STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

MATLACHA CIVIC ASSOCIATION, INC., )

J. MICHAEL HANNON, KARL R. DEIGERT, ) YOLANDA OLSEN, ROBERTS. ZARRANZ, ) DEBRA HALL, MELANIE HOFF, AND ) JESSICA BLANKS, )

)

Petitioners, )

v. )

)

OGC CASE NO. 18-1443 DOAB CASE NO. 18-6752

CITY OF CAPE CORAL AND DEPARTMENT) OF ENVIRONMENT AL PROTECTION, )

)

Respondents. )

• - - - - - - - - - - - - - - - - -----''

FINAL ORDER

An Administrative Law Judge (ALJ) with the Division of Administrative Hearings (DOAH) on December 12, 2019, submitted a Recommended Order (RO) to the Department of Environmental Protection (DEP or Department) in the above captioned administrative proceeding. A copy of the RO is attached hereto as Exhibit A.

This matter is now before the Secretary of the Department for final agency action.

BACKGROUND

On November 7. 2018, the Department announced its intent to issue an Environmental Resource Permit Number 244816-005 (ERP) to the City of Cape Coral for removal of the Chiquita Boat Lock (Lock) and associated uplands, and installation of a 165-foot linear seawall in the South Spreader Waterway in Cape Coral, Florida (the Project .

On December 14, 2018, the Petitioners, Matlacba Civic Association, lnc. (Association), Karl Deigert, Debra Hall, Melanie Hoff, Robert S. Zarranz, Yolanda Olsen, Jessica Blanks, and

Filed March 11, 2020 2:43 PM Division of Administrative Hearings

Joseph Michael Hannon, (the Petitioners) timely filed a joint petition for administrative hearing. On December 21, 2018, the Department referre<l the petition to DOAH to conduct an.evidentiary hearing and submit a recommended order.

On February 28 and March 1, 2019, the Department gave notice of revisions to the intent

to issue and draft permit.

DOAH held the final hearing on April 1 1 and 12, 20 19, and on May 10, 20 19. At the final hearing, Joint Exhibit 1 was admitted into evidence. The Petitioners offered the fact testimony of Anthony Janicki, Ph.D., Karl Deigert, Melanie Hoff, Robert S. Zarranz, Yolanda Olsen. Jessica Blanks, Michael Hannon, Frank Muto, and Jon Iglehart, and the expert testimony of David Woodhouse, Kevin Erwin, and John Cassani. The Petitioners' Exhibits 18 (a time series video), 37, 40 (top page), 43, 44, 47, 48, 62 through 68, 76 (aerial video), 77 (aerial video),

78 (frame 5), 79 (eight im ages), 87, 112, 114, 115, 117, 118, 129, 132, 141 (not for truth), and

152 were admitted into evidence. The City presented the fact testimony of Oliver Clarke and Jacob Schrager, and the expert testimony of Anthony Janicki, Ph.D. The City's Exhibits 1, 2, 9,

and 2? were admitted into evidence. The Department presented the fact testimony of Megan Mills. The Petitioners proffered Exhibits P-Rl , P-R2, and P-R3, which were denied admission into evidence by Order dated June 21, 2019.

A three-volume transcript of the hearing was filed with DOAH on June 3, 2019. Proposed recommended orders (PRO) were filed by the parties on July 3, 2019. The ALJ granted the Petitioners' motion to exceed the page limit of its PRO. The City of Cape Coral

(City) timely filed Exceptions to the RO on December 27, 2019. DEP also timely filed Exceptions on December 27, 2019. However, the Petitioners untimely filed Exceptions with DOAH the evening of December 27, 2019, which DOAH stamped as received on December 30,

2019. On December 30, 2019, the City filed with the Department's agency clerk a Motion to Strike the Petitioners' Exceptions to the RO. On January 6, 2020, DEP timely filed Responses to Petitioners' Exceptions. On January 6, 2020, the Petitioners timely filed Responses to the City's Exceptions. On January 7, 2020, the Petitioners untimely filed Responses to DEP's Exceptions.

On January 6, 2020, the Petitioners filed with the Department a Motion for Leave to File Amended Exceptions to-Recommended Order and Opposition to Cape Coral's Motion to Strike.L

SUMMARY OF THE RECOMMENDED ORDER

In the RO, the ALJ recommended that the Department enter a final order denying Environmental Resource Permit Number 244816-005 to the City of Cape Coral for removal of the Chiquita Boat Lock and denying the Petitioners request for an award of attorney fees and

costs. (RO at p. 47). Indoing so, the ALJ found the Petitioners met their ultimate burden of persuasion to prove that the Project does not comply with all applicable permitting criteria,

particu larly compliance with state surface water quality standards. (RO at ,r 1 J6). As to the

Petitioners' request for an award of attorney fees and costs, the ALJ found that the City and DEP did not participate in this proceeding for an improper purpose as that tenn is defined in section

1 On December 27. 2019, the Petitioners filedexceptions to DOAH's RO several hours after the deadline for filing exceptions. The Petitioners also incorrectly filed the exceptions with DOAH and not the Department's agency clerk. On December 30, 2019, the City filed with the Department's agency clerk a Motion to Strike the Petitioners ' Exceptions to the RO. On January 6, 2020, the Petitioners filed with the Department a Motion for Leave to File Amended Exceptions to Recommended Order and Opposition to Cape Coral's Motion to Strike. In accordance with Hamilton Cty. Bd. of Cty. Comm'rs v. Dep't of Envtl. Regulation, 587 So. 2d 1378, 1390 (Fla. 2d DCA 1998), the Department must provide the Petitioners the opportunity to show inadvertence, mistake, or excusable neglect for filing the exceptions untimely. See also Shaker Lakes Apartments Co. v. Dolinger, 714 So. 2d 1040, 1042 (Fla. 1st DCA1998). The City filed a response to each of the Petitioners' exceptions in the City's Motion to Strike. In addition, the Petitioners' Opposition to Cape Coral' s Motion to Strike the Petitioners' exceptions for being untimely, filed an explanation for being untimely. The Department has concluded that neither the City nor the Department were prejudiced by the late:filing of the Petitioner:s' exceptio ns. Therefor,ethe Department has chosen to deny the City's motion to strike, and rule oo the merits of the Petition ers ' exceptions in this Final Order.

120.595(1)(e), Florida Statutes (2019); and, thus the Petitioners are not entitled to attorney fees and costs. (RO at ff 113-115).

STANDARDS OF REVlE.W OF DOAB RECOMMENDED ORDERS

Section 120.57(1)0), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first detennines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1,)Fla. Stat (2019); Charlotte Cty. v. IMC Phosphates Co., 18 So. 3d 1079, 1082 (Fla. 2d DCA 2009); Wills

1. Fla. Elections Comm'n, 955 So. 2d 61, 62 (Fla. 1st DCA 2007). The term "competent

   
   

   substantial evidence"does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, ••competent substan tial evidence" refersto the existence of some evidence as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic BookFairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289n.3 (Fla. 5thDCA 1996); Nunezv. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA2010).

   A reviewing agency may not reweigh the evidence presented at a DOAH finalbearing,

   
   

   attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g.,Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prot., 695 So. 2d 1305 , 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty. School Bd., 652 So. 2d 894,896 (Fla 2d DCA1995). lf there is competent substantial e-vidence to .support an ALJ's findiogs of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary

   finding. See, e.g., Arand Constr. Co. v. Dyer, 592 So. 2d 276,280 (Fla. 1st DCA 1991);

   
   

   Conshor, Inc. v. Roberts, 498 So. 2d 622,623 (Fla. 1st DCA 1986).

   The ALJ's decision. to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Reg' / Water SupplyAuth. v. IMC Phosphates Co.,18 So. 3d L079, 1088 (Fla. 2d

   DCA 2009); Collier Med. Ctr. v. St ate, Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985);

   Fla. Chapter of Sierra Club v. Orlanclo Utils , Co m m'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g.,North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994),· Fla. Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025, 1026-1027 (Fla 1st DCA 1997).

   Section120.57(1)0), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions oflaw andinterpretations of administrative rules "over which it has substantive jurisdiction.' ' See Barfield v. Dep't of Health, 805 So. 2d 1008, 1012 {Fla. 1st DCA 2001}; L.B. B1yan & Co. v. Sch. Bd. of Broward Cty., 746 So. 2d 1194, 1197 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 1141-142 (Fla, 2d DCA 2001). However,

   the agency should not label what is essentially an ultimate factual determination as a "conclusion of law'' to modify or overturn what it may view as an unfavorable finding of fact See, e.g., Stokes v. State, Bd. of Pro.Fl Eng'rs, 952 So. 2d 1224, 1225 (Fla. 1st DCA 2007). Furthenn ore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible"

   ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot. , 668 So. 2d 209, 212 (Fla 1st

   
   

   DCA 1996).

   
   

   Agencies do not have jurisdiction, however, to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with"factual issues

   susceptible to ordinary methods of proof that are not infused with [agencyJ po Hcy

   co nsiderations," are not matters over which the agency has "substantive jurisdiction." See

   Martuccio v. Dep't of ProFl Regulation, 622 So. 2d 607. 609 (Fla. 1st DCA 1993); Hetfetz v.

   
   

   Dep ·r of Bus . Regulation, 475 So. 2d 1277, 1281 {Fla. lstDCA 1985). Evidentiaryrulings are matters Within the ALJ ' s sound "prerogative ... as the finder of fact" and may not be reversed on agency review. See Martuccio? 622 So. 2d at 609.

   RULINGS ON EXCEPTIONS

   
   

   In reviewing a recommended order and any written exceptions, the agency' s final order "shall include an explicit ruling on each exception." See 120.57(1)(k), Fla. Stat.{2019). The agency , however, need not rule on an exception that"does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.

   A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coal. of Pla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Med. Ctr•.

   Inc. v. State of Fla., Agency for Health CaJ'e Adtnin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003). However, an agency head reviewing a recommended order is free to modify or reject any ermneous conclusions of law over which the agency bas substantive jurisdiction, even when

   exceptions are not filed. See§ 120.57(1()1), Fla. Stat. (2019};Barfield, 805 So. 2d at 1012; Fla. Pub. Emp. Council, v. Daniels, 646So. 2d 813, 816 (Fla. 1st DCA 1994).

   RULINGS ON THE CITY'S EXCEPTIONS

   
   

   Cityts Exception No. 1 regarding Paragraph No. 13

   
   

   The City takes exception to portions of the findings of fact in paragraph 13 of the RO:

   
   

   which read:

   
   

   13. The 125-foot wide upland area and the 20-foot wide Lock

   form a barrier separating the South Spreader Waterway from the Caloosahatchee River. The preponderance of the competent substantial evidence established that the South Spreader Waterway behind the Lock is not tidally influenced, but would become tidally influenced uponremoval of the Lock.

   RO ,r 13. The C ity alleges that this portion of paragraph 13 is not supported by competent substantial evidence. Contrary to the City's exception, the findings of fact at issue are supported

   by competent substantial evidence in the form of testimony by Frank Muto, the harbor master for Cape Harbout Marina for the past eighteen (18) years. (Muto, T. Vol. U, p. 372). Mr. Muto testified that he has witnessed tidal changes in the Spreader Canal area, but that the marina location behind the Lock is not subject to tidal flows. (Muto, T. Vol. II. p. 380). He also testified that if the Lock is removed, he is concerned about tidal flow all along the Spreader Canal. (Muto,

   T. Vol. JI. p. 383). Moreover, he testified that the Cape Harbour Marina was built after the Lock

   
   

   was installed; and the marina was designed for an area with no tidal flow. (Muto, T. Vol. II. p. 387). Th City in its exception even acknowledged that lay opinion testimony is admissible under certain circumstances. The City quoted that "[l]ay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events." Johnson v. State, 254 So. 2d 617 (Fla. 1st DCA 2018) (citing United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003)). The testimony from Mr.

   Muto was intended to help the ALJ understand the facts regarding flowsin the area of the Lock

   subject to removal by the proposed permit under challenge. The quote from Johnson v. State supports the admissibility of the testimony from Mr. Muto upon which the ALJ appears to have relied for paragraph 13 of the RO.

   The City disagrees with the ALJ's findings and seeks to have the Department reweigh the

   
   

   evidence. However, the Department is not authorized to reweigh evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility ofa witness. See, e.g.• Rogers , 920 So. 2d at 30; Belleau, 695 So. 2d at 1307. If there is competent substantial evidence

   to support the ALJ's findings of fact, itis irrelevant that there may also be competent substantial

   
   

   evidence supporting a contrary finding. See, e.g., Arand Constr. Co., 592 So. 2d at 280; Conshor. Inc.. 498 So. 2d at 623. For the abovementfoned reasons, the City's exception to paragraph 13 of the RO is rejected.

