The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
Findings Of Fact On October 2, 1992, the City of Sanibel (Sanibel) applied to the Department of Environmental Regulation (DER) for a permit to replace an existing water control structure identified as the Tarpon Bay weir and to replace existing culverts on Sanibel-Captiva road at the Sanibel River crossing. The Department of Environmental Protection (DEP) is the successor agency to the DER and has responsibility for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules. Sea Oats is a platted and recorded residential subdivision located within the City of Sanibel, Florida, on Sanibel Island. The Sea Oats Improvement Association, Inc. is the organization representing the Sea Oats property owners. Sea Oats is within the area affected by the project impact. The Sanibel River comes within approximately 400 feet of Sea Oats property. On April 9, 1993 the DEP issued its Notice of Intent to Issue the permit. The Intent to Issue was published in June, 1993. Sea Oats timely filed a petition for administrative hearing. There are no procedural or jurisdictional matters at issue in this proceeding. Sea Oats challenged the project due to water quantity concerns. No water quality issues are addressed in this Recommended Order. Sea Oats asserts that property values will be adversely impacted by construction and operation of the new weir. Such issues are outside the jurisdiction of this proceeding and accordingly have not been addressed in this Recommended Order. The project site is located on the Sanibel River, Sanibel Island, Lee County, Section 26, Township 46 South, Range 22 East. The Sanibel River is a Class III water discharging into Tarpon Bay. The actual weir site is within the J.N. "Ding" Darling National Wildlife Preserve, owned in major part by the U.S. Government and operated by the U.S. Fish and Wildlife Service.. The elevation at the center of Sanibel Island is lower than elevations along the edge, resulting in a land mass which can be described as "bowl- shaped." Flood waters remain captured in the "bowl" pending percolation through the soil or discharge through weirs. The Tarpon Bay weir is the sole outlet on the island for the Tarpon Bay basin. The basin lies to the west of Tarpon Bay Road, to the north of Gulf Drive and to the south of Sanibel-Captiva Road. Sanibel proposes to replace the existing weir at the site where an extension of the Sanibel River drains into Tarpon Bay and to replace culverts at the crossing of Sanibel-Captiva Road over the Sanibel River. The purpose of the weir replacement project and control elevation modification is to improve flood control capability and to restore the Sanibel wetlands in the Tarpon Bay basin. The project requires and has received permitting by the South Florida Water Management District (SFWMD). Because the project furthers several objectives of the SFWMD, the District is providing $250,000 towards the cost of the construction. The impact area for construction of the proposed new culvert is approximately 75 feet by 55 feet. The culverts to be replaced are within Sanibel-Captiva road right-of-way at the crossing of the Sanibel River. The culvert improvement will speed the flow of water towards the new weir during peak flow events, but will otherwise not significantly impact water flow in the river. . The existing weir is approximately 32 by 2 feet with a control elevation of +2.5 feet NGVD. The length of the weir at the weir crest is 7.84 feet. The weir has one manually controlled gate, 4.7 feet wide with a 1.5 foot opening depth, constituting an area of about seven square feet. The existing weir structure is approximately 33 years old and was built for mosquito control purposes. The weir is undersized and unable to adequately discharge surface waters from a 25 year design storm event. During a 25 year storm event, Sanibel flood levels presently reach elevations of +4.0-4.5 feet NGVD and remain at those levels for multiple days. The existing system is incapable of discharging water at sufficient rates to reduce the amount and duration of such flooding. Major roads are flooded at these water levels. The existing inadequate discharge capacity raises significant public safety concerns. A severe rainfall event can exceed the poor discharge capacity of the existing weir, resulting in flooding and leaving major transportation routes impassable. In such a situation, necessary evacuation prior to a subsequent hurricane strike could be hindered, perhaps impossible. Sea Oats properties currently experience a period of standing water during South Florida's rainy season. During a 25 year storm event, Sea Oats flood levels of +4.5 feet NGVD inundate house pads and driveways for substantial time periods. Most, if not all, of the Sea Oats property lies within DEP jurisdictional wetlands. Application must be made to the DEP in order for construction or other alterations to such properties to be permitted. Where permits have been issued, conservation easements exist for the parts of the lots which are not built on. The easements prohibit grass lawns, construction, dredging, filling, removal of native species or any alteration to the easement areas. The new proposed weir structure is approximately 125 by 100 feet with a control elevation of +3.2 feet NGVD.. The length of the weir at the weir crest is 140 feet. Four sluice gates, each approximately six by five feet (a total gate area of 120 feet) will discharge water in excess of ten times faster than the existing weir. The construction impact area for the proposed new weir is