STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISLAND MARINA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-5593RP

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent, )

and )

) FLORIDA WILDLIFE FEDERATION, ) INC., THE CONSERVANCY, INC., ) and BOARD OF TRUSTEES OF THE ) INTERNAL IMPROVEMENT TRUST ) FUND, )

)

Intervenors. )

)

FINAL ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Tallahassee, Florida, on January 11-12, 1995.

APPEARANCES

For Petitioner: Barry S. Richard

J. D. Boone Kuersteiner Reginald L. Bouthillier, Jr. Greenberg Traurig

Post Office Drawer 1838 Tallahassee, Florida 32302

For Respondent: Stacy D. Cowley

Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Intervenor David Gluckman Florida Wildlife Gluckman and Gluckman Federation: 541 Old Magnolia Road

Crawfordville, Florida 32327

For Intervenor Robert C. Downie, II The Conservancy, Mathews & Downie, P.A. Inc. Post Office Box 10036

Tallahassee, Florida 32302

For Intervenor Attorney Andrew J. Baumann

Board of Trustees Department of Environmental Protection of the Internal 3900 Commonwealth Boulevard Improvement Mail Station 35

Trust Fund: Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether proposed Rule 62- 302.700(9)(i)38, Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

Petitioner filed a Petition for Administrative Determination of the Invalidity of Proposed Rule 62-302.700(9)(i)38 Pursuant to Section 120.54(4), Florida Statutes. The petition is dated November 15, 1995. With leave to amend, Petitioner filed on December 6, 1995, Island Marina, Inc.'s Amended Petition for Administrative Determination of the Invalidity of Proposed Rule 62- 302.700(9)(i)38 Pursuant to Section 120.54(4), Florida Statutes.

The amended petition alleges that The Conservancy, Inc. filed a petition on December 16, 1992, requesting that Respondent initiate rulemaking procedures to amend Rule 62-302.700 to designate the Wiggins Pass/Cocohatchee River area as Outstanding Florida Waters.

The amended petition alleges that, on October 27, 1995, Respondent published notice of intent to submit the August 24, 1995, draft of the proposed rule for adoption by the Environmental Regulation Commission on November 30, 1995.

The amended petition alleges that Petitioner owns an 80- slip public commercial marina west of Vanderbilt Drive at the confluence of the Cocohatchee River with Horse Creek, within the area proposed for designation as Outstanding Florida Waters. The petition alleges that the Outstanding Florida Waters designation would adversely affect Petitioner's interests by making it more difficult and expensive to operate as a marina and obtain future permits.

Paragraph 14 of the amended petition alleges that Rule 62- 302.700(5) requires that, before making an Outstanding Florida Waters designation, the Environmental Regulation Commission find that the waters are of exceptional recreational or ecological significance and that the environmental, social, and economic benefits of the designation outweigh the environmental, social, and economic costs.

Paragraph 15 of the amended petition alleges that Rule 62- 302.200 defines "exceptional ecological significance" to mean that "a water body is a part of an ecosystem of unusual value."

Rule 62-302.200 adds that exceptional ecological 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."

Paragraph 16 of the amended petition alleges that Rule 62- 302.200 defines "exceptional ecological significance" to mean "unusual value as a resource for outdoor recreational activities." Rule 62-302.200 allegedly states that

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."

Paragraph 17 of the amended petition alleges that the proposed rule is an invalid exercise of delegated legislative authority for several reasons.

Paragraph 17(a) of the amended petition alleges that the waters within Island Marina proposed for designation do not meet the criteria of "exceptional recreational significance." The subparagraph alleges that Petitioner operates Island Marina as navigational and mooring waters and that the marina does not offer unusual value as a resource for outdoor recreational activities. Typical recreational uses like fishing, boating, canoeing, water skiing, swimming, scuba diving, and nature observancy are allegedly incompatible with the marina operation.

Paragraph 17(b) of the amended petition alleges that the waters within Island Marina proposed for designation do not meet the criteria of "exceptional recreational significance." The subparagraph alleges that Petitioner operates Island Marina as a mooring and storage facility and the waters of the marina are not of exceptional quality. The waters are allegedly not used by unusual species and are not critical habitat. The marina allegedly does not "exhibit high productivity, diversity, or ecological relationships" and "no scientific or educational interest occurs within the Island Marina."

Paragraph 17(c) of the amended petition alleges that the environmental, social, and economical benefits of designating the waters within Island Marina as Outstanding Florida Waters do not outweigh the environmental, social, and economic costs imposed on Petitioner and "other similarly situated persons." Petitioner voluntarily dismissed this allegation at the final hearing.

Petitioner voluntarily dismissed Subparagraphs 17(d), (e), and (f) of the amended petition by notice filed January 12, 1996.

Paragraph 17(g) of the amended petition alleges that, based on the preceding subparagraphs of Paragraph 17, the proposed rule is arbitrary and capricious, exceeds Respondent's rulemaking authority, and enlarges, modifies, and contravenes Section 403.061, Florida Statutes, and Rule 62-302.700(5), Florida Administrative Code.

Petitioner voluntarily dismissed paragraphs 18 and 19 of the amended petition by notice filed January 12, 1996.

Paragraph 20 of the amended petition alleges that the proposed rule is an invalid exercise of rulemaking authority because it is in violation of the equal protection clauses of the state and federal constitutions. The alleged reason is that, without articulating a rational or reasonable basis, the proposed rule excludes the area 50 feet north of Bluebill Avenue and 50 feet west of U.S. Route 41 without excluding the area within Island Marina.

Paragraph 21 of the amended petition alleges that the proposed rule violates the due process clauses of the state and federal constitutions because it is arbitrary and capricious in excluding and not excluding the areas described in paragraph 20.

Paragraph 22 of the amended petition alleges that the proposed rule is an invalid exercise of rulemaking authority because it violates the equal

protection clauses of the state and federal constitutions. Paragraph 22 alleges that the proposed rule excludes the waters immediately south of the designated area, but not the area of Island Marina.

Paragraph 23 of the amended petition alleges that the proposed rule violates the due process clauses of the state and federal constitutions for the reasons stated in paragraph 22.

