STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS D. MCGILL, )

)

Petitioner, )

)

vs. )

)

FISH AND WILDLIFE ) CONSERVATION COMMISSION, )

) Case No. 99-5366RX

Respondent, )

)

and )

) SAVE THE MANATEE CLUB, INC., )

)

Intervenor. )

)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Viera, Florida, on June 27-29, 2000.

APPEARANCES

For Petitioner: Thomas D. McGill, pro se

254 Sykes Point Lane

Merritt Island, Florida 32953

For Respondent: Ross Stafford Burnaman

Assistant General Counsel

Fish and Wildlife Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

For Intervenor: Robert Goodwin

Counsel

Save the Manatee Club, Inc.

500 North Maitland Avenue, Suite 210 Maitland, Florida 32751

STATEMENT OF THE ISSUE

The issue is whether Rule 68N-22.006(1)(d)4, 7, 8, and 9 and (f)7 (former Rule 62N-22.006(1)(d)4, 7, 8, and 9 and (f)7), Florida Administrative Code, which designates three manatee speed zones in Brevard County, and the language on the signs implementing these speed zones are invalid exercises of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition for Administrative Determination of Invalidity of Existing Rules dated December 22, 1999, Petitioner alleged that Rule 62N-22.006(1)(d)4 and 7 and (f)7, Florida Administrative Code, "regarding Brevard County Zones," is invalid. The three manatee speed zones that are the subject of this case are located in Brevard County at the north end of Sykes Creek near its intersection with the Barge Canal and at either end of the Barge Canal, where the canal channel extends into the Banana and Indian rivers.

Petitioner alleges that he owns waterfront property in Sykes Cove, which accesses Sykes Creek through a canal. He alleges that he uses these waters to access the Banana and Indian rivers and Atlantic Ocean for recreational and commercial purposes.

Petitioner alleges that his property is about equidistant from the Banana and Indian rivers and that his travel time has increased by 30 minutes due to the establishment of the manatee speed zone at the north end of Sykes Creek, near the Barge Canal,

and the two manatee speed zones in the Barge Canal near its intersections with the Banana and Indian rivers.

Petitioner alleges that the speed restrictions posted in the manatee speed zone in the north end of Sykes Creek state: "Slow Speed--Minimum Wake." However, Petitioner alleges that the rule requires only "slow speed" and that the addition of "minimum wake" to the signs reduces the speed to "idle speed."

For relief, Petitioner requests that the Administrative Law Judge declare that the rules are invalid exercises of delegated legislative authority unless Respondent adds a 25 mile-per-hour speed limit in the channel that runs through the three speed zones and remarks the signs to reflect the true (or proper) purpose of the posted speed limits.

By Request to Have Second Amended Notice of Hearing Revised, filed April 24, 2000, Petitioner requested leave to amend his petition to allege that his challenge is to Rule

62N-22.006(1)(d)4, 7, 8, and 9 and (f)7, Florida Administrative Code. By Order entered May 4, 2000, the Administrative Law Judge granted Petitioner leave to amend his petition. At the start of the hearing, Petitioner clarified his position that the language on the signs for all three speed zones is unlawful.

By Order entered June 21, 2000, the Administrative Law Judge granted all pending motions for official recognition. At the hearing, the Administrative Law Judge announced that he would also take official notice of commonly used dictionaries.

At the hearing, Petitioner called eight witnesses: Karl Newell, C. Scott Calleson, Dr. Warren Compton (doctor of veterinary medicine), Captain David Richard (ship captain), Sergeant Frank Flake, Ron Pritchard, David Arnold, and Petitioner. Respondent called seven witnesses: Sharon Tyson, Cynthia Thomas, the Honorable Sandy Crawford (Brevard County Clerk of Court), Dr. Scott Wright (marine research scientist), Ann Spellman, Captain Allen Richard (Respondent's Division of Law Enforcement), and David Arnold. Intervenor called no witnesses.

The parties jointly offered into evidence 10 exhibits: Joint Exhibits 1-3, 5-6, and 8-12. Petitioner offered into

evidence 15 exhibits: Petitioner Exhibits 1, 5, 26, 34-40, 44,

56, 61, and 63-64. Respondent offered into evidence 33 exhibits:

Respondent Exhibits 1, 4-6, 9, 22, 34, 36, 53, 63-64, 66, 68-71, 77-78, and 80-94. Intervenor offered into evidence no exhibits. All exhibits were admitted.

The parties stipulated that Intervenor had standing. The parties did not order a transcript.

Following the hearing, Petitioner filed two motions to strike portions of Respondent's proposed final order. The matters to which Petitioner objected were not incorporated into the final order, so the motions are denied as irrelevant.