approximately 120 feet by 240 feet. The new weir gates will be operated according to policy to be developed by the Sanibel City Council within 30 days after issuance of the permit. The construction and operation of the new weir will result in greatly improved flood control. Release of water prior to predicted storm events, as well as water discharge during and after storm events, will be improved due to the increase discharge capability of the larger flood gates. In other words, flood waters will be discharged faster and in greater volume, reducing both peak flood stages and flood duration. In a report prepared for the City of Sanibel titled "Assessment of Hydrological Impacts, Proposed Tarpon Bay Water Control Structure," the effect of the increased weir water control level on the Sea Oats subdivision is addressed as follows: There are some subdivisions that are extremely low in elevation including Sea Oats, Gulf Pines and Belle Meade. Several yards in these subdivisions lie below elevation +3.0 Ft. NGVD and are already inundated under existing conditions for prolonged periods in the summer. The proposed weir modifications will result in some additional water in these areas during the summer wet season. These subdivisions, however, are designed to accommodate these conditions as improvements are raised well above natural ground and yards are left low and are allowed to pond. There is no evidence that existing house pads or driveways in the Sea Oats subdivision will be adversely impacted by construction and operation of the new Tarpon Bay weir. The evidence establishes that all existing housepads and driveways exceed +3.2 feet NGVD. There is no evidence that access to any existing housepads and driveways will be significantly impacted by the construction and operation of the new Tarpon Bay weir. One Sea Oats driveway has a low spot at +3.3 feet NGVD. The remaining housepads and driveways exceed +3.3 feet NGVD. Most are significantly above the +3.3 feet NGVD elevation. All finished floor elevations exceed +12 feet NGVD. Many undeveloped Sea Oats properties are below the +3.2 feet NGVD water level. As has been and is currently required, new construction in the Sea Oats subdivision will continue to require permitting from the DEP. Sea Oats has a package wastewater treatment plant. There is no evidence that the operation of the plant will be negatively impacted by increased water levels to any greater degree than is currently the case. Although the operation of the new weir will extend the period of standing water in Sea Oats during the rainy season, the new weir will permit greater control over the surface water levels by reducing peak flood levels and reducing the duration of flood levels following major storm events, thereby providing greatly enhanced flood control. Construction of the new weir will require excavation of 1.129 cubic yards waterward of mean high water resulting in the loss of 0.3 acres of mature mangrove wetlands. Sanibel Island wetlands have been historically overdrained, resulting in loss of habitat and an invasion of exotic vegetation on the island. Sanibel originally proposed to mitigate the adverse impact on wetlands by creating a like amount of DEP jurisdictional wetlands. Subsequent to numerous visits to the site by representatives of the DEP and Sanibel, it was determined that additional mitigation was required. A final mitigation plan was submitted to the DEP on March 24, 1993. In addition to the mitigation first proposed in the application, Sanibel intends to provide mitigation in the form of wetlands enhancement and restoration through management of the water level at the Tarpon Bay weir. The new weir will raise surface water levels upstream of the control structure. Approximately 670 acres of existing wetlands will be inundated by an additional 0.7 feet of water. About 400 acres, previously not inundated, will be inundated as a result of controlling water at an elevation of 3.2 NGVD. It is Sanibel's goal to permit water levels to rise to +3.2 feet NGVD during the rainy season to accomplish the environmental purposes of the project. In 1991, the City of Sanibel and the Sanibel-Captiva Conservation Foundation began a study of the impact of increased water levels on Schinus terebinthifolius, commonly identified as Brazilian Pepper. According to the study report, "Flooding as a Management Tool for Controlling Brazilian Pepper on Sanibel Island, Florida," waters maintained at the +3.2 feet NGVD level for 77 days mortally stresses Brazilian Pepper in the flooded area and results in extensive die-off of the exotics. Sea Oats asserts that it is not necessary to maintain the water level at +3.2 feet NGVD to stress and kill the Brazilian Pepper. The "Flooding as a Management Tool" report offered some support for the Sea Oats position, stating that, as to mortally stressing the species, "the data give us some indication that somewhat lower levels for a shorter time would be as effective." It is unnecessary to determine whether a lower water level would be sufficient to accomplish the environmental aspects of this project because the evidence fails to establish that the proposed +3.2 feet NGVD water level will cause adverse affects. Sea Oats asserts that there are other methods by which Brazilian Pepper invasion may be controlled which do not require maintaining the water level at +3.2 feet NGVD. Although the evidence indicates that other methods may be utilized, there is no evidence such methods are superior to that proposed by Sanibel. There is no evidence that any adverse cumulative impacts will result from