Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In March of 1980, the petitioner submitted to the Department of Environmental Regulation an application for a permit to dredge and construct a flow-through inland waterway to provide navigational access to a proposed upland development to be known as "Curry Cove" along the east coast of Key Largo in Monroe County. As presently envisioned, the proposed "Curry Cove" is to be a private, residential vacation-type subdivision located on 70 acres of land between Highway No. 1 and the Atlantic Ocean. The subdivision will consist of townhouses and single-family dwellings for a total of 219 residential units. No commercial use of the upland property is planned. At present, the upland site is a dense, tropical hardwood hammock. As subsequently revised, the proposed upland canal is to be 4,400 feet long from north to south, with varying widths of from 70 to 125 feet and an average depth of -4.0 MLW, and will be connected by a north and south channel to the Atlantic Ocean. The southern channel is designed for navigational ingress and egress and has dimensions of 250 feet in length and 50 feet in width. The northern circulation channel will be 150 feet long and 50 feet wide and will be blocked to navigation by unidirectional tidal flap gates, which will force the waters to move from a southerly to a northerly direction. The canal is designed to have a two-day flushing period, with approximately 65 percent of the waters exiting through the northern circulation channel. An upland "catchment beach" is proposed for the entrance to the navigation channel to trap organic debris. A shallow basin will be excavated on the northern end to increase the exchange of water. The total project as proposed entails the removal by dredging of approximately 176,580 cubic yards of material landward of mean high water and 1,780 cubic yards waterward of mean high water. Materials removed are to be hauled away and deposited on an undesignated upland site. The project also involves the removal of approximately one-fourth acre of red and black mangroves, including several mature trees ranging from 20 to 30 feet in height, and approximately .21 acres of seagrasses and algae. The algae/seagrass area to be dredged, 1,115 square meters, is expected to result in the loss of approximately 2,500 pounds of seagrass annually. Petitioners propose to replant or recreate mangroves and seagrass. Mangrove seedlings will be planted over an area the size of the area of mangroves the waterways will remove. Petitioners propose to replant seagrasses in an area about four times the area of seagrass/algae which will be removed by the project. One of the issues in this proceeding is whether any portion of this project, specifically the northern circulation channel, lies within the boundaries of the John Pennekamp Coral Reef State Park. This Park contains one of the finest and most unique coral reefs, located four to five miles offshore, within the Continental United States. The Park area encompasses some 178 nautical square miles, with a 22 mile coastline, a width of seven or eight miles and a 72-acre land base. The area is unique with Caribbean-type vegetation and is the only tropical/subtropical marine community of its kind in the Continental United States. The mangroves, seagrasses and reef areas in the Park function interdependently and each part is needed for the maintenance of the other. Animals which live on the reef come into the grass beds and the mangrove shoreline to feed and use as nursery grounds. In 1981, over 408,000 people from 90 different countries visited the Park, and at least 67,000 boats utilized the Park waters. A 40 percent increase in visitation has been noted this year. A commercial marina is located within the Park and educational programs are provided by Park staff. The shoreline of the project site is a typical Florida Keys shoreline with a calcium carbonate substrate. This soft rock substrate allows for the burrowing of benthic animals and attachment and growth of algae and sponges. Waterward of the upland hardwood hammock, there is a transition zone of buttonwood and other plants and then a mangrove community comprised primarily of blacks and red mangroves, with some whites. Beyond this mangrove area is a rocky intertidal area vegetated largely by algae and, finally, the most waterward zone is mixed with seagrasses, primarily turtle grass, and hard rock with algae growing on it. The seagrass/algae community supports diverse populations of corals, sponges and mollusks. A sample from the offshore bay bottom community in the area of the proposed access channels revealed approximately 1800 macroinvertibrate organisms in about six square inches. Extrapolating those figures to a square meter, the approximate number of organisms would be in the neighborhood of 60,000. These figures far exceed samples taken from nearby existing access channels. The dredging of the algae/seagrass area will disrupt an area found to be exceptionally rich in macroinvertibrates. Because a channel is dredged deeper than the controlling depth of the offshore water, access channel bottoms are characterized by discontinuity and an accumulation of fine-grained silty sediments. High siltation is characteristic of other existing channels in the area of petitioners' proposed project. Such a substrate is not conducive to a productive marine community and supports a very reduced macroinvertibrate population. The destruction of mangroves, algae meadows and seagrasses which provide significant nursery and feeding grounds for a wide diversity of aquatic species will have an adverse impact on the natural and aquatic resources of the area. Increased turbidity around the access channel during construction and afterward will cause silts and sands to be released and this will place stress upon the areas adjacent to the channel. Such a stressful situation will cause a reduction of diversity in the immediate area of the project. As noted above, nearshore areas serve a vital function as a habitat for larval and juvenile development, as well as for feeding. Petitioners do propose to recreate a similar number of mangroves as are removed by the dredging and to replant seagrasses in the proposed channels. If these efforts were successful and algae naturally revegetated in the channel, productive marine habitat may come up into the channel and the waterway could provide a shelter for fish. While some success has been found with respect to the replanting or recreation of mangroves, a similar success rate for the replanting of seagrasses in access channels and artificial waterways in the Florida Keys was not adequately demonstrated. Some of the mangroves to be destroyed are 20 to 30 feet tall. It could take ten years or more for a new mangrove to attain such height. Petitioners' stormwater management plan will retain the first one inch of rainfall and no pollutants are expected to be generated from upland runoff. From a hydrographic standpoint, the proposed project's two-day flushing time is acceptable. The existence or non-existence of benthic communities in an area are important indicators of water quality trends. Monitoring has been conducted by the DER to access the impact of existing access channels on the Florida Keys upon offshore benthic communities and water quality. The benthic community which presently exists at the proposed project site is much more diverse and significant than in existing access channels which were typically found to be unvegetated. The highly organic materials in the sediment of existing access channels have been found to be toxic to many marine organisms and dissolved oxygen violations have been found in the existing basins and access channels. It can be anticipated that the development of anaerobic sediments, loss of vegetation, decomposition and the destabilization of the area will result in lower levels of dissolved oxygen in the proposed waterway. Also, although the proposed two-day flushing time was deemed adequate in this project from a hydrographic standpoint, water in artificial waterways and access channels tends to be stratified with cold, dense water on the bottom and warmer water on the surface. This indicates that clean water is not adequately circulating throughout the water column and oxygen is being depleted. Stratified waters typically violate dissolved oxygen standards. As water from the canal exists from the northern access channel, it will exert an oxygen demand upon the outside water. Numerous access channels presently exist in the Florida Keys. It is estimated that some 52 acres of submerged bottoms have been dredged with a resulting loss in biological productivity. There is a shortage of boat docking space in the Florida Keys. The "Curry Cove" project would provide jobs to the construction industry and would necessitate the procurement of labor, materials and supplies, thus boosting the local economy. The subject property could be developed without a boat basin, though the present applicants are not interested in doing so. The applicants have not yet received the consent of the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources for the use of sovereignty lands. The waters within the John Pennekamp Coral Reef State Park are designated and classified as Outstanding Florida Waters. The respondent's land management specialist determined from a review of maps and documents on file with the Department of Natural Resources that the petitioners' proposed northeastern circulation channel fell within the boundaries of the Park. George M. Cole, a professional land surveyor who had previously performed survey work for the Department of Natural Resources in relation to a determination of the southern boundary of the Park, determined that the location of the north end of the proposed project is 363 feet south of the southerly Park boundary. In 1959, the Board of Trustees of the Internal Improvement Trust Fund dedicated certain submerged lands as the Key Large Coral Reef Preserve, now known as a portion of the Pennekamp Park. The boundaries of the Preserve were created in relation to markers and navigation aids. The description includes a reference to a line running from Black Day Beacon "37," which is described with reference to an "approximate" latitude and longitude. A Presidential Proclamation entered on March 15, 1960, created the Preserve pursuant to the Outer Continental Shelf Lands Act, describing the area in a fashion identical to the State dedication, including the location of Day Beacon "37." In 1967, the Trustees expanded its dedication to include Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; . . . Thus, the boundaries of the 1967 dedication is first dependent upon the boundaries in the original dedication, and the phrase "lands. . .lying between the. . .Park and Key Largo" are dependent upon some amount of interpretation. Mr. Cole's original survey concerning the southern boundaries of the Park revealed that the position of Day Beacon "37" stated in the previous dedications' descriptions as its approximate location was not an exact geographical description of its actual physical location. Current National Ocean Survey maps have positioned Day Beacon "37" at a latitude and longitude consistent with Mr. Cole's on-ground measurements. For purposes of locating a boundary, the physical location of a monument controls over written calls of its location. Based upon the foregoing findings of fact, it is determined that the project site is not within the Park boundaries, but is located approximately 363 feet south of the Park's southerly boundary.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petitioners' application for a dredge and fill permit to construct a waterway in Key Large be DENIED. Respectfully submitted and entered this 2nd day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982. COPIES FURNISHED: Robert A. Routa, Esquire Jane E. Heerema, Esquire and William J. Roberts, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen, Esquire Sireci, Allen, Kelly & Muldoon, P.A. 605 Duval Street Key West, Florida 33040
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Banana Island is separated by marshland into areas known as Islands No. 9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No. 9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide. The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee. There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia. The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay. The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971. The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats. When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior. In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee. It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee. As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's application for a permit to construct and maintain a boardwalk be granted, subject to the stipulations proposed in the permit appraisal relating to the opening and the maintenance of vegetation. Respectfully submitted and entered this 15th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Baya M. Harrison Mark J. Proctor Ausley, McMullen, McGehee, Assistant Department Attorney Carothers and Proctor 202 Blount Street Post Office Box 391 Crown Building Tallahassee, Florida 32302 Tallahassee, Florida 32304
The Issue Whether the South Florida Water Management District’s (“District”) intended award of a contract for aerial spraying services, granular application services, and aerial transport services, to Coastal Air Services, Inc. (“Coastal”), is contrary to the District’s governing statutes, rules, policies, or the bid specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Parties The District is an independent taxing authority created pursuant to section 373.069, Florida Statutes, with the authority to contract with private entities to maintain real property controlled by the District. See § 373.1401, Fla. Stat. HAI is a Florida corporation duly authorized to do business in the State of Florida with a business address of 1090 Airglades Boulevard in Clewiston, Florida. Coastal is a Florida corporation duly authorized to do business in the State of Florida with a business address of 7424 Coastal Drive in Panama City, Florida. The RFB On February 7, 2018, the District issued the RFB, soliciting bids for qualified respondents to provide the following: [F]urnish all labor, equipment, perform data entry and perform all operations for spraying of aquatic, ditchbank and invasive vegetation by helicopter and provide aerial flight services for site inspection and plant surveys. Both HAI and Coastal submitted timely bids, which the District deemed responsive and responsible under the terms of the RFB. The District deemed Coastal the lowest responsive and responsible bidder for aerial spraying, granular application, and aerial transport services. The District deemed HAI the lowest responsive and responsible bidder for spot spraying services. On May 11, 2018, the District posted its Notice of Intent to Award the respective contracts to Coastal and HAI. HAI challenges the award to Coastal because it is not a responsible bidder under the terms of the RFB. HAI’s challenge focuses on two items required to document the bidder’s responsibility to perform the requested services. First, the RFB requires the bidder to provide at least two helicopters certified pursuant to 14 CFR Part 133, Rotocraft External-Load Operations; and 14 CFR Part 137, Agricultural Aircraft Operations (Part 137 Certificate). Second, the RFB requires the bidder to demonstrate its ability to obtain required insurance coverage. Part 137 Certificate HAI contends that Coastal’s bid does not meet the responsibility provisions of the RFB because it did not include sufficient Part 137 Certificates for its subcontractor, HMC Helicopters (“HMC”). HAI contends the Part 137 Certificates are required to expressly state that aircraft are certified to dispense economic poisons. Petitioner’s argument fails for three reasons. First, the RFB does not require the bidder’s Part 137 Certificate to expressly endorse aircraft to dispense economic poisons.3/ Second, assuming the express endorsement was required, the requirement does not apply to HMC. The RFB defines the term “Bidder” and “Respondent” as “[a]ll contractors, consultants, organizations, firms or other entities submitting a Response to this RFB as a prime contractor.” (emphasis added). In its bid, Coastal is listed as the prime contractor, and HMC as a subcontractor. The RFB requires each Respondent to list at least two aircraft which are Part 133 and 137 certified. The requirement applies to Coastal as the primary contractor, not to its subcontractor. Coastal’s bid listed five aircraft with both Part 133 and 137 Certificates, actually exceeding the requirement for two such certified aircraft. Third, assuming an express endorsement for dispensing economic poisons was required, and that the requirement applied to HMC, HMC’s Part 137 Certificate documents HMC’s authority to dispense economic poisons. Pursuant to 14 CFR 137.3, “Agricultural aircraft operation” is defined as follows: [T]he operation of an aircraft for the purpose of (1) dispensing any economic poison, (2) dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control, or (3) engaging in dispending activities directly affecting agriculture, horticulture, or forest preservation, but not including the dispensing of live insects. To obtain a Part 137 Certificate, the operator must pass a knowledge and skills test, which includes the safe handling of economic poisons and disposal of used containers for those poisons; the general effects of those poisons on plants, animals, and persons and precautions to be observed in using those poisons; as well as the primary symptoms of poisoning in persons, appropriate emergency measures in the case of poisoning, and the location of poison control centers. See 14 CFR § 137.19. However, if the operator applies for a Part 137 Certificate which prohibits dispensing of economic poisons, the applicant is not required to demonstrate the knowledge and skills listed above. See Id. HMCs’ certificates do not contain an express prohibition against dispensing economic poisons. The authorization for HMC’s aircraft to dispense economic poisons is inherent in its Part 137 Certificate. Coastal’s bid meets the solicitation requirement for at least two aircraft with Part 137 Certificates. Insurance Requirements The RFB requires each Respondent to “provide evidence of the ability to obtain appropriate insurance coverage.” Respondents may meet the insurability requirement by having their insurance agent either (1) complete and sign an insurance certificate which meets all of the requirements of Exhibit H to the RFB; or (2) issue a letter on the insurance agency’s letterhead stating that the Respondent qualifies for the required insurance coverage levels and that an insurance certificate meeting the District’s requirements will be submitted prior to the execution of the contract. In response to this requirement, Coastal submitted a letter from Sterlingrisk Aviation, dated March 6, 2018, stating, “All required coverage amounts are available to Coastal Air Service, Inc. to fulfill the requirements of this contract.” In the Re: line, the letter refers to the specific RFB at issue in this case. Coastal also submitted a certificate of insurance from Sterlingrisk Aviation demonstrating the levels of insurance coverage in effect at the time the bid was submitted, although the coverages are less than the amounts required under the RFB.4/ HAI takes issue with Coastal’s evidence of ability to obtain the required coverage because the letter from Sterlingrisk does not state “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Based on the totality of the evidence, the undersigned infers that Sterlingrisk’s letter omits the language that a certificate “will be provided” prior to contract execution, because Sterlingrisk will issue an insurance certificate only when Coastal applies, and pays the premium, for the increased coverage limitations. The letter from Sterlingrisk substantially complies with the insurance requirements of the RFB, and constitutes competent, substantial evidence of Coastal’s ability to obtain the required insurance coverage. HAI introduced no evidence that Coastal obtained an economic advantage over HAI by failing to include language from its insurance agent that “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Instead, HAI argued that by failing to enforce that provision of the RFB, the District cannot ensure the winning bidder will be responsible to undertake the contract. HAI argued that the District’s failure to adhere to this RFB requirement may create inefficiencies that “would result in the event that Coastal were unable to obtain the required insurance coverage” before execution of the contract. Coastal’s bid documents its eligibility for insurance coverage in the amounts required by the RFB. If Coastal does not provide said certificates, it will not be qualified for final execution or issuance of the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order dismissing Helicopter Applicator, Inc.’s Petition. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2018.