Paragraph 24 of the amended petition alleges that the proposed rule is an invalid exercise of rulemaking authority because it violates the equal protection clauses of the state and federal constitutions. Paragraph 24 alleges that the proposed rule, without articulating a rational or reasonable basis, fails to exclude the area of Island Marina when similar areas were excluded from other waters designated as Outstanding Florida Waters.

Paragraph 25 of the amended petition alleges that the proposed rule violates the due process clauses of the state and federal constitutions for the reasons stated in paragraph 24.

Paragraph 26 of the amended petition alleges generally that the proposed rule is arbitrary and capricious and violates the due process clauses of the state and federal constitutions.

Paragraph 27 of the amended petition alleges a taking in violation of the takings clauses of the state and federal constitutions. Petition voluntarily dismissed this allegation at the final hearing.

Florida Wildlife Petition, Inc. filed on December 14, 1995, a Motion for Leave to Intervene as Respondent-Intervenor. The Conservancy, Inc. filed a Petition to Intervene on December 15, 1995. By Motion to Intervene of the Board of Trustees of the Internal Improvement Trust Fund filed January 4, 1996, the Board of Trustees requested leave to intervene. The requests to intervene were all in defense of the proposed rule. The hearing officer granted all requests to intervene.

At the final hearing, Petitioner dropped as a respondent the Environmental Regulation Commission. At the final hearing, an additional petitioner, Pelican Isle Yacht Club Partners, Ltd, which had commenced consolidated DOAH Case No.

95-5594RP, voluntarily dismissed its petition challenging the proposed rule.

On January 12, 1996, the parties filed a Stipulation Agreement, which amended the proposed rule so as to provide an exclusion from the designation to allow maintenance dredging of the East Channel.

On January 12, 1996, the parties filed a Revised Prehearing Stipulation. In its statement of position, Petitioner adds a new allegation: the proposed rule is an invalid exercise of rulemaking authority because the agencies

responsible for its promulgation failed to fulfill their obligation to engage in objective factfinding and consider all reasonable requests for review of affected areas, thereby effectively delegating their factfinding and decisionmaking authority to a private organization.

At the final hearing, Petitioner called four witnesses and offered into evidence 12 exhibits. Respondent called four witnesses and offered into evidence 17 exhibits. Intervenor The Conservancy, Inc. called one witness and offered into evidence one exhibit. Intervenors Florida Wildlife Federation,

Inc. and Board of Trustees of the Internal Improvement Trust Fund called no witnesses and offered into evidence no exhibits. All exhibits were admitted.

The transcript was filed on February 23, 1996. All parties timely filed proposed final orders. Rulings on proposed findings of fact are in the appendix.

On March 14, 1996, Respondent, The Conservancy, Inc., and Florida Wildlife Federation, Inc. filed a Motion to Strike portions of Petitioner's proposed final order. The motion asserts that certain proposed findings are unsupported by references to the record. However, the failure to cite to the record does not warrant striking the proposed findings in this case. More likely, movants intended merely to argue that certain proposed findings were not supported by the record. However, such a motion is inappropriate.

Movants also argue that certain proposed findings address the portion of the proposed designation outside of the "footprint" of Island Marina. Movants argue that counsel for Petitioner expressly disavowed any challenge to any portion of the designation outside of the "footprint" of Island Marina.

In the Response filed March 20, 1996, Petitioner acknowledges that it stipulated, for purposes of this case, that "it was not challenging the application of Rule 62- 302.700(9)(i)(38) . . . to the areas outside the Island Marina Footprint area." Petitioner argues that findings concerning conditions outside the "footprint" may be relevant to conditions prevailing inside the "footprint." The Response is correct on this point, and the motion is denied in its entirety.

In a footnote, Petitioner notes accurately that it "has never conceded that the Wiggins Pass area outside the Island Marina Footprint meets the OFW Rule Criteria. It simply elected not to raise the issue in this proceeding." Petitioner adds: "Further, the Hearing Officer has the authority to strike the entire Proposed Rule if any one of Island Marina's challenges are accepted and it is also determined that the Proposed Rule is non- severable. [Citations omitted]." The Hearing Officer agrees with this statement, and, notwithstanding any rulings or statements of the Hearing Officer to the contrary in the record, the Hearing Officer has prepared this final order with this understanding.

FINDINGS OF FACT

1. The Setting of the Proposed Wiggins Pass OFW

   
   

   1. The proposed Wiggins Pass--Cocohatchee River Outstanding Florida Waters (Wiggins Pass OFW) is described in proposed subsection 38 of Rule 62- 302.700(9)(i). The Wiggins Pass OFW comprises

      
      

      the estuarine and marine waters from the Lee/Collier County line southward through and including Water Turkey Bay to 50 feet

      north of S.R. 846 (Bluebird Ave.) 1995 right- of-way; the Cocohatchee River downstream

      from 50 feet west of U.S. 41 1995 right-of-way; and Wiggins Pass; but excluding maintenance dredging . . ..

      
      

   2. The proposed Wiggins Pass OFW runs four miles north and south. On the north, it is generally bordered by Bonita Beach Road on the Lee County line.

      The west border parallels the east shoreline of narrow beach peninsulas extending north and south of Wiggins Pass, which connects the Gulf of Mexico with interior waters to the east.

      
      

   3. The east border of the proposed Wiggins Pass OFW is the most variable. The northern two-thirds of the proposed OFW ranges between one-half to one mile wide. At Wiggins Pass, the proposed OFW widens to almost two miles, running upstream to 50 feet west of the U.S. Route 41 bridge.

      
      

   4. The south border of the proposed Wiggins Pass OFW narrows to a little less than one-third of a mile wide. The south border generally runs 50 feet north of Bluebill Avenue (State Road 846). But the south border loops to the north about one-third of a mile to carve out the northern tip of a canal leading to Vanderbilt Lagoon to the south. Presumably, the waters excluded by the loop are not estuarine or marine, or else the textual description of the proposed OFW would conflict with the depiction in Figure 1 in DEP's report to the Environmental Regulation Commission of the Proposed Wiggins Pass OFW designation.

      
      

   5. The Cocohatchee River is formed by sloughs east of the proposed Wiggins Pass OFW. The river's drainage is not especially large, about 16,000 acres, and there is little change in elevation. The river flows westerly about 3.5 miles to the lower estuarine waters at the U.S. Route 41 bridge. The river is considerably fresher upstream of the U.S. Route 41 bridge than it is downstream of the bridge.