permitting this project. The evidence establishes that, based on consideration and balancing of the following criteria, the project is not contrary to public interest: WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS-- The evidence establishes that the project will not adversely affect the public health, safety, or welfare or the property of others. Sea Oats asserts that the project will adversely affect their property through flooding. The evidence fails to establish that the project will result in flooding. Although the maintenance of water levels at +3.2 feet NGVD at the Tarpon Bay weir will result in an extended hydroperiod and additional standing water in the Sea Oats neighborhood during the wet season, the evidence fails to establish that the Sea Oats driveways or housepads will be flooded. Operation of the weir will result in greatly increased flood control and water management capabilities on the island. The ability to discharge flood waters faster and in greater volume will reducing both peak flood stages and flood duration. The ability to quickly discharge waters prior to predicted storm events will contribute to flood prevention. Such improvements are a benefit to public health. Mosquito control efforts will be enhanced as larva-consuming fish return to wet areas. The most prevalent type of mosquito in the area, the salt marsh mosquito, deposits its larva on dry ground. A return to historic increased water levels will permit the feeding fish to reach the larva. Improved mosquito control is a benefit to public health. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS-- The evidence establishes that the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The maintenance of the +3.2 feet NGVD water level during the wet season will result in extensive die-off of the exotic species in the restored wetlands. As exotics are removed, native plant species return to typical growth patterns and re-vegetate the restored and enhanced wetlands. Restoration and improvement of the Sanibel wetlands will result in increased habitat for fish and wildlife. Water fowl, including endangered wading birds such as White Ibis and Wood Storks, will return to the restored wetlands habitat. WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING-- The evidence establishes that the project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will enhance Sanibel's ability to control water flow. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT-- The evidence establishes that the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. Restoration of the wetlands will eventually provide additional habitat in which juvenile fish may hatch and develop. As such fish mature and move into open waters, they will become available for harvest. Such fish provide food for larger fish and for other fish-eating animal species. The project will not adversely affect recreational values. WHETHER THE PROJECT WILL BE OF A TEMPORARY OR PERMANENT NATURE-- The project will cause a permanent alteration to the existing condition of the property. WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061-- There is no evidence that this project will adversely affect or will enhance significant historical and archaeological resources. THE CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY-- The current condition of the exiting wetlands is good, however, overdrainage had negatively affect some areas and has permitted substantial invasion by exotic species. Slower-growing native species are unable to compete with the exotic species and have slowly declined in the former wetlands. The restoration of historic water levels to the area will improve the current conditions and increase the functional values of affected areas.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order granting the City of Sanibel's application for a dredge and fill permit in DEP File No. 362199705. DONE and ORDERED this 14th day of February, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-3997 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Sea Oats Improvement Association. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6. Rejected, contrary to greater weight of credible and persuasive evidence. Respondent City of Sanibel The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16.d. Rejected. The evidence fails to establish that the "construction of a weir with a weir crest level of +3.2 feet NGVD will not of itself have any significant impact on water levels." Contrary to greater weight of credible and persuasive evidence. 16.h. Rejected, as to lack of any adverse affect on property of Sea Oats owners, contrary to greater weight of credible and persuasive evidence, However, the adverse affect is balanced by positive impact of project on flood control. 17.a. Rejected, contrary to greater weight of credible and persuasive evidence. A weir height of +3.2 feet NGVD is not "necessary" for the benefit of preservation. As to the Brazilian Pepper, the "Flooding as a Management Tool" report states that "somewhat lower levels for a shorter time would be as effective" in controlling peppers. However, the evidence establishes that the +3.2 feet NGVD height would promote restoration and enhancement of the historic Sanibel wetlands. 