   Based on the foregoing reasons, the City's Exception No. 1 is denied.

   
   

   City's Exception No. 2 regarding Paragraph Nos. 25 and 26

   
   

   The City talces exception to portions of the findings of factin paragraph Nos. 25 !Uld 26 of the RO, which state:

   1. Mr. Erwin testified that the Lock was designed to assist in retention of fresh water in the South Spreader Waterway. The fresh water would be retained, slowed down, and allowed to slowly sheet flow over and through the coastal fringe.

      
      

   2. Mr. Erwin also testified that the South Spreader Waterway was not designed to allow direct tidal exchange with the Caloosahatchee River. In Mr. Erwin' s opinion, the South Spreader Waterway appeared to be functioning today in tlle same manner as originally intended.

   RO fl 25, 26. The City alleges that paragraphs 25 and 26 aTe not supported by competent substantial evidence. Contrary to the City' s exception, the findings of fact in paragraphs 25 and

   26 of the RO are supported by com1Jetent substantial evidence in the form of testimony by Kevin Erwin. Paragraph 25 of the RO is supported by the testimony of Kevin Erwin. (Erwin, T. Vol. II,

   pp. 528, 588-89). Paragraph 26 of the RO is supported by the testimony of Kevin Erwin. (Erwin,

   
   

   T. Vol. TI, pp . 528 , 631). The City contends that Mr. Erwin's opinions are beyond the scope of his qualifications in this hearing as an expert in ecology. However, the City did not object to Mr. Erwin's testimony found in paragraphs 25 and 26 of the RO on the grounds that Mr. Erwin's

   field of expertise did not embrace the testimony in these two paragraphs.

   
   

   Moreover, expert Kevin Erwin is qualified to testify about the original design of the South Spreader Waterway. Kevin Erwin served as an ecologist for the Department of Environmental Regulation (DER), the predecessor agency to the Department, from 1975 to 1980. During this time, be initiated and oversaw the Department' s enforcement action against the

   developers of the City, collectively called " GAC." (Erwin, T. Vol. U, p. 516.) Mr. Erwin was

   
   

   personally involved in reviewing and implementing the design for the Spreader Waterway. (Erwin, T. Vo1. fl, pp. 521-26, 554-57). Mr. Erwin'sopinions regarding bow the South Spreader Waterway is functioning cwrently is supported by sever al inspections he conducted of the waterway by boat) plane, and review of drone video footage. (Erwin, T. Vol.11, pp. 557-69, 594).

   The City seeks to have the Department judge the credibility of the witness and then reweigh the evidence. However, the Department is not authorized to reweigh evidence presented at a DOAH final hearing or judge the credibility of a witness. See, e.g., Rogers, 920 So. 2d at 30; Belleau. 695 So. 2d at 1307. If there is competent substantial evidence to support the AI.J' s

   findings of fa.ct, it is irrelevant that there may also be competent substantial evidence supporting

   
   

   a contrary finding. See, e.g., Arand Constr. Co., 592 So. 2d at280; Conshor, lnc., 498 So. 2d at 623. For the abovementioned reasons, the City's exception to paragraphs. 25 and26 of theRO is

   .rejected.

   
   

   Based on the foregoing reasons, the City's Exception No. 2 is denied.

   
   

   City's Exception No. 3 regarding Paragraph No. 27

   
   

   The City takes exception to that portion of paragraph 27 of the RO, which states the

   
   

   1'second.amended notice of intent removed all references to mitigation projects that would provide

   
   

   a net improvement in water quality as part of the regulatory basis for issuance of the permit." See Joint Exhibit 1 at pp. 326-333." RO 127.

   The City objects to this finding to the extent it may "suggest that a net improvement was

   
   

   necessary to meet the conditions for issuance of the Permit." City's Exception No. J, p. 8. Tpe City directs the Department to modify paragraph No. 27 of the RO to "state that the Department's second notice of intent 'removed all references to mitigation projects.,,,

   An agency reviewing a recommended order may rtotreject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City's exception, theDepartment finds that the ALJ's:findings quoted above are supported by competent substantive evidence; and thus, must be accepted by the Department. In fact, paragraph 27 is a statement taken directly from DEP's second amended notice of intent. Joint Exhibit 1, pp. 329-30. For the abovementioned reasons, the City's

   exception to paragraph 27 of th.e RO is rejected.

   
   

   Based on the foregoing reasons, the City's Exception No. 3 is denied.

   
   

   City's Exception No. 4 regarding Paragraph Nos. 30 and 31

   
   

   The City talces exception to the findings of fact in the first sentence of paragraph 30 and all the findings in paragraph 31 of the RO1 which state:

   1. The modeling reports and discussion that support the City's application showed these three breaches connect to Matlacha Pass Aquatic Preserve..

      
      

   2. The Department's water quality explanation of ''mixing," was rather simplistic, and did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a Class I1 waters designated for shellfish propagation or harvesting. Such a consideration would require the Department to determine whether to apply the OFW permitting standards, and the Class II waters pennitting criteria in section 10.2.5 of the Environmental Resource Permit Applicant's Handbook, Volume I. See Fla. Admin Code R 62-

      330302(1)(a); 62-4.242(2); and 62-302.400(17)(b)36.

      
      

      RO,ni 30, 31. The City alleges that the first sentence of paragraph 30 and all the findings in paragraph 31are not supported by competent substantial evidence.

      An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ " unless the agency first determines from a review of the entire record, and states with particularity in the order, that thefindings of fact were notbased on competent substantial

      evidence.'1 § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City' s exception, the findings in the first sentence of paragraph 30 and all the findings in paragraph 31 of the RO are supported by competent substantial evidence in the form of expert testimony and Departmental rules.

      Rule 62-302.400(17)(b)36, Florida Administrative Code, identifies that MatlachaPass from Charlotte Harbor to San Carlos Bay is designated as a Class11 waterbody. This rule also identifies that San Carlos Bay is .a Oass II water body. Moreover, rule 62-302.700, Florid.a Administrative Code, jdentifies that the following waters in Lee County hear the proposed Project are Outstanding Florida Waters: Matlacha Pass Wildlife Refuge (rule 62- 302.700(9)(b)l 8.); MatlachaPass Aquatic Preserve (rule 62-302.700(9)(h)25.); and Pine Island Sound Aqua;tic Preserve (rule 62-302.700(9)(b)31.) These ruleprovisions identify that the

      Matlacha Pass Aquatic Preserve is both an OFW and a Class II waterbody designated for shellfish propagation or harvesting.

      Contrary to the City's exception,the first sentence of paragraph 30 of the RO is supportedby competent substantial evidence. T, he modeling reports prepared by the City's engineers discuss the multiple breaches through the Spreader Waterway that connect to the Matlacha Pass. Joint Ex. No. 1, pp. 92-93.

      Contrary to the City's exception, the majority of the findings in paragraph 31 of the RO

      
      

      are supported by competent substantial evidence. Kevin Ezwin testified that the Matlacha Pass Aquatic Preserve.is part oftbe ecosystem of the Spreader Waterways. (Erwin, T. Vol. II, pp.

      551-53, 574). The Avalon Engineering Report submitted by the City in its permit application to

      
      

      the Department states tbat water from the South Spreader Waterway travels into the Matlacha Pass during tidal exchanges. (Joint Ex. No. 1, p. 48). In addition, the City's expert Dr. Janicki testified that canal water containing nitrogen is transmitted from the South Spreader Waterway to the Matlacha Pass. (Janicki, T. Vol. III, pp. 809-10).

      The area where the Project is located connects to the Matlacha Pass Aquatic Preserve that is part of the Spreader Waterways ecosystem. Since the Matlacha Pass Aquatic Preserve is an OFW and a Class II waterbody designated for she1lfish propagation or harvesting, the Department must determine whether to apply the OFW permitting standards, and the Class II waters pennitting criteria in section 10.2.5 of the Environmental Resource PennitApplicant's Handbook, Volume1. See City Ex. No. 31.

      Nevertheless, there is no evidence that the Department did not consider that the waterbody in which the Project would occur bas three direct connections with an OFW that is a Class II waterbody designated for shellfish propagation or harvesting. To the extent paragraph

      31 of the RO states that the Department did not consider the Project's impact to an OFW; the exception is granted, since Megan Mills testified that the Department considered whether the Project was located in an OFW or would significantly degrade an OFW. (Mills, T. Vol I, pp. 124-25, 194-96).

      Based on the foregoing reasons, the City's Exception No. 4 is granted in part and denied

      
      

      in part, as set forth above.

      
      

      City's Exception No. S regarding Paragraph No. 32

      
      

      The City takes exception to the first two sentences of paragraph 32 of the RO, which read as follows:

   3. The Caloosahatchee River, at its entrance to the South Spreader Waterway, is a Class llf water testricted for shellfish harvesting. The mouth of the Caloosahatchee River is San Carlos Bay, which is a Class II waters restricted for shelffish harvesting. There was no evidence that the Departmenf s regulatory analysis considered that the waterbody in which the Project would occur directly connects to Class III waters that are restricted for shellfish harvesting, and is in close proximity to Class II waters that are restricted for shellfish harvesting. See Fla. Admin. Code R. 62-302.400(17)(b)36. and 62-330.302( l )(c).

   
   

   RO ,i 32. (emphasis added). The City alleges that these two sentences in paragraph 32 of the RO are not supported by competent substantial evidence.

   The Department concludes that a majority of the first two sentences in paragraph 32 of the RO are supported by competent substantial evidence. Rule 62-302.400(17)(b)36, Florida Administrative Code, identifies that a portion of the Caloosahatchee Riveris a Class I waterbody, but the remainder of the river is a Class ill waterbody. In addition, rule

   62-302.400(17)(b)36, Florida AdministrativeCode, identifies that San Carlos Bay is a Class II waterbody designated for shellfish harvesting and propagation. However, thereis no competent substantial evidence that Class ill waters are ''restrictedfor shellfish harvesting." RO 132.

   Section 120.57(1)(1),Florida Statutes, prescribes that anagency reviewing a recommended order may reject the ALJ's findings of factif the agency determines fro,m a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Since the Department cannot find any competent substantial evidence to support the ALJ's finding that Class JU waters are restricted for shellfish harvesting, this portion of paragraph 32 of the RO is rejected.

   Based on the foregoing reasons, the City's Exception No. 5 to paragraph 32 of the RO .is granted in part and denied in part as set forth above.

   City's Exception No. 6 regarding Paragraph No. 34

   The City takes exception to one sentence in paragraph 34 of the RO, which states ''Dr. Janicki estimated that TN loading to the CaloosahatcheeRiver,afterremoval of the Chiquita Lock, would amount to 30.746 pounds per year." RO ,r 34. The City alleges that paragraph 34 is not

   supported by competent substantial evidence.

   
   

   An agency re-viewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla . Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City's exception, the statement above in paragraph 34 of the RO is supported by competent substantial evidence in the form of a memorandum authored by Dr.

   Janicki to the City in reference to removal of the Lock. Petitioners' Ex. No. 132. See also Janicki, T. Vol. IT, pp. 2 18-19 . For the abovementioned reasons, the City's exception to the above sentence in paragraph 34 of the RO is rejected.

   Based on the foregoing reasons, the City's Exception No. 6 is denied.

   
   

   City's Exception No. 7 regarding Paragraph No. 35

   
   

   The City takes exception to the second sentence in paragraph 35 of the RO, which paragraph reads as follows:

   1. Dr. Janicki opined that removing the Lock would not result in

      adverse impacts to the surrounding environment. But the Petitioners obtained his concessi01i that his opinion was dependent on the City's completion of additional water quality enhancement projects in the future as part of its obligations under the Caloosahatchee Estuary BasinManagement Action Plan (BMAP) for achieving the TNTMDL.

      RO ii 35. (emphasis added). The City alleges that the second sentence in paragraph 35 of the RO is not supported by competent substantial evidence.

      Contrary to the City's exception, the ALJ' s findings of fact in paragraph 35 of the RO are supported by competent substantial evidence. Tony Janicki testified as follows:

      MR. HANNON: Now, your opinion that removal of the lock will not

      adversely-impact the Caloosahatchee River is conditional: is it not?