Findings Of Fact It is stipulated that Marine Industries Association of South Florida, Inc. (Petitioner), has standing to bring this rule challenge. It is also stipulated that Save The Manatee Club, Inc. (Intervenor), has standing to intervene in this rule challenge. The Department of Environmental Protection (Respondent) has the responsibility of implementing the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Act. 4. Respondent's Rules 16N-22.001(2), 16N-22.002(20) and (21), Florida Administrative Code, set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees. Also, Respondent's Rules 16N-22.010(1)(e) and (g), Florida Administrative Code, establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees. The manatee is an endangered marine mammal residing in the southern United States, principally in Florida, and has been declared by the State of Florida as its state marine mammal. Only 900 manatees are considered to be on the east coast of Florida. Respondent uses all available information on the presence of manatees, which includes actual visual sightings as well as any other method to identify their presence. Respondent refers to this information as "sightings." Respondent's information gathering procedure is consistent with established and accepted procedures for the gathering of information on manatees. Aerial surveys are part of the information relied upon by Respondent for its determinations regarding manatees. It is possible, and not uncommon, that aerial surveys may include sightings of the same mammal on different days. Whether a manatee is sighted frequently involves more than just numbers. It also includes a reasonable expectation that manatees will be seen. Aerial survey data is a minimum count to ascertain where the manatees are, not to determine how many exist or their population. Sixty-one aerial surveys were conducted in the waters of Broward County, excluding the Hillsboro Inlet, by Respondent and Broward County for Respondent. During the aerial surveys from 1988 to 1993, sixty-seven to sixty- nine sightings were made in the northern Intracoastal Waterway (NICW) in Broward County. Also, the aerial survey data showed sightings in seven out of twelve, five out of fifteen, and eleven out of eighteen flights. Manatees occasionally travel in the ocean. The aerial surveys included passes over the Atlantic Ocean. The NICW has lowlight transmission and high turbidity. Manatees travel two to five feet below the surface of the water. Because of water clarity, surface conditions and the fact that manatees must be at or very near the surface to be spotted, manatees are difficult to see in the NICW. The aerial surveys revealed an average of one sighting per flight. Lack of sightings in the aerial surveys reflect survey conditions as much as the absence of manatees. Manatees regularly move in and out of the Hillsboro Inlet zone. Manatees use the NICW in Broward County often and are frequently sighted there. When determining whether manatees inhabit an area, all data bases available should be used. The Intracoastal Waterway (ICW) is used by manatees for travel through Broward County. Aerial surveys of the NICW are performed at a lesser density than those performed of the power plants which are warm water refuges. Regular travel corridors constitute essential habitat. The NICW is a major travel corridor for manatees. They migrate through the NICW. Migration means purposeful movement from one point to another, as well as seasonal movement of species in mass. Manatees use the waters of the NICW and the power plants when moving back and forth between Port Everglades and Riviera Beach, and this exchange is documented. More than 200 manatees use both the Port Everglades and the Riviera Beach Power Plants (both warm water discharge areas) as warm water refuges, making repeated trips back and forth in single seasons. Thirty-Eight to forty-seven percent of manatees on the east coast use the Port Everglades area. Manatees inhabit areas where they are found. As to the waters of the ICW, they inhabit it on a regular basis. Moreover, manatees inhabit the NICW virtually continuously in winter and regularly or periodically in the off-winter months. Manatees inhabit Broward County year round, continuously in the winter months and regularly in the off-winter months. Although to a lesser degree, Respondent considers radio telemetry data in its determinations regarding manatees. Radio telemetry is a data gathering technique which is not experimental, but is less revealing when used with manatees. Telemetry data is hard to acquire in the NICW because manatees' behavior of resting and traveling deploys the tag being used in a way which is not available to the satellite. As a result, every tagged manatee is not seen on every satellite pass. Data from telemetry studies show that manatees predominantly travel the ICW, and extremely infrequently in the ocean, and have a regular exchange between the Port Everglades and Riviera Beach plants. Tagged manatees, when located visually, are found in association with others. The behavior of radio-tagged manatees is representative of the population of manatees as a whole. Manatees travel in groups in the NICW. A congregation of mammals means more than one mammal together, without assigning a reason for the congregation. Manatees congregate in areas where they are sighted in groups of two to three or more. All of the available information taken together indicates that manatees congregate in the NICW, using it on a regular and frequent basis. Respondent considers the entire NICW, including the Hillsboro Inlet zone, as a single unit when interpreting manatee sightings because of the types of manatee behavior observed and the character of the NICW. Respondent also considers anecdotal data in its determinations regarding manatees. Anecdotal data is useful for confirmation of, but not for providing new insights about manatees and their behavior. Anecdotal sighting data are consistent with and confirm what is known by Respondent from other sources about manatees. Motorboats kill, maim and disturb manatees. Manatees have scars on their bodies, which are caused by collisions with watercraft. Virtually all manatees have propeller scars and approximately 900 are documented in what is known as the Scar Catalogue. Scar patterns on manatees indicate numerous collisions, some nine to ten times. The Scar Catalogue also indicates that manatees move back and forth between the Port Everglades and Riviera Beach plants. Since 1974, when Respondent started compiling manatee mortality data, of the manatees recovered for which the cause of death could be determined, 522 were attributed to watercraft collision. Of the 522 watercraft collision deaths, twenty-seven manatees were recovered in Broward County, which represents over one-half of the total manatee deaths in Broward County for which the cause of death could be determined. However, the recovery data fails, and is unable, to show where within the ICW or NICW the manatees were struck. After a collision, manatees will seek out a quiet area. It is not unusual and is expected that injured manatees in Broward County will seek refuge at the Port Everglades. Boat traffic poses a threat to manatees. Increased or higher boat traffic poses an elevated or even greater risk to manatees. Broward County waters are utilized by large numbers of boaters. In addition to Broward boaters whose boat registrations have increased eighteen percent between 1986 and 1991, boaters from Dade and Palm Beach Counties and in winter from out-of-state use Broward waters. Boating traffic in Broward County and the NICW is heavier on weekends than on weekdays. There is no change in the traffic for Broward County in the winter months from November through March. More boating occurs during the day than at night on the NICW. A survey of boaters in Broward County relied upon by Respondent indicated that over fifty percent of boaters leave between 8:00 a.m. and noon and return between 2:00 p.m. and 6:00 p.m.; that eighty-four percent of those surveyed were in favor of speed limits to protect manatees; and that fifty-nine percent of those surveyed were in favor of slow speed for the whole county on weekends and holidays from November to March. Comparatively, Respondent's slow speed rule is substantially less stringent than that which was found acceptable by those surveyed and not as stringent as recommended by the federal Fish and Wildlife Service. Several local governments in the NICW adopted resolutions calling for more stringent regulations than Respondent's rule. In an effort to lessen the interference with boaters while also providing an area of protection for manatees in the NICW, the 25 mph speed limit with the fifty-foot buffer zone was adopted. A slow speed zone in the NICW will enhance boating safety. At slow speed, only boats with propeller-on-shaft and a rudder will exhibit an unsafe condition referred to as wobbling. However, virtually no typical recreation boat which is under thirty feet is configured that way.
The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1999.
Findings Of Fact The Parties Manatee Palms is an existing 60 bed residential treatment center located in Bradenton, Manatee County, Florida, which opened on January 12, 1987. It is a wholly owned subsidiary of PIA Psychiatric Hospitals, Inc., which owns or operates 51 psychiatric hospitals and three residential treatment centers throughout the United States. The Department is the state agency with the authority and responsibility to consider CON applications. MMH is an existing acute care hospital with a 25 bed short-term psychiatric unit which consists of approximately ten adolescent beds. It is the Manatee County contract provider of in-patient psychiatric services to the medically indigent, and provides approximately 91% of the indigent care in manatee County. MMH does not have, and has never sought, a CON as an IRTP, but does have earlier batched applications pending for additional short an d long term psychiatric beds. Its average length of stay is 35-40 days, and its utilization rate is approaching 100%. MMH provides services similar or identical to those offered or proposed by Manatee Palms and FRTC, and its program also utilizes a "Levels System", as does the program at Manatee Palms and the one to be offered at FRTC. FRTC is a wholly owned subsidiary of Charter Medical Corporation, which received a CON through Final Order of the Department on February 15, 1988, for a 60 bed intensive residential treatment facility located in Bradenton, Manatee County, Florida. The facility is currently under construction, and is projected to begin operations in March, 1990. The Application and the Project Manatee Palms is licensed as a child caring facility and holds a license entitling it to various services relating to alcohol and substance abuse to adolescents between the ages of 8 and 18. The facility is JCAH accredited as a residential treatment center. In April, 1987, Manatee Palms filed CON application number 5148 with the Department. It seeks to obtain specialty hospital licensure as an IRTP for its existing facility, and must receive a CON before it can be so licensed. The Department reviewed Manatee Palms' application and preliminarily denied CON 5148. Manatee Palms timely sought review of the Department's preliminary decision, and requested this formal hearing. By Order entered on May 3, 1988. leave to intervene was granted to MMH and FRTC. At hearing, relevant information that updates a CON application, and is the result of extrinsic circumstances beyond the applicant's control, is admissible, according to the Department's expert in CON review, Liz Dudek. The existing facility which is the subject of these proceedings is divided into two 30-bed wings based upon two separate clinical programs provided at the facility. One 30-bed unit is the psychiatric unit where a program for patients suffering only from psychiatric illnesses reside and are treated. The other unit is for dual diagnosis patients suffering from both psychiatric and substance abuse disorders. The primary service area for Manatee Palms includes Manatee, Sarasota, Pinellas, Hillsborough, Pasco, Polk, Hardee, Highlands, Charlotte, Lee, Collier and Orange Counties, with the secondary service area covering all eleven service districts of the Department, as well as out-of-state. Approximately 25% of the patients at Manatee Palms are from District VI. The facility encompasses 23,500 gross square feet, and contains classrooms, bedrooms, activity rooms, a dining facility and fully equipped kitchen, pharmacy, offices, a medical examining room, timeout rooms, and a service wing. The outside area covers 15 acres and consists of a swimming pool, ball field and a ROPES course, which is also available for non-residents in the community. A fully accredited school is operated at the facility, and some of the residents also attend a public high school which is located across the street. Classes are taught by EH and SED instructors provided by the Manatee County School Board. The facility supplies an aide for each class. The treatment program at Manatee Palms includes: comprehensive and individualized treatment; individualized, group and family therapy; the fully accredited school program; psychological testing and evaluation; creative and expressive arts; occupational and recreational therapy; alcohol and substance abuse education and counseling; vocational counseling; language, speech and hearing therapy; and structured after care. Therapy is provided in both a group and individualized setting, in accordance with an individual treatment plan for the resident which is developed by his treatment team. Additional services are provided to residents through contracts with outside physicians. A Levels System is followed which allows each resident to move up the Levels and gain increased privileges as the resident improves his behavior. Manatee Palms is extensively involved with the community through clinical workshops, the District VI Severely Emotionally Disturbed Network, Advisory Councils, counseling sessions for adolescents who are not in need of psychiatric care but are in need of counseling, and drug screening services which are provided at no charge. The facility's stated goal is to provide services that will enable program participants to return to their communities under less restrictive treatment requirements as soon as possible. The average length of stay is approximately 61 days in the dual diagnosis unit, and approximately 147 days in the psychiatric unit. Combining both units, the average length of stay at the facility is approximately 120 days. Admissions are accepted from mental health and social service agencies, schools, hospitals, and private practitioners. Patients are admitted upon the order of a psychiatrist/physician. Manatee Palms has three psychiatrists on staff and other non-psychiatric physicians providing services at the facility, include family physicians, a podiatrist, gynecologist, optometrist, podiatrist, as well as several dentists. The clinical staff to patient ration is approximately 1.25 to 1.0, and the overall staff to patient ratio is 1.8 to 1.0. The facility experienced an 86.8% occupancy from its opening in January, 1987, through April 30, 1988. At the time of its omissions response in June, 1987, its occupancy was 85.5%. Occupancy for 1989 is projected to be 89- 90%. Approximately 25% of the patients treated at Manatee Palms reside within District VI, while the rest reside in other Districts, or out of state. Manatee Palms has a contract with the Department to treat "chronically disturbed" adolescents, who have long term problems and have been treated in multiple settings before their admission to Manatee Palms. These patients generally require a longer average length of stay, and although they comprises half of all admissions in 1987, they now represent about 35% of the patients at Manatee Palms. The facility is committed to serving the same number of patients under its contract with the Department for the next two year, even with a CON. The gross charge per patient day at Manatee Palms is $255.00, which includes room, board and nursing, and ancillary charges are about $12.00 per day. The average gross patient charge per admission is $45,000. Rates for patients admitted under the contract for services with the Department are reduced to $185.00 per day, including ancillary charges, and this is below actual costs. Payor classes include insurance patients, private pay patients, and patients admitted under the contract with the Department. The number of insurance companies providing reimbursement for private pay patients has substantially increased since 1987, and there are approximately 40 insurance companies that have provided coverage for patients at Manatee Palms. Non-Rule Policy for IRTP The Department has no rule governing the approval of IRTP applications for a CON. Since February, 1987, the Department followed a non-rule policy which presumed there is a need for at least one licensed IRTP of reasonable size in each Departmental service district, and which did not consider the existence of unlicensed residential treatment beds in a district in determining if the presumed need had been met. Nothing in the record of this proceeding serves to explicate any rational basis for this non-rule policy based upon health planning concerns, considerations, or any other factors. The stated non-rule policy, therefore, provides no guidance for review of the application at issue in this case. FRTC received a Final Order of the Department in February, 1988, granting it a CON for a new IRTP to be located in Manatee County. Therefore, Manatee Palms is seeking licensure for the second IRTP in District VI. It is, however, an existing facility which does not seek to add new beds or provide new services at its facility, but seeks to change the status of its existing beds to "hospital" beds through licensure. In order to be licensed as a "specialty hospital", a facility must first receive a CON. The stated non-rule policy of the Department provides no guidance for review of the application at issue in this case, since even had it been explicated on the record of this proceeding, it does not apply to the review of a second IRTP application in a service district. Need and Consistency with State and Local Health Plans The Florida State Health Plan sets forth several relevant goals, including: encouraging the availability of the least restrictive treatment setting for all residents in need of mental health services; developing a continuum of services for mental health and substance abuse treatment, and a complete range of public mental health services in each service district; promoting third party reimbursement for non-hospital settings; and developing a network of residential treatment settings for severely emotionally disturbed children. The District VI Local Health Plan also encourages the use of the least restrictive and most cost effective treatment settings. No specific goals are identified in the Local Plan for residential treatment programs. The Manatee Palms application is consistent with these relevant portions of the State and Local Health Plans. It would increase access for patients with a dual diagnosis of both psychiatric and substance abuse problems, and would thereby encourage treatment in a facility with a shorter average length of stay than an acute inpatient hospital. It provides a less costly alternative to hospitalization. Manatee Palms accepts patients through a service contract with the Department, and thereby assists the development of a complete range of public mental health services. Insofar as approval of this application will increase the level of commercial insurance reimbursement for services at Manatee Palms, it will thereby improve the financial viability of the facility, and allow it to continue to serve patients under its contract with the Department, which currently does not allow for the recovery of actual costs associated with those services. Approval of this application will insure that Manatee Palms, which accepts publicly financed patients, will be able to compete on an equal basis with FRTC, which has made no commitment to serve patients under a service agreement with the Department. A numeric need methodology for IRTPs is not set forth by rule or incipient policy of the Department. For this reason, Manatee Palms presented three analyses to establish the need for this facility. First, competent substantial evidence was presented that referral sources and other knowledgeable individuals in the community believe that Manatee Palms does fill an existing gap in services by providing long-term psychiatric and substance abuse services locally to adolescents who require this level of treatment, and that the facility has a very good reputation in the community, with extensive involvement in the community. Second, a bed-to-population ratio analysis was performed, and established that if Manatee Palms' application is approved, the ratio of beds to population would be .32 beds per thousand for the 0-17 age group in District VI, even allowing for the already approved FRTC beds. This ratio analysis was adopted by the Department in its Final Order issued in February, 1988, granting FRTC a CON for an IRTP in Manatee County, and in that case 1991 population projections were used by the Department. Since this application was filed later than the FRTC application, 1992 population projections have been used to arrive at the .32 beds per population ratio. Thus, the same five year population projection has been used in this case, for purposes of this bed-to-population ratio analysis, as was applied by the Department in the FRTC case. This would be well within the range of bed-to-population ratios for areas with the existing IRTPs which is from .07 to 1.33 beds per thousand population for ages 0-17. This ratio analysis was adopted by the Department as a method to establish need in IRTP cases subsequent to the Manatee Palms application being deemed complete. The utilization and adoption of this methodology in the FRTC case was not within the control of Manatee Palms, and there was no way this could have been foreseen when it filed this application. It is, therefore, appropriate and necessary for Manatee Palms to address, and rely upon, this subsequently adopted methodology at hearing, although it was not addressed in its application. Third, the services which are offered at Manatee Palms were distinguished from those to be offered at FRTC to establish that a different type of patient would be treated FRTC than is currently treated at Manatee Palms, and that, therefore, existing occupancy rates would not be reduced at Manatee Palms due to the FRTC facility. Specifically, it was shown that the proposed average length of stay at FRTC would be three times longer than the actual average length of stay at Manatee Palms, and FRTC does not propose to serve substance abuse patients or provide services to publicly financed patients under a contract with the Department, both of which comprise a significant portion of Manatee Palms' patient census. Manatee Palms