18-20. Rejected, unnecessary. Respondent Department of Environmental Protection The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 18. Rejected. The evidence fails to establish that "a weir with a weir crest of 3.2 feet will not have a significant impact on water levels." Contrary to greater weight of credible and persuasive evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Hartley Kleinberg Post Office Box 31 Sanibel, Florida 33957 Robert D. Pritt, Esquire 800 Dunlop Road Sanibel, Florida 33957 John Chaves, Esquire Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner is the owner and developer of real property in Brevard County, Florida. Petitioner applied to DER for a development permit to construct three wooden docks and retain an existing wooden dock on its property. The docks were designed to provide a total of 58 mooring slips. On March 13, 1983, the Department issued an Intent to Deny the requested permit, On March 10, 1983, Petitioner filed a petition for a formal 120.57(1), Florida Statutes, hearing on DER's intent to deny the permit application. DER's Intent to Deny asserted DER jurisdiction under Chapters 403 and 253, Florida Statutes and Rule 17-4.28 and 17- 4.29, Florida Administrative Code. DER contends that the construction of the proposed docks was to be conducted in areas within DER jurisdiction under Rules 17-4.28(2) and 17- 4.29(1). Additionally, DER asserted that the proposed project was located in Class II waters approved for shellfish harvesting, and that dredging in those areas was prohibited by Rule 17-4.28(8)(a), Florida Administrative Code, which provides, in pertinent part, as follows: The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits for certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. . . . The parties have stipulated, and the record otherwise established, that Petitioner is substantially affected by Rule 17-4.28(8)(a), which is challenged in this proceeding, by virtue of the fact that DER asserts that rule as a grounds for denying the requested permit. Both Petitioner and Respondent have submitted proposed findings of fact concerning whether the driving of pilings for the construction of the dock constitutes "dredging", so as to invoke the prohibition against such activities contained in Rule 17-4.28(8)(a). It is specifically determined that these facts are irrelevant to the issue to be determined in this cause, as will more fully hereinafter appear.
Findings Of Fact Petitioner owns a single family residence on a lot (Lot 2) abutting Lake Buffum in Polk County, Florida. This property has a 60 foot frontage on the lake. Petitioner subsequently purchased and now owns an adjacent lot (Lot 3) with a lake front frontage of approximately 73 feet. Petitioner has placed a dock on the westerly edge of Lot 2 from which he suspends and lowers a power boat to the surface of Lake Buffum. Lot 3 is westerly of Lot 2. Lake Buffum is a class III water body which classification provides for management for recreation; and propagation and maintenance of a healthy, well- balanced population of fish and wildlife. Petitioner was cited for violation of Section 369.20, Florida Statutes, by spraying herbicide on aquatic plants without a permit. He subsequently applied for a permit to control aquatic plants in front of his property and was issued a permit allowing him to control an access corridor to his property 50 feet wide. Petitioner here seeks an access corridor 60 feet wide. When Petitioner was issued his permit, the plat showing his dock in the center of the 50 foot access corridor was attached. Petitioner desired to clear aquatic plants on the western side of his dock as there is deeper water on that side of the dock to permit access to the dock with his boat. This is due to the angle of the shore line. The plat showing the dock in the middle of the 50 foot corridor obviously caused some confusion on the part of the Petitioner as the approach to his hoist on the dock is parallel to the shoreline. Accordingly, clear water to approach the dock from the west is what Petitioner needs to dock his boat. The permit granted is for a 50 foot corridor without specifying where at right angles to the coast line the corridor should be placed. Accordingly, if desired, Petitioner could clear a corridor starting at the western side of his dock and extending 50 feet to the west. In coordination with the Florida Game, Freshwater Fish and Wildlife Service, the Respondent has adopted a general policy of granting a permit to clear aquatic plants on waterfront property with a corridor of one-half width of the lot fronting the lake but limited to 50 feet for lots of 100 feet width and greater. Since Petitioner has approximately 133 feet of shoreline, he was granted a permit to control aquatic plants in a 50 foot corridor. This general policy is not absolute, but varies with the quantity of aquatic plants on a particular lake and whether the permit is desired for the use of the general public, such as a public boat ramp provided by a county or municipality. The amount of aquatic plants most beneficial to the propagation of fish and wildlife on lakes is between 40% and 70% coverage of the lakes. On the lakes with more than 70% coverage, Respondent may grant a 100 foot corridor in which the upland property owner is issued a permit to control aquatic plants. Lake Buffum is a sparsely vegetated lake with a coverage varying between 1.8% and 4%. Although the property around the lake is sparsely developed, an extra 10 feet of aquatic plant control would have some adverse effect in this lake which is far below the average coverage. More importantly, however, is the cumulative impact of granting Petitioner a 60 foot corridor which would require the granting of similar corridors to all other applicants on Lake Buffum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dan L. Moody's petition to be granted a permit to clear a 60 foot corridor