Powell as an OFW would potentially affect future Department permit applicants by requiring they provide the Department with reasonable assurances that the proposed project is clearly in the public interest and that the proposed project would not lower existing ambient water quality standards (Rule 17-4.242, F.A.C.); by requiring that direct stormwater discharges into the lake include an additional 50% treatment level (Rule 17-25.025(9), F.A.C.); and by reducing the exemption for private residential docks from 1000 square feet to

    500 square feet (Rule 17-4.04(9)(c), F.A.C.). These requirements will result in increased costs to permit applicants, although the costs cannot be calculated at this time since there are no such projects firmly proposed to the Department. The primary beneficial effect of the proposed rule would be the protection of future water quality based on existing ambient water quality standards at time of OFW designation.

    
    

16. Pursuant to Section 120.54(2), F.S., an Economic Impact Statement (EIS) was prepared by the Department. Section 120.54(2)(b), F.S., requires the statement to include:

    
    

    * * *

    1. An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork;

    2. An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;

    3. An estimate of the impact of the proposed action on competition and the open market for employment, if applicable;

    4. A detailed statement of the data and method used in making each of the above estimates; and

    5. An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985.

    Additionally, Rule 17-302.700(4)(e) provides:

    
    

    An economic impact analysis consistent with Chapter 120, shall be prepared which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial,

    agricultural, or other development or expansion.

    
    

17. It is undisputed that the EIS properly addressed the costs of implementation to the Department.

    
    

18. The EIS identified the kind of Department permit applicant that would potentially be affected by the rule amendment, and what kinds of developmental impacts could be expected by operation of other Department rules. The EIS did not identify any specific costs that would be attributable to the rule, as the Department was unaware of any specific development plans for the lake that would be subject to the Department rules. Existing development activities are grandfathered and would not be affected by the more stringent requirements. The Department stated in its EIS that the overall costs imposed on future development due to the proposed OFW designation would depend on both the nature of the development and its impact on the ambient water quality of the lake. Since the type and nature of future development in the area is uncertain, an estimate of the potential aggregate costs associated with the proposed OFW designation could not be made at the time the EIS was prepared. The EIS properly addressed the costs of the proposed rule to the parties, based upon the facts as known to the Department.

    
    

19. The benefits to the public of the rule were stated to be largely environmental, as a result of protection of future ambient water quality standards in the lake. The EIS cited an economic benefit to land owners around the lake in the form of enhanced property values due to water quality protections of the OFW designation, water quality being an important variable in determining property values of waterfront property. That property values would be enhanced is based on the DER economist's study of another state's experience and experience with OFW designation in other Florida counties. The EIS properly addresses the benefits of the rule.

    
    

20. The EIS states that there will be no significant effect on competition as a result of the proposed OFW designation; Petitioners have not presented any evidence to the contrary. The EIS adequately addresses the rule's effect on competition.

    
    

21. The EIS states that the proposed OFW designation is not expected to create any significant adverse disproportionate impacts on small businesses, as required by Section 120.54(2)(b)5., F.S. As Petitioners have not introduced any evidence to the contrary, the EIS adequately addresses this issue.

    
    

22. The EIS states that appropriate economic analysis techniques were employed preparing the EIS. Petitioners participated in the rulemaking process; they attended the Panama City workshop when economic information was solicited; they submitted written comments, none of which provided specific economic information; and they participated in the ERC hearing but offered no evidence to the Commission regarding economic impacts of the rule. The type of information they suggest that the Department should consider was not submitted by them, or anyone else, during the rulemaking process or this hearing. The evidence shows that the Department considered all comments submitted throughout the rulemaking

    process in making the recommendation of OFW designation to the ERC. The EIS properly explains the data and methodology used in its preparation, and this data and methodology was adequate to estimate the economic impacts of the rule.

    
    

23. In January 1991, the Bay County Board of County Commissioners amended the County's comprehensive plan to provide special protection for Lake Powell. These provisions include more stringent requirements for stormwater retention and detention, an objective to maintain Lake Powell's water quality at its present level, restriction on use of household septic tanks, designation of a low-density residential zone, and prohibition of point source discharges which would lower existing water quality. (Joint Exhibit #1, Appendix D)

    
    

    Both parties have invoked the plan amendments for their own purpose.

    
    

24. Petitioners argue that the plan amendments provide the same or greater protection than the proposed OFW designation and that the designation is not needed.

    
    

    This argument ignores the fact that at least 10% of the lake lies within Walton County, outside Bay County's jurisdiction.

    
    

    DER did not require Bay County to amend its plan and could not require it to maintain the new Lake Powell protections indefinitely. The OFW designation does not detract from or conflict with the local government's commendable initiative, but rather augments it.