could not have addressed the FRTC facility when its application was filed since the FRTC CON was not issued until February, 1988. It is, therefore, appropriate for this to be addressed for the first time at hearing since it is a fact not under the control of Manatee Palms which has developed subsequent to this application being deemed complete. The need for this facility is also evidenced by the rapid increase in actual utilization rates since it opened in January, 1987, and by testimony from local support witnesses from the school system and local law enforcement. Since the primary and secondary service areas of Manatee Palms extend beyond District VI to include the entire state, as well as service to out-of- state residents, the fact that FRTC will serve primarily the residents of Manatee County will not substantially reduce the need which Manatee Palms is meeting in its existing services area. Accessibility to All Residents The clear purpose of this application is to enable Manatee Palms, an existing facility, to become licensed as a hospital under Section 395.002, Florida Statutes, and thereby enable it to be called a "hospital". If a facility is licensed as a hospital, it has a significant advantage for reimbursement from third parties who more readily reimburse for care in a licensed facility than in an unlicensed residential treatment center. Therefore, accessibility is increased for those children and adolescents in need of treatment whose families have insurance coverage, since it is more likely that payments under such third party coverage will be made at an IRTP licensed as a "hospital" than otherwise. Since it has already been in operation for a year and a half, and has developed an excellent reputation in the community and among insurance carriers, the number of insurance companies willing to reimburse for services at Manatee Palms has increased over that time to approximately 40, and by early 1988, almost 52% of Manatee Palms' patients had commercial insurance coverage. There is evidence, however, that additional carriers would be willing to reimburse for services at this facility if it were to be licensed. An increase in the number of third party carriers willing to reimburse for treatment at Manatee Palms will promote and improve the financial viability and stability of the facility, and result in an increased number of Florida residents receiving treatment at the facility, with a similar reduction in out- of-state patients being treated at Manatee Palms. This, in turn, will inure to the benefit of publicly financed patients served at this facility under its contract with the Department by assuring the continued operation of the facility. As a result, this application increases accessibility to treatment for such patients, particularly since the facility has committed to serve the same number of these patients for the next two years, even with a CON. Quality of Care The applicant has clearly demonstrated that it has been providing quality care in its existing facility, and that it will continue to do so if it receives the CON, and is licensed as a "specialty hospital". In fact, licensure will require the applicant to meet more stringent standards than those under which it is currently operating. Manatee Palms performs extensive pre-admission screenings, and develops treatment plans for each patient early in their course of treatment. The patient's treatment team continues to monitor progress under the treatment plan, and to make revisions in the plan, when necessary. Treatment is provided seven days a week, and includes an extensive educational component. Family involvement in treatment is maximized, and discharge planning begins upon admission. The goal of treatment is return of the resident to the community as quickly as possible. Availability and Adequacy of Alternatives The approval of this application would increase the availability and accessibility of residential treatment services to patients with dual diagnoses, publicly financed patients, and those who may be treated in a shorter period of time. Although a CON for FRTC has already been approved, that facility will not serve the same types of patients as are presently served at Manatee Palms, as previously noted above. The average length of stay at FRTC will be one year, while at Manatee Palms it is 120 days. Additionally, the service area of FRTC will comprise District VI, while Manatee Palms has a far broader service area. Manatee Palms is an existing facility serving patients in need of the treatment rendered. It is meeting an existing need which cannot be met through other existing or approved facilities. Availability of Resources Since Manatee Palms is an existing facility which has been in operation since January, 1987, and has achieved an excellent reputation in the community, as well as almost 87% occupancy, there is no question that it has sufficient available resources, including health manpower and management personnel, to continue its operation. The applicant proposes no additional beds or services with this application. Services Accessible In Adjoining Areas There are no licensed IRTPs in adjoining Districts V or VIII. Manatee Palms has served patients from these adjoining areas, as well as from throughout the state. There are no viable options in adjoining districts for District VI residents in need of the types of services Manatee Palms renders. The granting of this CON, and subsequent licensure, will improve Manatee Palms' ability to continue to render these services. Financial Feasibility David J. Rabb, an expert in the financial feasibility of medical facilities, prepared pro formas for 1989 and 1990 based upon the issuance of this CON, which show net revenues of $80,000 in 1989 and $106,000 in 1990. This represents a fair after tax profit each year, and establishes the financial feasibility of the project. These pro formas represent updates of pro formas contained in the application, and are admissible in this de novo hearing since they are based upon actual operating experience which was not available when this application was filed, and reflect economic conditions and rates of inflation not within the control of the applicant. Reasonable assumptions were used by Rabb in preparing his pro formas. He assumed 89.6% occupancy in 1989 and 90% in 1990. Patient revenues were reasonably projected at $286 in 1989 and $303 in 1990. Utilization by payor class was projected for 1989 to be: 52% commercial payor, 34% HRS patients, 7% Blue Cross, 4% Champus, 2% out-of-state, and 1% self pay. For 1990, it was assumed the facility would no longer serve out-of-state patients, and therefore the commercial pay patients were increased to 54% in 1990, out-of-state patients were eliminated, and all other payor classes remained the same. Rabb's expense projections for 1989 and 1990 were also reasonable. Based upon a study performed by Rabb of the impact of licensure upon the financial position of Manatee Palms, it is established that hospital licensure would improve the financial position of the facility. Jay Cushman, who was presented by MMH and was accepted as an expert in health planning and financial feasibility, concurred that licensure will enhance commercial pay patients beyond the level possible without licensure, and that this in turn will improve the financial viability of the facility. Liz Dudek, the Department's health facilities consultants' supervisor and an expert in health planning, confirmed that it is the Department's position that licensure as an IRTP increases accessibility to patients because of the increased likelihood of insurance reimbursement. Impact on Costs and Competition Competition among health care facilities serves to enhance quality of care and to assure cost effectiveness in the delivery of services. Since FRTC has already received a CON as the first IRTP to seek licensure in District VI, granting this application will allow Manatee Palms to compete equally with FRTC by also being able to obtain a licensure as a "specialty hospital". This should have a positive effect on the quality of care and cost effectiveness of both facilities. Since no new construction or services are to be offered at Manatee Palms as a result of this application, and since it has an established room rate structure which is already in place, and which was used for projections in the pro formas, the approval of this application will have a minimal, if any, impact on any increased costs for the delivery of health care. It was not established by competent substantial evidence that either MMH and FRTC would be injured or negatively impacted by the approval of this application. Actual patient days and average daily census at MMH's adolescent unit have gone up since Manatee Palms opened. MMH maintains, however, that since its patient mix has changed during this time to reflect a decrease in commercial pay patients and an increase in Medicaid patients, it is being adversely affected, despite the increase in gross patient numbers. However, the increase in Medicaid patients which MMH has experienced cannot be attributed to Manatee Palms. MMH is the only Medicaid approved hospital in the area, and Manatee Palms will not be able to accept Medicaid patients, with or without a CON and licensure. Therefore, approval of this CON will have no effect upon the level of Medicaid admissions experienced at MMH. There is evidence that the decrease in commercial pay patients at MMH is due to physician admitting practices, rather than the opening of Manatee Palms. Specifically, Dr. Howard Goldman, is on staff of both MMH and Sarasota Palms, but not Manatee Palms. Dr. Goldman has been admitting most of his commercial pay patients to Sarasota Palms and Medicaid patients to MMH. MMH presented the testimony of Jay Cushman, who was accepted as an expert in health planning and financial feasibility, concerning the impact which approval of this application would have on MMH. Cushman estimated that MMH will loose a total of ten patients, or 1.2 patients per day, if Manatee Palms receives a CON, and he further stated that other patients would not be available to fill this gap. At the same time, however, he testified that MMH is presently seeking a CON for additional psychiatric beds, even though it was fully aware of FRTC and Manatee Palms' applications when its application was filed. MMH's application is for six short term adolescent beds, ten long term, and eleven substance abuse beds. Despite being fully aware of FRTC and Manatee Palms, Cushman supported MMH's application for 27 new beds, and yet testified in this proceeding that no patients would be available to make up for patients MMH might lose to Manatee Palms. Due to this obvious and unexplained contradiction, Cushman's testimony is discredited, and his credibility impaired. Accordingly, this testimony has been given little weight. On the basis of Cushman's analysis, Eric Long, an expert in hospital finance, estimated the financial impact to MMH of this patient loss projected by Cushman. Since the Cushman testimony has been given little weight, Long's impact analysis is also discredited. Long simply took Cushman's figures of patient loss and translated them into a dollar impact, but made no independent analysis of patient loss. Since his starting point was faulty, his analysis is faulty. FRTC did not show any adverse impact on its facility as a result of CON approval and licensure of Manatee Palms. Because of the difference in the services to be provided, the average length of stay, and service areas of the two facilities, FRTC and Manatee Palms are not in direct competition for every patient. To the extent there is competition, however, this should have a positive effect on the delivery services in District VI. Services To Indigents Manatee Palms is not eligible to accept Medicaid patients, but it does serve the medically indigent through a service contract with the Department. Licensure will enhance the applicant's ability to continue to serve the medically indigent under this contract with the Department. Although the percentage of HRS patients at Manatee Palms has decreased in 1988, there is no evidence that Manatee Palms has every turned an HRS patient away in favor of a commercial pay patient. While occupancy has been almost 87%, there are still beds available at Manatee Palms, and therefore, there has been no need to turn any patients away since beds are available. The facility is dedicated to continue its current level of commitment to serve publicly financed patients under a service contract with the Department for the next two years if this CON is approved.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order approving Manatee Palms' application for CON 5148. DONE and ENTERED this 29th day of September, 1988, in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX (DOAH Case Number 87-4731) For purposes of this Appendix, the following abbreviations shall be used: "A" means Adopted, "R" means Rejected, and "fof" means finding of fact contained in this recommended order. Rulings 1. on R Manatee Palms' Proposed Findings of Fact: as a statement of position rather than a fof. 2. A fof 1. 3. A fof 2. 4. A fof 4. 5. A fof 3. 6. A fof 6,7. 7-8. R as unnecessary, and as simply a statement of position. 9. A fof 8. 10. A fof 9. 11. A fof 5. 12. A fof 10. 13. A fof 11. 14. R as irrelevant. 15-16. A fof 14. 17-18. A fof 15. 19. A fof 12. 20. A fof 13. 21. A fof 15. 22. A fof 17. 23. A fof 17, 29, 30. 24. A fof 18, 19. 25. A fof 28, 30, 39. 26-28. A fof 20. 29-30. A fof 21. 31. A fof 25. 32. R as a conclusion of law rather than a fof. 33. A fof 22, 23. 34. A fof 24. 35-39. A fof 22, 24. 40. A fof 23, 24. 41. A fof 24. 42. A fof 25. 43-44. A fof 28. 45-46. A fof 25. 47-48. A fof 26. 49. A fof 28, 29, 30. 50. R as simply a statement of position and argument on the evidence rather than a fof. 51. A fof 30, 39. 52-53. R as unnecessary. 54-56. A fof 33, 34. R as a conclusion of law and not a fof. A fof 31. R as not based upon competent substantial evidence. 60. A fof 31. 61. A fof 32. 62. A fof 31, 32. 63-64. A fof 31. 65-66. A fof 33, 34. 67-68. A fof 36. 69-70. A fof 35. 71-72. A fof 37. 73. A fof 38. 74. A fof 39. 75. A fof 28, 39. 76-77. A fof 9, 27, 33. 78-81. A fof 40, 41. 82-25. A fof 48-50. 86-88. R as irrelevant and unnecessary. 89. A fof 42. 90-92. A fof 43. 93. R as unnecessary. 94. A fof 44. 95-97. A fof 45. 98-100. A fof 46. 101. A fof 47. Rulings on the Department's Proposed Findings of Fact: 1. A fof 1. 2. A fof 6. 3. A fof 5. 4-6. A fof 17, 18. 7-8. R fof 38. 9. A fof 29. 10. A fof 17. 11. A fof 16. 12. A fof 30. 13. A fof 4. 14. A fof 3, but otherwise R as speculative. 15-18. R fof 25, 33, 34, and as irrelevant and not based upon competent substantial evidence. 19. A in part fof 20, but otherwise R as a conclusion of law rather than a fof. 20. R fof 24, 25, 30, 39, 48. A fof 20. R as unnecessary and irrelevant. R fof 25. R as unnecessary and irrelevant. 25. A fof 9, 16. A in part in fof 4, but otherwise R as irrelevant. R fof 7. A fof 7. R as a conclusion of law rather than a fof. Rulings on MMH's Proposed Findings of Fact: A fof 1. A fof 4. A fof 3. A fof 2. A fof 1. A fof 5. 7-8. A fof 6. A fof 16. R as unnecessary and irrelevant. A fof 7. R as unnecessary and irrelevant. A fof 7. A fof 8. A fof 10. 16. A fof 11, 12. 17. A fof 12. 18. A fof 15. 19. A fof 11. 20. A fof 14. 21. A fof 14, 16. 22-23. A fof 16. 24-26. A fof 17. 27. A fof 19. 28. A fof 18. 29. R fof 17, 30, 38. 30. A fof 17, but also R in part fof 17, 30, 50. 31. A fof 20. 32-34. R as a conclusion of law rather than a fof. 35. R as simply a statement of position and not a fof. 36-37. A fof 20. A and R in part fof 21. R fof 21. R fof 25. A in part fof 17, but otherwise R fof 17, 30, 50. R as simply a statement of position and not a fof. A fof 25. 44. R fof 25, 26. R fof 20. A fof 25. A fof 27. R as a conclusion of law and not a fof, and otherwise without citation to the record. R fof 25, and as argument on the evidence without citation to the record rather than a fof. R as simply an excerpt of testimony and not a fof. 51-52. A and R in part in fof 25. 53. R as argument on the evidence without citation to the record rather than a fof. 54-55. R fof 28, 29, and otherwise as irrelevant. 56. A fof 22, 24. A fof 22. R fof 22. 59-60. R fof 24. 61. R fof 23, 24. 62-63. A in part fof 16, but otherwise R fof 25, 26, 28, 29. 64. R fof 30, 48, 50. 65. R as simply a statement of position and not a fof. 66. R fofo 30, 50. R as irrelevant and not based on competent substantial evidence. A and R fof 27. R as simply a statement of position and not a fof. 70. R fof 30, 50. 71. A fof 18, 30, but R fof 30, 50. A and R fof 30, 48. R as a conclusion of law and not a fof. A fof 9, 16, but R fof 25-29. 75-80. R fof 31, 32, 35, and otherwise as irrelevant and not based on competent substantial evidence. A fof 37. R as simply a statement of procedural matters and not a fof. 83-85. A and R fof 37, and otherwise R as irrelevant. R fof 37. R as irrelevant. R as simply a statement of position and not a fof. A fof 3. R fof 45. R fof 44. R fof 46. 93-94. R as irrelevant and not based on competent substantial evidence. Rulings on FRTC's Proposed Findings of Fact: 1-4. R as unnecessary preliminary matters. 5. A fof 1, 5. 6. A fof 8. 7-9. A fof 9, 16. 10. A fof 17, 48. 11. R as irrelevant and unnecessary. 12. A fof 16. 13. A fof 14. 14. A fof 6. 15. A fof 28. 16. A fof 26, 28, but R fof 25. 17. A fof 7. 18. A fof 3, 7. 19. A fof 4, 7. 20-23. R as unnecessary and not a fof. 24. A fof 30. 25. R fof 28, 30, 48. 26. A fof 19, 29. 27-28. A fof 38. A fof 29. R as irrelevant and as argument on the evidence rather than a fof. R fof 49 and as not based on competent substantial evidence. A in part fof 29, but otherwise R fof 28, 39. R as irrelevant and unnecessary. R fof 28, 39, and otherwise as irrelevant and unnecessary. R fof 49. A fof 38. 37-38. R fof 33, 34. 39-40. R fof 25, 27, 33. 41. R fof 25, 27, 33, 34. A in part fof 20, but otherwise R as simply an argument on the evidence and not a fof. R fof 20, 21, and as not based on competent substantial evidence. 44-45. A in part fof 33, but R fof 34 and as irrelevant and unnecesasary. 46. A fof 25, 33. A in part fof 25, 33, but otherwise R as argument on the evidence and not a fof. R as speculative and not based on competent substantial evidence. A fof 17, 30, but otherwise R as unsupported argument on the evidence and not a fof. R as speculative and not based on competent substantial evidence. 51. R fof 40, 47. 52. R as unnecessary and cumulative. COPIES FURNISHED: Michael J. Cherniga, Esquire P. O. Drawer 1838 Tallahassee, Florida 32302 Michael J. Glazer, Esquire R. Stan Peeler, Esquire P. O. Box 391 Tallahassee, Florida 32302 John T. Brennan, Jr., Esquire 900-17th Street, N.W. Suite 600 Washington, D. C. 20006 Jean Laramore, Esquire P. O. Box 11068 Tallahassee, Florida 32301 Stephen M. Presnell, Esquire O. Box 82 Tallahassee, Florida 32302 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 =================================================================
The Issue The issues in this case are whether Respondent, Coconut Cove Resort and Marina, Inc., failed to comply with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes, and, if so, the appropriate amount of penalty which should be assessed against Respondent.
Findings Of Fact The Department of Financial Services (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Coconut Cove Resort and Marina, Inc. (hereinafter referred to as “Coconut Cove”), is a Florida corporation, which at the times relevant operated a small hotel/resort located in Islamorada, Florida. On November 4, 2008, a complaint was received by the Bureau of Compliance Office of the Division of Workers’ Compensation located in Miami, Florida, requesting a determination of whether Coconut Cove was in compliance with Florida’s workers’ compensation coverage requirements. The complaint was referred to Xotchilth Valdivia, a Department investigator, for investigation. After performing an in-office audit of the Department’s databases and finding no evidence that Coconut Cove had secured workers’ compensation coverage or had obtained exemptions from Florida workers’ compensation laws, Ms. Valdivia traveled to Coconut Cove’s location on November 6, 2008. Upon arriving at Coconut Cove’s location, Ms. Valdivia spoke with a woman by the named Comeau, who was manning the front desk of the resort. Ms. Valdivia asked to speak with Mr. Bates, but was informed that Mr. Bates, a commercial airline pilot, was away. Ms. Comeau, however, told Ms. Valdivia that Mr. Bates’ wife, Magda was available. While waiting for Ms. Bates to arrive, Ms. Valdivia observed four individuals who appeared to be performing work for the resort, in addition to Ms. Comeau, who was manning the front desk: a male who was working around the swimming pool, and two women who appeared to be maids with cleaning mops. When Ms. Bates arrived, Ms. Valdivia identified herself and the purpose of her visit. During the course of her discussion with Ms. Bates, Ms. Bates identified 18 individuals as employees of Coconut Cove by name and occupation. The 18 individuals included Mr. and Ms. Bates, both officers of Coconut Cove. While indicating that she knew nothing about Florida workers’ compensation requirements, Ms. Bates also stated that Coconut Cove did not have workers’ compensation coverage. Finding that Coconut Cove had four employees as of November 6, 2008, and no workers’ compensation coverage, conclusions not disputed by Ms. Bates, Ms. Valdivia issued Stop- Work Order No. 08-326-D5 and served it on Ms. Bates. A Request for Production of Business Records for Penalty Assessment Calculation (hereinafter referred to as the “Request for Records”), was also served on Ms. Bates. The Request for Records sought payroll records for the three-year period preceding the date of the issuance of the Stop-Work Order. Ms. Valdivia explained the reason why the Stop-Work Order was being issued and the purpose of the Request for Records. She also explained that the business records would be utilized in calculating any penalty owed by Coconut Cove for failing to carry workers’ compensation coverage. Although Coconut Cove attempted to prove that Ms. Valdivia acted arbitrary in her actions to this point, the evidence proved the contrary. Ms. Valdivia acted reasonably, appropriately, and had good cause for the actions taken. In response to the Request for Records, Ms. Bates telephoned the accountant for Coconut Cove and requested that he provide the payroll information being sought by the Department. Almost all that information was immediately faxed to Ms. Bates, who then provided a copy to Ms. Valdivia. The documentation consisted of a payroll report for Coconut Cove for the period January 1, 2008, to November 6, 2008, UCT-6 reports filed by Coconut Cove with the Florida Department of Revenue for the fourth quarter of 2005 through the third quarter of 2008. (Petitioner’s Exhibits 4B, 4E, 4F, and 4G.) Based upon the information contained in the UCT-6 reports provided by Coconut Cove to the Department, the names of employees and the gross income paid to them by Coconut Cove was reported by