      1. To a degree, yes.

   * * * *

   Q. You are prepared to testify that in your opinion removal of the

   Chiquita Boat Lock would probably not adversely affect the environment correct?

   A. That's correct.

   Q. And does that opinion depend upon Cape Coral completing certain projects that they've represented to you they intend to complete?

   A. Again to some degree, yes.

   
   

   Janicki, T. Vol. l, pp. 219-21. The ALJ's findings are further explained in Tony Janick.i's testimony from 217 through 221.

   The City disagrees with the ALJ's findings and seeks to have the Department reweigh fue evidence. However, the Department is not authorized to reweigh evidence presented at a DOAH final hearing or judge the credibj}ity of a witness. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307. lfthere is competent substantial evidence to support the ALJ's findings of

   fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e;g., Arand Constr. Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. For tbe.abovementioned reasons, the City' s exception to paragraph 35 of the RO is rejected.

   Based on the foregoing reasons, the City' s Exception No. 7 ls denied.

   
   

   City's Exception No. 8 regarding Paragraph No. 37

   
   

   The City takes exception to the findings in paragraph 37 of the RO, which state!

   
   

   1. Thus, the Petitioners proved by a preponderance of the competent and substantial evidence that the Department and the City were not aligned regarding bow the City' s application would provide reasonable assurances of meeting applicable water quality standards.

      
      

      RO ,r37. TheCity alleges that paragraph 37 is not supported by competent substantial evidence.

      
      

      An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ ''unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Thereis no competent substantial evidence to support the ALJ's finding that the Department and City were not aligned about how the City would provide reasonable assurances regarding water quality standards.

      Based on the foregoing reasons, the City' s Exception No. 8 is granted.

      
      

      City's Exception No. 9 regarding Pnagrapb No. 38

      
      

      The City takes exception to the findings in paragraph 38 of the RO, which state

      
      

   2. The Petitioners proved by a preponderance of the competent and substantial evidence that the City relied on future projects to provide reasonable assurance that the removal of the Lock would not cause or contribute to vio1ations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve.

      
      

      RO ,i 38. The City alleges that pai:agrapb 38 is not supported by competent substantial evidence.

      Anagency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first detennines from a review of the entire record, and states with particularity in the order, that the findings of fact were notbased on competent substantial evidence.'' § 120.57(1)(1), .Fla Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City's exception, the statement above in paragraph 38 of the RO is supported by competent substantial evidence in the fonn of a memorandum authored by Dr.

      Janicki to the City in reference to removal of the Lock. Petitioners' Ex. No. 132. See also

      
      

      Janicki, T. Vol. II pp. 218-19. For the abovementioned reasons, the City' s exception to the

      
      

      above sentence in paragraph 38 of the RO is rejected.

      
      

      The City incorporated the arguments made in its Exception Nos. 1 through 7. For the reasons cited in the Department' s response10 the City' s Exceptions Nos. 1 through 7 and 9, the City 's ExceptioaNo. 9 is denied.

      City's Exception No. 10 regarding Paragraph No. 39

      
      

      The City talces exception to the findings of fact in paragraph 39 of the RO, which reads:

      
      

   3. The Petitioners proved by a preponderance of the competent and substantial evidence that the Department relied on a simplistic exchange of waters to determine that removal of the Lock would not cause or contribute to violations of water quality standards it1 the Caloosahatcbee River and the Matlacha Pass Aquatic Preserve.

      
      

      RO 39. The City alleges that paragraph 39 of the RO is not supported by competent substantial evidence. For the reasons cited in the Department's response to the City' s Exception No. 4. above, the City's Exception No. 39 is denied.

      City's Exception No. 11 regarding Paragraph No. 40

      
      

      The City takes exception to the findings of fact in paragraph 40 of the RO, which reads:

      
      

   4. The engineering report that supports the City's application stated

   that whenthe Lock is removed, the South Spreader Waterway behind the Lock wi11

   
   

   17

   become tidally influenced. With the Lock removed, the volume of daily water fluxes for the South Spreader Waterway would increase from zero cubic meters per day to 63,645 cubic meters per day. At the location of Breach 20, with the Lock removed, the volume of daily water fluxes would drasticaUy decrease from 49,644 cubic meters per day to eight cubic meters per day.

   
   

   RO ,i 40. The City alleges that paragraph 40 is not supported by competent substantial evidence.

   
   

   An agency reviewing a recommended order may not reject ot modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial

   evidence. " § 120.5 7(] )(1), Fla Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City' s exception1 the Department finds that the ALJ's findings quoted above are supported by competent substantive evidence; and thus, must be accepted by the Department.

   The findings in paragraph 40 of the RO are a direct recitation from the engineering report included in the City's application to the Department. Joint Ex. No. 1, p. 124. The Cit;y s engineering report in supportof its pennit application concluded that when the Chiquita Lock is

   removed, the volume of daily water fluxes out of the canal system from the South Spreader

   
   

   Waterway would increase from zero cubicmeters per day to 63,645 cubic meters per day. The engineering report also concluded thatwitb the Chiquita Lock removed, the volume of daily water fluxes out of the canal system at the location of Breach 20, would decrease from 49 644 cubic meters per day to eight cubic meters per day. Joint Ex. No. I, p. 124.

   Based on the foregoing reasons, the City's Exception No. 11 is denied.

   
   

   City's Exception No. 12 regarding Paragraph No. 41

   
   

   The City takes exception to the second sentence in paragraph 41 of the RO, w.hich states

   
   

   that "[t]he evidence demonstrated that the embayrnent is Punta Blanca Bay, which is part of the

   Matlacha Pass Aquatic Preserve," alleging this statement is not supported by competent substantial evidence in the record. RO ,i 41.

   An agency reviewing a recommended order may not reject or modify the findings of fact

   
   

   of the ALJ "unless the agency first determines from a review of the entire record, and state s with pru,1icularity in the orde r. that the findings of fact were not based on competent substantial evidence." § 120.57(1)(1),Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City' s exception, the Department fmds that the-ALJ' s finding quoted above is supported by competent substantive evidence; and thus, must be accepted by the Department. Petitioners' Ex. No. 152, p. 2 (map).

   Based on the foregoing reasons, the City's Exception No. 12 is denied.

   
   

   City's Exception No. 13 regarding Paragraph Nos. 42, 43, and 44

   
   

   The City takes exception to the findings of fact in paragraphs 42, 43, and 44 of the RO, which read:

   1. Mr. Erwin testified that Breach 20 was not a "breach."3/ He

      described it as the location of a perpendicular intersection of the South Spreader Waterway with a small tidal creek, which connected to a tidal pond further back in the mangroves. Mr. Erwin testified that an "engineered sandbag concrete structure'' was built at the shallow opening to limit the amount of flow into and out of this tidal creek system. But it was also designed to make sure that the tidal creek system

      <\continued to get some amount of water." As found above, Lock removal would drastically reduce the volume of daily water fluxes into and out of Breach 20's tidal creek system.

      
      

   2. Mr. Erwin also testified that any issues with velocities or erosion would be exemplified by bed lowering, siltation, and stressed mangroves. He persuasively testified, however, that there was no such evidence of erosion and there were "a lot of realhealthy mangroves."

      
      

   3. Mr. Erwin opined that removal of the Lock would cause the South Spreader Waterway to go from a closed,.mostly fresh water system; to a tidal saline

      syste,m

      He described the current salinity level in the South Spreader Waterway to

      be low enough to support low salinity vegetation and not high enough to support marine organisms like barnacles and oysters.

      ROff 42, 43, 44. The City alleges that paragraphs 42, 43 and 44 of the RO and the associated

      footnote are not supported by competent substantial evidence. They base this opinion on their allegation that Mr.Erwin testified beyond the scope of his qualifications as an expert in ecology in the subject hearing.

      Contrary to the City's exception, the findings of fact in paragraphs 42 through 44 of the RO are supported by competent substantial evidence in the form of testimony by Kevin Erwin. While the City contends that Mr. Erwin's opinions are beyond the scope of his qualifications in this hearing, the City did not object to Mr. E rwin' s testimony found in paragraphs 42 through 44

      of the RO on the grounds that his field of expertise did not embrace the testimony in these

      
      

      paragraphs. Nor did the City move to strike this testimony.

      
      

      Tl:;le findings in paragraph 42 of the RO are supported by Mr. Erwin's testimony. (Erwin, T., Vol. II, pp,558, 594). Thefindings in paragraph 43 of the RO are also supported by Mr.

      Erwin's testimony. (Erwin, T., Vol. JI, pp. 530-33 , 539-41, 554,559 and 615). Lastly, the

      
      

      findings in.paragraph 44 of the RO are supported by Mr. Erwin's testimony. (Erwin, T,, Vol. II, pp. 573,605, and 610).

      Moreover, expert Kevin Erwin ls qualified to testify about the original design of the South Spreader Waterway. Kevin Erwin served as an ecologist for the Department of Environmental Regulation (DER), th e predecessor agency to the Department, from 1975 to 1980. During this time, h.e initiated and oversaw the Departtnent' s enforcement action against the developers of the City, collectively called "GAC.'' (Erwin. T. Vol. IT, p. 516.) Mt. Erwin was personally involved in reviewing and implementing the design for the Spreader Waterway. (Erwin T. Vol. pp5. 2-6. 554-57). Mr. Erwin's opinions regarding how the South Spreader

      Waterway is functioning currently is supported by several inspections he conducted of the waterway by boat, plane, and review of drone video footage.{Erwin, T. Vol. II, p. 557-69, 594).

      The City seeks to have the Department judge the credibility of the witness and then

      
      

      reweigh the evidence. However, the Department is not authorized to reweigh evidence presented at a DOAH final hearing or judge the credibility of a witness. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307. If there is co mpetent substantial evidence to support the ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr. Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. For the abovementioned reasons, the City's exception to paragraphs 25 and 26 oftbeROis rejected.

      Furthermore, the ALJ can "draw permissible inferences from the evidence." Heifetz v. Dep'I of Bus. RegulaJion, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). As noted by theALJ in endnote No. 3 to the RO, "[t]be sufficiency of the facts required to form the opinion of an expert must normally reside with the expert, and any purported deficiencies in such facts relate to the weight of the evidence, a matter also exclusively within the province of the ALJ as the trier of the facts. See Gershanik v. Dep't of Pro.fl Regulation> 458 So. 2d 302, 305 (Fla. 3rd DCA 1984), rev. den.,462 So.2d 1106 (Fla. 1985).

      For the abovementioned reasons, the City's exception to paragraphs 42 through 44 of the

      
      

      RO is rejected.

      
      

      Based on the foregoing reasons, the City's Exception No. 13 is denied.

      
      

      City's Exception No. 14 regarding Paragraph Nos. 45 and 46

      
      

      The City takes exception to the findings of fact in paragraphs 45 and46 of theRO, which

      
      

      read:

   4. The City's application actually supports this opinion. Using the Environmental Flu.id Dynamics Code (EFDC) model developed by Dr. Janicki for this Lock removal project, comparisons were made describing the salinity distribution within the South Spreader Waterway. The model was run with and with out the Lock, for both a wet and dry year.

      
      

   5. Dr. Janicki testified, and the model showed, that removal of the Lock would result in increased salinity above the Lock and decreased salinity downstream of the Lock. However, he generally opined that the distribution of salinities was well within the normal ranges seenin this area. The City's application also concJuded that the resultant salinities did not fall outside the preferred salinity ranges for seagrasses, oysters, and a wide variety of fish taxa. However, Dr. Janicki did not address specific changes in vegetation and encroachment of marine organisms that would occur with the increase in salinity within the South Spreader Waterway.

   
   

   RO ,Ml 45 and 46 . The City alleges that "fp]etitioners did not provide any expert testimony to support a finding that specific changes in vegetation and encroachment of marine organisms would occur within the South Spreader Waterway." City 's Exception No. 14, p. 18. The City does not identify any objections to paragraph 45 of the RO, nor to any other sentencein paragraph 46 of the RO other than the last sentence.

   The ALJ' s findings of fact in the last sentence of paragraph 46 are supported by competent substantial evidence in the form of expert testimony by John Cassani. The City acknowledges that Petitioners' expert witness John Cassani, testified about adverse impacts on

   vegetation and encroachment of marine organisms with the increase of salinity if the Lock is removed. City' s Exception No. 14, p. 19. The Cityobjects that Mr. Cassani was accepted as an e>...'Pert in water quality; however, the Cityis counsel did not object to Mr. Cassani's testimony regarding the smalltooth sawfish or move to strike this testimony. (Cassani, T. Vol. pp. 656-58). As a result, Mr. Cassani' s testimony regarding the smalltooth sawfish is part of the record of the hearing upon which the ALJ may rely. Specifically, Mr. Cassani testified as follows:

   Q. Did you also formulate an opinion as to whether removal of the Lock would have an adverse impact on plants, fish, and manatees?