      
      

   6. East of U.S. Route 41, the Cocohatchee River is relatively straight and clearly defined. West of U.S. Route 41, the river begins to meander, creating numerous embayments. The thick mangrove banks of the river and embayments west of U.S. Route 41 are largely undisturbed.

      
      

   7. About one mile west of U.S. Route 41, the river passes under the Vanderbilt Drive bridge to the north of a triangular- shaped island. The island consists at least partially of fill, although a DEP Intent to Issue an environmental resource permit notes: "The uplands had been constructed by filling and bulkheading the western portion of a deltic mangrove island."

      
      

   8. The largely artificial waterway running south of the island is known as Horse Creek. Both ends of the short Horse Creek intersect the Cocohatchee River at points adjacent to the triangular-shaped island.

      
      

   9. From the vicinity of the Vanderbilt Drive bridge to Wiggins Pass, the Cocohatchee River is generally known as the East Channel. (To avoid confusion, DEP may wish to consider clarifying the textual description of proposed subsection 38 by adding the following underlined language: "the Cocohatchee River downstream from 50 feet west of U.S. 41 1995 right-of-way to Wiggins Pass;

      . . .."

      
      

   10. About one-half mile west of Vanderbilt Drive, the East Channel is intersected first by the North Channel and then, a little farther downstream, the South Channel.

       
       

   11. The South Channel is a long, narrow waterway that was dredged in the early 1950s to connect the East Channel with Water Turkey Bay, which is about one-half mile south of the East Channel. Between the East Channel and Water Turkey Bay is the smaller West Bay.

   12. The proposed Wiggins Pass OFW includes any parts of the South Channel, West Bay, and Water Turkey Bay not already contained in an OFW, as discussed below. A narrow channel leads south from Water Turkey Bay to Vanderbilt Lagoon, but the Wiggins Pass OFW excludes this channel and lagoon. Vanderbilt Lagoon was dredged and later connected to Water Turkey Bay prior to the creation of the South Channel.

       
       

   13. Despite their connection, there is little exchange of water between Water Turkey Bay and Vanderbilt Lagoon. Nutrient- rich Vanderbilt Lagoon, which was dredged to relative deep depths, has reduced dissolved oxygen levels and is poorly flushed, typically taking 16 days to flush. Numerous long, narrow canals connect to Vanderbilt Lagoon, which is in poor condition from, among other things, considerable untreated stormwater runoff from extensive urbanization south of Bluebill Avenue in an area known as Naples Park. Rapid inputs of freshwater leads to stratification with impaired circulation due to the freshwater sitting over the saltwater in the sluggish lagoon.

       
       

   14. In contrast to Vanderbilt Lagoon, the water depths are much shallower in Water Turkey Bay, which hosts well-established seagrass beds. Outside of the channel, the bottom of Water Turkey Bay is about -4 feet NGVD (all bottom elevations refer to National Geodetic Vertical Datum, unless otherwise stated). The bottom elevation of the South Channel is about -6 to -8 feet.

       
       

   15. A small stream links the east shore of Water Turkey Bay with an embayment of the Cocohatchee River, just upstream of Vanderbilt Drive. Thus, the salinity levels of Water Turkey Bay are reduced by the relatively fresh water introduced from this part of the Cocohatchee River.

       
       

   16. The North Channel connects the East Channel with Wiggins Bay, which is about one quarter-mile to the north and is the second largest bay in the proposed OFW. The North Channel then leads to two smaller bays farther north, and finally to Little Hickory Bay, which is the largest bay included in the proposed OFW. Water depths in this area north of the East Channel are shallow, with bottoms ranging from -2 to -4 feet.

       
       

   17. Little Hickory Bay is a little over one mile north and south and abuts on the north the Estero Bay Aquatic Preserve, which is on the north border of the proposed Wiggins Pass OFW. The waters in the aquatic preserve, which was the first aquatic preserve created in Florida, were designated an OFW in 1979.

       
       

   18. Little Hickory Bay is fed by Estero Bay and the Imperial River, which is also an OFW. A portion of the waters of Little Hickory Bay drain into the Gulf of Mexico through Big Hickory Pass and New Pass to the north, and the remaining waters drain into the Gulf through Wiggins Pass.

       
       

   19. The numerous embayments and wetlands from Little Hickory Bay to the East Channel are undeveloped and contain productive seagrass, oyster beds, and mudflats. The only urbanization in the vicinity of the proposed OFW in addition to Naples Park is at the northeast corner of the proposed Wiggins Pass OFW, where Bonita Shores abuts the northeast corner of Little Hickory Bay. The proposed OFW excludes Bonita Shores.

       
       

   20. The portion of the proposed OFW from Wiggins Pass upstream along the East Channel features the mangroves typical of the area, as well as small mangrove islands and oyster bars. Seagrass is especially evident at the intersection of the East and South channels and in the shallows north of the East Channel between the North Channel and the Pelican Isle Marina to the east.

   21. Wiggins Pass is a little more than one-quarter mile west of the intersection of the East Channel with the South Channel. The pass is about one mile west of the Vanderbilt Drive bridge. Wiggins Pass is a natural, extremely dynamic inlet characterized by swift currents and constantly changing channel and sand bar configurations.

       
       

   22. The narrow beach peninsula extending north of Wiggins Pass runs the entire length of the proposed Wiggins Pass OFW. One mile of this peninsula immediately north of Wiggins Pass is occupied by the Barefoot Beach State Preserve. The waters within the State Preserve were designated an OFW in 1982. This OFW runs along the entire west shore of Wiggins Bay and the North Channel leading to Wiggins Bay. Immediately north of the Barefoot Beach State Preserve is Collier County's Barefoot Beach Park.

       
       

   23. The narrow beach peninsula extending one mile south of Wiggins Pass includes some uplands and maritime hammock. Running to the south border of the proposed OFW, the beach peninsula is occupied by the Delnor-Wiggins State Recreation Area, The waters in the state recreation area were designated an OFW in 1982. This OFW appears to include a portion of West Bay, the South Channel, and western areas of Water Turkey Bay.