FINDINGS OF FACT

1. Background

   
   

   1. Located in east central Florida, Brevard County is about

      
      

      72 miles north-south by 20 miles east-west. The west boundary of the county is the St. Johns River, and the east boundary of the county is the Atlantic Ocean. The Indian River extends from the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county.

   2. Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a continuous barrier running the length of the county, the Indian River, and the mainland.

   3. Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west and the Banana River on the east. At the southern end of Merritt Island, the Banana River joins the Indian River.

   4. Besides Sebastian Inlet at the south end of the county, the only pass into the ocean in Brevard County is at Port Canaveral. The port cuts across the entire Canaveral Peninsula. Along the west shoreline of the peninsula, locks permit vessels to pass into the Banana River. To the west, the locks culminate in a channel running across the Banana River and into the Canaveral Barge Canal (Barge Canal), which cuts across Merritt

      Island. Proceeding west, the Barge Canal culminates in a channel running to the main channel of the Indian River.

   5. Three and one-half miles long, the Barge Canal was dredged to accommodate barge traffic traveling between the ocean and two power plants that are still in operation on the west shore of the Indian River about four and six miles north of the Barge Canal. The Barge Canal is 125 feet wide, bank to bank. The middle 60 feet of the Barge Canal has been dredged to nine feet.

   6. The Indian and Banana rivers form part of a rich, biologically diverse lagoon system. Motorboat traffic is prohibited north of a point about two miles north of the Barge Canal in the Banana River. The uppermost reaches of the Banana River are closed to all boat traffic because they are within the restricted area of the Kennedy Space Center. The shorelines of much of the Indian River north of the Barge Canal are "slow speed" all year, except for greater restrictions around the power plants from November 15 to March 31.

   7. The Banana River between the west end of the locks and the east end of the Barge Canal is about one and one-half miles wide. The Indian River between the west end of the Barge Canal and the mainland is about one and three-quarters miles wide. The confluence of the Banana and Indian rivers is 19 miles south of the Barge Canal.

   8. Intersecting the Barge Canal at approximately the center of Merritt Island is Sykes Creek, which is a natural, brackish waterbody. Extending a short distance north of the Barge Canal, Sykes Creek runs south to Newfound Harbor, which empties into the lower Banana River.

   9. The portion of Sykes Creek of greatest relevance to this case is the northern portion of Sykes Creek, which, for the purpose of this case, is between the State Route 528 bridge and the north end of an S curve about three-quarters of a mile south of the bridge (North Sykes Creek). (Actually, Sykes Creek runs another one-quarter mile from the bridge to the Barge Canal, but Petitioner does not contest the safety considerations underlying a reduced speed for this segment due to its character as an intersection, so this segment of Sykes Creek is excluded from the definition of North Sykes Creek, as used in this final order.)

   10. Although wider, bank to bank, than the Barge Canal, the channel of North Sykes Creek is narrower and shallower, typically about five to seven feet deep. North Sykes Creek has some deep holes, but it shoals on the east side and is deeper on its west side to the shoreline.

   11. Neither the Barge Canal nor Sykes Creek is tidally influenced. The water of both waterbodies is dark and not very clear.

   12. Much of the western shoreline of North Sykes Creek has been altered by the construction of finger canals to facilitate

       additional boat access. Vessels taller than six feet must leave Sykes Creek by the Barge Canal because a short bridge south of the S curve obstructs taller boats.

   13. Two of the three manatee speed zones challenged by Petitioner are at the ends of the Barge Canal, extending less than one thousand feet into the Indian and Banana rivers. The third manatee speed zone challenged by Petitioner is North Sykes Creek. The relevant language on the signs posting these zones states: "Slow Speed--Minimum Wake."

2. Standing

   
   

   1. Petitioner lives on a canal that runs into Sykes Creek. Petitioner owns a 50-foot long vessel, known as the "Joan M," which is typically docked at Petitioner's residence. Licensed as a captain by the United States Coast Guard, Petitioner captains the Joan M. on commercial charters, in which Petitioner's customers meet the vessel at one of the many marinas within five miles of Petitioner's home. These marinas include marinas located along the Barge Canal.

   2. The purpose of the charters is typically fishing in the Atlantic Ocean or sightseeing in the rivers. Petitioner thus routinely navigates the Joan M. through Sykes Creek and the Barge Canal.

   3. Petitioner also owns a 20-foot pleasure and a personal watercraft. Petitioner uses the larger boat for water skiing, cruising, and fishing, and he uses the personal watercraft for

      cruising. Also docked at Petitioner's home, these vessels frequently operate on Sykes Creek and the Barge Canal.