   A. I did.

   Q. And could you tell the Court what that opinion -is.

   A. My professional opinion about the impact of removing the lock on downstream biota, either plants or animals, was frommy experience with the North Spreader.

   So there was very significant sediment transport shoaling as a result of [re]moving the Ceitus boat]ift.

   I thought it was reasonable to assume something similar would happen if

   the Chiquita Lock was removed.

   And so as you heard Mr. Erwin testify this morning that sedimentation and shoaling as a result of that can damage seagrass and oysters.

   I'm also concemed that oneof the most critically endangered species on the planet right now is the smalltooth sawfish. And the smalltooth sawfish has an exclusion zone just downstream of the mouth of the Chiquita Lock.

   And so it's considered a pupping area. And so we thought that rapid

   salinity fluctuations might create an impact to that critically endangered species.

   
   

   (Cassani , T. Vol. II, pp. 656-57) (emphasis added). See also Joint Ex. No. 1, p. 57-59. Moreover, Mr. Cassani's resume, admitted as Petitioner' s exhibit 117, provides ample evidence that he has the qualifications to testify about salinity cha, nges and its potential impacts to the sawtooth sawfish. Mr. Cassani received a bachelor' s degree in Fisheries and Wildlife from Michigan State University and a master s degree in biology, with a concentration in aquatic ecology, from Central Michigan University. He also teaches limnology and watershed science at the Florida Gulf Coast University in its Department of Marine and Ecological Sciences.

   Petitioners' Ex. No. 117.

   
   

   Based on the foregoing reasons, the City's Exception No. 14 is denied.

   
   

   City's Exception No. 15 regarding Paragraph No. 48

   
   

   The City takes exception to the second sentence in paragraph 48 of the RO, which states that "Mr. Erwin credib]y and persuasively testified thata drop in water level of only a few inches

   would have negative effects on the health of mangroves, and that a drop of a foot could result in substantial mangrove die--o f:f." RO ,r 48. The City alleges this statement is not supported by competent substantial evidence. City Exception No. 15, p. 19.

   An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ ''unless the agency first determines from areview of the entire record, and states witb particularity i.t1the order, that the findings of fact were not based on competent substantial evidence: ' § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City's exception, the Department finds that the ALJ's finding quoted

   above is supported by competent substantive evidence; and thus, must be accepted by the Department. Kevin Erwin explained how a permanent drop in water level from only a few inches to l or 1.5 feet negatively impacts mangroves. (Erwin, T. Vol. II, pp. 552-54). Mr. Erwin

   compared the negative impacts to the mangroves in the North Spreader System after removal of

   
   

   the Ceitus Boat Lift was removed in 2008 with the proposed removal of the Chiquita Lock. Erwin, T. Vol. II, pp. 552-54.

   Based on the foregoing reasons, the City' s Exception No. 15 is denied.

   
   

   City's Exception No. 16 regarding Paragraph No. 49

   
   

   The City takes exception to the last sentence in paragraph 49 of the RO, which states that "[t]hus, the mangrove wetlands on the western and southern borders of the South Spreader Waterway serve to filter nutrients out of the water discharged from the Waterway beforeit reaches Matlacha Pass and the CaloosahatcbeeRiver.''

   An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ '' unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial

   evidence." § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City' s e cep tion, the Department finds that the ALJ's finding quoted above is supportedby competent substantive evidence; and thus, must be accepted by the

   Department. Kevin Erwin's testimony was clearly about the status of the South Spreader Waterway prior to removal of the Lock. See Mr. Erwin's testimony regarding comparison of the north and southmangroves. (Erwin, T. Vol. Il, pp. 530-33, 539-41, 551-52, 554, 559, 598-99,

   605-06, 614-15, 631).

   
   

   Based on the foregoing reasons, the City's Exception No. 16 is denied.

   
   

   City's Exception No. 17 regarding Paragraph No. 50

   
   

   The City takes exception to the findings of fact in paragraph 50 of the RO, which states "Mr. Erwin's credible and persuasive testimony was contrary to the City s contention that Lock removal would not result in adverse imp cts to themangrove wetlands adjacent to the South Spreader Waterway." RO,i 50. The City alleges that Paragraph 50 is not supported by

   competent substantial evidence.

   
   

   Contrary to the City's exception, the ALJ's findings of fact in paragraph 50 of .the RO are supported by competent substantial evidence in the form of expert testimony by Kevin Erwin.

   Kevin Erwin testified regarding impacts from removal of the Chiquita lock that will cause

   
   

   adverse impacts to the mangrove wetlands adjacent to the South Spreader Waterway. (Erwin, T, Vol. II, pp. 539-41, 598-99, 605-06,. 615 and 631; Erwin, T. Vol.m,pp. 901-03 and 907-08).

   The C1yt disagrees with the ALJ' s findings and seeks to have the Department reweigh the

   
   

   evidence, However, the Department is not authorized to reweigh evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of a witness. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307 . If there is competent substantial evidence­ to support the ALJ's findings of fact, it is irrelevant that there may also be competent substantial

   evidence supporting a contrary finding. See, e.g., Arand Constr. Co., 592 So. 2d at 280; Canshor,

   Inc., 498 So. 2d at 623. For the abovementioned reasons, the City's exception to paragraph 50 of the RO is rejected.

   Based on the foregoing reasons, the City's Exception No. 17 is denied.

   
   

   City's Exception No. 18 regarding Paragraph No. 51

   
   

   The City takes exception to the findings of fact in paragraph 51 of the RO, which state that "(t]he City and the Department failed to provide reasonable assurances that removing the

   Lock would not have adverse secondary impacts to the health of the mangrove wetlands

   community adjacent to the South Spreader Waterway." RO151. The City alleges that paragraph 51 of the RO is not supported by cotnpetent substantial evidence.

   Contrary to the City's exception, the AI.J's findings of fact in paragraph 51 of the RO are supported by competent substantial evidence in the fonn of expert testimony by Kevin Erwin.

   Kevin Erwin testified regarding impacts from removal of the Chiquita Lock that will cause adverse impacts to the health of the mangrove wetlands community adjacent to tb.e South Spreader Waterway. Specifically, Mr. Erwin testified as follows:

   Q. In the [permit] application, it's represented that there will be no

   adverse impact on wetlands or mangrove[s].

   Do you have an opinion as to whether the application and the granting of the application would havehad an adverse impact on wetlands and mangroves?

   A. Yes.

   Q. And what is that opinion?

   A. I believe there would be significant secondary impacts as a result of the removal of that structure and opening that system directly to tide.

   Q. Why do you believe that?

   A. Well, there's a number of similarities between the system that I was just discussing, the North Spreader System in Ceitus and this one.

   While they' re not identical, they're exactly the same - same concepts to provide that fresh water source to the coastal wetlands in the area.

   And it's not- in this case, it's notjust the source of the fresh water, but

   its ' s the change in e]evation that will occur in that system when you move that foot (sic).

   Mangroves are extremely sensitive to a lot of different things, one of

   which is water levels. So if those water levels drop, even just a few inches, okay,

   what could very well happen is what you had happen in the North Spreader System with those mangroves becoming drier and those systems turning from mangroves to something else because they no longer can flourish as mangroves or even salt marshpossibly.

   Q. Do you have an opinion as to whether the Department should have considered thesesecondary effects?

   A. Yes.

   Q. What is that opinion?

   A. That they absolutely should have considered them. There's so much wetland habitat that's part of this ecosystem now, to make that kind of a significant change and not at least give cause to enough to study those areas to determine what the impacts would be is inexcusable especially when you look at the record and what's happened in the North Spreader System.

   Erwin, T. Vol.n, pp. 551-53.

   The City disagrees with the ALJ's findings and seeks to have the Department reweigh the evidence. However, the Department is not authorized to reweigh evidence presented at a DOAH fin.al bearing, attempt to resolve conflicts therein, or judge the credibility of a witness. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307. If there is competent substantial evidence

   to support the ALJ's fipdings of fact, it is irrelevant that there may also be competent substantial

   
   

   evidence supporting a contrary finding. See, e.g., Arand Const,·. Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. For the abovementioned reasons, the City's exception to paragraph 51 of the RO is rejected.

   Based on the foregoing reasons, the City's Exception No. 18 is denied.

   
   

   City's Exception No. 19 regarding Paragraph No. 55

   
   

   The City takes exception to the findings of fact in paragraph 55 of the RO, wbich states that "the Petitioner's expert witness, John Cassani, who is [employed by] the Calusa

   Waterkeeper, tes•tifiedthat there is a smalltooth sawfish exclusion zone downstream of the Lock. He testified that the exclusion zone is a pupping area for smalltooth sawfish, and that rapid

   
   

   17

   salinity fluctuations could negatively impact their habitat." RO155. TheCity alleges that paragraph55 of the RO is not supported by competent substantial evidence.

   Contrary to the City's exception, the ALJ's findings of fact in paragraph 55 of the RO are

   
   

   supported by com petent substantial evidence in the form of expert testimony by John Cassani. The City objects that Mr. Cassani was accepted as an expert in water quality; however, the City's counsel did not object to Mr. Cassani ' s testimony regarding the smalltooth sawfish, nor move to strike this testimony. (Cassani, T. Vol.pp. 656-58). As a result, Mr. Cassani's testimony regarding the smalltooth saw:fish is part of the record of the hearing upon which the ALJ may rely. Specifically, Mr. Cassani testified as follows:

   Q. Did you also formulate an opinion as to whether removal of the Lock would have an adverse impact on plants, fish, and manatees?

   A. I did.

   Q. And could you tell the Court what that opinion is.

   A. My professional opinion about the impact of removing the lock on downstream biota, either plants or animals, was from my experience with the North Spreader.

   So there was very significant sediment transport shoaling as a result of [re]moving the Ceitus boat lift.

   I thought it was reasonable to assume something similar would bappen if

   the Chiquita Lock was removed.

   And so as you heard Mr. Erwin testify this morning that sedimentation and shoaling as a result of that can damage seagrass and oysters.

   I'm also concerned that one of the most critically endangered species on the planet right now is the smalltooth sawfish. And the smalltooth sawfi.sh has an exclusion zone just downstream of the mouth of the Chiquita Lock.

   And so it's considered a pupping area. And so we thought that rapid salin1ty fluctuations might create an impact to that critically endangered species.

   
   

   Cassani, T. Vol. TI, pp. 656-57. See also Joint Ex. No. ] , pp. 57-59. Moreover, Mr. Cassani's resume admitted as Petitioners' Exhibit No. 117 provides ample evidence that he has the qualifications to testify about potential impacts to the sawtooth sawfisb. Mr. Cassani received a bachelor's degree in Fisheries and Wildlife from Michigan State University, and a master's

   .degree in biology , with a concentration in aquatic ecology, from Central Mjchigan University.

   
   

   28

   He also teaches limnology and watershed science at the Florida Gulf Coast University in its Department of Marine and Ecological Sciences. Petitioners' Ex. No. 117.

   Based on the foregoing reasons, the City's Exception No. 19 is denied.

   
   

   City's Exception No. :20 regarding Paragraph No. 57

   
   

   The City takes exception to the findings of fact in paragraph 57 of the RO, which reads:

   
   

   57. The City's literature review included a regional assessment by FWCs Fish and Wikll.ife Research Tnstitute (FWRI) from 2006. Overall, the FWRI report concluded that the mouth of the Caloosal1atchee River, at San Carlos Bay, was a "hot spot" for boat traffic coinciding with the shift and dispersal of manatees from winter refugia The result was a "high risk of manatee-motorboat collisions." In addition, testimony adduced at the hearing from an 18-year employee of Cape Harbour Marina, Mr. Frank Muto, was that Lock removal woqld result in novice boaters ihcreasing their speed, ignoring the no-wake and slow speed zones, and presenting "a bigger hazard than the (L]ock ever has."

   
   

   RO, 57, The City alleges that paragraph 57 of the RO is not supported by competent substantial evidence. Contrary to the City's exception, the ALJ's findings of fact in paragraph 57 of the RO are supported by competent substantial evidence.