       
       

2. Habitats and Inhabitants of Proposed Wiggins Pass OFW

   
   

   1. The proposed Wiggins Pass OFW is a shallow mangrove estuary. Continuous bands of mangroves are located throughout the area of the proposed OFW with an especially large area of mangroves south of the East Channel and south and west of the Cocohatchee River. Red mangroves are prevalent along the bays with black mangroves farther inland. White mangroves are upland of the black mangroves.

      
      

   2. Mangroves are a key factor in this estuary's productivity. The mangroves drop leaves into the water, where microorganisms degrade the organic material into detritus. Small animals consume the detritus. Larger animals consume the small animals.

      
      

   3. The predominant soft mud bottom of the bays of the proposed Wiggins Pass OFW is typical of mangrove back bays and has high detrital value. The waters themselves exhibit high species diversity and generally support seagrass.

      
      

   4. The seagrass beds of the proposed Wiggins Pass OFW, though not nearly as extensive as the mangroves, nevertheless contribute to the health of the estuary by stabilizing sediments and reducing turbidity.

      
      

   5. The mangrove and seagrass habitats of the proposed OFW provide valuable nursery and breeding areas for fish and other marine life important to recreational and commercial fishermen. These habitats and their larval and juvenile inhabitants in turn attract other animals, including protected species such as the Atlantic bottlenose dolphin, loggerhead sea turtle, bald eagle, least tern, American oystercatcher, osprey, frigatebird, mangrove cuckoo, and mangrove fox squirrel.

      
      

   6. Perhaps the most notable inhabitant of the proposed Wiggins Pass OFW is the West Indian Manatee. Manatee historically ranged from northern Brazil through Mexico to Georgia and through the Caribbean. The U.S. population in Florida is the last viable population of this species in the world.

   7. Manatee are abundant in Collier County throughout the year. They generally prefer secluded tributaries, creeks, and shoreline embayments along inland waters. In Collier County, they frequent the Gulf nearshore, back bay systems, and residential canals. Manatee consume, among other things, mangrove leaves.

      
      

   8. Doubtlessly, manatee are more prevalent in south Collier County than around Wiggins Pass. But manatee commonly use Wiggins Pass travelling into and out of the back bay areas of the proposed Wiggins Pass OFW.

      
      

   9. A vast area of relatively rare habitat exists just offshore, immediately south of Wiggins Pass. Known as hardbottom, this habitat, which is at least partly included in the OFW of Delnor-Wiggins Pass State Recreation Area, resembles coral, except that it is flat, and serves as habitat for a wide variety of species at the bottom of the food chain.

      
      

   10. Hardbottom features soft coral, mollusks, worms, and sponges. These species serve as indicators of water quality inside the pass, as waters inside the pass are drawn out during low tides. Invertebrates, such as those occupying hardbottom, are the first to die off when the ecosystem is disrupted, such as by significant reductions in water quality.

       
       

3. Water Quality of the Proposed Wiggins Pass OFW

   
   

   1. The waters of the proposed Wiggins Pass OFW are Class II waters, which means that they are approved for shellfish harvesting. The water quality of the proposed Wiggins Pass OFW is not extraordinary, but it is ample to maintain the productivity of this estuary. Total nitrogen and phosphorus levels and biological oxygen demand reflect the detrital contribution of the vast mangrove defining the estuary. However, the waters are not nutrified or eutrophied. The waters are not suffering algal blooms. The keystone species of the hardbottom just outside the pass have not been harmed by the waters coming from the back bays of the proposed OFW.

      
      

   2. The water quality of this shallow estuary is maintained by good flushing. Tidal and river flows flush the entire area of the proposed OFW. River flows also introduce freshwater infusions to the estuary.

      
      

   3. The 1994 Water Quality Assessment for the State of Florida, issued in November 1994, reports that the Cocohatchee River estuary scored 50 points on the trophic state index. Zero to 49 points is good, 50-59 points is fair, and 60-100 points is poor. The report notes an improving trend for the estuary for trophic state index and dissolved oxygen and no degrading trends.

      
      

   4. The data contained in the report are of limited usefulness for this case. The report is based on ten observations from 1989-1992. But only five observations were within the proposed OFW--and these were at the U.S. Route 41 bridge--and these five observations were all in 1989.

      
      

   5. The waters of the proposed OFW have been the site of coliform bacteria readings. Coliform bacteria levels are likely attributable to wastewater and agricultural runoff entering the Cocohatchee River upstream. These inputs may also be partly responsible for nutrients in the water.

      
      

   6. However, the favorable water-quality trends are due to recent actions, including improvements to a regional wastewater treatment plant, restrictions upon agricultural flows into the upper watershed of the river, and requirements

      of on-site retention of stormwater runoff for major developments. In any event, the waters of the proposed OFW meet most of the Class II water standards.

      
      

4. Recreational Opportunities at Proposed Wiggins Pass OFW

   
   

   1. The park, preserve, and recreation areas north and south of Wiggins Pass forming the west border of the proposed OFW receive over one million visitors annually. These recreation areas provide a wide variety of outstanding recreational opportunities including swimming, hiking, canoeing, kayaking, nature watching, and other water- and beach-oriented activities. These activities extend into the area of the proposed Wiggins Pass OFW.

      
      

   2. Eleven marinas in the area of the proposed Wiggins Pass OFW underscore the importance of Wiggins Pass as a major recreational area in Collier County. The three marinas closest to Wiggins Pass are Wiggins Pass Marina (also known as Marco River Marina--Wiggins Pass Division), Pelican Isle Marina (also known as Conklin Point or Westinghouse Yacht Club at Conklin Point), and Island Marina.

      
      

   3. Wiggins Pass Marina and Pelican Isle Marina are on the north side of the East Channel about one-quarter mile west of the Vanderbilt Drive bridge. These two marinas provide 350 dry storage spaces and 220 boat slips. Wiggins Pass Marina is a full-service marina. Between these marinas is a popular County boat ramp, which provides access for trailered powerboats.

      
      

   4. Pelican Isle Marina, which is located on 15 acres of fill, is encircled by water, although a small culvert connect the marina to the mainland to the east. A 300-foot roadway connects Pelican Isle Marina with Vanderbilt Drive to the east, just north of the Vanderbilt Drive bridge.

      
      

   5. Wiggins Pass Marina and the boat ramp are outside the boundaries of the proposed Wiggins Pass OFW, although they abut the waters of the proposed OFW. Pelican Isle Marina is within the proposed Wiggins Pass OFW. The proposed OFW contains no exclusion for the "working area footprints" of these marinas and boat ramp.