   4. The implementation of the three speed zones has added considerable time to the passage from Petitioner's home to the ocean or rivers. The evidence varies considerably on this point, but most likely the speed zones have added at least 10-15 minutes each way to Petitioner's journey from his dock to the ocean. For the Joan M., this additional time means considerably higher operating expenses, which are about $105 per hour. For the other vessels, this additional time means fewer boating excursions because of reduced boating interest by Petitioner, his wife, their children, and their grandchildren, who, prior to the implementation of the three speed zones, visited Petitioner regularly in order to go boating.

3. Manatees

1. The West Indian manatee is an endangered species. One of two subspecies of the West Indian manatee is the Florida manatee. Approximately 2200 manatees exist in Florida waters. Approximately 790 of these animals were in Brevard County waters in March 1999.

2. Occupying saltwater to freshwater habitats, manatees inhabit waters from Rhode Island to Louisiana (manatees in Texas may not be Florida manatees). However, manatees primarily occupy the waters along the Florida coast, with some penetration along the Georgia coast. (Resp. Ex. 81, p. 5.)

3. Water temperature drives manatee migration. When the waters drop below 68 degrees, manatee find warm-water discharges or move to the southern tip of Florida. During milder winter periods, manatee leave these refuges to feed on nearby grassbeds. As water temperatures rise in spring, manatee begin to return to their typical warm-weather places of residence.

4. As noted in the Florida Manatee Recovery Plan, which was prepared by the U.S. Fish and Wildlife Service in January 1996: "In recent years, the most important spring habitat for the east coast population has been the northern Banana River in Brevard County . . .." (Resp. Ex. 81, pp. 17-18.) This cold- weather concentration of manatees is driven by the fact that the two power plants in the Indian River are the only cold-weather aggregation sites between Jacksonville and Sebastian Inlet. (Resp. Ex. 81, Fig. 2.)

5. In general, manatee prefer for feeding "[s]hallow grass beds with ready access to deep channels . . . in coastal and riverine habitats. Manatees often use secluded canals, creeks, embayments, and lagoons, particularly near the mouths of coastal rivers and sloughs, for feeding, resting, cavorting, mating, and calving." (Resp. Ex. 81, p. 18.)

6. Female manatee do not reach sexual maturity until at least three years of age. (Joint Ex. 2, p. 103.) With a gestation period of 12-14 months and a normal litter of one, the manatee is not a fast-breeding animal. (Resp. Ex. 81, p. 21.)

   Calves remain dependent for 1-2 years after birth. (Resp. Ex. 81, p. 22). Competition among males for the opportunity to breed with an estrus female is intense among these polygamous animals. (Resp. Ex. 81, p. 21.)

7. Although a low reproduction rate is somewhat offset by a long life span, this "life-history strategy" is rewarded only if accompanied by "a stable environment, approximately permanent geographic ranges, and freedom from ongoing forms of mortality such as predators. Slowly reproducing species are not good colonizers and could not recover quickly after a population crash or a massive destruction." (Joint Ex. 2, p. 116.)

8. In the past 15 years, manatee mortality has increased. The causes of death are various, but perinatal deaths and deaths due to collisions with watercraft are the two prime causes of mortality. (Resp. Ex. 81, p. 22.) Natural and anthropogenic causes contribute to high rates of perinatal death. (Resp. Ex. 81, p. 24.)

9. However, the largest cause of manatee mortality is collisions with watercraft, including hulls, propellers, and the lower units of engines. The extent of watercraft mortality, as compared to other causes of death, has varied in recent years, after a 15-year period ending in 1991 of a series of increases. (Resp. Ex. 81, p. 24.)

10. Petitioner devoted some effort to showing that Respondent relies on data that overattributes manatee mortality

    to collisions with small watercraft. Likely, there is some error in the assignment of causes of death--a process whose accuracy is impeded by the fact that it often does not take place until the carcass has undergone considerable deterioration.

11. However, Petitioner did not successfully undermine the conclusions of a significant number of necropsies. In particular, Petitioner did not successfully show that a larger number of deaths should be attributed to collisions with very large craft, such as barges, whose mortal signature is the infliction of injuries along large areas of the body as the animal is rolled helplessly in the wash created by the vast displacement of such a vessel.

12. Petitioner's case was stronger with respect to larger pleasure craft that still do not begin to approach in displacement the typical barge. However, even after considering the threat posed by such larger recreational vessels, Petitioner's case fell short of a showing that smaller recreational vessels posed a substantially lesser, or no substantial, threat to manatees. Petitioner's evidence that the planing, smaller boat presented less of a threat to manatees overlooked the effects of reduced visibility of the elevated bow and reduced reaction time available for collision avoidance in the presence of higher boating speeds.

13. Moreover, the data suggests a tendency for smaller watercraft to kill through hull collisions and larger watercraft

    to kill through propeller wounds. (Resp. Ex. 81, p. 26.) If true, these tendencies would not exculpate smaller vessels because, between 1979 and 1991, 39 percent of manatees killed by watercraft were killed by propeller cuts and 55 percent of manatees killed by watercraft were killed by hull impacts. (Resp. Ex. 81, p. 26.)