   The City objected to the ALJ relying on a regional assessment by FWC's Fish and Wildlife Research Institute included in the City's own literature review that was contained in the City ' s permit application. The City's permit application containing thisFWCassessment was admitted at hearing in Joint Exhibit No. 1. The City has no basis to object to the ALJ's reference to FWC' s regional assessment, because it is a part of the hearing record.

   The City also objects to the ALJ's findings in paragraph 57 regarding Mr. Frank Muto's testimony. Mr. Muto, has extensive knowledge of the boat traffic in the area where the Lock is

   located, because he has been the harbor master for Cape Harbour Marina for the past eighteen

   
   

   (18) years. (Muto, T. Vol. II, p. 372). Mr. Muto testified as follows:

   
   

   Q. Mr. Muto, I want to first thank you for acknowledging the issues that you've seen at tbe Lock.

   
   

   29

   
   

   Lock.

   You mentioned a couple of solutions to the problems. Would removal of the Lock help reduce thoseproblems?

   A. Not at all. They would .increase our problems by removing the

   
   

   1. Okay. Let me be more specific. The problem you said with the

      lock, people going through the lock. If the lock is removed, you believe they are going to be worse?

      1. I really do believe they'd be worse because then you' re gonna find

         people that are novice boaters increasing their speed.

         It's still going to be a no wake zone and a slow speed zone. You're gonna find boats that are gonna try to go up and down that Spreader Canal at higher rate of speed because they're .novice boaters and don't lmderstand it.

         And I thiok that could presetit a bigger hazard than the lock ever has.

         
         

         Muto, T. Vol. II, pp. 399-400.

         The City in its exception acknowledged that lay opinion testimony is admissible under certain circwnstances. The City quoted the First District Court of Appeal in John-son v. State that

         "[l]ayopinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events.'' Johnson v. State, 254 So. 2d 617 (Fla. 1st DCA 2019) (citing United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003)). See also Nat'l Commc'ns Indus., Inc. v. Tarlini, 367 So. 2d 670 (Fla. 1st DCA 1979)(non-experts may testify on a subject about matters they themselves perceive).

         The testimony from the Mr. Muto was intended to help the ALJ understand Mr. Muto's 18 years of watching boaters operating in the subject area; and thus may fonn the basis for the ALJ' s finding of fact.

         Based on the foregoing reasons, the City1 s Exception No. 20 is denied.

         
         

         City's Exception No. 21 regarding Paragraph Nos. 59, 60,102 and 103

         
         

         The City takes exception to the findings of fact in paragraphs 59 and 60 of the RO, which

         
         

         read:

         
         

         30

         1. Petitioners presented the testimony of Mr. Frank Muto, the general manager of Cape Harbour Marina. Mr. Muto bas been at the Cape Harbour Marina for 18 years. The marina has 78 docks on three finger piers along with transient spots. The marina is not cWTently subject to tidal flows and its water depth is between six and a half and seven and a half feet. He testified that they currently have at least 28 boats that maintain a draft of between four and a half and six feet of water. If the water depth got below four feet, those customers would not want to remain at the marina. Mr. Muto further testified that the Lock was in place when the marina was built, and tbe marina and docks were designed for an area with no tidal flow.

            
            

         2. Mr. Muto also testified that he has witnessed several boating safety incidents in and around the Lock. He testified that he would attribute almost all of those incidents to novice boaters who lack knowledge ofproper boatingoperations and locking procedures. Mr. Muto additionally testified that there is law

         enforcement presence at the Lock twenty-four homs a day, including FWC marine patrol and the City's marine patrol

         
         

         RO ,i,r 59, 60. The City alleges that paragraphs 59 and 60 regarding Frank Muto' s testimony are not supported by competent substantial evidence. Contrary to the City's exception, the ALJ's

         "findings of fact in paragraphs 59 and 60 of the RO are supported by competent substantial evidence.

         Mr. Muto has extensive knowledge of the boat traffic in the area where the Lock is located, because be has been the harbor master for the Cape Harbour Marina for the past eighteen (18) years. (Muto, T.Vol. II, p. 372). Each sentencein paragraphs 59 and 60 of the RO is supported by Mr. Muto's testimony. The ALJ's findings in paragraph 59 of the RO are supported by competent substantial evidence in the form of Mr. Muto' s testimony. (Muto, T. Vol. II, pp. 372, 373, 378,380,379, 380 and 387). The ALJ's findings in paragraph 60 of the RO are also supported by competent substantial evidence in the form of Mr. Muto's testimony.

         (Muto, T. Vol. II, pp. 388-89, 391).

         
         

         Mr. Muto was.not tendered as an expert witness. However, lay opinion testimony is admissible under certain circumstances. Nat'/ Commc'ns Indus., Inc. v. Tarlini1 367 So. 2d 670

         (Fla. 1st DCA 1979) (non-experts may testify on a subject about matters they themselves perceive). The testimony by Mr. Muto in paragraphs 59 and 60 of the RO is all related to matters that he has seen or perceived; and thus, may constitute competent substantial evidence upon which the ALJ may rely.

         The City also takes exception to the conclusions ofl&w in paragraphs 102 and 103 of the

         
         

         RO, which read:

         
         

         1. The preponderance of the evidence supports a finding that the City ' s claims of navigational public safety concerns have less to do with navigational hazards, and more to do with inexperienced and impatient boaters. Even so, the direct impact of Lock removal will be to increase navigational access from the CaJoosahatcbeeRiver to the South Spreader Waterway.

            
            

         2. In addition, the preponderance of the evidence also supports a finding underfactor one that there will be adverse secondaryimpactsto the property of Cape Harbour Marina.

         
         

         ROW 102, 103. Toe City alleges that the conclusions of Ja w in paragraphs 102 and 103 of the RO are not supported by the Department's ERP rules. See Environmental Resource Permit Applicant's Handbook, Vol. I, Section 10.2.3.1.

         The Department concludes that paragraph 102 and 103 contain mixed questions oflaw and fact. An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agencyfirst determines from a review of the entlre record, and states with particularity in the order, that the :findings of fact were not based on competent substantial evidence.'' § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62.

         Findings of fact include "ultimate facts," sometimes termed mixed issues oflaw andfact, necessary to detennine the issues in a case. Costin v. Fla. A & M Univ. Bd. o.fTrs., 972 So. 2d 1084, 1086-1087 (Fla. 5th DCA 2008). Whether a given set of facts constitutes the violation of a

         ruleor statute hasbeen held to be a question of ultimate fact that an agency may not reject if it is supported by competent substantial evidence. Pillsbury v. State, Dep't of Health & Rehab. Sen >. , 744 So. 2d 1040, 1042 (Fla. 2d DCA 1999).

         Contrary to the City's exception the Department finds that the ALJ's findings qu,oted above in paragraphs 102 and 103 of the RO are supported by competent substantive evidence; and thus, must be accepted by the Department. (Muto, T. Vol. II, pp. 388-89, 399-400).

         Moreover, the ALJ's finding in paragraph 103 that the Project witJ cause adverse secondary impacts to the property of Cape Harbour Marina under factor one of the seven factors in section 373.414(l )(a), Florida Statutes, to be considered and balanced is sup ported by competent substantive evidence; and thus, must be accepted by the Department. (Muto, T. Vol. II. pp. 402- 03). Specifically Mr. Muto testified that water depths Iowerthan five and a half feet to six feet would start to "cause a hazard on boat safety." Id. Under section 373.414(l)(a)l., Florida Statutes, the Department must consider " [w]hether the activity will adversely affect the public health, safety, or welfare or the property of others."§ 373.414(l)(a)l. Fla. Stat. (2019). The

         Department concurs with the ALJ's mixed -iss ues of law and fact, and the ALJ's interpretation of Section 373.414(l)(a)l., Florida Statutes.

         Based on the foregoing reasons, the City' s Exception No. 21 is denied.

         
         

         City's Exception No. 22 regarding Paragraph Nos. 67 through 76

         
         

         The City takes exception to each conclusion of law in the ''Burden of Proof' section of the RO, with minimal explanation for its objection to the conclusions oflaw. The conclusions of law in.paragraphs 67 through 76 of the RO each interpret section 120.569(2)(p), Florida Statutes.

         fu paragraph 69 of theRO, the ALJ noted that on March 1, 2019, the Department filed a second amendment to its intent to issue and draft permit. The ALJ further noted that "[t]his second

         amendment eliminated the Department' s previous finding that the City demonstrated mitigation of adverse water qualityimpacts through its achievement of current and fature project credits in

         the BMAP process. See Joint Exhibit 1 at pp. 329 and 330." (emphasis added). RO ,i 69. The

         
         

         ALJ further explained that an ''agency must offer proof in support of the agency's changed position during the evidentiary proceeding, in order for the new position to provide the potential basis for a recommended or finalorder. The Department's changed position, therefore, was

         not part of the City's prima facie case as contemplated by section 120.569(2)(p)."RO 171,

         Th us, the ALJ concluded that the City did not met its burden under section 120.569{2)(p), Florida Statutes-' to present a prima facie case of entitlement to the second amended ERP.

         Section 120.57(1)())1 Florida Statutes, authorizes an agency1o reject or modify an ALJ' s conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield, 805 So. 2d at 1012; L.B. Bryan & Co., 746 So. 2d at 1196-97; Deep Lagoon Boat Club. Ltd. , 784 So . 2d at 1141-42. However, DEP does not have authority to reject the ALJ's interpretation of Section 120.569(2)(p), Florida Statutes, since this statutory provision is not one over which it has substantive jurisdiction. Even if DEP disagreed with the ALJ's

         interpretation of Section 120.569(2)(p), Florida Statutesj it does not have the authority to reject the ALJ's interpretation of this statutory provision. For the abovementioned reasons, the City's exception to paragraphs 67 throtJgh 71 of the RO ("Burden of Proof ') is rejected.

         Based on the foregoing reasons; the City's Exception No. 22 is denied.

         
         

         City's Exception No. 23 regarding Paragraph No. 79

         
         

         The City takes exception to the conclusions of law in paragraph 79 of the RO, which state that the "Petitioners proved by a preponderance of the competent and substantial evidence that the City relied on future projects to provide reasonable assurance that tbe removal of the Lock

         would not cause or contribute to violations of water quality standards in the Caloosahatchee

         
         

         River and MatJacba Pass Aquatic Preserve,; ' alleging that the conclusion of law is either an

         
         

         improperly categorized finding of fact or a conclusion oflaw based on a non-existent findingof fact. City Exception No. 23, p. 29.

         The Dep artment concludes that the ALJ's statement above is in reality a finding of fact. An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ '' unless the agency frrst determines from a review of-the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial

         evidence." § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d

         at 62. Contrary to the City ' s exception, the Department finds that the ALJ's findings quoted above are supported by competent substantive evidence; and thus, must be accepted by the Department. For example, the City' s ex pert, Dr. Janicki, concluded that the Chiquita boat lock

         
         

         removal relied upon the BMAPprocess to conclude that the Lock s removal " will not result in an increased load above that already estimated." Joint Ex. No. 1, p. 86. Similarstatements appear in the City' s application in Joint Ex. No. 1, pp. 120-124, 165, 182-84, 208-09, 215,217, and 220.

         See Hasselbacki1. Wentz and Dep' t of Envtl. Prat., DOAR Case No. 07-5216)(FTa. DOAH

         
         

         January 28, 2010; DEP March 15; 2010).

         
         

         Based on the foregojng reasons, the City's Exception No, 23 is denied.

         
         

         City's Exception No. 24 regarding Paragraph Nos. 80 and 81

         
         

         The City takes exception to the conclusions of law in paragraphs 80 and 81 of the RO,

         
         

         which s tate:

         
         

         80. Such reliance on future projectsdoes not satisfy therequired upfront demonstration that there is a substantiaJ likelihood of compliance with standards, or "a substantial l ikelihood that the project will be successfully implemented." See Metro. Dade Cntv. v. Coscan Florida. Inc., 609 So. 2d 644, 648 (Fla. 3d DCA

         1992). Those future projects were part of the BMAP process under Section 403.067, Florida Statutes, which the Department had recognized and incorporated into its original intent to issue and draft permit. See Joint Exhibit 1 at pp. 329 and

         330. The March I , 2019, second amendment eliminated the Department's previous

         :finding that the City demonstrated mitigation of adverse water quality impacts through its achievement of future project credits in the BMAP process.