Coconut Cove to the Department of Revenue. Those reports indicate that Coconut Cove employed four or more individuals each month from October 2005 through September 2008. Subsequently, Coconut Cove provided additional payroll information to the Department concerning payroll for the periods of November 7, 2005, through December 31, 2005, and November 1, 2008, through November 6, 2008. Again, the documents, which were provided by Coconut Cove, indicate that it had employed four or more individuals during the periods of time covered by these documents. The Request for Records included a request for time sheets, check stubs, and check ledgers for the period of time at issue, November 7, 2005, to November 6, 2008 (hereinafter referred to as the “Audit Period”). None of these documents were provided to the Department or at hearing. While Coconut Cove had a stack of documents at hearing which Mr. Bates referred to generally as time cards, those documents were not offered into evidence and no specific testimony concerning the vast majority of the documents was provided. Based upon the documentation provided by Coconut Cove to the Department, documentation which was offered and admitted at hearing, the Department proved clearly and convincingly that Coconut Cove employed four or more individuals during each month of the Audit Period. This finding excludes Mr. and Ms. Bates, who, although employees of Coconut Cove who had not obtained exemptions from coverage during the audit period, received no remuneration from Coconut Cove during the Audit Period. The documentation provided by Coconut Cove was provided to Russell Gray, an employee of the Department since 1986. Mr. Gray reviewed all the payroll information provided by Coconut Cove to Ms. Valdivia, transferred the payroll information to spread sheets, and proceeded to calculate the penalty imposed pursuant to statutes and rules for Coconut Cove’s failure to comply with the insurance coverage requirements of Chapter 440, Florida Statutes. The manner in which Mr. Gray calculated the penalty is more specifically and accurately described in the Department’s proposed findings of fact numbered 21 through 25 and 27, which are hereby incorporated into this Recommended Order by reference. Mr. Gray determined that the penalty to be assessed against Coconut Cove was $27,897.58. An Amended Order of Penalty Assessment for the penalty was issued December 3, 2008, and served on Coconut Cove by certified mail on December 4, 2008. Subsequently, Mr. Gray concluded that his penalty calculation was incorrect to the extent that he had included gross income in the amount of $1,316.65 to an employee named Gerald Elmore. This figure was the income of another employee and not income attributable to Mr. Elmore. In order to correct his error, the Department filed a Motion to Amend Order of Penalty Assessment on September 18, 2009, seeking to file a 2nd Amended Order of Penalty Assessment, lowering the penalty assessment to $27,821.74. Despite objections to this amendment raised at hearing by Coconut Cove, the Motion to Amend was granted after hearing the impact of the change and the reason it was required. On December 15, 2008, Coconut Cove entered into a Payment Agreement Schedule for Periodic Payment of Penalty. The Department, therefore, issued a Conditional Release from Stop- Work Order, also dated December 15, 2008. Coconut Cove’s relevant defense to the foregoing consisted of the assertion by Mr. and Ms. Bates that they simply did not have more than three employees at anytime. It was asserted that employees listed on the documentation provided by Coconut Cove’s accountant to Ms. Bates and given by Ms. Bates to Ms. Valdivia, were actually employees of another entity owned by the Bates, Paul’s Beach Bar and Grill, Inc., which runs an on- site restaurant and catering service. The testimony of Mr. and Ms. Bates on this issue was not convincing and is rejected as unworthy. The testimony was uncertain as to time, short on specifics, and was contrary to the information reported on the payroll records and UCT-6s provided by Coconut Cove’s accountant. That testimony is also rejected because no explanation as to why the individuals had been listed as employees of Coconut Cove on the payroll records and UCT-6s if they were indeed employees of Paul’s Beach Bar and Grill, Inc. The Department proved clearly and convincingly, based upon documentation produced to it by Coconut Cove, that the individuals named on the penalty worksheet attached to the Amended Order of Penalty Assessment were employees of Coconut Cove during the Audit Period, that Coconut Cove paid those individuals the gross income included in the penalty worksheet, and that the calculation of the penalty assessment, as amended at hearing, was accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Respondent, Coconut Cove Resort and Marina, Inc., failed to secure the payment of workers’ compensation for its employees during the Audit Period, in violation of Section 440.107, Florida Statutes; and Assessing a penalty against Coconut Cove Resort and Marina, Inc., in the amount of $27,821.74. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009. COPIES FURNISHED: Timothy L. Newhall, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Paul Bates Magda Bates 8401 Overseas Highway Islamorada, Florida 33036 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether proposed regulations for Brevard County manatee protection areas by the Florida Fish and Wildlife Conservation Commission (FWCC), which are amendments to Rule 68C- 22.006, Florida Administrative Code, noticed in the April 20, 2001, Florida Administrative Weekly (F.A.W.)("Proposed Rule"), with a Notice of Change published in the F.A.W. on June 15, 2001, are an invalid exercise of legislative authority.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found. Effective July 1, 1999, Respondent, FWCC became primarily responsible for implementation of the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes (2000) instead of the Department of Environmental Protection, by operation of Section 45, Chapter 99-245, Laws of Florida. FWCC is the State agency responsible for promulgating rules pursuant to Section 370.12, Florida Statutes. Respondent noticed proposed rules, and is a mandatory party to a challenge thereto. Section 120.56(1)(e), Florida Statutes. STANDING OF THE PARTIES McGill, Pritchard, Dovark, Gentile, Akins, Mason, Jaren, Robertson, Standing Watch, Inc., Save the Manatee Club, Inc., Florida Wildlife Federation, Inc., and Sea Ray Boats, Inc.1, are substantially affected by one or more of the Proposed Rules in that they operate motorboats in one or more of the areas proposed for regulation, or in that they represent the interests of members who operate motorboats in one or more of the areas proposed for regulations, or who desire to protect manatees and manatee habitats on behalf of members who derive aesthetic or other benefits from manatees, and who observe or otherwise enjoy manatees in Brevard County and elsewhere. Intervenor, Florida Power and Light Company (FPL), is a Florida corporation that owns and operates the Cape Canaveral Power Plant located in Cocoa, Brevard County, Florida. FPL's operations are specifically addressed in the proposed rule in that the proposed rule creates a no-entry zone along an area bordering the FPL Cape Canaveral Power Plant property boundary including easements and right-of-way where electrical generation operating equipment and electrical distribution and transmission equipment are located. Intervenor, Cocoa Beach is a Florida Municipal Corporation located in Brevard County. The Cocoa Beach Sports Area located with the Banana River Lagoon has been designated since 1988 as an area for water-related recreational activities for the residents of the City of Cocoa Beach and for the general public. The Proposed Rule seeks to impose speed restrictions for boats operating within this area and, if promulgated, will directly regulate and restrict the boating, fishing and other water-related recreational activities of the public within the area. Intervenor, Titusville is a Florida Municipal Corporation located in Brevard County, whose elected body has determined that a substantial number of its residents are substantially affected in the Proposed Rule. The parties alleged facts supported their standing in individual petitions, and the parties stipulated to standing. Therefore, none of the Petitioners presented any evidence regarding their standing. Petitioners and Intervenors are substantially affected by one or more sections of the proposed rule in that they operate motorboats in one or more of the areas proposed for regulation, or they represent the interests of members who operate motorboats in one or more of the areas proposed for regulation or who desire to protect the manatees and manatee habitat on behalf of members who derive aesthetic or other benefits from manatees and who observe or otherwise enjoy manatees in Brevard County. ADOPTION PROCESS FOR THE 2001 RULE PROPOSAL On September 6, 2000, the Commission authorized staff to initiate amendments to the Brevard County rules at a public meeting in Deland, Florida. On October 6, 2000, the Commission published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop. On October 26, 2000, the Commission staff conducted a rule development workshop in Melbourne, Brevard County, Florida. On January 24, 2001, the Commission directed staff to conduct a second rule development workshop in Brevard County, Florida. On February 16, 2000, the Commission published notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2000. On March 7, 2000, the Commission staff conducted a second rule development workshop in Viera, Brevard County, Florida. On March 30, 2000, the Commission conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly. On April 20, 2001, the Commission published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001. On May 3, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On May 23, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly. There are no algorithms, formulae, protocols, matrices, math models, or metrics used by the Commission to combine the individual data sources into findings that idle-speed, slow-speed, or no-entry zones were required for any specific zone in question. Aerial surveys have been conducted by the Florida Marine Research Institute (FMRI) and others. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as follows: 1991 1,268 manatees 1991 1,465 manatees 1992 1,856 manatees 1995 1,443 manatees 1995 1,822 manatees 1996 2,274 manatees 1996 2,639 manatees 1997 2,229 manatees 1997 1,709 manatees 1998 2,022 manatees 1999 2,034 manatees 1999 2,354 manatees 2000 1,629 manatees 2000 2,222 manatees 2001 3,276 manatees During the most recent statewide synoptic survey, portions of Brevard County were observed in five counts made during January 5, 6, and 7, 2001. Of the 591 manatees observed in Brevard County on January 6, 2001, 457 manatees were adjacent to Florida Power and Light Company's thermal discharge, 38 manatees were in Sebastian River, 16 manatees were in Berkley Canal System, and 8 manatees were along the east Banana River shoreline on the southeastern extension of Merritt Island. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. These types of surveys are used by the FWCC in assessing manatee use of an area and then establishing manatee protection regulations. The most recent, comprehensive FMRI aerial survey in Brevard County consisted of 45 flights between September 1997 and September 1999. A standardized flight path designed to cover most probable manatee habitats was flown over Brevard County at least once per month during the two-year period at an altitude of approximately 500 feet (except for June 1999, where excessive smoke covered the area); the only area of the county not covered at all was restricted airspace associated with the Kennedy Space Center Complex. The highest number of manatees counted during this survey was 790 manatees in March 1999. General Description of Brevard County. Located in east central Florida, Brevard County is approximately 72 miles north-south and approximately 20 miles east-west. The west boundary of the county is the St. Johns River; the east boundary is the Atlantic Ocean. The Indian River Lagoon in Brevard County extends north of the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county. Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a barrier island running the length of the county, the Indian River Lagoon, and the mainland. Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west; the Banana River on the east; and the Mosquito Lagoon on the north. At the southern end of Merritt Island, the Banana River joins the Indian River. Besides Sebastian Inlet at the southern boundary of the county, the only navigable connection between the Indian River Lagoon and the Atlantic Ocean is at Port Canaveral. Port Canaveral cuts across the Canaveral Peninsula; along the west shoreline, the Canaveral Locks permit vessels to pass from the Port into the Banana River. The Mosquito Lagoon, Indian River and Banana River are located in a transitional zone between the temperate and tropical zones and form one of the most diverse estuaries in North America. The Indian River Lagoon varies from 0.5 to 5 miles in width and has an average depth of one meter (39.4 inches). The Indian River Lagoon system is not subject to significant periodic lunar tides. The water depths are depicted as mean lower low water, while the shorelines are represented in terms of approximate mean high water. In the lagoon system in Brevard County, the relative water levels rise and fall as influenced by wind, rainfall, storms, and tides. Expert witnesses with local knowledge of the waters acknowledged the variation in water level or relative depth and testified that the water level fluctuates in the Indian River Lagoon by more than three feet and fluctuates by two or two and one-half feet or greater annually. The Indian River Lagoon contains extensive sea grass beds, which are the preferred food for manatees. A bathymetric survey commissioned by the St. Johns River Water Management District determined the acreage of submerged land within the lagoon that can be potentially vegetated with submerged aquatic vegetation at a depth of six feet below mean sea level. Brevard County is the hub of the Atlantic Coast manatee population with a large year-round and a large migratory transient manatee population present throughout the year. THE MANATEE The West Indian manatee (Trichechus manatus) is one of endangered marine mammals in coastal waters of the United States. The West Indian manatee is presently classified as an "endangered species" by the federal Endangered Species Act and has protected status under the Marine Mammal Protection Act. The West Indian Manatee is one of the four living species of the mammalian Order Sirenia, the other three are the West African manatee, the Amazonian manatee and the dugong; the fifth species, Stellar's sea cow, was hunted into extinction. In the southeastern United States, manatees are limited primarily to Florida and Georgia and this group forms a separate subspecies called the Florida manatee (T. manatus latirostris). The Florida manatee (hereinafter "manatee") is a migratory species with a large range of movement along the Atlantic and Gulf Coasts of the United States. During the winter, cold temperatures keep the population concentrated in peninsular Florida, but during the late spring and summer they expand their range and are seen infrequently as far north as Rhode Island, and as far west as Texas. Manatees demonstrate "site fidelity" with some individual mammals adjusting their behavior to take advantage of changes in the availability of resources. Manatees often return to the same winter thermal refuges and the same summer habitats year after year. Manatees prefer water temperatures above 68 degrees F and when ambient water temperatures drop below 68 degrees, they seek warm water refuges, such as spring-fed rivers and power plans discharge outs. Florida Power and Light Company and Reliant Energy Power Plants and the Sebastian River are the primary warm water refuges sought by manatees in Brevard County. For feeding, resting, cavorting, mating and calving, manatees prefer shallow sea grass beds in coastal and riverline habitats with ready access to deep channels, particularly near the mouths of creeks, embayments and lagoons. Manatees sometimes prefer vegetation growing along the banks of waterways, instead of submerged or floating aquatic vegetation. Manatees seek and find sources of fresh water for drinking. In brackish or estuarine environment, they locate fresh water sources, either natural or artificial. They have been observed drinking fresh water at marinas, from air conditioning condensate discharge, from pockets of fresh water floating on the surface of the saltier water, from storm water outfalls and from springs. Typically, six-to-eight hours per day are spent on feeding, usually at one-hour intervals. Intermittently, between two and 12 hours per day are spent resting or sleeping either at the surface of the water or on the bottom. Time not devoted to feeding or sleeping is spent in traveling, socializing or exploring during both day and nighttime hours. The basic social unit consists of a female manatee and her dependent calf. Manatees, apart from winter aggregations at warm water resources and transient mating herds, are semi-social or mildly social mammals. Manatees usually prefer to swim below the surface at one to three meters (3.28 to 9.84 feet) depth, surfacing every few minutes to breathe. They typically have a swimming cruising speed between four and ten KM/HR (2-6 MPH), but can swim in short bursts at up to 25 KM/HR (15 MPH). Manatees have been seen in shallow waters with their backs and heads out of the water and on occasion have been observed fully or partially out of the water to feed or escape pursuing male manatees. Female manatees reach sexual maturity by age five years and males at the age of three to four years. Mating occurs when estrous females are successfully approached by dynamic epherimal mating herds of between five and 20 males (lasting up to four weeks). Female manatees will swim to very shallow water when pursued by mating herds of males as a preventive measure from mating. Manatees have a low reproductive rate and a long life expectancy. Manatee's gestation period is 11 to 14 months with usual birthing of one calf. Dependent calves remain near their mother's side from one to two years, swimming parallel to its mother, directly behind her flipper. Life expectancy for a manatee is in excess of 50 years. A significant decrease in adult survivorship due to, among other things, watercraft collisions could contribute to a long-term population decline. The manatee population in Florida has shown yearly increases resulting in more manatees now than there were in 1976 in the areas of Brevard County that are subject to the Proposed Rules. MANATEE PROTECTION PLANS The United States Fish and Wildlife Service developed an initial recovery plan for West Indian manatees in 1980, primarily for manatees in Florida. The plan was revised in 1989 and 1996. A third revision to the Recovery Plan was noticed for public comment in November 2000, and in July 2001. The recovery plans hereinabove recognized the major human-related cause of manatee mortality is collisions with watercraft. The existing and draft recovery plans state: Because watercraft operators cannot reliably detect and avoid hitting manatees, federal and state managers have sought to limit watercraft speed in areas manatees are most likely to occur to afford boaters and manatees time to avoid collisions. Avoidance technology research is ongoing for deterrent devices designed to "avoid collisions"; however, no device or combination of devices has gained acceptance and approval by the Marine Biological Scientific Community. The Florida Legislature has designated the entire State a refuge and sanctuary for the manatee--the Florida State marine mammal. Section 370.12(2)(b), Florida Statutes. HISTORY OF MANATEE PROTECTION IN BREVARD COUNTY The Florida Legislature initially authorized the adoption of manatee protection rules for Brevard County effective July 1, 1978, when it required the (former) Florida Department of Natural Resources to adopt rules regulating the speed and operation of motorboats between November 15 and March 31, 1978, in those portions of the Indian River within 3/4 mile of the then Orlando Utilities Commission (now Reliant) and Florida Power and Light Company power plant effluents. These rules became effective on March 19, 1997 (former Rule 16N-22.06, Florida Administrative Code ("Brevard County Manatee Protection Rules" or "BCMPR"). In 1989, a strategy to improve manatee protection in 13 key counties was approved by the Governor and Cabinet. The strategy called for development of manatee protection plans, for boat facility siting criteria, for priority land acquisition of critical manatee use areas, and improved aquatic preserve management for sea grass protection. Guidelines for implementation included new or expanded speed zones, refuges or sanctuaries for the regulation of boat speeds in critical manatee areas. Financial assistance was given Brevard County for its manatee protection plan in 1993. After creation of the FWCC, effective July 1, 1999, the BCMPR and other manatee protection rules were transferred from Florida Department of Environmental Protection (FDEP) to the FWCC, and the Secretary of State renumbered the prior rules to Chapter 68C-22, Florida Administrative Code. In 1994, FDEP amended BCMPR to establish manatee protection zones in the Canaveral Barge Canal and portions of adjacent areas of the Indian and Banana Rivers; to expand the existing "slow speed" zone in Sykes Creek (north of "S Curve") to include the channel; to establish a maximum 25 MPH zone in the Sykes Creek channel between Sykes Creek Parkway and the "S Curve"; and to renumber and correct map inconsistencies. This site- specific rule-making action was taken in response to proposed additional threats to manatees resulting from development of Abby Marina (now Harbortown Marina), pending completion of Brevard County comprehensive countywide manatee protection plan. In 1998, FDEP amended the BCMPR to establish seasonal "motorboats prohibited" and "no-entry" zones at the then Orlando Utilities Commission's (now Reliant) power plant and a seasonal "no-entry" zone at Florida Power and Light Company's power plant. THE PROPOSED MANATEE PROTECTION RULE AMENDMENTS FOR BREVARD COUNTY 1906 Section II - Proposed Rules THE FULL TEXT OF THE PROPOSED RULES IS: (Substantial rewording of Rule 68C-22.006 follows. See Florida Administrative Code for present text.) 68C-22.006 Brevard County Zones. The Commission hereby designates the waters within Brevard County, as described below, as areas where manatee sightings are frequent and where it can be assumed that manatees inhabit on a regular, periodic or continuous basis. The Commission has further determined that a likelihood of