14. Brevard County's share of Florida manatee mortality from 1974 through 1999 was 18.8 percent. As Petitioner points out, this percentage reflects, in part, that Brevard County has a very high number of the total number of manatees. However, effective manatee-protection efforts must be focused where the manatees are.

15. The large number of manatees in Brevard County undermines Petitioner's case, even if Petitioner had successfully shown that smaller recreational vessels posed relatively little threat to manatees.

16. At times during the year, Brevard County hosts as many as 40 percent of the manatees occupying the east coast of Florida. As noted above, spring concentrations of the animals are especially great as they prepare to leave the popular thermal sites at the two power plants and travel to their warm-weather habitats. Those animals seeking the ocean are likely to pass through Port Canaveral, rather than travel many miles south to Sebastian Inlet. Those animals seeking Port Canaveral are likely to pass through the Barge Canal, rather than travel 25 miles

    south to the confluence of the Indian and Banana rivers and then

    
    

    19 miles up the Banana River to Port Canaveral.

    
    

17. Among the waters of Brevard County, the waters of the Barge Canal and North Sykes Creek are especially important to manatees. From May 1986 through September 1995, the U.S. Geological Survey, Biological Resources Division, conducted the Sirenia Project for Respondent's Bureau of Protected Species Management. The purpose of this study was to determine the number of manatee that used the Barge Canal as a travel corridor.

18. The Sirenia Project reports that 58 percent of manatee in Brevard County used the Barge Canal as a travel corridor between the important northern Indian River and the southern Banana River. Although travel through the Barge Canal was greatest in May through July, December, and January, manatee used the Barge Canal throughout the year. Several of the tracked manatee also used Sykes Creek during this study. (Resp. Ex. 63.)

19. Manatees typically travel through the Barge Canal, but they may rest, socialize, mate, and sometimes even feed on overhanging vegetation, especially in the basins serving the three marinas located along the Barge Canal. Manatees often feed and socialize at the less-busy west end of the Barge Canal. At the east end, they frequently dived to avoid contact with humans, although males sometimes linger in this vicinity to court females.

20. Compared to the Barge Canal, North Sykes Creek offers better feeding opportunities due to the relative abundance of food sources, such as mangroves, sedges, and marsh grass on both sides of the creek. Due to the relative quiet of the waters, North Sykes Creek was often used by females for calving, as well as feeding, resting, and socializing. During cold weather, some of the deeper holes release relatively warm water from aquifers.

21. Considerable numbers of manatees use the Barge Canal and North Sykes Creek at all times of the year. Although these waterbodies are not of remarkable value to manatees as destinations, these waterbodies are among the most important corridors for manatees anywhere.

22. Not only do exceptionally large numbers of manatees use Brevard County waters, but they use these waters at a time of the year that exceptionally large numbers of boats occupy Brevard County waters, including the three manatee speed zones.

23. Boating activity in Brevard County is most intense from January to March. (Resp. Ex. 6, p. 75.) Brevard County has the seventh highest number of vessel registrations among Florida counties, and it routinely receives additional boating traffic from Orange, Osceola, and, to a lesser extent, Seminole counties.

24. Significant portions of Brevard County boating activity is in the three manatee speed zones. As recently as March 1999, an average of 278 boats used the Barge Canal during a six-hour

    period. Eighty-five percent of the total number of boats were motorboats. (Resp. Ex. 84, p. 22.)

25. Recent and pending marina permitting in the Barge Canal has and will result in additional boat slips and boating activity in the three manatee speed zones. An enlargement of the Sea Ray boat manufacturing facility on the Barge Canal will also introduce more boat traffic. Some of these permits have been conditioned upon the adoption of additional manatee speed zones, such as the three that are the subject of this case

26. The conflict between boating and manatees is revealed in the mortality statistics. The Barge Canal and Sykes Creek have been the sites of a large number of manatee watercraft- related deaths: from 1974 though 1997, 21 in the Barge Canal and

    17 in Sykes Creek. During this period, almost 25 percent of all watercraft-related manatee deaths in Brevard County occurred in the Barge Canal and Sykes Creek.

27. Reflecting the seasonally high numbers of manatees, if not also the seasonally high number of boats, the state, in 1978, implemented the first set of operational restrictions on motorboating, which were applied between November 15 and March 31 in the portions of the Indian River within three-quarters of a mile of the two power plants.