    
    

25. Respondent, DER, addresses the plan in its modified EIS where it discusses the contention by the Department of Transportation (DOT) that OFW designation will add $1.5 million in costs to widen a road at the Phillips Inlet bridge. DER's economist concedes that designation will result in additional costs and has discussed that in the EIS. Because he has not received back-up data from DOT he is unable to confirm that the cost will be as much as DOT asserts. He also attributes the increase to the new stormwater requirements of the Bay County comprehensive plan, and concludes the additional costs due to OFW designation might be zero. (Joint Exhibit #2, p. 7)

    
    

26. Even if misplaced, the attribution of costs does not invalidate the EIS or the proposed designation.

    
    

    The EIS generally describes potential costs and provides a basis to weigh the environmental, social and economic costs against the environmental, social and economic benefits.

    
    

27. In summary, the facts above support the ERC's finding that the waters selected for designation are of exceptional recreational or ecological significance and the benefits of designation outweigh its costs.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.54(4), F.S. and 120.57(1), F.S.

    
    

29. Section 120.54(4)(a), F.S. provides:

    
    

    Any substantially affected person may seek an administrative determination of the validity of any proposed rule on the ground

    that the proposed rule is an invalid exercise of delegated legislative authority.

    
    

30. A proposed 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.

    
    

31. Respondent has stipulated to the standing of Petitioner, Camp Helen Co.. As an association comprised of owners of a majority of the Lake Powell shoreline, Lake Powell Improvement Corporation also has standing as a person substantially affected by the proposed rule. Florida Home Builders Association

    v. Department of Labor and Employment Security, 412 So.2d 353 (Fla. 1982)

    
    

    George Jeter's name appears in an exhibit received in evidence, a form petition in opposition to the designation, but no competent evidence was presented by or about him to establish his standing to pursue this action.

    
    

32. The Department of Environmental Regulation, through the Environmental Regulation Commission, has the authority to establish by rule a special category of water bodies, to be referred to as "Outstanding Florida Waters", which water bodies are worthy of special protection because of their natural attributes. Section 403.061(27)(a), F.S. and Section 403.804(1), F.S.

33. Rule 17-302.700(1), F.A.C. provides:

It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 17-4.242(1) and (2), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering.

Outstanding Florida Waters, including "special waters", are listed in Rule 17-302.700(9), F.A.C. The rule in question in this proceeding proposes to add Lake Powell/Phillips Inlet to that list.

1. The ERC may designate a water of the state as a "special water" after making a finding that the waters are of exceptional recreational or ecological

   significance and a finding that the environmental, social and economic benefits of the designation outweigh the environmental, social and economic costs. Rule 17-302.700(5), F.A.C.

   
   

   "Exceptional Ecological Significance" is defined in Rule 17-302.200(9), F.A.C.:

   
   

   (9) "Exceptional Ecological Significance" shall mean that a water body is a part of an ecosystem of unusual value. The exceptional significance may be in unusual species, productivity, diversity, ecological relationships, ambient water quality, scientific or educational interest, or in other aspects of the ecosystem's setting or processes.

   
   

   "Exceptional Recreational Significance" is defined in Rule 17-302.200(10), F.A.C., as:

   
   

   ...unusual value as a resource for outdoor recreation activities; Outdoor recreation activities include, but are not limited to, fishing, boating, canoeing, water skiing, swimming, scuba diving, or nature observation. The exceptional significance may be in the intensity of present recreational usage, in

   an unusual quality of recreational experience, or in the potential for unusual future recreational use or experience.

   
   

2. The validity of rules promulgated by an agency will be sustained so long as they are reasonably related to the purpose of the enabling legislation, and are not arbitrary or capricious. Agrico Chemical Co. v. State, Florida Department of Environmental Regulation, 365 So.2d 759, (Fla. 1st DCA 1979). The burden is on the Petitioner to prove by a preponderance of the evidence that the proposed rule is arbitrary or capricious, or an abuse of administrative discretion. Id. at 763. Agency determinations with regard to a statute's interpretation and applicability are entitled to great deference in the absence of clear error or conflict with legislative intent, and are entitled to increased weight when infused by policy considerations for which the agency has special responsibility. Little Munyon Island, Inc. v. Department of Environmental Regulation, 492 So.2d 735, 737 (Fla. 1st DCA 1983); Santaniello v. Department of Professional Regulation, 432 So.2d 84, 85 (Fla. 1st DCA 1983).

   
   

3. Petitioners failed to meet their burden of proof. The weight of evidence supports the staff recommendation and ERC determination that the above criteria for designation of Lake Powell/Phillips Inlet have been met.