         
         

         81. Dr. Janicki tried to avoid using the "BMAP" acronym because evidenc and argument related to that final agency action were excluded from this proceeding at the behest of the Department without objection from the City. However, the BMAP implements, over approximately 20 years, the 2009 TN TMDL that Dr. Janicki testified was calculated with Lock removal as a consideration. But achievement of the 2009 TN TMDL depends on the BMAPs future projects, which Dr. Janicki conceded was the basis for his water quality opinion in th.is proceeding.

         
         

         RO ,Mi 80 - 81. The City alleges that.the conclusions oflaw jn paragraphs 80 and 81 of the RO are not supported by testimony from the City.

         The Department concludes that paragraphs 80 and 81 of the RO contain mixed findings of fact and conclusions of law. Contrary to the City's exception, the ALJ's fmdings of fact in paragraphs 80 and 81 of the RO are supported by competent substantial evidence. Tony Janicki

         testified as follows:

         
         

         MR. HANNON: N o w, your opinion that removal of the lock will not adversely impact the Caloosahatchee River is conditional: is it not?

      2. To a degree, yes.

   * * * *

   Q. You are prepared to testify that in your opinion removal of the Chiquita Boat Lock would probably not adversely affect the environment correct?

   B. That' s correct.

   Q. And does that opinion depend upon Cape Coral completing certain projects that they've representedto you they intend to complete?

   B. Again, to some degree, yes.

   Q. Well, do you remember my asking you that very same question in your deposition?

   A. l -- I don' t recall.

   Q. I'm showing you page 135, line 21, question: ["]And does that opinion depend upon Cape Coral completing certain projects that they've represented to you they intend to complete? Answer: Yes.["]

   
   

   Janicki, T. Vol. I,pp.219-21. Seealso Janicki , T. Vol. I, pp. 217-21.

   The ALJ's findings in both paragraphs 80 and 81 oftbe ROaresupported by competent substantial evidence in the form of Dr. Janicld's testimony. (Janicki, T. Vol. Ill, pp. 789•796). On cross•examination during his surrebuttal testimony, Dr. Janicki confirmed his prior testimony that the City must rely on Basin Management Action Plan (BMAP) projects to be completed in the future to meet the states' water quality standards for numeric nutrients. He admitted that in bis ex.pert opinion removal of the Lock would not cause a water quality violation only if the City

   completes certain projects for which it would receive credits under the Department's BM.AP

   
   

   process. (Janicki, T. Vol. llI pp. 793-795).

   
   

   The City disagrees with the ALJ' s findings and seeks to have the Department reweigh the evidence. However, the Department is not authorized to reweigh evidence presented at aDOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of a witness. See, e.g., Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307. ff there is competent substantial evidence

   to support the ALJ's findings of fact, it is irrelevant that there may also be competent substantial

   
   

   evidence supporting a contrary finding. See, e.g.. Arand Constr. Co., 592 So. 2d at 280; Conshor. Inc., 498 So. 2d at 623. For the abovementioned reasons, the City' s exception to paragraphs 80 and 81 of the RO is rejected.

   Based on the foregoing reasons, the City' s Exception No. 24 is denied.

   
   

   City's Exception No. 25 regarding Paragraph No. 82

   
   

   The City takes exception to the conclusions oflaw in paragraph 82 of the RO, which

   
   

   reads:

   
   

   82. The City's reliance on the BMAP process to satisfy reasonable assurance for the ERP Permit was further exemplified by this argument in its proposed recommended order:

   "By operation of section 403.067(7)(b)2.i., Florida Statutes the City is presumed to be in compliance with the TMDL requirements.')

   RO ,i-82. The Cjty alleges that paragraph 82 of the RO "shows the ALJ's lack of understanding of the statutes and rules which apply to this proceedi,ng" City's Exception No. 25, p. 33.

   The Department concludes thatparagraph 82 of the RO is a mixed finding of fact and conclusion of law. An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agencyfirst determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent

   substantial evidence.' § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty.,18 So. 3d at 1082; Wills,

   
   

   955 So. 2d at 62. Contrary to the City's exception, the Department finds that the ALJ's findings quoted above are supported by competent substantive evidence; and thus, must be accepted by the Department. For example, the City's expert, Dr. Janicki, concluded that the Chiquita boat 1ock removal relied upon the BMAP process to conclude that theLock1s removal "willnot result

   in an increased load above,that already estimated." Joint Ex. No. l, p. 86. Similar statements

   
   

   appear in the City's application in Joint Ex. No. l, pp. 120-124, 165, 182-84, 208-09, 215, 217, and 220. See Hasselback v. Wentz and Dep't of Envtl. Prot., DOAH Case No. 07-5216)(Fla.

   DOAH January 28, 201O; DEP March 15, 2010).

   
   

   The ALJ found that the City's expert Dr. Janicki conceded that his opinions on water quality are based entirely on the principles underlying the Department's TMDL modeling and the Department's BMAP process. (Janicki. T. VoJ. Ill , pp. 790-91). Moreover, Dr. Janicki confinned his prior testimony that the City must rely on theBMAP process to merit issuance of

   the ERP. He admitted that hisopinion regarding removal of the Lock would not cause a water qualityviolation only if the City completes certain projects for which it would receive credits under DEP' s BMAP process. (Janicki, T. Vol. Ill,pp. 793-95).

   Based on the foregoing reasons, the City's Exception No. 25 is denied.

   City's Exception No. 26 regarding Paragraph No. 84

   
   

   The City takes exception to the conclusions oflaw inparagraph 84 of the RO, which

   
   

   reads:

   
   

   1. Thus, the presumptive fact of compliance flows from the basicfact that a "responsible person" is ''implementing applicable management strategies," i.e., actually implementing the future projects listed in the adopted BMAP. See

      § 90.301, Fla. Stat. The City sought to rely on tbe presumption of compliance but did not prove the basic factual predicate in this proceeding. See id. Contrary to the City's position, the mere existence of the BMAP final agency action did not satisfy its burden to provethe basic fact from which the presumption of compliance flows. See§ 403.067(7)(2b.)i., Fla. Stat.

      RO,r 84. The City alleges that the conclusions of law in paragraph 84 are "contrary to the testimony at the final heating" and suggest thatall future projects for BMAP compliance have been completed. City's Exception No. 26, p. 33.

      
      

      The Department concludes that paragraph 84 of the RO is a mixed finding of fact and conclusion oflaw. The Department finds that paragraph 84 of the RO is supported by competent substantial evidence and must be accepted. Paragraph 84 is supported by competent substantial evidence in the form of Megan Mill's written questjons to the City in Joint Exhibit l , and the response from the City's engineer in Joint Exhibit 1.

      Megan Mills sent a Request for Additional Information to the City during DEP's review of the City' s permit application. She stated that "[r]egarding 1N, the report of Janicki Envi,ronmental seems to defer to the Department' s pending analysis of data to determine the best loading estimate from the South Spreader Waterway. It is Wlknown when this will be finalized." Ms. Mills then requests " reasonable assurance that removal of the Lock will not result in increased TN loading to the Caloosahatchee River." Joint Ex. No. 1, p. 119.

      Jn response, the City's engineer identified projects that the City has completed and will complete in the future to meet BMAP requirements. Joint Ex. No. l, pp. 120-23. The Department concurs with the ALJ's legal conclusions in paragraph 84 of the RO.

      Basedon the foregoing reasons, the City's Exception No. 26 is denied.

      
      

      City's Exception No. 27 regarding Paragraph No. 85

      
      

      The City takes exception to the conclusions oflaw:in paragraph 85 of the RO, which

      
      

      reads:

      
      

   2. Petitioners proved by a preponderance of the competent and substantial evidence that the Department's new position on water quality relied on a simplistic exchange of waters. The Depat1ment's water quality explanation did not consider that the waterbody in wh:ich the Project would occur has three direct connections with an OFW that is a Class II waterbody designated for shellfish propagation or harvesting, i.e. Matlacha Pass Aquatic Preserve. Such a consideration would require the Department to determine whether to apply the OFW permitting standards, and the Class TI waters permitting criteria in section

   10.2.5 of the Environmental Resource Permit Applicant's Handbook, Volume I.

   See Fla. Ad.min. CodeR. 62-330.302(l)(a); 62-4.242(2); and 62-302.400(17)(b)36.

   
   

   ROi185.

   
   

   The Department concludes that paragraph 85 of the RO contains mixed findings of fact and conclusions of law.

   An agency reviewing a recommended order may not teject or modify the findings of fact

   
   

   of the ALJ "unless the agency first determines from a review of the entire record,. and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty.,18 So. 3d at 1082; Wills, 955 So. 2d at 62-. Contrary to the City's exception, the :findings in paragraph 27 of the RO are supported by competent substantial evidence in the fonn of expert testimony and Departmental rules.

   Rule 62-302.400(17)(b)36,Florida Administrative Code, identifies thatMatlacba Pass from Charlotte Hru:bor to San Carlos Bay is designated as a Class II waterbody. This rule also

   identifies that San Carlos Bay is a Class II water body. Moreover, rule 62-302.700, Florida Administrative Code, identifies that the following waters near th.e proposed Project are Outstanding Florida Waters: Matlacha Pass Wildlife Refuge (rule62-302.700(9)(b)18;.)

   Matlacha Pass Aquatic Preserve {rule 62-302.700(9)(h)25.); and Pine Island Sound Aquatic Preserve (rule 62-302.700(9)(h)3l .) These rule prpvisions identify that the Matlacha Pass Aquatic Preserve is both an O.FW and a Class11waters designated for shellfish propagation or harvesting.

   Contrary to the City's exception, the majority of the findings in paragraph 85 of the RO are supported by competent substantial evidence. Kevin Erwin testi£ed that the Matlacha Pass Aquatic Preserve is partof the ecosystem of the North and South Spreader Waterways. (Erwin

   T. Vol. II, pp. 551-53, 574). The Avalon Engineering Report submitted by the City in its permit application to the Department states that water from the South Spreader Waterway travels into the Matlacha Pass during tidal exchanges. (Joint Ex. No. 1, p. 48). fn addition, the City's expert Dr. Janicki testified that canal water containing nitrogen is transmitted from the South Spreader Waterway to the Matlacha Pass. (Janicki, T. Vol. ID, pp. 809-10).

   The area where the Project is located connects to the Matlacha Pass Aquatic Preserve that

   
   

   is part of the Spreader Waterways ecosystem. Since the Matlacha Pass Aquatic Preserve is an OFW and a Class II waterbody designated for shellfish propagation or harvesting, the Department must determine whether to apply the OFW permitting standards, and the Class II waters pennitting criteria in section 10.2.5 of the Environmental Resource Permit Applicant's Handbook, Volume I. See City Ex. No. 85.

   Nevertheless, there is no evidence that the Department did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a

   Class II waters designated for shellfish propagation or harvesting, i.e., Matlacha Pass Aquatic Preserve. To the extent paragraph 85 of the RO states that the Department did not consider the Project's impact to an OFW, the exception is granted, since Megan Mills testified that the Department considered whether the Project was located in an OFW or would significantly degrade an OFW. (Mills, T. Vol. I, pp. 124-25, 194-96).

   Based on the foregoing reasons, the City's Exception No. 27 is granted in part and denied

   
   

   -in part, as set forth above.

   
   

   City's Exception No. 28 regarding Paragraph No. 87

   
   

   The City takes exception to the conclusions oflaw in paragraph 87 of the RO, which

   
   

   reads:

   
   

   87. There was no evidence that the Department's regulatory analysis considered that the waterbody in which the Project would occur directly connects to Class III waters that are restricted for shellfish harvesting, i.e., Caloosahatchee River and San Carlos Bay; and is in close proximity to Class II waters that are restricted for shellfish harvesting, i.e., Matlacha Pass Aquatic Preserve. See Fla. Admin. Code R. 62-302.400(17)(b)36. and 62-330.302.(l)(c). Tiris omission, by itself, is a mandatory b'&Sis for denial of the Permit.

   
   

   RO,r 87.

   
   

   The Department concludes that paragraph 87 of the RO contains findings of fact misidentified as conclusions ofl aw. The City alleges that patagraph 87 of the RO "is incorrect and not based upon any evidence in the record."

   An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ"unless the agency first determines from a review of the enfue record, and states with particularity in the order, that the fin dings of fact were not based on competent substantial

   evidence.t' § 120.57(1)(1); Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d

   
   

   at 62. Contrary to the City's exception. the Department finds that the ALJ's findings quoted

   above are supported by competent substantive evidence; and thus, must be accepted by the Department.