28. However, even the establishment of enforceable speed zones in July 1991 did not eliminate manatee deaths. But the establishment of the long manatee speed zone in North Sykes Creek

    did eliminate manatee deaths. According to the Canaveral Barge Canal Boater Activity and Compliance Study, Brevard County, Florida (March 1999), which was prepared for the Florida Department of Environmental Protection (DEP) and U.S. Fish and Wildlife Service, "[n]o manatee deaths by watercraft have been recovered in Sykes Creek since the additional zone north of the S-Curve was implemented in 1994." (Resp. Ex. 84, p. 59.)

29. As initially proposed, the 1994 amendments to former Rule 62N-22.006(1)(d) and (e), Florida Administrative Code, established a "slow-speed" zone for all of Sykes Creek and the Barge Canal. In general, DEP, which has since transferred these rules to Respondent, relied on system-wide data to support the initial 1994 rule amendments.

30. However, following receipt of public comments, DEP adopted the rules in their present form. The net effect of the rules established "slow speed" zones in the Barge Canal and Sykes Creek, subject to several 25 mile-per-hour segments. Not challenging all of the "slow speed" zones, Petitioner has challenged the three "slow speed" segments at either end of the Barge Canal and North Sykes Creek.

31. The evidence amply supports the designation of the three manatee speed zones as "slow speed" zones, as a reasonable effort to protect manatees from the threat of harm from watercraft.

32. As set forth in the Conclusions of Law, the specific provision on which Respondent relies in its defense of the challenged rules does not require a balancing of the protection of the manatees with the rights of boaters, fishers, and other recreational users of the posted waters. Even if such a balancing were required, though, the evidence does not demonstrate that the challenged rules, as applicable to the three manatee speed zones, unduly protect manatees at the expense of recreational users of the same waters.

33. Petitioner also challenges as unduly restrictive the "minimum wake" language on the signs designating the three manatee speed zones.

34. The resolution of this issue requires analysis of the "slow speed" rule, which incorporates two different maximum speeds: for planing-hull vessels, the speed evidenced by vessels that are fully off plane and completely settled into the water (Minimum Wake) and, for all other vessels (presumably, displacement-hull vessels), the speed evidenced by the absence of an "excessive wake or other hazardous condition which endangers other vessels under the existing circumstances (Not Excessive Wake)."

35. The relatively narrow range of speed allowed by the Minimum Wake standard contrasts with the wider range of speed allowed displacement-hull vessels, which, adhering to the Not

    Excessive Wake standard, may produce any size wake that does not endanger other vessels.

36. There is some question whether, in general usage, Minimum Wake comports with "slow speed." Petitioner called as a witness a person with eight years' experience captaining seagoing tugs and barges and, currently, seven years' experience piloting vessels in Port Canaveral, where the runs are typically six miles over two hours. The harbor pilot testified persuasively that, under ordinary circumstances, the speed allowed by a "minimum wake" restriction is only slightly faster than the speed allowed by "idle speed," but the speed allowed by "slow speed" was considerable faster. Scaling these speeds (with the higher numbers signifying slower speeds), the harbor pilot assigned a 1 to "slow speed," a 7 to the speed allowed by a "minimum wake" restriction, and an 8 to "idle speed." However, despite the persuasiveness of the harbor pilot's testimony, the fact remains that the rule defining "slow speed" incorporates alternative restrictions, depending on hull type, and the restriction for planing-hull vessels is Minimum Wake.

37. Petitioner's challenge to the language on the signs raises serious shortcomings concerning the Not Excessive Wake standard. Most notably, the Not Excessive Wake standard, when applied as a boating-safety provision, sensibly regulates vessel speed in relation to the impact of that vessel's wake upon other vessels. However, when applied as a manatee-protection

    provision, the Not Excessive Wake standard inadequately addresses the situation of the isolated, displacement-hull vessel. In the absence of other vessels, the Not Excessive Wake standard allows an isolated displacement-hull vessel to proceed at a speed that may produce a relatively large wake, even though that wake may endanger manatees, absent the use of a legal contrivance, such as an imputed vessel of some size, stability, and proximity--an awkward exercise that facilitates neither compliance nor enforcement.

38. However, Petitioner's challenge to the language on the signs was to invalidate the Minimum Wake language, as a rule, in order to obtain a more relaxed speed standard, such as Not Excessive Wake. A determination of unlawful vagueness or ambiguity concerning the Not Excessive Wake standard would probably result in the imposition of a more restrictive speed standard for displacement-hull vessels covered by the Not Excessive Wake standard--a result unsought by Petitioner.

39. Thus, notwithstanding any conflict between "slow speed," as commonly understood, and the rule's incorporation of Minimum Wake into the definition of "slow speed," Petitioner has failed to show that the Minimum Wake language on the manatee speed zone signs is in any way inconsistent with the underlying rule. Any showing of vagueness or ambiguity concerning the Not Excessive Wake portion of the rule defining "slow speed" is outside the scope of the issues raised in this case.