of aquatic plants below the high water line at his property on Lake Buffum be denied. DONE AND ENTERED this 12th day of March, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1993. COPIES FURNISHED: Dan D. Moody, Esquire 945 East Broadway Fort Meade, Florida 33841 Nancy L. Harvey, Esquire Nona Schaffner, Esquire 3900 Commonwealth Boulevard MS #35 Tallahassee, Florida 32399-3000 Donald Duden, Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard MS #10 Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard MS #10 Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioner is the adjoining neighbor of Harrie E. Smith, the applicant, and runs the Coral Lagoon Resort. This is a commercial establishment which consists of rental units fronting on Bonefish Bay with an interior canal and a series of small boat docking facilities which give each unit docking space and water access. The Petitioner keeps two tame porpoises at the end of this canal which are a tourist attraction. The Petitioner's operation is tourist oriented particularly to those who come to the Keys for fishing or diving excursions. The application to the Department of Environmental Regulation is to the installation of a wooden dock which runs parallel to the Petitioner's northern boundary line. The applicant, Mr. Smith, runs a commercial boat repair facility alongside Mr. Goss' establishment and it is clear there have been misunderstandings between them in the past. The dock has been installed and as noted above, the application to the Department of Environmental Regulation is for an after-the-fact authorization. The department has indicated it intends to grant the permit as it does not see that the dock will degrade water quality or create a condition adverse to the public interest. The petition maintains that the dock will cause water quality problems in that it will encourage the docking of boats which will spill oil, gas and other contaminants into the waters and thereby degrade water quality. It should be noted that the Petitioner maintains extensive docking facilities in his establishment and could be subjected to the same argument.
Findings Of Fact Acting on an anonymous tip, Michael L. Thomas, a Wildlife Officer with the Florida Game and Fresh Water Fish Commission, examined property in the Turnbull-Hammock area of Volusia County at a location between Edgewater and Oakhill and immediately adjacent to U.S. Route 1. This is a rural area which is unfenced and entirely open to the public. The particular property in question is reached by a substantial shell road running at a right angle from U.S. 1 and deadending in a borrow pit. A canal also is at right angles to the unnamed shell road at its borrow-pit end. The borrow pit is owned by Doug Cole. A smaller dirt road or jeep trail branches off from the shell road and passes between some thick trees and underbrush. Beyond the trees and underbrush, the jeep trail curves off slightly to the left where a pole barn or construction shack owned by Tom Foster is located. Instead of curving left, one can proceed on foot several more yards on a cleared pathway until one reaches a growth of vines which crosses the pathway and forms a sort of barricade across it. If one goes through the vines, one sees several narrower, winding, overgrown footpaths meandering back through the overgrowth quite some distance. The area beyond the vines is completely overgrown with tall weeds and brush except for these footpaths. Officer Thomas followed the route aforedescribed and followed one of the overgrown footpaths where he discovered approximately twenty-eight marijuana plants growing in plastic tubs deep in the underbrush. The plants were 8-10 feet tall and needed water. Officer Thomas' observation of the plants convinced him that the person who had cultivated them would have to water them soon. On the ground eight or ten feet before he reached the growing marijuana, Officer Thomas observed a pink plastic watering can, a metal can, some potting materials, and an empty box of "Miracle Grow" plant food. Officer Thomas and Sergeant Hightower "staked out" the area during the afternoon of September 16, 1989. More than three hours into their "stake out," the officers observed Petitioner park his truck at the pole barn and meander through the underbrush in the direction of the marijuana. He occasionally stopped and looked around him as he did so. Once Petitioner was beyond the vines, the officers could not "eyeball" him any longer. They did not see him touch any marijuana. They heard the sound of water cans being moved, and when Petitioner reappeared through the underbrush, he was carrying two empty containers he had picked up from those originally observed by Officer Thomas eight to ten feet in front of the marijuana crop. The officers interpreted Petitioner's looking around to have been checking to be sure he had not been followed or seen and interpreted his selecting the particular containers as evidence that he knew where and how to water the marijuana. The Petitioner then walked toward the canal with the containers and hunkered down on its bank. When he did so, Officers Thomas and Hightower sprang from their hiding place and placed Petitioner under arrest. They never saw him draw or scoop up any water into the containers, and the most credible evidence is that he stayed on the high side of the bank and did not approach the edge of the water in the canal below. Petitioner is a cement worker by trade. He stores his equipment, including his form boards, in the pole barn. The owner of the pole barn, Tom Foster, does not charge