   
   

   Reliance in part on the existence of upland species (birds) which are dependent on the lake is justified by that portion of the definition in Rule 17- 302.700(9), F.A.C., above, which considers the water body as part of an ecosystem of unusual value.

   
   

   Inclusion of protections of a waterbody in a local government comprehensive plan or regulations is not dispositive of whether the State OFW designation

   should be made. Nothing in the criteria cited above requires the consideration, per se, of other available protections.

   
   

   Both parties have misplaced reliance on the Bay County comprehensive plan. That is, Petitioners attribute any of the benefits of designation to the local plan and Respondent attributes costs of designation to the local plan.

   
   

   In fact, both the plan and proposed designation have costs and benefits.

   As stated above, the benefits of designation outweigh its costs.

   
   

4. Rule 17-302.700(4)(e), F.A.C., requires the preparation of an economic impact analysis, consistent with Chapter 120, "...which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial, agricultural, or other development or expansion."

The economic impact statement prepared by DER is a lengthy (fourteen page) document which complies paragraph by paragraph with the substantive requirements of Section 120.54(2)(b), F.S. As in Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984), rev. den. 450 So.2d 485, the department can hardly be faulted for failing to make estimates on the basis of unknown variables. That the costs are speculative due to lack of specific information on development plans does not invalidate the department's analysis or its proposed rule.

ORDER

Based on the foregoing, it is hereby, ORDERED:

The petition for determination of the invalidity of proposed rule is DISMISSED.

DONE AND ORDERED this 19th day of July, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1991.

APPENDIX TO FINAL ORDER

The following constitute rulings on the findings of fact proposed by the parties:

Petitioners' Proposed Findings of Fact

1.-3. Adopted in paragraph 6.

1. Adopted in paragraph 7.

   
   

2. Adopted in paragraph 1, except as to George Jeter.

   Only hearsay evidence was presented as to his standing.

   
   

3. Adopted in paragraph 2.

7.-9. Adopted in Preliminary Statement.

10.-13. [conclusions of law]

1. Rejected as contrary to the evidence. The EIS itself is an economic "study".

   
   

2. Rejected as contrary to the evidence.

   
   

3. Adopted in substance in paragraph 18.

   
   

4. Adopted in part in paragraph 15, otherwise addressed in paragraph 18.

   
   

5. Addressed in paragraph 26.

19.-23. [conclusions of law]

1. Adopted in paragraph 23.

   
   

2. Rejected as immaterial.

   
   

3. Addressed in paragraph 26, and conclusion of law, paragraph 9.

27.-28. [conclusions of law]

29. Adopted in substance in paragraph 9.

30.-34. [conclusions of law]

1. Adopted in part in paragraph 6, otherwise rejected as immaterial.

   
   

2. Adopted, or otherwise addressed in paragraph 8.

37.-40. Rejected as unnecessary. 41.-43. [conclusions of law]

44.-46. Rejected as immaterial or otherwise addressed in paragraph 13. The unique quality of Lake Powell in comparison to other similar lakes in the area is its size, its potential for degradation, its potential for recreational and educational use and its current pristine state.

47.-51. [conclusions of law]

Respondent's Proposed Findings of Fact

1. Adopted in Preliminary Statement.

2.-3. Adopted in paragraph 2.

4. Adopted in Preliminary Statement.

5.-6. Adopted in Conclusion of Law paragraph 4.

1. Rejected as contrary to the evidence (as to lack of standing), otherwise adopted in paragraph 1.

   
   

2. Adopted in paragraph 15.

   
   

3. Adopted in paragraph 16.

   
   

4. Adopted in paragraph 17.

   
   

5. Adopted in paragraph 18.

   
   

6. Adopted in paragraph 19.

   
   

7. Adopted in paragraph 20.

   
   

8. Adopted in paragraph 21.

15.-16. Adopted in paragraph 22.

17. Adopted in paragraph 27.

18.-21. Adopted in Conclusions of Law.

22. Rejected as unnecessary.

23.-25. Adopted in paragraph 6.

1. Adopted in paragraph 7.

   
   

2. Adopted in paragraph 8.

   
   

3. Adopted in paragraph 9.

   
   

4. Adopted in paragraph 10.

30.-31. Adopted in paragraph 11.

COPIES FURNISHED:

Richard S. Brightman, Esquire HOPPING, BOYD, GREEN & SAMS

123 South Calhoun Street Tallahassee, FL 32314

Betsy Hewitt, Esquire Cynthia Christen, Esquire DER

2600 Blair Stone Road, Ste. 654

Tallahassee, FL 32301

Daniel H. Thompson, General Counsel DER

2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400

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

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 RULE 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: 91-002422RP

Orders for Case No: 91-002422RP