   The City admits in its exception No. 28 that the Caloosahatchee River is a Class III

   
   

   waterway and San Carlos Bay is a Class II waterbody. Moreover,, rule 62-302.400(17)(b)36, Florida Administrative Code, supports the RO' s finding that the Matlacha Pass Aquatic Preserve and San Carlos Bay are Class IT waters designated for shellfish harvesting. Nevertheless, there is

   no evidence that the Department did not consider that the waterbody in which the Project would

   
   

   occur connects to the CaloosahatcheeRiver and San Carlos Bay, and is in close proximity to the

   
   

   Matlacha Pass Aquatic Preserve. In addition, there is no competent substantial evidence that Class ill waters are "restricted for shellfish harvesting.'' RO,r 87 . See rule 62-302.400, Florida Administrative Code.

   Based on the foregoing reasons, the City's Exception No. 28 is granted in part and denied

   
   

   in part, as set forth above.

   
   

   City's Exception No. 29 regarding Paragraph No. 90

   
   

   The City takes exception to the conclusions of law in paragraph 90 of the RO, which

   
   

   reads:

   
   

   90. Since the City's position was that the decrease in flow volume and in velocity at Breach 20 would cure a perceived "erosion" problem, any potential adverse impacts to the tidal creek system and mangrove wetlands were not addressed. The undersigned ' s reasonable inferences from the record evidence are that the flow in the adjacent tidal creek system will be adversely impacted, and

   those '"healthy mangroves" will also be adversely impacted. See Heifetz v. Dep' t of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. l$t DCA 1985)("It is thehearingofficer' s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.");. Berry v. Dep't of Envtl. Reg., 530 So. 2d 1019, 1022 (Fla. 4th DCA 1988) ("[T]he agency may reject the findings of tb.e hearing officer only when there is no competent substantial evidence fromwhich the finding could reasonably be inferred." (citations omitted)).

   RO if 90.

   The Department concludes thatparagraph 90 of the RO contains mixed findings of fact and conclusions oflaw. The City alleges that the ALJ had no underlying evidence to base her

   inference in paragraph 90 of the RO that "the flow in the adjacent tidal creek system will be adversely impacted, and those 'healthy mangroves• wi1l also be adversely impacted." RO,r 90.

   An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ"unless the agency first determines from a review of the entirerecord, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence.' ' § 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. The ALJ can "draw permissible inferences from the evidence.'' Heifetz, 475 So. 2d at 1281. See Walker v. Bd. of Profl Eng'rs,946 So. 2d at 605("rt js the hearing officer's function to consider all the evidence presented, resolve conflicts,judge credibility of witnesses, draw

   permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence."); Ben y v. Dep't of Envtl. Regulation, 530 So. 2d I 019, 1022 (Fla. 4th DCA 1988) ("[T]he agency may reject the findings of the hearing officer only when there is no competent substantial evidence fromwhich the finding could reasonably be inferred.'t ( citations omitted)).

   Contracy to the City's exception, the Department finds that the ALJ's findings quoted above are supported by competent substantive evidence and permissible inferences from the evidence; and thus,. must be accepted by the Department.

   The Department finds that the ALJ had competent substantive evidence in the testimony

   
   

   of expert witness Kevin Erwin to base her inference in paragraph 90 of the RO that "the flow in the adjacent tidal creek system will be adversely impacted, .and those 'healthy mangroves' will

   also be adversely impacted.,, RO ,r 90. Kevin Erwin testified extensively about impacts from

   removal of the Chiquita lock that will cause adverse impacts to the mangrove wetlands adjacent to the South Spreader Waterway. (Erwin, T. Vol. II, pp. 530-33, 539-41, 551-52, 554,559, 598-

   99, 605-06, 614-15, 631).

   
   

   Based on the foregoing reasons, the City' s Exception No. 29 is denied.

   
   

   City's Exception No. 30 regarding Paragraph No. 93

   
   

   The City takes exception to the conclusions of law in paragraph 93 of the RO, which

   
   

   states:

   
   

   93. The preponderance of the competent and substantial evidence proved that the City failed to provide reasonable assurance that the secondary impact from construction, alteration, and intended or reasonably expected uses of the Project, will not cause or contribute to violations of water quality standards, or adverse impacts to the functions of wetlands or other surface waters as described in section 10.2.2 of the Environmental Resource Permit Applicant's Handbook, Volume 1.

   
   

   R0 1 93.

   
   

   The Department concludes that paragraph 93 of the RO contains mixed findings of fact and conclusions of law. The City alleges that the ALJ in paragraph 93 of the RO "attempts to improperly expand the secondary impacts analysis required under the environmental resource permitting rules." City's Exception No. 30, p. 40.

   An agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." § 120.57(1)(1), F]a Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City' s exception, the Department finds that the ALJ' s findings quoted above are supported by competent substantive evidence; and thus, must be accepted by the

   Department. The ALJ's findings in paragraph 93 of the RO are supported by Kevin Erwin's testimony regarding impacts from rem.ova] of the Chiquita lock that will cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters, including the mangrove ecosystem adjacent to the South Spreader Watezway. (Erwin T. Vol. II, pp. 539-41, 598-99, 605-06, 615 and 631; Erwin, T. Vol. III, pp. 901-03 and 907-08).

   The City cites to Pelican Island Audubon So,c y, v. Indian River Cty.,Case No. 13-3601 (Fla. DOAH Aug. 5, 2014; Fla. DEP Aug. 22, 2014), for its proposition that there isno evidence of adverse secondary impacts from remova1 of the Lock. Unlike the caseat issue, the proposed pe1mit in Pelican Island Audubon Socy did not trigger secondary impacts. In that case, the affected seagrass was in a highly contained area; and the applicant proposed mitigation that

   would not only protect the seagrass, it would protect the neighboring lagoon which was of concern to the petitioners.

   ln this case, the City's permit application did not address secondary impacts to the Matlacha Pass Aquatic Preserve, the mangroves adjacent to the Chiquita lock, and the adjacent Class JI and III waters.

   Based on the foregoing reasons, the City's Exception No. 30 is denied.

   
   

   City's Exception No.. 31 regarding Paragraph No. 95

   
   

   The City talces exception to the conclusions oflaw inparagraph 95 of the RO, which states that "Mr. Erwin's credible and persuasive testimony regarding adverse secondary impacts to the ecological health oftbe mangrove ecosystem adjacent to the South Spreader Waterway was in stark contrast to the City' s contention that Lock removal was not expected to result in impacts to those mangrove wetlands." RO. ,i 95. The City alleges that "Mr. Erwin's testimony

   
   

   46

   was not credible or persuasive." The Department concludes that paragraph 95 of the RO contains mixed findings of fact and conclusions of law.

   An agency reviewing a recommended order may not reject or modify the findings of fact

   
   

   of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence.!, § 120.57(1)(1), Fla Stat. (2019); Charlotte Cty., 18 So. 3d at l082; Wills, 955 So. 2d

   at 62. Contrary to the City's exception, the Department finds that the ALJ's findings quoted above are supported by competent substantive evidence; and thus, must be accepted by the Department.

   The ALJ's findings in paragraph 95 of the RO are supported by Kevin Erwin' s testimony regarding impacts from removal of the Chiquita lock to the mangrove ecosystem adjacent to the South SpreaderWateiway. (Erwin, T. Vol. ll, pp. 539-41, 598-99, 605-06, 615 and 631; Erwin,

   T. Vol. III, pp. 901-03 and 907-08).

   Based on the foregoing reasons, the City's Exception No. :n is denied.

   City's Exception No. 32 regarding Paragraph No. 96

   
   

   The City takes exception to the conclusions of law in paragraph 96 of the RO, wnich

   
   

   states:

   
   

   96. The credible and persuasive evidence demonstrated that Lock removal would adversely affect the smalltooth sawfish and its nursery habitat. The credible and persuasive evidence also demonstrated that Lock removal would increase the already hlgh risk of manatee-motorboatcollisions by invitingmanatees into the South Spreader Waterway, a non-main-stem refuge, where notice boaters would present "a bigger hazard than the (L]ock ever has."

   
   

   RO196.The Department concludes that paragraph 96 of the RO contains mixed findings of fact and conclusions ofl aw. The City filed its exception to paragraph 96 of the RO based on the

   reasons it identified in the City's Exceptions N,o 19 and 20. City Exception No. 32, pp. 41-42.

   For the reasons cited in the Department' s response to the City's Exceptions No. 19 and 20 above, the City ' s Exception No. 32 is denied;

   City's Exception No. 33 regarding Paragraph No. 97

   The City takes exception to the conclusions oflaw inparagraph 97 of the RO, which states that ''[t]the preponderance of the competent substantial evidence demonstrated that the City failed to provide reasonable assurances that the Project will not impact the values of

   wetland and other surface water functions." RO ,r97.

   The City filed-its exception to paragraph 97 of the RO based on the reasons it identified in the City's Exceptions No. 1 through 32. City Exception No. 33, p. 42.

   For the reasons cited in the Department's response to the City's Exceptions No. 1 through

   
   

   32 above, the City's Exception No. 33 is, denied.

   
   

   City's Exception No. 34 regarding Paragraph No. 100

   
   

   The City takes exception to the conclusions of law in paragraph 100 of the RO, which

   
   

   reads:

   
   

   100. As found above, the Department' s exchange of waters position failed to consider the three direct connections to the Matlacha Pass Aquatic Preserve OFW. This is also important1 not just for the water quality analysis but

   for the public interest test. If the direct or secondary impacts of the Project are in,

   or significantly degrade an OFW, then the Project must be "clearly in the public interest," to obtain approval. Either review requires the Department to consider and balance the seven factors in rule 62-330.302(l)(a).

   
   

   The City alleges that in paragraph 100 of the RO that:

   
   

   the ALJ expands the scope of the public interest test provided in statute via her expanded interpretationof secondary impacts. She also mischaracterizesthe public interest test making it appear that the only way a project could obtain approval is if it meets the seven factors i.n the public interest test, ignoring the possibility of mitigation if such adverse impacts were actually going to occur.

   City's Exception No. 34i pp. 43-44 .

   
   

   The Department concludes that paragraph 100 of the RO contains mixed findings of fact and conclusions of law. An agency reviewing a recommended order may oot reject or modify the findings of fact of the ALJ "w.1less the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact werenot based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18 So. 3d at 1082; Wills, 955 So. 2d at 62. Contrary to the City' s exception, the Department finds that portions of the ALI's findings quoted above are supported by competent substantive evidence;

   and thus, must be accepted by the Department. The ALI' s findings in paragraph 100 of the RO

   
   

   are supported by Kevin Erwin's testimony regarding impacts from removal of the Chiquita lock that wi11 cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters, including the mangrove ecosystem adjacent to the South Spreader Waterway. (Erwin, T. Vol. 11,-pp. 539-4 1, 598-99, 605-06, 615 and 631; Erwin,

   T. Vol. Ill , pp. 901-03 and 907 08).

   
   

   There is no evidence that the Department did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a Class II waterbody designated for shellfish propagation or harvesting. To the extent paragraph 100 of the RO states

   that the Department did not consider the Projecfs impact to an OFW, the exception is granted, since Megan Mills testified that the Department considered whether the Project was located in an OFW or would significantly degrade an OFW. (Mills, T. Vol. I, pp. 124-25, 194-96).

   However, the City' s pemlit application did not address secondary impacts to the Matlacha Pass Aquatic Preserve, the mangroves adjacebt to the Chiquita lock, and the adjacent

   Class II and III waters. In addition, the Notice of Intent does not address secondary impacts to

   the Matlacha Pass Aquatic Preserve OFW. Moreover, the Department disagrees with the City that the ALJ has expanded on the ERP program's·secondary impacts analysis or misinterpreted the public interest test.

   Based on the foregoing reasons, the City's Exception No,. 34 is granted in part and denied in part as set forth above.

   City's Exception No. 35 regarding Paragraph No. 102

   
   

   The City takes exception to the conclusions of law in paragraph 102 of the RO, which

   
   

   reads:

   
   

   J 02. The preponderance of the evidence supports a finding that the City's claims of navigational public safety concerns have less to do with navigational hazards, and more to do with inexperienced and impatient boaters. Even so the direct impact of Lock removal will be to increase navigational access from the Ca1oosahatchee River to the South Spreader Waterway.

   RO 1 l 02. The Department concludes that paragraph 102 of theRO contains mixed findings of fact and conclusions oflaw. The City filed its exception to paragraph 102 of the RO based on

   the reasons it identified in the City's Exception N,o 20. City Exception No. 33, p. 44.