    CONCLUSIONS OF LAW

    
    

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

41. Section 120.56(1)(a) provides: "Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority."

42. Standing as a person "substantially affected by a rule" is dependent upon a showing of a real and sufficiently immediate injury in fact and that the alleged interest is arguably within the zone of interests to be protected or regulated. See, e.g., Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 96 (Fla. 1st DCA 1999).

43. Petitioner has proved his standing. The manatee speed zones extend his transit time from his home to the waters that he regularly uses for commercial and recreational purposes. His recreational and commercial boating interests are the interests regulated by the challenged rules.

44. Section 120.52(8) defines an "invalid exercise of delegated legislative authority" as:

    action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative

    authority if any one of the following applies:

    
    

    1. The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;

    3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;

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

    5. The rule is arbitrary or capricious;

    6. The rule is not supported by competent substantial evidence; or

    7. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

       
       

       A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.

45. Section 370.12(2), known as the Florida Manatee Sanctuary Act, underlies the challenged rules (Act). The Act is

    divided into separate sections, which provide different levels of protection.

46. Section 370.12(2) provides:

1. In order to protect manatees or sea cows from harmful collisions with motorboats or from harassment, the Fish and Wildlife Conservation Commission shall adopt rules under chapter 120 regarding the expansion of existing, or construction of new, marine facilities and mooring or docking slips, by the addition or construction of five or more powerboat slips, and regulating the operation and speed of motorboat traffic, only where manatee sightings are frequent and it can be generally assumed, based on available scientific information, that they inhabit these areas on a regular or continuous basis:

   * * *

   
   

   2. In Brevard County: those portions of the Indian River within three-fourths of a mile of the Orlando Utilities Commission Delespine power plant effluent and the Florida Power and Light Frontenac power plant effluents.

   
   

   * * *

   
   

   10. In Sarasota County: the Venice Inlet and connecting waters within 1 mile thereof, including Lyons Bay, Donna Bay, Roberts Bay, and Hatchett Creek, excluding the waters of the intracoastal waterway and the right-of- way bordering the centerline of the intracoastal waterway.

   
   

2. The Fish and Wildlife Conservation Commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis within that portion of the Indian River between the St. Lucie Inlet in Martin County and the Jupiter Inlet in Palm Beach County. In

   addition, the commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis within the Loxahatchee River in Palm Beach and Martin Counties, including the north and southwest forks thereof. A limited lane or corridor providing for reasonable motorboat speeds may be identified and designated within this area.

   
   

3. The commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis within the Withlacoochee River and its tributaries in Citrus and Levy Counties. The specific areas to be regulated include the Withlacoochee River and the U.S. 19 bridge westward to a line between U.S. Coast Guard markers number 33 and number 34 at the mouth of the river, including all side channels and coves along that portion of the river; Bennets' Creek from its beginning to its confluence with the Withlacoochee River; Bird's Creek from its beginning to its confluence with the Withlacoochee River; and the two dredged canal systems on the north side of the Withlacoochee River southwest of Yankeetown. A limited lane or corridor providing for reasonable motorboat speeds may be identified and designated within this area.

4. If any new power plant is constructed or other source of warm water discharge is discovered within the state which attracts a concentration of manatees or sea cows, the Fish and Wildlife Conservation Commission is directed to adopt rules pursuant to chapter

   120 regulating the operation and speed of motorboat traffic within the area of such discharge. Such rules shall designate a zone which is sufficient in size, and which shall remain in effect for a sufficient period of time, to protect the manatees or sea cows.

5. It is the intent of the Legislature through adoption of this paragraph to allow the Fish and Wildlife Conservation Commission to post and regulate boat speeds only where manatee sightings are frequent and it can be generally assumed that they inhabit these areas on a regular or continuous basis. It is not the intent of the Legislature to permit the commission to post and regulate boat speeds generally in the above-described inlets, bays, rivers, creeks, thereby unduly interfering with the rights of fishers, boaters, and water skiers using the areas for recreational and commercial purposes.

   Limited lanes or corridors providing for

   reasonable motorboat speeds may be identified and designated within these areas.

   
   

6. The commission shall adopt rules pursuant to chapter 120 regulating the operation and speed of motorboat traffic all year around within Turkey Creek and its tributaries and within Manatee Cove in Brevard County. The specific areas to be regulated consist of:

   1. A body of water which starts at Melbourne-Tillman Drainage District structure MS-1, section 35, township 28 south, range 37 east, running east to include all natural waters and tributaries of Turkey Creek, section 26, township 28 south, range 37 east, to the confluence of Turkey Creek and the Indian River, section 24, township 28 south, range 37 east, including all lagoon waters of the Indian River bordered on the west by Palm Bay Point, the north by Castaway Point, the east by the four immediate spoil islands, and the south by Cape Malabar, thence northward along the shoreline of the Indian River to Palm Bay Point.