threat to manatees exists in these waters as a result of manatees and motorboats using the same areas. The primary purpose of this rule is to protect manatees from harmful collisions with motorboats and from harassment by regulating the speed and operation of motorboats within these designated areas. A secondary purpose is to protect manatee habitat. In balancing the rights of fishers, boaters, and water skiers to use these waterways for recreational and commercial purposes (as applicable under 370.12(2)(j), F.S.) with the need to provide manatee protection, the Commission has examined the need for unregulated areas or higher speed travel corridors through regulated areas. Such areas or corridors are provided in those locations where the Commission determined, on the basis of all available information, (1) there is a need for the area or corridor and (2) the area or corridor will not result in serious threats to manatees or their habitat. Unregulated areas or higher speed corridors are not provided in locations where both of the above findings were not made. The following year-round and seasonal zones are established, which shall include all associated and navigable tributaries, lakes, creeks, coves, bends, backwaters, canals, and boat basins unless otherwise designated or excluded. As used in this rule, ICW means the Intracoastal Waterway. Access to the NO ENTRY and MOTORBOATS PROHIBITED zones designated in paragraphs (2)(a) and (b) will be provided in accordance with procedures set forth in subsection (4), hereunder, and applicable provisions of Rule 68C-22.003. NO ENTRY (November 15 – March 31) Indian River, Reliant Corporation Delespine Power Plant Area: All waters within the discharge canal of the Reliant Corporation Delespine power plant, and; All waters southerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of the jetty on the north side of the power plant intake canal. Indian River, FPL Frontenac Power Plant Area: All waters in the vicinity of the Florida Power and Light (FPL) Frontenac power plant southerly of a line connecting the northern guy wires of the power poles immediately north of the FPL Unit 2 discharge area from the western shoreline of the Indian River to the third power pole east of the western shoreline (approximately 1,650 feet east of the shoreline), and westerly of a line running from said third power pole to the easternmost point (approximate latitude 28º 28' 07" North, approximate longitude 80º 45' 19" West) of the jetty on the north side of the FPL intake canal. MOTORBOATS PROHIBITED (All Year, except as noted) Indian River, Reliant Corporation Delespine Power Plant Area: All waters in the vicinity of the Reliant Corporation Delespine power plant southerly of a line bearing 90º from a point (approximate latitude 28º 29' 41" North, approximate longitude 80º 46' 35" West) on the western shoreline of the Indian River 95 feet north of the northernmost seawall of the power plant discharge canal, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º. This zone is in effect from November 15 through March 31. C-54 Canal: All waters of the C-54 Canal (South Florida Water Management District Canal 54) east of the spillway (approximate latitude 27º 49' 50" North, approximate longitude 80º 32' 24" West) and west of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. IDLE SPEED (All Year, except as noted) Indian River, Power Plant Area: All waters west of the western boundary of the ICW channel, south of a line bearing 90° from a point (approximate latitude 28º 30' 13" North, approximate longitude 80º 46' 48" West) on the western shoreline of the Indian River approximately three-fourths of a mile north of the Delespine power plant discharge canal, and north of a line bearing 90° from a point (approximate latitude 28º 27' 27" North, approximate longitude 80º 45' 43" West) on the western shoreline of the Indian River approximately three-fourths of a mile south of the Frontenac power plant discharge canal, except as otherwise designated under (2)(a) and (b)1. This zone is in effect from November 15 through March 31. Banana River, Cape Canaveral Area: All waters north of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 331° from said point in the Banana River to a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 38' 19" West) on the State Road 528 Causeway (west of State Road 401). Section II - Proposed Rules 1907 Banana River, Manatee Cove Area: All waters of Manatee Cove (on the east side of the Banana River, just south of State Road 520) east of a line at the mouth of the cove running between a point (approximate latitude 28º 21' 21" North, approximate longitude 80º 36' 52" West) on the northern shoreline and a point (approximate latitude 28º 21' 09" North, approximate longitude 80º 36' 51" West) on the southern shoreline. Turkey Creek: All waters of Turkey Creek north and east (downstream) of Melbourne- Tillman Drainage District structure MS-1 and south and west of a line at the mouth of Turkey Creek that runs from the southeasternmost point (approximate latitude 28º 02' 21" North, approximate longitude 80º 34' 48" West) of Castaway Point to the northeasternmost point (approximate latitude 28º 02' 14" North, approximate longitude 80º 34' 43" West) of Palm Bay Point. Sebastian Inlet Area: All waters of the cove on the northern side of Sebastian Inlet (commonly known as Campbell Cove) northwest of a line running between the two rock jetties at the entrance to the cove. Sebastian River Area: All waters of the North Prong of Sebastian River, and; All waters of the North Fork Sebastian River (also known as Sebastian Creek) and the C-54 Canal west of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong and east of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. SLOW SPEED (All Year) Mosquito Lagoon: All waters west of the ICW channel, south of the Volusia County/Brevard County line, and north of ICW channel marker “43,” and; All waters of Mosquito Lagoon (including the ICW channel) south of ICW channel marker “43,” southwest of a line commencing at ICW channel marker “43” and then running to ICW channel marker “45” and then on a bearing of 132° for a distance of 1,000 feet to the line’s terminus at a point in Mosquito Lagoon (approximate latitude 28º 44' 35" North, approximate longitude 80º 44' 35" West), and north of a line running from said point in Mosquito Lagoon on a bearing of 221° to the western shoreline of Mosquito Lagoon. Indian River, Turnbull Basin Area: All waters south and east of a line commencing at a point (approximate latitude 28º 44' 36" North, approximate longitude 80º 46' 19" West) on the eastern shoreline of Turnbull Basin (about one mile north of Haulover Canal) and then bearing 193° to a point 1,500 feet northwest of the ICW channel, then running in a southwesterly direction 1,500 feet northwest of and parallel with the ICW channel to a point (approximate latitude 28º 41' 22" North, approximate longitude 80º 49' 05" West) 1,500 feet northwest of ICW channel marker “12,” and then running in a southerly direction 1,500 feet west of and parallel with the ICW channel to the Florida East Coast Railroad Bridge, including all waters west of the ICW channel and south of an east-west line 1,500 feet north of the point where the Florida East Coast Railroad Bridge crosses over the ICW, but excluding the ICW channel as designated under (2)(e)2. Indian River, Titusville Area: All waters south of the Florida East Coast Railroad Bridge, east of the ICW channel, and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW, and; All waters west of the ICW channel south of the Florida East Coast Railroad Bridge and north of the State Road 402 Bridge and Causeway. Indian River, State Road 402 (Max Brewer Causeway) to State Road 405 (NASA Parkway): All waters within 2,000 feet of the general contour of the western shoreline of the Indian River, excluding the ICW channel where the channel is less than 2,000 feet from the western shore; All waters within one mile of the general contour of the eastern shoreline of the Indian River south and east of a point (approximate latitude 28º 36' 04" North, approximate longitude 80º 44' 44" West) on the western shoreline of Peacock’s Pocket (northwest of Banana Creek), and; All waters south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3. Indian River, State Road 405 (NASA Parkway) to State Road 528 (Bennett Causeway): All waters north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.; All waters west of the ICW channel and north of the overhead power transmission line that crosses the western shoreline of the Indian River approximately 1,200 feet north of State Road 528, excepting those areas otherwise designated for seasonal regulation under (2)(a), (b)1., and (c)1. when said seasonal zones are in effect; All waters south of said overhead power transmission line and west of a north-south line running through the second power pole east of the western shoreline; All waters within one-half mile of the eastern shoreline of the Indian River north of a point (approximate latitude 28º 25' 47" North, approximate longitude 80º 43' 24" West) on the eastern shoreline of the Indian River 1,500 feet south of the canal on the southern side of Meadow Lark Lane, including all waters of Rinkers Canal, and; All waters east of the ICW channel and south of the overhead power transmission line that crosses the eastern shoreline of the Indian River approximately 3,900 feet north of State Road 528. Indian River, State Road 528 (Bennett Causeway) to State Road 518 (Eau Gallie Causeway): All waters within 1,000 feet of the general contour of the western shoreline of the Indian River; All waters south of State Road 528 and within 1908 Section II - Proposed Rules 500 feet of the State Road 528 Causeway, within 500 feet of the State Road 520 Causeway, within 500 feet of the State Road 404 Causeway, and north of State Road 518 and within 500 feet of the State Road 518 Causeway; All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River between State Road 528 and State Road 520; All waters east of the ICW channel from State Road 520 to an east-west line 300 feet south of the southernmost point (approximate latitude 28º 19' 22" North, approximate longitude 80º 42' 00" West) of the spoil island east of ICW channel marker “80,” and; All waters within 500 feet of the general contour of the eastern shoreline of the Indian River south of the aforementioned east-west line and north of State Road 404 (Pineda Causeway). Indian River, State Road 518 (Eau Gallie Causeway) to Cape Malabar: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River; All waters south of State Road 518 and within 500 feet of the State Road 518 Causeway and within 500 feet of the State Road 192 Causeway; All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of State Road 518 and north of the easternmost point (approximate latitude 28º 02' 24" North, approximate longitude 80º 34' 48" West) of Castaway Point (including all waters of the Eau Gallie River and Crane Creek), and; All waters south of said easternmost point of Castaway Point, north of Cape Malabar, and west of a line commencing at a point (approximate latitude 28º 02' 29" North, approximate longitude 80º 34' 38" West) in the Indian River 1,000 feet northeast of said easternmost point of Castaway point, then bearing 130° to the westernmost point (approximate latitude 28º 02' 15" North, approximate longitude 80º 34' 19" West) of the spoil site west of ICW channel marker “14,” then bearing 153° to the westernmost point (approximate latitude 28º 01' 32" North, approximate longitude 80º 33' 55" West) of the spoil site southwest of ICW channel marker “15,” then bearing 138° to the line’s terminus at a point (approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar. Indian River, Cape Malabar to Grant: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River south of Cape Malabar and north of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek); All waters south of Cape Malabar, north of the spoil island between ICW channel markers “25” and “27,” and west of a line commencing at a point approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar, then bearing 157° to the easternmost point (approximate latitude 28º 00' 26" North, approximate longitude 80º 33' 13" West) of the spoil site between ICW channel markers “16” and “17,” then bearing 152° to the easternmost point (approximate latitude 27º 59' 21" North, approximate longitude 80º 32' 35" West) of the spoil island west of ICW channel marker “22,” then bearing 166° to the line’s terminus at the easternmost point (approximate latitude 27º 57' 50" North, approximate longitude 80º 32' 10" West) of the spoil island between ICW channel markers “25” and “27;” All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of said spoil island between ICW channel markers “25” and “27,” and north of ICW channel marker “35,” and; All waters west of the ICW channel between ICW channel markers "35" and “38.” Indian River, Grant to the Indian River County Line: All waters west of the ICW channel between ICW channel marker "38" and the Brevard County/Indian River County line, including those waters east of the centerline of the U.S. 1 Bridge over the Sebastian River, and: All waters within 1,500 feet of the general contour of the eastern shoreline of the Indian River, south of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek) and north of an east-west line running through ICW channel marker “59” (approximate latitude 27º 51' 38" North, approximate longitude 80º 28' 57" West), including those waters within 1,500 feet west of the westernmost edge of the Mullet Creek Islands, within 1,500 feet west of the westernmost edge of the islands south of Mathers Cove, within 1,500 feet west of the westernmost edge of Long Point, and within 1,500 feet west of the westernmost extensions of Campbell Pocket south to said east-west line running through ICW channel marker “59,” and; All waters of the Indian River and Sebastian Inlet east of the ICW channel, south of said east-west line running through ICW channel marker “59,” north of the Brevard County/Indian River County line, and west of a line 200 feet southwest of and parallel with the centerline of the State Road A1A Bridge, except as otherwise designated under (2)(c)5. and excluding the marked Sebastian Inlet channel. Sebastian River Area: All waters of the Sebastian River (including waters also known as San Sebastian Bay), the South Fork San Sebastian River (also known as St. Sebastian River, Sebastian River and Sebastian Creek), and the North Fork Sebastian River (also known as Sebastian Creek) within Brevard County west of the centerline of the U.S. 1 Bridge and east of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong of Sebastian River. Canaveral Barge Canal: All waters of the Canaveral Barge Canal east of the general contour of the eastern shoreline of the Indian River and west of the general contour of the western shoreline of the Banana River. Sykes Creek and Kiwanis Basin: All waters of Sykes Creek and Kiwanis Basin south of the Canaveral Barge Canal and north of the centerline of State Road 520. Section II - Proposed Rules 1909 Newfound Harbor: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Bridge and Causeway; All waters within 1,000 feet of the general contour of the western shoreline of Newfound Harbor north of the runway for the Merritt Island Airport (approximately one mile south of State Road 520), and; All waters within 1,000 feet of the general contour of the eastern shoreline of Newfound Harbor and an extension of said shoreline to a point 1,000 feet south of Buck Point. Banana River, North of State Road 528: All waters within 1,500 feet of the general contour of the western shoreline of the Banana River south of a point (approximate latitude 28º 26' 10" North, approximate longitude 80º 39' 35" West) on the shoreline near Kars Park on the boundary of the federal No Motor zone; All waters south of an east-west line running through the westernmost point (approximate latitude 28º 24' 42" North, approximate longitude 80º 38' 34" West) of the first spoil island north of the Canaveral Locks (commonly known as Ski Island), including those waters in Port Canaveral west of State Road 401, and; All waters east and south of a line commencing at the northernmost point (approximate latitude 28º 24' 44" North, approximate longitude 80º 38' 32" West) of Ski Island, then running to the southernmost point (approximate latitude 28º 24' 55" North, approximate longitude 80º 38' 31" West) of the second spoil island north of the Canaveral Locks, then following the eastern shoreline of said spoil island to its northernmost point, then bearing 6° to a point (approximate latitude 28º 25' 09" North, approximate longitude 80º 38' 29" West) in the Banana River underneath the overhead power transmission line south of the third spoil island north of Canaveral Locks, then following said transmission line (which is the boundary of the federal No Motor zone) in an easterly direction to the line’s terminus at a point (approximate latitude 28º 25' 16" North, approximate longitude 80º 36' 13" West) on the eastern shoreline of the Banana River. Banana River, State Road 528 to State Road 520: All waters south of State Road 528 and north of an east-west line 1,000 feet south of the point where the State Road 528 Bridge crosses over the main Banana River channel, except as otherwise designated under (2)(c)2.; All waters west of a line running from a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 39' 30" West) on the State Road 528 Causeway east of the western State Road 528 Relief Bridge to a point (approximate latitude 28º 21' 26" North, approximate longitude 80º 39' 32" West) on the State Road 520 Causeway approximately 1,200 feet west of the water storage tanks, and; All waters south of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 174° from said point in the Banana River to a point (approximate latitude 28º 21' 28" North, approximate longitude 80º 37' 35" West) on the State Road 520 Causeway approximately 1,000 feet west of Cape Canaveral Hospital Complex. Banana River, Cocoa Beach Area: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Causeway, excluding the main Banana River channel; All waters within 1,000 feet of the general contour of the western shoreline of the Banana River, south of State Road 520 and north of Buck Point and an extension of said shoreline to a point 1,000 feet south of Buck Point, excluding the main Banana River channel where the channel is less than 1,000 feet from the western shoreline, and; All waters east of a line commencing at a point (approximate latitude 28º 21' 25" North, approximate longitude 80º 38' 30" West) on the State Road 520 Causeway (approximately 2,000 feet east of the State Road 520 Bridge over the main Banana River channel), then bearing 190° to a point (approximate latitude 28º 19' 15" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,900 feet west of the northwesternmost point of the Cocoa Beach Municipal Park, then bearing 270° to a point (approximate latitude 28º 18' 38" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,700 feet west of the southwesternmost point of the Cocoa Beach Municipal Park, then bearing 171° for approximately 3,000 feet to a point (approximate latitude 28º 18' 07" North, approximate longitude 80º 38' 50" West) in the Banana River east of channel marker “15,” then bearing 124° to a point (approximate latitude 28º 16' 52" North, approximate longitude 80º 36' 45" West) in the Banana River 1,000 feet west of the eastern shoreline of the Banana River, then heading in a southerly direction 1,000 west of and parallel with the eastern shoreline of the Banana River to the line’s terminus at a point (approximate latitude 28º 15' 51" North, approximate longitude 80º 36' 38" West) in the Banana River near the northern boundary of Patrick Air Force Base. Banana River, South of Cocoa Beach to State Road 404 (Pineda Causeway): All waters south of an east-west line running through the southernmost point (approximate latitude 28º 16' 19" North, approximate longitude 80º 39' 25" West) of the more southerly of the two islands east of Macaw Way (on Merritt Island) and west of a line bearing 162° from said southernmost point to State Road 404; All waters south and east of the overhead power transmission line in the Banana River adjacent to Patrick Air Force Base, and; All waters north of the centerline of State Road 404 and within 2,000 feet of the State Road 404 Bridges and Causeway, excluding the main Banana River channel as designated under (2)(e)5. Banana River, South of State Road 404 (Pineda Causeway): All waters south of the centerline of State Road 404, including those waters east of a line bearing 270° from the southernmost point (approximate latitude 28º 08' 32" North, approximate longitude 80º 36' 15" West) of Merritt Island 1910 Section II - Proposed Rules (commonly known as Dragon Point) to the Eau Gallie Causeway, excluding the main Banana River channel as designated under (2)(e)5. 25 MPH (All Year) Mosquito Lagoon: All waters in the ICW channel south of the Volusia County/Brevard County line and north of ICW channel marker “43” (north of Haulover Canal). Indian River, Turnbull Basin and Titusville Area: All waters in the ICW channel southwest of ICW channel marker “1” (southwest of Haulover Canal) and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW. Indian River, State Road 405 (NASA Parkway) Area: All waters in the ICW channel south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW and north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW. South Indian River Area: All waters in the ICW channel south of ICW channel marker “59” and north of the Brevard County/Indian River County line. South Banana River Area: All waters in the main Banana River channel south of a point in the channel 2,000 feet north of the State Road 404 Bridge, and north of a point (approximate latitude 28º 09' 15" North, approximate longitude 80º 36' 32" West) in the channel on the northern boundary of the local Idle Speed zone approximately 1,900 feet north of the Mathers Bridge. Commercial Fishing and Professional Fishing Guide Permits: The following provisions pertain to the issuance of permits to allow individuals engaged in commercial fishing and professional fishing guide activities to operate their vessels in specified areas at speeds greater than the speed limits established under subsection (2) above. Procedures related to the application for and the review and issuance of these permits are as set forth in 68C-22.003, Florida Administrative Code. Permits shall be limited as follows: Permits shall only be available for the zones or portions of zones described under (2)(d)1. through (2)(d)9., and (2)(d)13. through (2)(d)18. Permits shall not apply on weekends or on the holidays identified in s. 110.117, F.S. Permit applications may be obtained at the Commission’s Law Enforcement office at 1-A Max Brewer Memorial Parkway in Titusville or by contacting the Commission at Mail Station OES-BPS, 620 South Meridian Street, Tallahassee, Florida 32399 (850-922-4330). Access to the NO ENTRY and MOTORBOATS PROHIBITED zones is allowed for Reliant Corporation employees or their authorized agents (for the zones designated under (2)(a)1. and (b)1.) and for Florida Power and Light Company employees or their authorized agents (for the zone designated under (2)(a)2.) provided that entry into the zones is necessary to conduct activities associated with power plant maintenance, emergency operations or environmental monitoring. The Commission must receive notification of the activity prior to its commencement. In the event of an emergency activity, the Commission shall be notified no more than one week after the activity has been commenced. All vessels used in the operation or associated with the activity shall be operated at no greater than Idle Speed while within the zones and must have an observer on board to look for manatees. The zones described in 68C-22.006(2) are depicted on the following maps, labeled “Brevard County Manatee Protection Zones.” The maps are intended as depictions of the above-described zones. In the event of conflict between the maps and descriptions, the descriptions shall prevail. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE FWCC's staff who were primarily responsible for the development of the recommended revisions to the BCMPR to the FWCC included: Scott Calleson, who holds a Bachelor of Science degree in Marine Science and a Masters of Science degree with emphasis on Environmental Planning and Natural Resource Management, and has worked with manatee protection rules since 1992; David Arnold, who holds both a Bachelor of Science degree in Biology and a Master of Science degree in Biological Oceanography, and who supervised the Department of Environmental Protection's marine turtle protection program prior to becoming Chief of the Bureau of Protected Species Management in 1995; and Dr. Charles Deutsch, who has both a Bachelor of Science and a Doctorate degree in Biology with specialization in biology of marine mammals and behavior, animal behavior and behavioral ecology, and worked for the United States Geological Survey (USGS) in a number of analyses of manatee radio tracking along the Atlantic Coast. The verbal, narrative and graphical presentations of the experts were relied upon in making recommendations to the FWCC for the proposed rule revisions. FWCC's staff gave good faith consideration to the experts' opinions, publications, articles, data analysis, and reasonable inferences and predictions. MANATEE MORTALITY DATA FWCC relied upon manatee mortality data in evaluating manatee inhabitation (Brevard County Mortality Information and Brevard County Misc. Information), including FMRI manatee salvage database for Brevard County from January 1974 to December 2000 (including carcass recovery location and cause of death). AERIAL SURVEY DATA In evaluating manatee inhabitation, FWCC relied upon manatee aerial survey data in existing manatee inhabitations. Included in this process were: information on aerial surveys performed for Kennedy Space Center by Dynamic Corporation; Geographic Information System information for FMRI's 1997-1999 Brevard County aerial survey along with data in "Seasonal Manatee Distribution and Relative Abundance in Brevard County, Florida, 1997-1999"; Geographic Information System data from earlier Brevard County aerial surveys; and aerial surveys conducted by the Florida Marine Research Institute and others. Aerial Surveys Aerial surveys have been conducted by the Florida Marine Research Institute and others using various techniques. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as stated in Finding of Fact 23 herein above. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. The commission in assessing manatee use of an area and then establishing manatee protection regulations uses these types of surveys. SYNOPTIC AERIAL SURVEYS Considered by FWCC was the statewide synoptic survey for the period 1991 to 2001. These surveys are used for monitoring winter aggregation of manatees and provide a minimum estimate of the number of manatees observed. Population biologists view synoptic survey results as the best available information source to estimate the minimum size of the manatee population in Florida at the present time. The statewide synoptic survey data for the years 1991-2001 are detailed in paragraph 22 herein above. The Berkeley Canal system location, where manatees were observed on January 6, 2001, has four connecting canals to the eastern shoreline of the Banana River; the northernmost connection is just south of the Pineda Causeway and the southernmost connecting canal is located about three and three-fourths miles to the south between Carter's Cut and the Mathers Bridge. The West Banana River shoreline locations where manatees were observed on January 6, 2001, is the Banana River Marina. MANATEE DISTRIBUTION AND RELATIVE ABUNDANCE Targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. They are used in assessing manatee use of an area and then in establishing manatee protection regulations in those areas. Forty-five flights between September 1997 and September 1999 are the most comprehensive and recent FMRI aerial surveys in Brevard County. Aerial surveys possess an inherent bias because the location of animals can only be seen during daylight hours and do not account for nighttime locations. FWCC's aerial survey data were presented in various forms: raw data entry sheets completed by the surveyors; a composite, GSI plot of the data points for Brevard County; small- format GIS plots of data points that depicted manatees seen by month; and small-format GIS plots of data points that depicted manatees seen during each flight, along a flight path. Before the 1997-1999 Bervard survey, relative abundance and distribution surveys for portions of Brevard County were conducted in late-1985 through early-1987. The 1985-87 Banana River surveys included only the area between Launch Complex 39B and Eau Gallie, but included portions of Canaveral Barge Canal, Sykes Creek and Newfound Harbor. Flights were flown over the Cocoa Beach area during morning hours for a nine-month period (March 3, 1990- November 27, 1990), and showed more than one manatee during each flight, with one exception on March 3, 1990. SATELLITE TELEMETRY DATA AND VHF RADIO TELEMETRY DATA The FWCC relied upon manatee telemetry data in evaluating manatee inhabitation for Brevard County. Included in the satellite and VHF radio telemetry data relative to inhabitation was a GIS database obtained from the "United States Geological Survey (USGS) Biological Resources Division, Florida Carribean Science Center, Sirenia Project, Gainesville, Florida," and reports authored by Dr. Charles Deutsch who analyzed the USGS data. The USGS Sirenia Project data analyzed by Dr. Deutsch were collected from May 1986 to May 1998, and included both VHF radio and telemetry and satellite telemetry data for the 78 manatees that were tagged for varying amounts of time during that period along the lower East Coast of the United States, excluding data for manatees that were born and raised in captivity. This data was considered by Dr. Deutsch as the best telemetry data available. Of the full USGS Sirenia Project data evaluated by Dr. Deutsch, 61 manatees were tracked at some time during the study period in Brevard County, including 16 manatees that were only tracked using VHF radio tracking and not satellite telemetry. The maximum number of tagged manatees observed in Brevard County during the study period was 12 manatees at one time. Dr. Deutsch opined that about one or two percent of the documented East Coast manatee sub-population was tracked each year. The radio telemetry data subsets from the Sirenia Project covered a ten-year period from May 1986, and included over 6,000 manatee observations for 54 individual tagged manatees. Of those 6,000 observation points, three-quarters (almost 5,000) were actual visual sighting of manatees made by persons on shore or in vessels. Of those visual sightings, approximately ten percent were made by non-government employees. The satellite telemetry data evaluated by Dr. Deutsch included data for 45-tagged manatees that was collected from April 1987 to May 1998, with over 34,000 location records of Class 1, 2, or 3 accuracy. Of the 61-tagged manatees that were observed in Brevard County during the 12-year study period, the median tracking period was 135 days, with some animals tracked for several years while others were tracked for shorter periods of time. Of the 61 manatees tracked in Brevard County, approximately one-half were fitted with radio or satellite telemetry transmitters (tags) while in Brevard County, the other half were tagged in different areas of northeast Florida, in southeast Georgia, or in southeast Florida. A majority of the animals tagged outside of Brevard County were observed in Brevard County, and Dr. Deutsch opined that this data demonstrated Brevard County to be the hub of manatee activity along the Atlantic Coast. MIGRATORY RANGE OF TAGGED MANATEES The size of the migratory ranges of tracked manatees varied with considerable variation of movement by individual manatees in Brevard County. Some manatees would spend eight months of the year near Canaveral Sewer Plant (Banana River) and spend each winter near Port Everglades (Ft. Lauderdale). Many tagged manatees displayed strong site-fidelity, returning to the same seasonal locations yearly while others did not. Telemetry data points are not precisely a depiction of the actual and true location of the manatee at the time of data transmission from the tag to the satellite. Services Argos, the company that administers the hardware, assigned 68 percent of the data points within 150 meters of the true location in class three locations. In 1994, USGS performed accuracy experiments in Brevard County of satellite telemetry and found location class 3 data points to be within 225 meters of the true location, and 95 percent within 500 meters of the true location. In addition to Dr. Deutsch's reports, FWCC considered various telemetry papers and publications pertaining to Brevard County: "Tagged Manatee Use of the Cocoa Beach/Thousand Island Area;" "Winter Movements and Use of Warm-water Refugia by Radio- tagged West Indian Manatees Along the Atlantic Coast of the United States;" and "Easton, Tagged Manatee Movement through the Canaveral Barge Canal, Brevard County Florida" (February 14, 1997). MANATEE SIGHTING DATA FWCC relied upon manatee sighting data in its evaluation of manatee inhabitation. Included in the sighting data was the Brevard County 2001 Rule Development and Trip Notes of February 6- 7, 2001; Sea Ray Boats, Inc. Water Test Re-Run Manatee Sighting Records for 2000-2001; Canaveral Barge Canal Boater Activity and Compliance Study; Sharon Tyson's Sykes Creek Observation Records; and cold-seasons sighting logs for the C-54 canal structure. STUDIES AND REPORTS PERTAINING TO MANATEE DISTRIBUTION, RELATIVE ABUNDANCE, HABITAT, BEHAVIOR, OR OTHER MANATEE INFORMATION. FWCC considered and relied upon the Brevard County Manatee Protection Plan that included an inventory and analysis section about manatees, analysis of manatee mortality data, manatee legislation and protection, law enforcement, habitat issues, existing boat facilities, Brevard County boating activity patterns, and an inventory of present manatee education programs. The existing Federal Manatee Recovery Plan, to which members of the Bureau of Protected Species and Florida Marine Research Institute contributed, was relied upon. SCAR CATALOG DATA FWCC considered and relied upon scar catalog data in evaluating manatee protection needs with Brevard County Misc. Information as the source provider. EXPERT OPINIONS FWCC relied upon expert opinions in evaluating manatee inhabitation. A staff meeting with manatee experts, as part of the process, included, but was not limited to, meetings with Jane Provancha and Sharon Tyson in December 2000, meetings and discussions with Dr. Charles Deutsch between November 2000 and May 2001, and various discussions with members of the federal Recovery Plan Team. OTHER AVAILABLE SITE-SPECIFIC INFORMATION FWCC considered site-specific information that was available, principally drafts of the Brevard County Manatee Protection Plan. FWCC also considered site-specific information about water skiing areas and prospective additional travel times in various waters proposed for new, or changed, regulations. DATA ANALYSIS Threat Analysis Rule 68C-22.001(3), Florida Administrative Code, contemplates a qualitative assessment and exercise of discretion by taking into consideration a balancing of manatee protection needs, including an assessment of relative threats to manatees, with the right of boaters, fishers and water skiers. In assessing where threats to manatees may exist from motorboats, the manatee death database provides information on confirmed interactions, such as locations where manatee carcasses have been recovered. Manatee deaths, carcass recovery and confirmed interactions locations are maintained in FMRI's database. From January 1974 to December 2000, 728 manatees died in Brevard County and 184 of those deaths were because of interactions with watercrafts. Watercraft related deaths account for 23.5 percent of all manatee deaths recorded in Brevard County between 1974 and 2000. Approximately 19 percent of all watercraft related deaths of manatees in Florida have occurred in Brevard County. FWCC has determined that manatee death from watercraft interaction is due to blunt trauma more than 50 percent of the time. Deaths from propeller cuts account for less than 50 percent. Often injury instead of immediate death from motorboat strikes is the case. Many manatees have scars from previous sub- lethal motorboat strikes, and manatees have been observed with more than 30 different strike patterns. Where the cause of death is classified as watercraft related, carcass recovery may or may not be where the collision occurred depending upon the acuteness of the injury at the time of collision. Acuteness of the injury, wind, current, tide, and decomposition all affect the location of the carcass at the time of salvage. Additionally, operation of motorboats can disrupt essential manatee behaviors such as warm water sheltering, feeding, sleeping, mating, and nursing. This harassment can lead to cold-related illnesses and increase mortality risk by driving manatees from warm water refuges. The increase in the Atlantic Coast manatee population and the increase of the number of boat registrations result in an increase in the threat of harmful collisions between boats and manatees. Geographic Scope of Threat Analysis Section 370.12(2)(m), Florida Statutes, does not specifically describe the geographic scope of the FWCC's evaluation of "other portions of state waters" for manatee sightings and assumed inhabitation on a periodic or continuous basis. Subsection 370.12(2)(g), Florida Statutes, suggests that the evaluation of manatee sightings is appropriate for large portions of navigable waterways, such as the Indian River between St. Lucie Inlet and Jupiter Inlet. A "waterway" is generally defined as "a navigable body of water." (Webster's Ninth New Collegiate Dictionary, p. 1333.) Rule 68C-22.001(3)(a)2.f., Florida Administrative Code, contemplates a qualitative assessment of the "likelihood of threat" to manatees. The only reference is to the "characteristics of the waterway in question." The rule does not mandate the geographic scope of a "threat evaluation." The FWCC analyzed various data on different scales depending upon the nature of the inquiry - the evaluation of sighting "frequency" generally considered a large geographical area such as a section of a river. Conversely, the regulatory alternatives to protect manatees were evaluated at a smaller or finer scale. The Commission also considered segments of waterways divided by causeways or natural barriers. The Commission considered research that divided Brevard County (north of Eau Gallie) into 12 zones for purposes of analysis. In the Brevard County Manatee Protection Plan, the waterways were analyzed in terms of seven "planning zones," to include review of physical characteristics such as bathymetry and sedimentological conditions, shoreline conditions, and water quality; Manatee Habitat Features, including sea grass, mangrove/salt marsh, freshwater sources, warm water refugia, calving and resting areas, feeding areas, travel corridors, and habitat protection; Manatee Data including manatee abundance and distribution and manatee mortality; boat facilities; boating activity patterns; waterspouts areas; and manatee zones. The Commission's consideration of waterway characteristics and manatee behavior during the Brevard County rule-making process, including the geographic scope of manatee inhabitation and threat from watercraft, was reasonable and consistent with the approach taken by other resource management agencies and researchers as contemplated by the statutory purpose. Proximity and Degree of Known Boating Activities FWCC evaluated available boating activity information in assessing threat. Staff considered the general analysis of boating activity and detailed analysis of boating activity in specific portions of Brevard County as provided in the County's MPP; included therein were maps that show locations of the County's 72 marinas and 65 boat ramps, of which 27 are public ramps. Also considered was the study of Brevard County-Wide Boating Activity by Dr. J. Morris, of the Morris of Florida Institute of Technology. Dr. Morris' inquiry resulted in the following specific finding. First, Brevard County residents are the primary ones who launch at boat ramps, followed by residents of Orange, Osecola, Seminole, Indian River and Volusia counties. Second, the Inter Costal Waterways experiences increases in transient traffic during late fall and winter months, including out-of-state boats. Third, Class One boats (16 to 25 feet) are the most observed type, followed by Class A (less than 16 feet) vessels. Fourth, most boating activity occurs during weekends. Fifth, the greatest concentrations of boats were in specific areas such as NASA causeway (SR 405, Indian River), East Canaveral Barge Canal, SR 520 and the Banana River (the Merritt Island Causeway), the Pineda Causeway (SR 404, Banana River), the Melbourne Causeway (Indian River), near Grant Island Farm, the Sebastian River and the Sebastian Inlet. Dr. Morris concluded that the boating public preferred to cruise the waters of the lagoons with the marked channels and use Indian and Banana Rivers as highways for recreational boating purposes. The United States Fish and Wildlife Service (USFWS) closed a portion of the northern Banana River within the Merritt Island National Wildlife Refuge to public boat entry, limiting public entry to wading or by non-motorized vessels. The closed area has one of the largest concentrations of manatees in the United States, and recently has been the most important springtime habitat for the east coast manatee population. As a result of the March 1990 closing to motorized boats, an average increase of manatee use observed during the summer months in the area increased by 60 percent. The increased use is attributed to improved habitat quality aided by the lack of human disturbance and reduced propeller scarring of sea grass. In December of 1994, Dr. Morris submitted a report, "An Investigation of Compliance to Boat Speed Regulations in Manatee Protection Zones in Brevard County, Florida." This report contained an analysis from on-water and aerial observations in both "slow speed" and "idle speed" zones in various areas of Brevard County for a one-year period of April 1993 to April 1994. At Mosquito Lagoon, of 1,214 boats observed, speeds were clocked for 98 percent of the boats and 11 percent of those exceeded the posted Inter Costal Waterways 30 MPH speed limit, all of which were recreational boats. At the Indian River site between Grant and Sebastian, 2,511 boats were observed, speeds were clocked for 97 percent of the boats and 16 percent of those exceeded the posted ICW 30 MPH speed limit. In posted "slow speed" zones outside the ICW channel, 25 percent of boats observed underway were deemed non- compliant with the speed zone limitation. Of those non-compliant Class A powerboats, the violators were typically personal watercrafts ("Jet Ski" type vessels.) A detailed boater activity study was made of the Canaveral Barge Canal and Sykes Creek Area. The study found, in part, that: highest boating use occurred during holidays, except during bad weather; most use occurred on weekends; and in Canaveral Barge Canal and Sykes Creek 63 percent of the vessels were Class 1 boats and 74.3 percent of the vessels were Class 2 or Class 3 boats. INCREASED LEVEL OF BOATING ACTIVITY IN BREVARD COUNTY In general, the level of boating activity in Brevard County continues to increase with the increasing population, launching facilities, and boat registrations in Brevard County and nearby counties, including Orange and Seminole counties. In 2000, 34,316 vessels were registered in Brevard County. In the preceding year there were 31,842 vessels registered. In 1995, 28,147 boats were registered and in 1987, 23,352 boats were registered in Brevard County. In 2000, Florida registered 840,684 recreational vessels, an increase over the 695,722 vessels registered in 1994. Boating accidents increased with the increased registration of vessels with Brevard County ranking 10th out of the state's 67 counties with the number of boating accidents. Brevard County, since mid-1990's, has registered an increased number of "flats skiffs" which are shallow draft, low profile motorboats capable of speeds up to 50-60 MPH while operating in shallow (about 1 foot) water and often used for sight-fishing in shallow sea grass flats. SEASONAL AND/OR YEAR-ROUND PATTERNS OF MANATEE USE AND THE NUMBER OF MANATEES KNOWN OR ASSUMED TO OCCUR IN, OR SEASONALLY USE THE AREA FWCC staff evaluated whether seasonal restrictions could or would be effective. Staff concluded that the only seasonal regulation of motorboats justifiable by the data was at the power plant discharges in the Indian River. At those locations, extreme concentrations of manatees are regular during the cold season. Year-round manatee protections were proposed for this area, but they would have to be more restrictive during the winter months. During the coldest periods of winter, following a strong cold front, manatees have been observed in large concentrations in: the power plant discharges at Florida Power and Light Company's Indian River plant and at the adjacent Reliant Energy Plant and the Sebastian River Canal. The congregation of manatees at thermal refuges on cold winter days was not for the duration of the winter season. They have been known to leave the thermal refuge for a part of a day, a day, or for many days at a time. Sharon Tyson, observer, performed a detailed Brevard County Manatee Photo-Identification Project during late 1999 and early 2000 at the Brevard County power plants, and documented a number of manatees in the FPL discharge zone between December 24, 1999, and March 4, 2000. During that