      
      

5. Island Marina

   
   

   1. Just upstream from Wiggins Pass Marina and Pelican Isle Marina, Island Marina is an 80-slip marina on the triangular- shaped island between the East Channel and Cocohatchee River on the north and Horse Creek on the south and west. It has been in operation since 1992. Less than 300 feet of river (seawall to seawall) separate Island Marina from Pelican Isle Marina to the north and west.

      
      

   2. The triangular-shaped island is divided in half by Vanderbilt Drive. Island Marina occupies the entire island west of Vanderbilt Drive. The Vanderbilt Drive bridge is the north bridge at the northeast corner of Island Marina and spans the Cocohatchee River. A shorter south bridge at the southeast corner of Island Marina crosses Horse Creek. The remainder of the island to the east of the bridge is undisturbed and covered by mangroves, except for a strip of right-of-way along Vanderbilt Drive.

      
      

   3. As does Pelican Isle Marina, Island Marina features a high-rise condominium with various other improvements, such as paved parking and docks completely lining its shoreline. Petitioner's waterward property line extends into the water along the seawall and encompasses part of 20 of Island Marina's boat slips. For the most part, though, the slips and deck extend over submerged

      land leased by the Board of Trustees of the Internal Improvement Trust Fund (Trustees) to Petitioner by Modified Submerged Land Lease executed June 15 and July 29, 1992.

      
      

   4. The term of the submerged land lease, which covers about one and one- quarter acres (52,736 square feet), is 25 years, commencing February 12, 1991. The submerged land lease allows Petitioner to operate a commercial docking facility without fueling facilities, with sewage pumpout facilities, and without liveaboards.

      
      

   5. Paragraph 29 of the submerged land lease requires Petitioner to install manatee-warning signs at the docks.

      
      

   6. Paragraph 30A of the submerged land lease allows the Trustees to change any conditions of the lease at anytime during the lease term if "deemed necessary" by the Trustees. Necessary reasons include conforming to adopted or revised statutes or rules and conforming to the requirements of Section 372.072.

      
      

   7. Paragraph 30E of the submerged land lease limits the leasing of boat slips so that no more than 23 of the 80 available slips are rented to owners of upland condominium units. Paragraph 30C orders Petitioner to advertise the slips as available to the general public by erecting permanent signs at the docking facility.

      
      

   8. Paragraph 30G of the submerged land lease incorporates by reference the provisions of an agreement between Petitioner and Collier County. Provisions of this agreement require Petitioner to submit to programs for monitoring water quality and protecting manatee and bald eagles.

      
      

   9. By environmental resource permit issued December 18, 1995, DEP authorized Petitioner to expand Island Marina by relocating 70 concrete pilings farther waterward and install ten new concrete pilings farther waterward in the Cocohatchee River. Many of the new pilings were to be placed at the waterward edge of the submerged land recently leased to Petitioner in the submerged land lease modification executed the prior summer.

      
      

   10. The environmental resource permit directs Petitioner to require that boats mooring for more than two consecutive days at Island Marina maintain bilge absorbent pads to absorb oil and grease, but not water, and replace the pads as needed. The permit requires that moored boats have properly tuned engines to minimize the release of oil and grease into the water. The permit requires Petitioner to monitor for dissolved copper twice annually. Lastly, the permit requires Petitioner to comply with Class II water-quality standards.

       
       

   11. One diagram attached to the environmental resource permit depicts "scattered oyster beds & mangrove zone" at Island Marina. Prepared by Breedlove, Dennis & Associates, Inc., this diagram discloses that a seawall runs almost the entire perimeter of Island Marina. A narrow zone of small mangroves up to three feet high has established itself along the riprap that fronts the seawall. Waterward of the mangroves, a wider band of scattered oyster beds has developed around the entire perimeter of Island Marina. The opposite shore of Horse Creek is populated by part of the vast mangrove forest occupying the area south of the East Channel. Waterward of the opposite shore are thick bands of scattered oyster beds along the shore, as much as 85 feet from wide at one point.

   12. The diagram also reveals that Horse Creek is about 180 feet wide at the start of the seawall near the south bridge and widens to 240 feet (seawall to mangrove shore) as the creek wraps around the south end of the marina. The creek widens to 260 feet as it turns to the north and maintains this width until it intersects with the East Channel.

       
       

   13. On November 29, 1995, DEP published an Intent to Issue the environmental resource permit that was later issued on December 18, 1995. Among other things, the Intent to Issue reports that DEP representatives conducted field appraisals of the site on August 29 and October 24, 1995, and, on one visit, observed two manatee swimming upstream just north of the "working area footprint" extending into the East Channel.

       
       

   14. The Intent to Issue states that depths in Horse Creek are shallow until the centerline of the waterway, where they are -5 to -10 feet mean low water.

       
       

   15. Island Marina Exhibit No. 8 depicts Island Marina, the waterward property line, the waterward extent of the submerged land lease area, and, farthest waterward, the "waterward extent of working area footprint." The "waterward extent of the working area footprint" is as much as 120 feet waterward of the waterward property line. Typically, the "waterward extent of the working area footprint" is only 45 feet waterward of the waterward line of the submerged land lease area. For the most part, the waterward line of the submerged land lease area extends just a few feet beyond the ends of the boatslips.

       
       

   16. The record does not disclose that Petitioner claims any interest in the "waterward extent of working area footprint" outside of the submerged land lease. The record does not adequately disclose the intended function of the "working area footprint" outside of the submerged land lease.

       
       

   17. Estuarine waters encircle the island on which Island Marina is located. Thus, the proposed OFW extends to the shoreline of the island, landward of the "working area footprint" and landward of the narrower submerged land lease. As used below, "working area footprint" includes the area of the submerged land lease.

       
       

   18. The seawall abutting the shoreline of Island Marina is rimmed by riprap and mangroves. Oysters are colonizing or recolonizing the Horse Creek area and likely will find the concrete pilings suitable habitat. Nothing precludes marine life, including manatee, from using Horse Creek, and nothing prevents such marine life from using the waters of the "working area footprint" and submerged land lease.