   2. A triangle-shaped body of water forming

      a cove (commonly referred to as Manatee Cove) on the east side of the Banana River, with northern boundaries beginning and running parallel to the east-west cement bulkhead located 870 feet south of SR 520 Relief Bridge in Cocoa Beach and with western boundaries running in line with the City of Cocoa Beach channel markers 121 and 127 and all waters east of these boundaries in

      section 34, township 24 south, range 37 east; the center coordinates of this cove are 28 [degrees] 20'14" north, 80 [degrees] 35'17" west.

      
      

7. The commission shall promulgate regulations pursuant to chapter 120 relating to the operation and speed of motor boat traffic in port waters with due regard to the safety requirements of such traffic and the navigational hazards related to the movement of commercial vessels.

   
   

8. The commission may designate by rule adopted pursuant to chapter 120 other portions of state waters where manatees are frequently sighted and it can be assumed that manatees inhabit such waters periodically or continuously. Upon designation of such waters, the commission shall adopt rules pursuant to chapter 120 to regulate motorboat speed and operation which are necessary to protect manatees from harmful collisions with motorboats and from harassment. The commission may adopt rules pursuant to chapter 120 to protect manatee habitat, such as seagrass beds, within such waters from destruction by boats or other human activity. Such rules shall not protect noxious aquatic plants subject to control under s. 369.20.

   
   

9. The commission may designate, by rule adopted pursuant to chapter 120, limited areas as a safe haven for manatees to rest, feed, reproduce, give birth, or nurse undisturbed by human activity. Access by motor boat to private residences, boat houses, and boat docks through these areas by residents, and their authorized guests, who must cross one of these areas to have water access to their property is permitted when the motorboat is operated at idle speed, no wake.

64. Rule 68N-22.006(1)(d)4, 7, 8, and 9 and (f)7

establishes the three manatee speed zones challenged by

Petitioner. In promulgating this rule, Respondent relied upon Section 370.12(2)(m) (Sub M).

1. The most significant legal issue in this case is the extent to which Section 370.12(2)(j) (Sub J; each of the subsections of Section 370.12(2) shall be so designated) applies to Sub M, as well as the other subsections of Section 370.12(2). Sub J discloses the Legislative intent not to regulate boat speeds generally in the "above-described inlets, bays, rivers, creeks, thereby unduly interfering with the rights of fishers, boaters, and water skiers using the areas for recreational and commercial purposes."

2. The reference to "above-described inlets, bays, rivers, [and] creeks" is puzzling because the preceding subsections of Section 370.12(2) do not explicitly name any such bodies of water. The source of this phrase is the original form of Section 370.12(2)(f)10. When first adopted in 1982, Section 370.12(2)(f)10 authorized Respondent's predecessor to regulate boat speeds in the following waters of Sarasota County: "Venice Inlet and connecting waters within 1 mile thereof, including Lyons Bay, Donna Bay, Roberts Bay, and Hatchett Creek, excluding the waters of the intracoastal waterway and the right-of-way bordering the centerline of the intracoastal waterway." Chapter 82-170, Section 1, 1982 Laws of Florida. Evidently finding that the waters described in Sarasota County were more broadly described than in the counties mentioned in the other subsections

   of Section 370.12(2)(f), the Legislature added the language quoted in the preceding paragraph (the only subsequent changes being the addition of "unduly" prior to "interfering" and the replacement of "fishermen" with "fishers").

3. Significantly, when moving the balancing language to a separate subsection, the Legislature did not restrict the scope of the waters in Sarasota County eligible for speed restrictions. Clearly, then Sub J applies to all of the waters described in

   Sub F.

   
   

4. In removing the balancing language from the Sarasota County subsection of 370.12(2)(f) and placing it in Sub J, the Legislature also added "rivers" to the other types of waterbodies covered by the new limitation. The original list of "inlets, bays, and creeks" referred to the named bodies of water in Sarasota County, which contained one or more of each type of waterbody. The addition of "river" may have evidenced an intent to name all types of waterbodies occupied by manatees, although the omission of "canal" is material in this case.

5. Two factors suggest that Sub J should also be applied to Sub G, H, and I, but not Sub K, L, M, and N. First, Sub J refers to the "above-described" types of waterbodies. Even assuming that the Legislature intended to name all types of waterbodies, the statutory language restricts the limiting language of Sub J to those waterbodies described in the preceding subsections of Section 370.12(2).

6. Second, the first sentence of Sub J mentions the twin requirements of "frequent sitings" of manatees in areas in which they can be assumed to inhabit on a "regular or continuous basis." These are the same requirements in Sub G and H. Sub I refers to the construction of new thermal discharges. Unlike Sub F, G, and H, Sub I addresses future areas of manatee use and thus incorporates a different requirement: "attract[ing] a concentration of manatees." Thus, this difference in language is unimportant.