   
   

   For the reasons cited in the Department's response to the City' s Exception No. 20 above, the City's Exception No. 35 is denied.

   City's Exception No. 36 regarding Paragraph No. 103

   
   

   The City takes exception to the conclusions of law in paragraph 103 of the RO, which states that "[i]n addition, the preponderance of the evidence also supports a finding under factor one that there will be adverse secondary impacts to the property of Cape Harbour Marina." RO

   1 103. The Department concludes that paragraph 103 of the RO contains mixed findings

   of fact and conclusions of law. The City filed its exception to paragraph 103 of the RO

   based on the reasons it identified in the City's Exceptions No. 20 and 21. City's Bxception No. 36, p. 44.

   For the reasons cited in the Department's response to the City's Exceptions No. 20 and 21 above, the City's Exception No. 36 is denied.

   City's Exception No. 37 regarding Paragraph No. 104

   
   

   The City takes exception to the conclusions of law in paragraph 104 of the RO, which

   
   

   reads:

   
   

   l 04. Based on the above findings and conclusions, the Project will adversely affect the public interest factors associated with wetlands, fish and wildlife, and their habitat (factors two, four, and seven). Because the Project will be of a permanent namre, factor five of the·public interest test falls on the negative side of the balancing test. Factor six is neutral.

   
   

   RO f 104. The Department concludes that paragraph 104 of the RO contains mixed findings of fact and conclusions ofl aw. The City filed its exception to paragraph 104 of the RO based on the reasons H identified in the City's Exceptions No. 1 through 36. City Exception No. 37, p. 45.

   For the reasons cited in the Department's response to the City's Exceptions No. 1 through

   
   

   1. above, the City's Exception No. 37 is denied.

      
      

      City's Exception No. 38 regarding Paragraph No.105

      
      

      The City takes exception to the conclusions oflaw inparagraph 105 of the RO, which

      
      

      reads:

      
      

      105. The adverse secondary impacts that fall under factors one, two. four, five, and seven outweigh any perceived benefits under factors one and three. Therefore, after balancing the public interest factors, it is concJuded that the Project fails the public interest balancing test and should not be approved. Under either review the Project is contrary to the public interest, and is not clearly in the public interest.

      RO ,r I 05. The Department concludes that paragraph 105 of the RO contains mixed findings of

      fact and conclusions ofl aw. The City filed its exception to paragraph 105 of the RO based on the reasons it identified in the City's Exceptions No. 1 through 37. City Exception No. 38, p. 45.

      For the reasons cited in the Department's response to the City' s Exceptions No. l through

      
      

   2. above theCity's Exception No. 38 is denied.

   
   

   City's Exception No. 39 regarding Paragraph Nos. 3, 5, 6, 7, 8 9, 10, 64, 65, and 66

   
   

   The City talces exception to paragraphs 3, 5, 6, 7, 8, 9, 10, 64, 65, and 66 of the RO, whichfind that the Petitioners had standing to participate in this hearing. The City contends that each Petitioner and the Matlacha Civic Association, Inc., did not present testimony to show that they wiU sustain actual or immediate threatened injury if the Lock is removed.

   Paragraph No. 3 of the RO provides the findings to support the conclusion oflaw that the

   
   

   Matlacha Civic Association, Inc. (Matlacha Civic Assoc.) has standing to challenge the proposed Project. 'To demonstrate associational standing a petitioner must show; (1) that a

   substantial nwnber of its members,.. are "substantially affected" by the-challenged agency

   
   

   action, {2) that the-agency action it seeks to challenge is <'within the association's general scope of interest and activity.'' and (3) that the relief it requests is "of the type appropriate for [such an]

   association to receive on behalf ofits members." Fla. Home Builders Assoc. v. Dep't of Labor & Emp't Sec., 412 So. 2d 351 (Fla. 1 82); Friends of the Everglades, Inc., v. Bd. ofTrs. qfthe Internal Improvement Tr. Fzmd, 595 So. 2d 186 (Fla. 1st DCA 1992). The testimony of Karl Deigert, the president of the Matlacha Civic Assoc., established the elements fot associational standing under Fla. Home Builders Assoc. and Friends of the Everglades by showing that a substantial number of its members will be affected by issuance of the permit for the Project

   (Deigert, T. Vol. I., pp . 2 26 -231 ). See also St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051 (Fla. 5th DCA 2011).

   The City also contends that the individual Petitioners did not present testimony to show that they will sustain actual or immediate threatened injury if the Lock is removed. However, under theAgrico test, the Petitioners, except for Debra Hall, provide.d sufficient testimony to establish that their "substantial interests will be affected by the proposed agency action." Agrico Chem. Co. v, Dep't of Envtl. Regulation, 406 So. 2d 478, 481-82 (Fla. 2d DCA 1981). Petitioner

   Debra Hail did not attend the hearing, and thus failed to present testimony to demonstrate her individual standing. RO,r 64. (Deigert, T. Vol. I, pp. 236, 240-47; Hoff, T. Vol. I, pp. 254-58; Zarrranz, T. VoL I, pp. 260, 261, 265-67, 268-69, 278-79, 282, 284-85, 292, 296-98; Olsen, T.

   Vol. I, pp. 300, 301-02, 305-06, 318-20; Blanks, T. Vol. I, pp. 329-30, 333,341; Hannon, T. Vol.

   
   

   I, pp. 346-47, 351,358).

   
   

   Based on the foregoing reasons, the City's Exception No•. 39 is denied

   
   

   City's Exception No. 40 regarding Paragraph No. 116

   
   

   The City takes exception to the conclusion of law in paragrapb 116 of the RO, which states that"Petitioners met their ultimate burden of persuasion to prove that the Project does not

   comply wjth all applicable permitting criteria. The City failed to demonstrate its complfance witb all applicable permitting criteria and its entitlement to the Permit." RO ,r 116.

   The City contends that the Department should modify paragraph 116 of the RO to read the exact opposite of paragraph 116, as follows: "Petitioners have not met their burden of persuasion to prove that the Project does not comply with all applicable permitting criteria. The City demonstrated its compliance with all applicable permitting criteria and its entitlement to the

   Pennit."

   The Department concludes that paragraph 116 of the RO contains mixed findings of fact and conclusions oflaw. The City filed its exception to paragraph 116 of the RO based on the reasons it identified in the City' s Exceptions No. 1 through 39. City Exception No. 40, p. 49.

   An agency has no authority to make independent or supplemental findings of fact, as requested by the City. See, e.g.,North Port, Fla. v. Consol. Minerals, 645 So. 2d 485; 487 (Fla. 2d DCA 19 94); Fla. Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025, 1026-1027 (Fla.1st DCA 1997). Moreover, for the reasons cited in the Department's response to the City's Exceptions No. 1 through 39 above, the City's Exception No. 40 is denied.

   RULINGS ON DBP's EXCEPTIONS

   
   

   DEP's Exception No, 1 regarding Paragraph No. 31

   
   

   DEP takes exception to the findings of fact in paragraph 31 of the RO , which r eads :

   
   

   1. Tbe Department's water quality explanation of( ' mixing," was rather simplistic,and did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a Class II water designated for shellfish propagation or harvesting. Such a consideration would require the Department to determine whether to apply the OFW pemutting standards, and the Class ll waters permitting criteria in section 10.2.5 of the Environmental Resource Pennit Applicant's Handbo ok, Volume I. See Fla. Ad.min. Code R. 62- 330.302(1)(a); 62A.242(2); and 52-302.400(17)(b)36.

      
      

      RO131. DEP alleges that paragraph 31 of the RO is not supported by competent substantial evidence.

      For the reasons cited above in the Department's response to the City's Exception No. 4 to paragraphs 30 and 31 of the RO, DEP's Exception No. 1 is granted in part and denied in part.

      DEJ>'s Exception No. 2 regarding Paragraph No. 32

      
      

      DEP takes exception to the findings of fact in paragraph 32 of the RO, which reads:

      
      

   2. The Caloosahatcbee River, at its entrance to the South Spreader Waterway, is a Class III waters restricted for shellfish harvesting. The mouth of the Caloosahatchec River is San Carlos Bay, which is a Class I·I waters restricted

for shellfish harvesting. There was no evidence that the Departmenes regulatory analysis considered that the waterbody in wbich the Project would occur directly connects to Class ill waters that are restricted for shellfish harvesting, and is in close proximity to Class II waters that are restricted for shellfish harvesting. See Fla. Admin. Code R. 62-302.400(17)(b)36. and 62-330.302(l)(c).

RO ,i 32. DEP alleges that paragraph 32 of the RO is not supported by competent substantial evidence.

The Departtnent con.eludes that a -majority of the findingsmparagraph 32 of the RO are

supported by competent substantial evidence. Rule 62-302.400(17)(b)36, Florida Administrative Code, identifies that a portion of the Caloosahatcbee River is a Class I waterbody, but the remainder of the river is a Class UT waterbody. In addition, rule 62-302.400(17)(b)36, Florida Administrative Code, identifies that San Carlos Bay is a ClassII waterbody designated for shellfish harvesting and propagatioh. However, there is no competent substantial evidence that Class III waters are "restricted for shellfish harvesting." RO ,r32.

Section 120.57(1)(1), Florida Statutes, prescribes that an agency reviewing a recommended order may reject the ALJ' s findings of fact if the agency detennines from a review of the entire record, and states with particularity in the order, that thefindings of fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2019); Charlotte Cty., 18

.So. 3d at 1082; Wills, 955 So. 2d at 62. Since the Department cannot find any competent substantial evidence to support the ALJ's finding that Class III waters are restricted for shellfish harvesting, this portion of paragraph 32 of theRO is rejected,

Based on the foregoing reasons, DEP's Exception No. 2 to paragraph 32 of the RO is

granted in pai1and denied in part as set forth above.

DEP's Exception No. 3 regarding Paragraph No. 35

DEP takes exception to the findings of fact in paragraph 35 of the RO, which reads as

follows:

35. Dr. Janicki opined that removing the Lock would not result in adverse impacts to the surrounding environment. But the Petitioners obtained his concession that his opinion was dependent on the City's completion of additional water quality enhancement -projects in the future as part of its obligations under the CaloosahatcheeEstuary Basin Management Action Plan (BMAP) for achieving the TNTMDL.

RO,i 35. DEP alleges that paragraph 35 of the RO is not supporte<l by competent substantial evidence.

Contrary to DEP's exception, the ALJ's findings of fact in paragraph 35 of the RO are supported by competent substantial evidence. Tony Janicki testified as follows:

MR. HANNON: Now, your opinionthat removal of the lock will not adversely impact the Caloosahatchee River is conditional: is it not?

A. To a degree, yes.

* * * *

Q. You are prepared to testify that in your opinion removal of the Chiqu1ta Boat Lock would probably not adversely affect the environment correct?

A. That's correct.

Q. And does that opinion depend upon Cape Coral completing certain projects that they've represented to you they intend to complete?

A. Again, to some degree, yes.

Q. Well, do you remember my asking you that very same question in your deposition?

A. 1-- I don't recall.

Q. rm showing you page 135, line 21,question: ['']And does that

opinion depend upon Cape Coal completing certain projects that they've represented to you they intend to complete? Answer: Yes.["]

Janicki, T. Vol I, pp. 219-21. The ALJ's findings are further explained in Tony Janicki's testimony from pages 217 through 221.

The City's expert, Dr. Janicki, testified that removal of the Lock "wouldprobably not adversely affect the environment." Janicki, T. Vol. I, p. 220. However, Dr. Janicki also testified that his opinion is dependent upon completing certain projects.

DEP disagrees with the ALJ' s findings and seeks to have the Department reweigh the evidence. However, the Department is not authorized to reweigh evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of a witness. See. e.g.. Rogers, 920 So. 2d at 30; Belleau, 695 So. 2d at 1307. If there is competent substantial evidence

to support the ALJ's:findings of fact, it is irrelevant that there may also be competent substantial

evidence supporting a contrary finding. See, e.g., Arand Constr. Co., 592 So. 2d at 280; Conshor, Inc., 498 So. 2d at 623. For the abovementioned reasons, DEP's exception to paragraph 35 of the RO is rejected.

Based on the foregoing reasons, DEP's Exception No. 3 is denied.

DEP's Exception No. 4 regarding Paragraph No. 71

DEP takes exception to the conclusions oflawin paragraph 71 of the RO. DEP alleges that the conclusions oflaw inparagraph 71 of the RO incorrectly imply that the " Department s filed change in position was not entit1ed to section 120.569(2)(p)' s abbreviated presentation or