       
       

   19. The waters of Island Marina's "working area footprint" are inextricably linked to the estuary encompassed by the proposed Wiggins Pass OFW. These links are both environmental and recreational.

       
       

   20. The mangroves in Island Marina's "working area footprint" contribute detritus to the remaining waters of the proposed OFW. The mangroves outside the "working area footprint" contribute detritus to the waters of the "working area footprint." Oysters from outside the "working area footprint" have established themselves in the working area footprint, and these oysters may in turn colonize areas outside the "working area footprint."

   21. Water from the proposed OFW outside the "working area footprint" freely passes through the "working area footprint." The water of the "working area footprint" is well flushed by the continual river flow from the east and typically by two tides daily. The waters of Island Marina's "working area footprint" are exchanged one to two times daily; some water passes through the "working area footprint" is as little as 15 minutes.

       
       

   22. The recreational links between Island Marina's "working area footprint" and the remaining waters of the proposed OFW are obvious. Numerous provisions in the submerged land lease ensure that Island Marina, including its "working area footprint," will continue to be supply an attractive source of recreation for the public, not limited to persons owning Island Marina condominiums. The most evident form of recreation is boating, which can be pursued for its own sake or as a means to other forms of recreation, such as fishing, swimming, water skiing, and nature watching. To a lesser extent, other forms of recreation, such as nature watching and fishing, can also take place from the "working area footprint." Provisions of the submerged land lease also assure that Island Marina will not degrade the surrounding waters so as to impair their environmental or recreational value.

       
       

6. DEP's OFW Exclusion Criteria and Their Inapplicability to Island Marina's "Working Area Footprint"

   
   

   1. DEP has excluded heavily polluted areas from other OFWs. These areas were contaminated by dangerous pollutants associated with manufacturing and refining activities. But in roughly 300 OFWs DEP has never excluded a marina's footprint. On the other hand, DEP has included in OFWs artificially created waterbodies and waterways, as long as the waters were in reasonably good condition. Island Marina's "working area footprint" is not comparable to the heavily polluted areas excluded from other OFWs. Even if entirely artificially constructed, the "working area footprint" is in reasonably good condition so as not to warrant exclusion on this basis.

      
      

   2. DEP drew the most logical boundaries for the proposed OFW. DEP has excluded urbanized areas to the northeast and south on the basis of intensity of adjacent land uses, which, with reduced salinity, accounts for the east boundary at the U.S. Route 41 bridge.

      
      

   3. The 50-foot exclusions at Bluebill Ave. and U.S. Route 41 may have been at the request of Collier County, but these exclusions are consistent with other decisions concerning the boundaries of the proposed OFW. DEP did not exclude any area around Vanderbilt Drive. Although DEP did not exclude any area around Bonita Beach Road at the north boundary, this boundary is abutted to the north by an aquatic preserve.

      
      

   4. The proposed OFW links existing OFWs and state and county recreation and natural areas with the back waters of the proposed OFW. Recreationally, the proposed OFW logically extends to the waters that Florida's citizens and visitors already use extensively through access provided by the beach parks and preserves and marinas.

      
      

   5. The exclusion of the waters of and leading to Vanderbilt Lagoon is also logical. Vanderbilt Lagoon is the site of considerable recreational boating. But poor water quality limits recreation to boating. Recreationally, the impaired waters of Vanderbilt Lagoon have been reduced to a medium of transportation, unlike the varied recreational and environmental waters of the proposed Wiggins Pass OFW.

   6. The crux of Petitioner's case is that DEP improperly included Island Marina's "working area footprint" in the proposed OFW. Petitioner asserts that the waters within the footprint have no exceptional ecological or recreational significance. In fact, they have important recreational significance because of their proximity to the boat slips and their relatively good water quality.

      
      

   7. More generally, though, the waters of the "working area footprint" are the waters of the proposed OFW. These waters freely interchange. Wildlife frequenting the waters can pass freely between the waters of the "working area footprint" and the waters of the remainder of the proposed OFW. DEP and the Trustees have carefully restricted Petitioner's marina operation to assure that it will not degrade the environment.

      
      

   8. For these reasons, Petitioner fails in its arguments that Island Marina is not part of the ecosystem encompassed by the proposed OFW and that DEP improperly failed to apply its exclusion criteria to sever Island Marina's "working area footprint" from the proposed OFW.

      
      

   9. In the alternative to its argument that Island Marina's "working area footprint" is not part of the ecosystem of the proposed Wiggins Pass OFW, Petitioner complains that DEP improperly defined an ecosystem without any legal or scientific criteria. Petitioner asserts essentially that any definition of "ecosystem" that includes Island Marina's "working area footprint" is overly inclusive.

      
      

   10. Island Marina is in the center of the Cocohatchee River, as it enters the East Channel. Oyster beds and mangrove have found the Horse Creek area, including the "working area footprint," suitable habitat and no different from the habitat of the remainder of the proposed OFW. Island Marina marks the east boundary of one of the most productive areas of the proposed OFW. Just west and north of Island Marina, seagrass beds occupy the shallows north of the East Channel. Island Marina is directly across from a vast area of mangroves to the south.

       
       

   11. Proposed subsection 38 describes waters, including the "working area footprint," that are linked physically and functionally. They perform important environmental functions in the development and maintenance of marine life, including estuarine life.

       
       

   12. To the extent the record lacks an explicit definition of "ecosystem," an implicit definition may be inferred from the evidence. In designating the proposed Wiggins Pass OFW and defending the designation in this proceeding, DEP has shown that an ecosystem functionally interrelates biology, hydrology, and physiography on a scale appropriate to the environmental and recreational issues identified by statute and rule. Functionally relating organisms to their environment--i.e., engaging in an exercise in ecology--DEP drew the boundaries of the proposed Wiggins Pass OFW to encompass this "ecosystem."

       
       

   13. Island Marina is also well positioned to make an important contribution to the recreational use of the area. The Vanderbilt Drive bridge, as well as the south bridge, are fixed bridges that limit vessel height.

       Seaward of low, fixed bridges and accessible by the relatively deep East Channel (as contrasted to the South and North channels), Wiggins Pass Marina, Pelican Isle Marine, and Island Marina are uniquely well situated to provide docking facilities for operators of larger boats. Situated in the center of an important area for various recreational activities, these marinas are a crucial element in

       ensuring public accessibility to these rich and varied recreational opportunities, as is partly reflected by the Trustees' insistence in the submerged land lease that Petitioner reserve and advertise a large number of slips for members of the public who are not owners of Island Marina condominiums.