7. In contrast, Sub K, L, M, and N describe current areas of manatee use, but do not use the "regular or continuous" language found in Sub J. Sub K does not use the limiting language of "frequent sitings" or "regular or continuous" inhabitation, but provides the legal description of the area for which the Legislature is mandating rules. Sub L does not use the limiting language of "frequent sitings" or "regular or continuous" inhabitation, but limits the areas for which the Legislature is mandating rules to "port waters." Sub N does not use the limiting language of "frequent sitings" or "regular or continuous" inhabitation, but limits the area for which the Legislature is authorizing rules to "limited areas as a safe haven for manatees to rest, feed, reproduce, give birth, or nurse undisturbed by human activity," other than certain access to private property.

8. Sub M uses the limiting language of "frequent sitings," but not of "regular or continuous" inhabitation. For the latter, Sub M substitutes the more relaxed limitation of "periodic. . . or continuous. . . " inhabitation. However, the second sentence of Sub M adds another geographic limitation, not found in any of the other subsections of Section 370.12(2): within the waters described by the first sentence, Respondent may adopt rules "to regulate motorboat speed and operation" that are "necessary to protect manatees from harmful collisions with motorboats and from harassment." Also, within the waters described by the first sentence, Respondent may adopt rules "to protect manatee habitat

   . . . from destruction by boats or other human activity."

   
   

9. Thus the more relaxed limiting language of the first sentence of Sub M is restricted by the functional requirement, for manatee protection, that the speed and operation restrictions must be "necessary" to protect manatees from "harmful collisions with motorboats and from harassment." This functional restriction, not found in the other subsections of Section 370.12(2), thus justifies the interpretation that Sub M is not subject to Sub J, just as Sub K, L, and N are not due to their placement in Section 370.12(2) and their restrictive geographic limitations. See Marine Industries Association of South Florida, Inc. v. Department of Environmental Protection, 672 So. 2d 878, 883 (Fla. 4th DCA 1996)(in Sub N, the Legislature, not the agency

   or the court, has struck the balance between the competing interests of humans and manatees).

10. Applying Sub M to the present case, the evidence amply demonstrates that manatees are frequently sighted and periodically or continuously use the waters subject to the three manatee speed zones under challenge.

11. The evidence also amply demonstrates that "slow speed" restrictions in these three zones are necessary to protect manatees from harmful collisions. Even absent the elimination of manatee mortality in North Sykes Creek after the adoption of that speed zone, the abundance of manatees in the Indian and Banana Rivers, their need to use the Barge Canal to transit between the two power plants and the Atlantic Ocean, the proximity of preferred feeding habitat in North Sykes Creek, manatee mortality experience in Brevard County (including the significant fraction due to watercraft collisions) and the large number of boats present in Brevard County waters (especially at the time of the year when manatees are in greatest numbers in Brevard County) all demonstrate the necessity of the subject rule to protect manatees from harmful collisions.

12. Petitioner's challenge to the Minimum Wake language on the signs posting the three manatee speed zones failed to identify any deficiency in the Minimum Wake standard. The deficiency uncovered in the Not Excessive Wake standard is

outside the scope of the issues and would result in relief that Petitioner is not seeking in this case.

ORDER

It is

ORDERED that Petitioner's challenge to Rule

68N-22.006(1)(d)4, 7, 8, and 9 and (f)7 is dismissed.

DONE AND ORDERED this 23rd day of August, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2000.

COPIES FURNISHED:

Allan L. Egbert, Ph.D., Executive Director Fish and Wildlife Conservation Commission Bryant Building

620 South Meridian Street Tallahassee, Florida 32399-1600

James V. Antista, General Counsel

Fish and Wildlife Conservation Commission Bryant Building, Room 108

620 South Meridian Street Tallahassee, Florida 32399-1600

Thomas D. McGill

254 Sykes Point Lane

Merritt Island, Florida 32953

Ross Stafford Burnaman Assistant General Counsel

Fish and Wildlife Conservation Commission 620 South Meridian Street

Tallahassee, Florida 32399-1600

Robert Goodwin Counsel

Save the Manatee Club, Inc.

500 North Maitland Avenue, Suite 210 Maitland, Florida 32751

Carroll Webb, Executive Director

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

David Greenbaum

Legislative Research Director Committee on Governmental Rules

and Regulations

218 House Office Building Tallahassee, Florida 32399

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building, Room 201 Tallahassee, Florida 32399-0250

Tina D. White Legislative Analyst

Senate Governmental Oversight and Productivity Committee

525 Knott Building

Tallahassee, Florida 32399-1100

NOTICE OF RIGHT OF JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review. 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: 99-005366RX

Orders for Case No: 99-005366RX