period the number of manatees in the zone varied greatly, through late-December to mid-January (from 7 to 57 manatees). On January 16, 2000, no manatees were present. On January 17, 2000, 10 manatees were present. On January 23, 2000, 29 manatees were counted. Two weeks later, February 6, 2000, 111 manatees were present. Similar sightings made at the C-54 Canal Structure (near Sebastian Creek), during the same time-period, found as few as 11 manatees to as many as 90 manatees. Apart from the extreme concentration of manatees during extremely cold periods, manatees are distributed through the county waterways during each season of the year. The 1997-1999 Brevard County Aerial Survey GIS Plots gave a clear representation of year-round manatee distribution patterns varying greatly. MANATEE MORTALITY TRENDS WITHIN THE AREA Only in rare cases is the approximate or actual location of a manatee and motorboat collision known. The FWCC considered and relied upon a review of the general trend of watercraft-related (and other) mortality County-wide to assess a generalized increased mortality trend. In doing so as part of the rule-making process, FWCC reviewed total manatee mortality for Brevard County for the period for which records existed from 1974 to 2000. That data base source indicated increasing watercraft mortality in recent years. FWCC evaluated manatee salvage data for January-March 2001 and preliminary information for April-May 2001. Staff employee, Scott Calleson's working file mortality information was reviewed and considered as was Dr. Ackerman's "Mortality Rates White Paper," which concluded that human-caused manatee mortality levels were at an unsustainable rate in the Atlantic, Brevard County, Tampa Bay, and Southwest Florida Regions. The Florida Inland Navigation District provided documentation that was considered in the FWCC rule making that included a regional evaluation of "Watercraft Related Manatee Deaths in the Nine Critical Counties of FIND" from 1990-1999. Of these nine critical east coast counties, Brevard County had the highest mortality trend. During the last two-to-three years, there has not been a clear trend of increased manatee mortality in Brevard County, but the number of watercraft-related mortalities is capable of being reduced, in part, through improved regulations. Historical manatee mortality data for Brevard County from 1977 through 2000 demonstrates a clearly increasing trend in watercraft-related manatee mortality. For each five-year increment, water-related manatee mortality has increased as follows: from 1977-1979 there were an average of 1.9 water-related mortalities/year; 1980-1985 there were 4.6 mortalities/year; 1986-1990 there were 7 mortalities/year; 1991-1995 there were 8.8 mortalities/year; and 1996-2000 there were 11.8 mortalities/year. EXISTENCE OF FEATURES WITHIN THE AREA THAT ARE ESSENTIAL TO THE SURVIVAL OF, OR KNOWN TO ATTRACT, MANATEES SUCH AS SEAGRASSES, FAVORABLE WATER DEPTHS, AND FRESH OR WARM WATER SOURCES Dr. Deutsch stated that his telemetry analysis indicated that the most important habitat correlation for Brevard County manatees was with sea grass, and in particular, often with outer edge of sea grass beds. Manatees prefer feeding on submerged, emergent and floating vegetation, generally in that order. Manatees extensively use Brevard County sea grass beds for feeding. Sea grass coverage is depicted on the Florida Department of Environmental Protection's Boater's Guide to Brevard County, which has no date, but was prepared by the DEP. Sea grass coverage in 1989 is depicted in the 2000 maps prepared by the STMC, using the Atlas of Marine Resources, Versions 1.2 and 1.3b. The most recent St. Johns River Water Management District sea grass coverage data for the Indian River Lagoon indicates a strong correlation between sea grass coverage in waters with an average depth of 66.93 inches (1.7 meters) or less. As of 1992, of the estimated 46.190 acres of sea grass in Brevard County, nine percent of the sea grass suffered light scarring from boat activity; 4.2 percent of the sea grass suffered moderate scarring; and 13.4 percent of the sea grass suffered severe scarring. Areas with boat scarring of sea grass included a number of areas that are included within proposed "slow speed" zones: the eastern portion of Turnbill Basin; the eastern shoreline of the Indian River between the NASA railroad bridge and Rinkers Canal; the Banana River around Manatee Cove and south of the City Golf Course; the northwest part of Newfound Harbor; and the western shoreline of the Banana River, between Newfound Harbor and Pineda Causeway. The location of the proposed manatee protection zones corresponds well to the location of sea grass beds, deeper waters and channels adjacent to sea grass beds or established migratory routes, and fresh warm water sources. FAVORABLE WATER DEPTHS Dr. Deutsch stated that his telemetry analysis indicated that bathymetry is an important habitat correlate for Brevard County. Generally, tagged manatees were observed in the area from a two-meter (6.65 feet) depth contour to the shoreline. FWCC consideration of "favorable water depths" took into account the fact that water levels fluctuate in the Indian River Lagoon. However, unlike many coastal areas of Florida, the Indian River Lagoon does not experience significant daily tidal fluctuation. On an annual basis, however, the water level fluctuates about 2.5 to 3 feet in response to environmental conditions. It was determined to be impractical to amend manatee protection rules (and to move regulatory signs implementing the rules) in response to changing water levels. Manatees usually swim between one to three meters (3.28 to 9.84 feet) below the surface, surfacing every few minutes to breathe, and typically feed at just below the surface to a depth of three meters. Manatee experts, including persons with extensive experience observing manatee behavior in Brevard County, all testified that manatees used areas where the water level at the time was less than three feet for mating, feeding, fleeing a pack of male manatees, and resting. The FWCC used a bathymetric survey prepared on behalf of the St. Johns River Water Management District for purposes of establishing preferred sea grass habitats during the rule-making and considered the bathymetry in conjunction with other data to predict areas where manatees are likely to inhabit. The St. Johns District advised the FWCC staff that the 1.7-meter depth on its bathymetric survey was the rough depth limit for sea grass, and provided the FWCC staff with a GIS file on the bathymetric survey at 0.3-meter depth intervals for most areas, although the approximate sea grass contour was shown as 1.5 to 1.7 meters. Surveys are tied to a horizontal datum and a vertical datum. A survey depicts the three-dimensional lagoon basin, part of the spheroid planet Earth, on a two-dimensional map. The hydrographic survey data used by the FWCC in the rule-making was based upon a survey tied to a horizontal datum - North American Datum (NAD) 83/90; and a vertical datum - North American Vertical Datum of 1988 (NAVD-88). The horizontal and vertical accuracy of the survey differs. Positional accuracy of horizontal (e.g. shorelines) points is within 1 to 5 meters (3.28 to 16.4 feet). Vertical accuracy of depth data points averages within .03 feet. The hydrographic survey states that it is not to be used for navigation - - "The use of NAVD-88 for the bathymetric survey gives the impression of deeper water than is actually present within the lagoon since the "0" contour of NAVD-88 is located on dry land approximately 1 foot above the ordinary water line." Manatee distribution from aerial surveys and 1992 bathymetry data was graphically depicted by the STMC and confirms manatee use of areas proposed for regulation in the proposed rules. FRESH WATER SOURCES FWCC considered and relied upon major fresh water sources that have been historically used by manatees such as: Turnbull Creek; Titusville Marina/POTW; Addison Canal; the two Indian River power plants; two wells along the eastern shoreline of the Indian River approximately two miles south of Rinkers Canal; the intersection of Bacardi and Dakar Drive in Sykes Creek; the Cape Canaveral POTW (sewer plant); the Banana River Marina; the outfall into the Indian River from the east shore of Merritt Island westerly of the south end of Newfound Harbor; the Indian River Isles; the Eau Gallie River; Crane Creek; Turkey Creek; and the Sebastian River. Also considered were less significant sources of fresh water found at many marina basins, at the Sear Ray Boats, Inc. facilities and in residential canals. WARM WATER SOURCES FWCC considered major warm water sources in the two Indian River power plants and the Sebastian River Canal. Minor sources of warm water include deeper water and areas with artesian springs such as: Port Canaveral; a basin off Wynar Street in Sykes Creek; the Banana River Marina; and the Berkeley Canals. CHARACTERISTICS OF THE WATERWAY IN QUESTION IN RELATION TO KNOWN BOATING ACTIVITY PATTERNS FWCC considered, as its basic source document, Morris' Final Report for Brevard County Boating Activity Study. Boating activity patterns in Brevard County are dependent upon weather, economic conditions, and other factors. Larger motorboats (including tug/barge combinations) are constrained in movement to deeper water--in some areas, primarily within marked or maintained navigation channels including the Canaveral Locks, Canaveral Barge Canal, ICW, and Banana River main channel. In the Indian River, south of the NASA railroad bridge, the deeper area outside of the marked channel widens to between half-a-mile to a mile with depths ranging from seven to 12 feet MLLW, all the way to Rock Point, just north of Grant. For most of the length of the County, larger boats have sufficient water depth to travel adjacent to the ICW channel. Waters outside the main channel in the Banana River are relatively shallow. The Canaveral Barge Canal is dredged to maintain a depth of approximately 15 feet. Barges and escorting tugs navigate through the Canaveral Locks and into the ICW. Some barges proceed northward from the Canaveral Locks into the Banana River channel to make deliveries to the Space Center, according to the Lockmaster, Mr. Querry. Sea Ray Boats, Inc.'s, design and production facilities located along the Canaveral Barge Canal use the Canal to access testing areas to the west in the Indian River ICW, to the east in the Banana River channel, and in the Atlantic Ocean. Limited retests are permitted in an area adjacent to the Canaveral Barge Canal facilities. Recreational motorboats and personal watercrafts can be operated outside of marked channels. Some of these recreational motorboats can navigate "on plane" and up to 60 MPH in water about one-foot deep. Motorboat users engage in a variety of activities having differing operational patterns. Fishers might prefer to travel at relatively high speed enroute to preferred fishing areas, and then operate with a push pole, trolling motor or adrift, in order to hunt certain species of fish. If no fish are located, then high-speed operation to another spot is used, repeating the pattern of locating fish by sight. Water-skiers usually operate at high speed in a relatively small area, usually protected from the wind, and often located near an island or park. BOAT-MANATEE INTERACTIONS FWCC considered that manatees display varying reactions to motorboats. Higher speed motorboat operation in relatively shallow water presents a greater threat to manatees than operation at slow speed or idle speed or than operation in relatively deeper waters, since manatees have fewer opportunities to avoid the collision. Manatees can swim or rest at the surface or underwater and must come to the surface to breathe air every two to three minutes for smaller, active manatees and up to 20 minutes for large, resting manatees. Their general cruising speed is two to six miles per hour, but they can travel at short bursts up to 15 MPH. Boats operated at "slow speed" vary in miles-per-hour over the bottom within a range of about seven to eight miles-per- hour. At "slow speed," the manatee and vessel operator have more time to avoid collision, or the manatee can avoid serious blunt trauma injury from collisions with most vessels. The ability of manatees to avoid being hit by motorboats has diminished in Brevard County as a result of an increase in the manatee population, increase of motorboats, increase in boating access points, and development and use of faster boats that operate in less-predicable (non-linear) patterns in relatively shallow waters where manatees often feed on submerged vegetation. TESTIMONY REGARDING MOTORBOAT-MANATEE INTERACTION Officer Dennis Harrah, qualified as expert in boating safety, marine law enforcement, and local knowledge of the waterways of Brevard County, testified that "slow speed" zones provide greater reaction time for the vessel operator to avoid collision than unrestricted speed areas and than the "25 MPH maximum speed" areas. He further testified that "idle speed" zones provide greater reaction time for vessel operators to avoid collision than "slow speed" areas. Dr. John Reynolds, qualified as expert in marine mammal conservation and policy, manatee biology and behavioral ecology of marine mammals, opined, based on frequent observation of motorboat-manatee interactions, review of videotapes of such interactions, and review of studies on the subject, that there is an increased threat to manatees associated with boats that operate in planing speeds as opposed to slow speeds. His opinion is based, in part, on "common sense" that objects moving faster have greater momentum and therefore greater magnitude of impact, and on the reduced reaction time of both vessel operators and manatees to avoid collision. Dr. Reynolds was not aware of any evidence to suggest that the majority of watercraft strikes to manatees are from vessels operating at "slow speed," and it is his belief that "a good percentage of manatee mortality was from fast-moving vessels." Ms. Spellman, qualified as expert in marine biology and in manatee rescue and salvage, testified that she had observed considerable variability in manatees' reactions to kayaks, canoes and windsurfers, including manatees approaching the vessel, manatees not reacting at all, and manatees swimming away. She has observed manatee reactions to small motorboats as highly variant, depending upon the animal, including: swimming under a slow-moving motorboat, moving just as a motorboat approaches at idle speed, or diving and leaving the area as soon as a motorboat got anywhere near. Ms. Spellman testified, based upon her presence in the waters of the Canaveral Barge Canal or in the Port east of the Locks, that she has been in the water with manatees on five occasions when a barge/tug combination came by and in all cases the manatees reacted to the barge well in advance of the barge coming near her and the manatee, and that in each instance the manatee swam to within 15 to 20 feet of the shoreline. Of the thousands of times that she has seen manatees, she estimated that 95 percent of the time the manatees had scars from boat propellers or skegs. Dr. Powell testified, based upon over 30 years of observation of boat-manatee interactions, that the typical reaction is a flight or startle response, often to dive to deeper water. The diving response may take the manatee under the boat, away from the boat, or across the path of the boat. Based on his observations, including manatees reacting to motorboats moving at "idle-speed," "slow-speed" and at "faster-speeds," Dr. Powell opined that the manatees' reactions resulted from acoustical cues, visual cues, and perhaps pressure cues. Captain Singley, tugboat operator in Brevard County for over 30 years, observed a group of manatees react to a fast moving planing hull; some animals broke the surface, others scattered to the right or left, and others dove to the bottom. Mr. Walden, Sea Ray's Boat, Inc.'s, performance and water test specialist, testified that he had observed manatees in the Barge Canal, and sometimes the manatees would react to the motorboat. The majority of time when the boat was operating at planing speed or faster the manatee would dive and go deeper, and would began evasive action, upon hearing and noticing the motorboat a couple of hundred feet away. Dr. Gerstein testified that fast moving boats can hit manatees and that he was not aware of any physical evidence, eye- witness account, or law enforcement report of a slow-moving boat hitting a manatee. STUDIES ABOUT MOTORBOAT-MANATEE INTERACTION KNOWN BOAT STRIKES FWCC considered that watercraft collisions with manatees are rarely reported to authorities, and, as a result, it is difficult to directly assess the circumstances of such collisions, such as boat size, type and speed at the time of collision. A summary entitled "Watercraft-related Manatee Deaths Where the Responsible Vessel is Known," indicates that barges, displacement hull vessels, and planing hull vessels are known to have been in fatal collisions with manatees. In those planing- hull incidents where the vessels and estimated speed are known, the speed of the vessel ranged from getting-up-on-plane (45-foot boat with twin 425 HP outboard motors) to 35 MPH (18-foot boat with 150 outboard motor). Two other incidents were a 46-foot boat with twin inboard motors operating at 18 knots and a 20- foot boat with 200 HP outboard operating at 20 MPH. The only indication that a slow-moving planing-hull vessel struck a manatee is a report from an individual who was operating at estimated five MPH in a flat hull vessel and reported to have "felt a bump on aft hull, saw two animals (manatees) swam off." PROTECTION OF MANATEE-SEA GRASS HABITAT FWCC considered protection of sea grass habitat a secondary purpose in the Proposed Rule for areas subject to Section 370.12(2)(m), Florida Statutes. The Florida Guide To Recreational Boating notes that: Sea grass beds have been severely scarred (torn up) by boats operated in extremely shallow water. This is due, in part, to the "flats fishing craze" and the rising popularity of vessels designed to operate in shallow water. The Guide recommends that operators set the boat's drive unit at the highest possible setting and that the operator "proceed at idle speed when moving through shallow grass beds." Dr. Reynolds testified that "idle speed" or "slow speed" shoreline buffer zones provide greater sea grass protection (and manatee conservation) than higher motorboat speeds. The Executive Director of the Indian River Guides Association testified that the group is promoting "pole and troll" areas within the Merritt Island National Wildlife refuge portions of the Indian River Lagoon. He stated that many people from Orlando and elsewhere bring their boats by trailers to Brevard County, or move to Brevard County, and operate their boats so as to tear up seagrass beds. FWCC correctly concluded that "slow speed" and "idle speed" zones provide a greater measure of protection to shallow seagrass beds than do higher speeds for motorboats. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE Differing Opinions About Manatee Protection Areas FWCC's Opinion The FWCC, based on the following, took the position that the proposed rules are more likely to protect manatees from motorboat impacts than the existing rules, and that the proposed rules take advantage of the available science of manatee biology and conservation, using the same basic approach used in manatee conservation by officials in Australia to protect dugongs (another Sirenian) from motorboats. The FWCC postulates that "idle speed" and "slow speed" zones provide greater protection to manatees than do higher motorboat speeds. "Maximum 25 MPH" speed zones in deeper water areas provide greater manatee protection than do unregulated waters. Most motorboats observed operating in unregulated areas (outside "slow speed" or "idle speed" zones) in Brevard County, during Dr. Morris' boating compliance study, were operating at or below 25 MPH. The FWCC correctly concludes that "maximum 25 MPH" speed was reasonable in light of research into the minimum planing speed of most recreational motorboat models, the observations of typical motorboat speed and operation in unregulated waters of Brevard County. The FWCC considered 1997 DEP-solicited information from motorboat manufacturers to determine minimum planing speeds and maximum planing speeds, and draft on- and off-plane for various sizes and types of motorboats. Considered also by the FWCC was boating test literature to determine that most boat models could reach planing speed at or slightly below 25 MPH. The FWCC considered information that was submitted showing that many production boats reached planing speed between 20-25 MPH. For example, Scout Boats' 11 models planed between 20- 25 MPH, and Shamrock's 13 models planed between 20-25 MPH. The Florida Marine Research Institute's 1992 information on this topic found a range of minimum planing speed between 14 and 24 MPH. Motorboats operating at speeds higher than 25 MPH are many. Ranger Boats offered several models with maximum speed in the "upper 60's" to "low 70's"; Scout Boats' models had top speeds of 35-60 MPH; Shamrock's models ran at the top end between 36-41 MPH; Donzi Boats operate at speeds in the 70 MPH range; and Bayliner's Capri 1700LS had a top speed of 46 MPH, as did Stingray's 180RS. Since the FWCC's creation, speed zone rules adopted for Lee County included maximum 25 MPH zones. Rule 68C-22.005, Florida Administrative Code for Brevard County has regulated motorboats with a "maximum 25 MPH" speed in channels. Commission staff applied their professional judgment in developing recommendations on manatee protection areas, and presented those recommendations to the FWCC, who considered staff recommendation, in context with public comment, to determine what manatee protections were warranted. PETITIONERS' OPINIONS The various Petitioners advocate manatee protection zones that, in many cases, are similar to the FWCC's proposed rules, including "slow speed" shoreline buffer zones and "maximum 25 MPH channels." Petitioners' challenge to many of the protection zones alleges that FWCC's basic regulatory mechanisms are flawed. FEDERAL LAWSUIT-SETTLEMENT AGREEMENT On or about January 13, 2000, STMC and other related environmental groups filed a lawsuit in the Federal District Court against Alan Egbert as Executive Director of the FWCC. The suit alleged, inter alia, that the FWCC is in violation of the Endangered Species Act by permitting the unauthorized taking of manatees in the State of Florida. During the pendency of the litigation, FWCC engaged in a series of mediations resulting in a settlement agreement approved by FWCC and executed by the parties in April 2001. The agreement contained a series of maps with draft manatee (speed) zones for Brevard County. Petitioners alleged that "the genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Petitioners' speculative conclusion regarding this suit was tendered without one iota of evidence. Mr. Calleson, FWCC's