       
       

   14. Although the imposition of OFW status on the "working area footprint" may impose some economic burden on Petitioner, the ensuing environmental, social, and economic benefits of the designation far outweigh the costs.

       
       

7. No Improper Delegation of Factfinding and Decisionmaking or Shifting of Burden of Proof

1. Petitioner argues that DEP improperly delegated the factfinding and decisionmaking to Intervenor The Conservancy, Inc., a private corporation (Conservancy). In a related argument, Petitioner argues that DEP relieved itself of the burden of proving the suitability of extending the proposed OFW to Island Marina's "working area footprint."

   
   

2. On December 16, 1992, Conservancy filed a Petition for Outstanding Florida Water Designation for the Wiggins Pass-- Cocohatchee River Estuarine System. The petition requested that DEP initiate rulemaking to amend Rule 62- 302.700 to designate the Wiggins Pass OFW.

   
   

3. DEP initiated rulemaking proceedings and conducted three factfinding workshops attended by 215 persons. In connection with these workshops, DEP received almost 400 cards or letters supporting the proposed designation. On October 27, 1995, DEP published a Notice of Intent to submit proposed Rule 62- 302.700(9)(i)38 to the Environmental Regulation Commission on November 30, 1995.

   
   

4. Conservancy initiated the rulemaking proceedings, but this is not uncommon in the designation of OFWs. There is no evidence that DEP or the Environmental Regulation Commission delegated anything to Conservancy or any other private party. DEP representatives made numerous site visits. One DEP scientist studied the entire system on site visits in August 1993 and November 1995. DEP revised the area of the proposed OFW from what Conservancy sought in its petition.

   
   

5. The rulemaking process involved considerable public participation. Eventually, DEP and the Environmental Regulation Commission formulated proposed subsection 38. The proposed rule subsection was the result of careful analysis of existing data and data collected concurrent with promulgation of this proposed rule, as well as with the issuance of environmental resource permits to Petitioner for Island Marina and to other parties in the immediate area. Conservancy representatives played little, if any, part in this process, besides initiating it by filing the petition and exercising their right to participate in the rulemaking process. Conservancy representatives did not make the decision to designate the area as a proposed OFW.

   
   

6. Nor did DEP relieve itself of any burdens in extending the proposed designation to Island Marina's "working area footprint." Petitioner complains that DEP did not perform special studies of the "working area footprint." Actually, DEP had a reasonably detailed understanding of the characteristics of this area from the environmental permitting that had taken place for Island Marina and, to a lesser extent, Pelican Isle Marina. On these facts, DEP was not required to conduct more detailed studies of the "working area footprint,"

   especially when the evidence supplied by Petitioner does not suggest that DEP improperly included these waters in the proposed OFW.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.54(4) and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   
   

8. Standing is not an issue. An affirmative defense, the issue of standing is waived if not timely raised. Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 842 (Fla. 1993).

   
   

9. Section 120.52(8) provides:

   
   

   "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more

   of the following apply:

   * * *

   1. The agency has exceeded its grant of rulemaking authority . . .;

   2. The rule enlarges, modifies, or contravenes the specific provisions of law implemented . . .;

      * * *

      (e) The rule is arbitrary or capricious.

      
      

10. Petitioner has the burden of proving that proposed subsection 38 of Rule 62-302.700(9)(i) is an invalid exercise of delegated legislative authority. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359 (Fla. 1st DCA 1995).

    
    

11. Section 403.061(27) authorizes DEP to "[e]stablish rules which provide for a special category of water bodies within the state, to be referred to as 'Outstanding Florida Waters,' which water bodies shall be worthy of special protection because of their natural attributes." Under Section 403.804(1), the Environmental Regulation Commission exercises the "standard- setting authority" of DEP under Chapter 403. Subsection (1) adds: "The commission, in exercising its authority, shall consider scientific and technological validity, economic impacts, and relative risks and benefits to the public and the environment."

    
    

12. Rules 62-302.700(1) and 62-4.242 provide the highest protection to OFWs and prohibit generally any degradation in their water quality. Proposed Rule 62-302.700(9)(i)38 would add the Wiggins Pass OFW to the list of OFWs.

    
    

13. Rule 62-302.700(4) requires that DEP use the rulemaking provisions of Chapter 120 in designating an OFW with at least one factfinding workshop, notice, and an economic impact analysis.

    
    

14. Rule 62-302.700(5) provides that the Environmental Regulation Commission may designate an OFW 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.

    
    

15. Rule 62-302.200(10) provides that "exceptional ecological significance" means that a water body is part of an ecosystem of unusual value. The exceptional significance may be in to unusual species, productivity, diversity, ecological relationships, ambient water quality, scientific or educational interest, or in other aspects of the ecosystem's setting or processes.

    
    

16. Rule 62-302.200(11) provides that "exceptional recreational significance" means unusual value as a resource for outdoor recreational activities. Outdoor recreational activities include . . . 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.

    
    

17. DEP has shown that the proposed Wiggins Pass OFW, including Island Marina's "working area footprint," contains waters of exceptional recreational or ecological significance, and the environmental, social, and economic benefits of their designation as an OFW outweigh the environmental, social, and economic costs of their designation.

    
    

18. These waters, including the "working area footprint," are of exceptional environmental significance because they are viable estuarine waters in relative good condition that are functioning at a high level in providing habitat for a variety of species, including protected species and species of commercial and recreational interest. These waters, including the "working area footprint," are the site of exceptional recreational opportunities, including but not limited to boating. DEP has adequately explained why it excluded certain areas from the proposed Wiggins Pass OFW and from other OFWs, and why it included the "working footprint area" of Island Marina. DEP appropriately conducted the process by which waters are designated OFWs.

    
    

19. Petitioner has failed to show that the proposed OFW designation, including the "working area footprint," is an invalid exercise of delegated legislative authority in any respect raised in the pleadings or in any other respect.

ORDER

It is

ORDERED that the amended petition challenging proposed subsection 38 of Rule 62-302.700(9)(i)38 is denied.

ENTERED on April 26, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on April 26, 1996.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-4: adopted or adopted in substance.