staff employee, acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with speed zones in maps of the proposed rule. Mr. Calleson acknowledged that the FWCC did not direct staff to conduct negotiated rule-making on the proposed rule, and staff participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes, which provides, in pertinent part: (d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutually acceptable proposed rule. * * * 3. The agency's decision to use negotiated rulemaking, its selection of the representative groups, and approval or denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing in this subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developed under this paragraph in accordance with s. 120.56(2). THOMAS MCGILL PETITIONERS Most of the McGill Petitioners support the adoption of rules that are consistent with the Citizens for Florida Waterway, Inc. (CFW), proposal submitted on December 29, 2000. The CFW proposal endorsed the use of "slow speed" zones, the use of "maximum 25 MPH zones," existing power plants "idle speed" and "motorboat prohibited" zones, and the use of shoreline buffers. The CFW proposal differed from the proposed rules primarily in scope of the proposed zones, rather than the nature of the proposed zones. The CFW proposal recommended numerous 25 MPH channels (in marked channels) through protected areas: from the Canaveral Locks through the Canaveral Barge Canal to the Indian River (except for three slow-speed boating safety zones); in North Sykes Creek; in the Banana River north of State Road 528 and between Bicentennial Park to the State Road 520 Relief Bridge. STANDING WATCH, INC. Stowell Robertson, one co-Petitioner of Standing Watch, Inc., is Executive Director of the Indian River Guides Association, Inc. (Guides). Mr. Robertson wrote the Guides' Recommendations, but his personal recommendation differed in two respects: in the North Indian River between NASA railroad bridge and the State Road 405 bridge, he would establish a "slow speed" zone from the western shoreline out to 500 feet (instead of 300); and he would impose a maximum 25 MPH speed in the Canaveral Barge Canal instead of 20 MPH. The Guides recommended that motorboat speed and operation be limited as follow: Mosquito Lagoon-make no changes to existing rule Turnbull Basin, North Indian River Create two "slow speed" zones in Turnbull - one in the Mimms Scottsmoor Canal, another from Jones Road boat ramp to Little Flounder Creek from the shore to 100 feet into the Basin; Set a new "slow speed" zone on the north side of the NASA railroad causeway and bridge out to 250 feet; Set a maximum 25 MPH in the ICW from Haulover Canal to the NASA railroad bridge; Take no further action [to change regulations]. Indian River, NASA railroad bridge to S.R. 402 Place "slow speed" zones on the south side of the NASA railroad bridge and causeway out to 250 feet; Reduce the [existing] west shoreline "slow speed" zone so that the western boundary is 350 feet from the ICW between markers R2 and G1; Set a maximum 25 MPH in the ICW; Take no further action [to change regulations] Indian River, State Road 406 to State Road 402 (1) and (2) Replace eastern "slow speed" zone with reduced "slow speed" zone extending from Peacock's Pocket to the existing "slow speed zone north of the State Road 405 Causeway, extending from shore to 250 feet west of the sand bar/drop off or three feet of water; Reduce the size of the "slow speed" zone north of State Road 405 Causeway to 300 feet; Reduce the size of the existing western shoreline "slow speed" zone to 500 feet from shoreline; Take no further action [to change regulations]. Indian River, State Road 405 to State Road 528 Bridge Close the warm water refuge sites at the power plants to manatees, not to boats; Deliver fuel to the power plants by land; Reduce the existing "slow speed" zone on the western shoreline to 1,000 feet from the shore; Take no further action [to change regulations]. Canaveral Barge (and Banana River to Locks) Maximum 20 MPH channel from Indian River to entrance to Canaveral Locks with "slow speed" zones at 100 feet either side of State Road 3 bridge, Sea Ray docks, Harbor Square Marina; Take no further action (to change regulations). Banana River (1) (2) All waters of Banana River, including channels, not otherwise regulated at "slow speed" should have 25 MPH limit; Reduce all existing "slow speed" zones along east and west shorelines, causeways, and bridges to 500 feet of shore; Retain existing "slow speed" zones in the two channels into "Long Point"[north and south ends of Canaveral Sewer Plant area]; Take no further actions [to change regulations]. Newfound Harbor (1) (2) All waters of Newfound Harbor, including channels, not otherwise regulated at "slow speed" should have a 25 PMH daytime limit and 20 MPH nighttime limit; Establish a "slow speed" zone along western shoreline from State Road 520 south to Two Islands; Establish a "slow speed" zone along eastern shoreline from State Road 520 south to the inside point north of Buck Point; The east and west "slow speed" zones be 500 feet from shorelines, and 200 feet[along northern shore] from S.R. 520; Take no further action. Sykes Creek North State Road 520 Set speed limit in marked channel at 20 MPH; All residential canals should be "slow speed"; Take no further action. Indian River State Road 528 to State Road 520 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 520 to State Road 404 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeway bridges; Take no further action. Indian River State Road 404 to State Road 518 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 518 to State Road 192 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Establish Eau Gallie River "slow speed" zone with 20 MPH speed limit in marked channel daytime only, "slow speed" at night; Take no further action. Indian River (1) Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; (2)-(5) Crane Creek, Turkey Creek, St. Sebastian River, C-54 canal should be "slow speed"; Take no further action. Mr. James Kalvin, Standing Watch co-Petitioner and also President of Standing Watch, Inc., testified at deposition that neither he, nor the corporation, had any objection to the existing Brevard County manatee protection rules. SPECIFIC PROPOSED ZONES CHALLENGED The Petitioners' Challenge All Petitioners challenged the validity of Proposed Rule 68C-22.006, as "an invalid exercise of delegated legislative authority" as that phrase is defined in Section 120.52(8), Florida Statutes. MCGILL PETITIONERS The McGill Petitioners challenged the proposed rule amendment for Brevard County manatee protection areas, Proposed Rule 68C-22.006 (2)(d)2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, and 18, as an invalid exercise of delegated legislative authority. They allege that additional slow speed zones in Brevard County are invalid because the FWCC exceeded the authority granted in Section 370.12(2), Florida Statutes. McGill Petitioners based their allegations on the FWCC's lack of definable principles or data and an erroneously assumed cause-effect relationship for boat-manatee collisions, failure by the FWCC to consider the hearing limitations and capabilities of manatees in their environment, and a failure by the FWCC to employ standards and definitions for critical terms in its rule promulgation. At the final hearing, McGill Petitioners agreed that they do not object to that portion of Proposed Rule 68C- 22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. The McGill Petitioners' position as set forth in their Prehearing Stipulation states: The Florida Fish and Wildlife Commission has exercised unbridled discretion and acted beyond the authority delegated in 370.12(2)(m), Florida Statutes, and has developed the proposed rule in an arbitrary and capricious manner. The proposed rule exceeds the delegated legislative authority because it is not based on scientifically definable principles or data. By failing to understand the root cause of watercraft mortality such as the manatee's inability to hear slow moving vessels, the Commission cannot deem their actions "necessary" to justify imposing speed restrictions as required by Section 370.12(2)(m), Florida Statutes. The Commission continues to impose speed motorboat restrictions even after finding that such restrictions are ineffective at preventing manatee mortality. The Commission relies on a flawed mortality database, a poor understanding of the limitations and applicability of satellite telemetry data, and lack of standards and definitions for critical terms. [emphasis added] The McGill Petitioners' Amended Petition alleged in paragraph 6: The Commission has not employed the best available science or even reasonable science. . . . aerial survey and telemetry data were misapplied. . . . in that areas that did not reflect frequent usage . . . were designated . . . slow speed zones. Also, the use of inaccurate telemetry tracking information was used as the basis for justifying areas where aerial survey data showed no manatee activity. . . . In support of their alleged inaccuracy of the satellite telemetry data, Petitioners presented the testimony of Mr. Dvorak and his Power-point Presentation of Aerial Survey Mortality, Telemetry and Bathymetry Assessment, and other technical papers. Mr. Dvorak did not include in his presentation/analysis survey data available on the Atlas or Marine Resources and did not include all telemetry data available from the United States Geological Survey, which was included in Dr. Deutsch's analysis presented for Respondent, FWCC. The Amended McGill Petition, paragraphs 10 and 12, stated: The McGill Petitioners advised the FWCC that creation of new "slow speed" zones was based upon incorrect assumption "that such slow speed zones alleviate collisions between vessels and manatee" and they suggested that "slow moving vessels are responsible for the majority of documented manatee collisions." McGill Petitioners' evidence proffered to demonstrate that "slow moving vessels are responsible for the majority of documented manatee collisions," consisted of inclusive studies and undocumented theories to demonstrate that slow speed zones do not alleviate collisions between vessels and manatees. FWCC considered an abundance of the best evidence of known or suspected collisions between vessels and manatees that demonstrated that "fast moving motorboats" are a known major source of manatee- vessel collisions. The McGill Petitioners further stated in paragraph 11 that: The rule does not consider the acoustic realities of the manatee's hearing limitations and its environment. McGill Petitioners presented the testimony of Dr. Edmund Gerstein regarding his measurements of the manatees' ability to hear noises. Dr. Gerstein concluded from his research that manatees have difficulty hearing and locating low-frequency sounds (below 400Hz), and they have difficulty detecting sounds of any frequency when it is not sufficiently louder than the ambient noise level. The testimony of Dr. Joseph Blue was given in support of the McGill Petitioners' position that low-frequency sounds are quickly attenuated in shallow water because of the Lloyd Mirror effect. Upon this foundation, Dr. Blue testified that since sound is shadowed ahead of the barge(s), the tugs that push the fuel oil barges between Prot Canaveral and the power plants on the Indian River emit low-frequency sound that is shadowed in the forward direction by the barge(s) and it would be undetectable to animals. Thus, the McGill Petitioners' witnesses concluded that there are acoustic consequences associated with slowing down boats. According to Dr. Gerstein, requiring motor boats to travel a slow speed deprives manatees of acoustic information they can use to detect, localize, and avoid boats. It is this "science of acoustics" Petitioners alleged that the FWCC gave no weight in promulgating the proposed rule. The FWCC considered the issues raised by acoustic studies. The FWCC's Executive Director was advised on the subject by the Manatee Technical Advisory Committee (MATC) whose recommendation resulted from a workshop on acoustic research and technology with presentations of the work of Drs. Gerstein and Blue. No reliable scientific sources, professional literature, expert opinions, and direct observations of manatee reactions to motorboats, supports the proposition of Drs. Gerstein and Blue that manatees cannot hear slow-moving motorboats. The FWCC rejected the studies of Drs. Gerstein and Blue. McGill Petitioners' alleged in paragraphs 3, 4, 13, and 14, of their Amended Petition that the FWCC did not provide a reasonable opportunity for and ignored much of the public's input. In their Prehearing Stipulation, the McGill Petitioners' acknowledgement of public hearings held by FWCC and the opportunity for pubic input during those hearings. There is an abundance of evidence in the record that demonstrates that the FWCC staff held non-mandatory pre-rule development meetings with interested persons, including some of the McGill Petitioners. The Staff held two rule development workshops in Brevard County. Staff held a public hearing specifically on the Proposed Rules in Brevard County. Staff considered the rule adoption at many hours of public hearings on three different dates and locations. Staff mailed special notices regarding the Proposed Rules to all identified waterfront property owners of whom many are the McGill Petitioners, and Staff mailed a series of survey documents to identified boaters and businesses in conjunction with the preparation of a statement of estimated regulatory cost. (CSERC) In paragraphs 7 and 9 of their Amended Petition, the McGill Petitioners alleged that the FWCC entered into a Negotiated Rule-Making Process with litigants to the exclusion of a balanced committee in violation of 120.54(2)(d)1., Florida Statutes. Section 120.54(2)(a), Florida Statutes, authorizes an agency to engage in development of a "preliminary text" or "preliminary draft" of proposed rules prior to the publication of a notice of rule development. Preliminary maps of amendments to the BCMPR were similar to maps being discussed as part of the federal mediation. This fact alone is not a basis to conclude violation of the above-cited statutes. A second rule development workshop was noticed to discuss a preliminary copy of the Staff's "zone configuration" being considered. Subsequent to the second workshop, the FWCC authorized publication of Notice of Proposed Rule-making that incorporated changes to the preliminary draft maps that were discussed at the workshop. The McGill Petitioners, during the hearing, agreed that they do not object to that portion of Proposed Rule 68C-22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. Petitioners offered no testimony in support of this allegation, choosing rather to adopt the evidence and position proffered by Standing Watch, Inc., herein below addressed. In paragraphs 5 and 15 of their Amended Petition, the McGill Petitioners alleged that the Commission did not properly address the consideration of lower cost regulatory alternatives. The "lower cost regulatory alternatives" submitted by McGill, Pritchard and Dvorak were considered and were discussed in the draft SERC. The draft SERC gave reasons for the rejection of each of the proposed "lower cost regulator alternatives," primarily because none would substantially accomplish the objectives of the law being implemented. The SERC was finalized, as required by Sections 120.541(1)(a) and (c); and 120.56(2)(b), Florida Statutes, before filing for adoption with the Secretary of State. In paragraph 17 of their Amended Petition, the McGill Petitioners alleged that the FWCC failed to employ metrics or standards that could be used to validate the effectiveness of both proposed and existing rules, in rule promulgation, and that without the use of metrics, the FWCC had no way to determine and verify that speed zones they propose are necessary to protect harmful collisions with motorboats. The McGill Petitioners proffered no evidence of specific "metrics or standards" that would validate the effectiveness of the existing and or the proposed rule they contend the FWCC could have or should have used in the Proposed Rule development. The FWCC relied upon the best available and reliable information in its rule-making, including opinions of experts. To the information available to it, the FWCC applied its professional judgment, gave consideration to public comments/concerns provided during public meetings, and considered the estimated regulatory costs and other applicable rule-making requirements. In paragraph 18 of their Amended Petition, the McGill Petitioners alleged that the FWCC repeatedly ignored requests to sub classify watercraft-related mortalities in order to properly identify appropriate corrective action. The FWCC considered all available data regarding manatee injury and death resulting from the speed of motor boats and rejected Petitioner's contention that boat size, large boats such as tugs and barges, were more dangerous to manatees than smaller and faster motorboats. Sea Ray Boat, Inc. Petitioner, Sea Ray Boats, Inc., challenged only Proposed Rule 68C-22.006(2)(d)(11) that modifies the existing manatee protection speed zones in the Canaveral Barge Canal (that is 200 feet wide with a 125-foot navigation channel maintained at a depth of 12.5 feet) such that the entire Canal will now be designated a "slow speed" zone. Sea Ray does not argue that the FWCC did not consider all available information or that FWCC's consideration of the information was not complete. Sea Ray's position is, were one to consider the information presented to the FWCC, as balanced against the federal lawsuit filed by Save the Manatee Club, Inc., the challenged Proposed Rule is the result of the latter not the former and, therefore, is an invalid delegation of legislative authority. Sea Ray alleges that the FWCC did not analyze nor address the adequacy of the existing rule and speed zones in effect in the Canaveral Barge Canal. Sea Ray alleged that the FWCC did not consider the alternative (with weekend boating increases over weekdays) whether the risk to manatees would be reduced by "restricting slow speed zones in the channel to weekend and holidays." Sea Ray alleged that the FWCC failed to apply "properly" the mandatory balancing test of the impact of the proposed rule on the rights of commercial and recreational boaters. Section 370.12(2)(j), Florida Statutes. Sea Ray argues that the FWCC's consideration of information in formulating the Proposed Rule was devoid of "ascertainable quantitative criteria, standards or analytical processes," that Sea Ray maintains is required by Section 370.12, Florida Statutes. Standing Watch, Inc. Standing Watch, Inc.'s, Second Amended Petition challenged and alleged that the proposed speed in proposed Rule 68C-22.006(2)(e) 1-5 is not based upon "competent, substantial evidence" and does not comport with Section 370.12(2), Florida Statutes. Paragraphs 38 and 39 alleged that the proposed speeds in the Proposed Rule 68C-22.006(2)(c) 1-6 and (2)(d) 1-18 are not based upon "competent, substantial evidence" and do not comport with Section 370.12(2), Florida Statutes. Standing Watch, in essence, challenges all "idle," "slow" and "25 MPH" maximum speed zones proposed. Standing Watch argues that the FWCC failed to "quantify" by rule or working definition such terms such as "frequent" and "seasonal" and failed to define the term "periodic." Therefore, without working definitions the FWCC had no "threshold" from which to determine whether manatees were "frequently sighted," and the proposed rule is, accordingly, invalid in its entirety. Thus, it is alleged that the FWCC made no independent findings based upon the data reviewed that manatees were "frequently sighted" in any specific area of Brevard County. Standing Watch alleged, "The genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Mr. Calleson acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with the speed zones in maps of the Proposed Rule. The FWCC declined to direct staff to conduct negotiated rule-making on the Proposed Rule. Accordingly, staff's participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes. Continuing their argument, Standing Watch alleged that the FWCC without algorithms, formulae, protocols, matrices, mathematical models, or metrics made no separate determination for each zone and/or area (of the proposed rule) and had no factual basis for the identification of separate speed zones, rendering all determinations made by the Commission as arbitrary and capricious. Based upon the foregone foundation, Standing Watch challenged Proposed Rule 68C-22.006 in its entirety as arbitrary and capricious. City of Cocoa Beach Watersports Area Cocoa Beach intervened to challenge that portion of Proposed Rule 68C-22.006(2)(d)16, that "reduces allowable speeds in the area known as Banana River, Cocoa Beach Waterspouts Area." In support of its challenge, Cocoa Beach adopted the Proposed Final Order submitted on behalf of Petitioners, Standing Watch, Inc., Jim, Kavin, Thomas Mason, Dougals P. Jaren and Stowell Robertson. Additionally, Cocoa Beach relied upon "facts" particularly applicable to the Cocoa Beach (Waterspouts Area). Cocoa Beach alleged that prior to the Proposed Rule and subsequent to 1988 the FWCC had no evidence of manatee deaths attributed to watercrafts having occurred in the Watersports Area; that two years prior to the proposed rule only one or two manatees were sighted in that area; that the sea grass preferred by manatees is not found in the area, and that the Watersports Area does not have the depth [bathymetry] preferred by manatees. Petitioners contend that a "sub-classification" would corroborate Mr. James Wood's view "a majority of watercraft collisions are caused by large, slow-moving vessels, not by small, recreational motorboats." Mr. Wood's analysis was inconclusive as to the characteristics of watercraft that caused manatee injury. The reliable and available evidence, including documentation on known or suspected boat strikes, scar catalog data, and affidavits of persons who perform manatee necropsies, does not support the view held by Mr. Wood. To the contrary, evidence and testimony of experts herein presented, established that small, fast moving motorboats kill and injure manatees and their habitat. The sub-classification of watercraft-related mortalities is not required for rule adoption. The proposition set forth by McGill Petitioners, and adopted by other Petitioners, that larger vessels and barge/tugs were responsible for Brevard County manatee mortalities was raised in an earlier rule challenge filed by McGill, and was rejected, as it is herein rejected. DOAH Case No. 99-5366, page 18 (officially recognized); Final Order, McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. (DOAH 2000). All data, 1997-1999 Brevard County relative abundance and distribution aerial survey, 2000 synoptic aerial survey, telemetry analyses, other data considered, and professional literature indicated that Brevard County is an important year- round habitat for manatees.