5: adopted or adopted in substance. To the extent relevant, the evidence suggests that the uplands either are not entirely the result of fill or, if entirely fill, were substantially inhabited by mangroves. The evidence is somewhat mixed as to the source of Horse Creek, which is at least partially manmade. Again, though, such a finding is of marginal relevance.

6-7: adopted or adopted in substance, except that Island Marina is more than a "parking lot for boats."

8-11: adopted or adopted in substance.

12: again of little relevance, DEP may have made minor revisions in the OFW boundaries proposed by Conservancy.

13-15: adopted or adopted in substance.

16: rejected as unsupported by the appropriate weight of the evidence. 17: rejected as recitation of evidence and subordinate.

18: rejected as unsupported by the appropriate weight of the evidence and subordinate.

19: adopted or adopted in substance.

20-21: adopted or adopted in substance. 22-24: rejected as subordinate.

25: adopted or adopted in substance.

26-30: rejected as subordinate and recitation of evidence.

31: rejected as unsupported by the appropriate weight of the evidence. 32-33: rejected as subordinate and recitation of evidence.

34: adopted or adopted in substance. However, the water quality is ample to maintain the numerous natural functions taking place in the estuary; in that sense, the water quality is exceptional, though not of extraordinarily high quality.

35: rejected as subordinate.

36-37: adopted or adopted in substance. 38-40: rejected as subordinate.

41-42: adopted or adopted in substance, in the sense of a high occurrence of manatee near the "working area footprint."

43: rejected as subordinate and recitation of evidence.

44: rejected as unsupported by the appropriate weight of the evidence.

45 (first clause of first sentence and second sentence): adopted or adopted in substance.

45 (remainder): rejected as subordinate, recitation of evidence, and unsupported by the appropriate weight of the evidence.

46-48: rejected as unsupported by the appropriate weight of the evidence. 49: adopted or adopted in substance.

50: adopted or adopted in substance.

51: rejected as recitation of evidence and subordinate. 52-53: rejected as unnecessary.

54: rejected as unsupported by the appropriate weight of the evidence.

55 (first and sentences): rejected as unsupported by the appropriate weight of the evidence on different bases for the submerged land lease area and the part of the "working footprint area" outside the submerged land lease area. Also, irrelevant, even if true.

55 (remainder): rejected as unsupported by the appropriate weight of the evidence and subordinate.

56: rejected as unsupported by the appropriate weight of the evidence, especially given Island Marina's location directly across from a vast area of uninterrupted mangrove.

57-61: rejected as unsupported by the appropriate weight of the evidence. 62-65: adopted or adopted in substance.

66: rejected as unsupported by the appropriate weight of the evidence. 67: rejected as unsupported by the appropriate weight of the evidence,

except for first sentence, which is adopted in substance.

68 (first clause): rejected as recitation of evidence.

68 (remainder): adopted or adopted in substance.

69: rejected as unsupported by the appropriate weight of the evidence. 70-71: rejected as recitation of evidence and subordinate.

72: rejected as unsupported by the appropriate weight of the evidence. 73: adopted or adopted in substance, if the artificial areas are of low

water quality.

74: adopted or adopted in substance. 75-76: rejected as subordinate.

77 (except last sentence): adopted or adopted in substance.

1. (last sentence): rejected as recitation of evidence and subordinate. As to the determination itself, it is unsupported by the appropriate weight of the evidence.

2. (first sentence): adopted or adopted in substance.

78 (remainder): rejected as irrelevant.

79: rejected as recitation of evidence and subordinate.

80: rejected as unsupported by the appropriate weight of the evidence. 81-82: rejected as subordinate.

83: rejected as subordinate and unsupported by the appropriate weight of the evidence.

Rulings on DEP's Proposed Findings

1-5: adopted or adopted in substance. 6-8: rejected as subordinate.

9-15: adopted or adopted in substance.

16 (first two sentences): rejected as subordinate.

16 (remainder): adopted or adopted in substance.

17-34 (first sentence): adopted or adopted in substance.

34 (remainder): rejected as recitation of evidence. 35-38: adopted or adopted in substance.

39: rejected as subordinate.

40-43 (first sentence): adopted or adopted in substance.

43 (remainder): rejected as subordinate. 44-48: adopted or adopted in substance.

49: rejected as subordinate.

50: adopted or adopted in substance.

51: adopted or adopted in substance; the origins of the triangular-shaped island have been considered above.

52-53: adopted or adopted in substance, except that Vanderbilt Drive is not U.S. Route 41.

54-62 (except last sentence): adopted or adopted in substance.

62 (last sentence): rejected as unnecessary.

63: rejected as irrelevant and not finding of fact. 64: rejected as repetitious and subordinate.

65-72: adopted or adopted in substance.

Rulings on Proposed Findings of Conservancy and Florida Wildlife Federation 1-6: adopted or adopted in substance, although the west border is as

described in the final order.

7: adopted or adopted in substance. 8: rejected as legal argument.

9: rejected as recitation of evidence.

10-16 (first sentence): adopted or adopted in substance.

16 (second and third sentences): rejected as subordinate.

16 (last sentence): adopted or adopted in substance. 17: rejected as repetitious.

18: adopted or adopted in substance, except for legal argument. 19: rejected as subordinate.

20: adopted or adopted in substance.

Rulings on Trustees' Proposed Findings

1-7: adopted or adopted in substance.

8-9: rejected as legal argument and irrelevant. 10-13: adopted or adopted in substance.

COPIES FURNISHED:

Barry S. Richard

J.D. Boone Kuersteiner Reginald L. Bouthillier, Jr. Greenberg Traurig

Post Office Drawer 1838 Tallahassee, Florida 32302

Stacey D. Cowley, Assistant General Counsel Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dean A. Aldrich David G. Guest

Sierra Club Legal Defense Fund Post Box 1329

Tallahassee, Florida 32302

David Gluckman Gluckman and Gluckman

541 Old Magnolia Road Crawfordville, Florida 32327

Robert C. Downie, II Mathews & Downie, P.A. Post Office Box 10036

Tallahassee, Florida 32302

Andrew J. Baumann Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Bldg.

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Elliott Bldg.

Tallahassee, Florida 32399-0250

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: 95-005593RP

Orders for Case No: 95-005593RP