Petitioner any rent for this use. Petitioner was familiar with the area as far inward as the pole barn. On the day in question, the area immediately surrounding the pole barn was strewn with debris evidencing that teenagers had used it as a "partying area." It also was littered with discarded furniture and old boards that Petitioner identified as belonging to Tom Foster. On September 3, 1989 Petitioner's girlfriend had given him a used shotgun for deer hunting. On the day in question, a weekend, Petitioner had chosen Tom Foster's property to "tryout" that shotgun and see what type of pattern it shot. Petitioner explained that he had walked past all the other debris at the pole barn without selecting any of it as a target because it probably belonged to Tom Foster, the man who let him store his equipment without fee, and Petitioner did not want to lose Tom Foster's goodwill. Petitioner testified that he looked around himself as he walked and selected the containers far away from the pole barn because they did not seem to be Tom Foster's, that he had not even seen the marijuana let along recognized what it was, and that he was carrying the containers back to his truck to fetch his gun when a burrowing animal in the bank of the canal/ditch caught his attention and he hunkered down to watch it. Based on DOR's photographic exhibits and Officer Thomas' testimony, it is found that the tubs in which the marijuana was growing were obscured by underbrush from the view of anyone standing at the location of the watering and potting materials, although the marijuana tops could be seen from that point if one were looking in that direction. Officer Thomas readily agreed that many untrained people cannot recognize marijuana growing in the field. The officers did not note whether any burrowing was going on in the canal bank, but their subsequent search of Petitioner's truck turned up the shotgun and some birdshot. Officer Thomas testified that a better "pattern" effect could be obtained by aiming the shotgun at a larger object than the water containers and that some of the birdshot found with the gun might be lost on the smaller objects. He therefore ascribed no credibility to Petitioner's choice of the watercans as targets. No drug paraphernalia or materials for cultivation were found on Petitioner's person or in his truck. Petitioner was charged, tried before a jury, and acquitted of the criminal charge "manufacture of cannabis." A final judgment was entered to that effect. In deference to DOR's concerns expressed at formal hearing, it is noted that the judicial outcome of the criminal charge is not res judicata nor "law of the case" in the instant administrative proceeding which embraces different issues and burdens of proof. It does, however, support Petitioner's assertions that he has never used drugs or been convicted in connection with them. The original September 1989 DOR assessment used as a component base an estimated 24.25 weight of the 28 marijuana plants. The "estimate" was made by Mr. Wattercutter, who prepared the original assessment. Mr. Wattercutter telephoned the Volusia County State Attorney's Office, copied the arrest warrant, and interviewed Officer Thomas. He accepted what was told him without DOR calculating a chain of custody, calibration of scales, or finding out what parts of the marijuana had been weighed, or the quality or gender of the marijuana. The original DOR assessment used as a component multiplier a value assigned by the Florida Department of Law Enforcement price list in effect at that time. That list assigned a value of $600 per pound of marijuana. Mr. Wattercutter also applied a fraud penalty in accord with DOR policy. The original assessment amounted to $16,368.75. On August 20, 1990, Mr. Wattercutter and others who did not testify weighed some marijuana in two boxes in the evidence room of the Sheriff's Office in DeLand, Florida. After subtracting the weight of the empty boxes, Mr. Wattercutter applied the FDLE price list figure of $600 per pound and reassessed Petitioner's tax liability (excluding the inapplicable fraud penalty) at $5,850. The chain of custody of the marijuana was not presented. No evidence of calibration of the scale used was presented. The predicate for the $600 per pound valuation made by FDLE was presented through the deposition of Sherry Gomez, which is not persuasive that the charted figure is probative of the value of the marijuana in this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the assessment/amended assessment against Petitioner. DONE and ENTERED this 29th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-10 Except as modified to exclude subordinate material, accepted. Respondent's PFOF: 1 Rejected as not probative. Undoubtedly, the fact that Ms. Gomez' deposition was taken by telephone contributed to its disjointed nature, but the predicate for the accuracy of the chart/graph was insufficient as set out in FOF 15. 2-4, 9 Accepted except for subordinate and cumulative material. Not adopted because the facts as found more accurately reflect the record as a whole. 5-8 Except for the last sentence, accepted except where subordinate or unnecessary. The last sentence of 8 is rejected as not supported by the more credible record evidence as a whole. 10 Subordinate as stated. Accepted that the plants were marijuana. Copies furnished to: Mark T. Aliff Assistant Attorney General Department of Legal Affairs Tax Section, The Capitol Tallahassee, Florida 32399-1050 David C. Robinson, Esquire Suite 6 1326 South Ridgewood Avenue Daytona Beach, Florida 32114 J. Thomas Herndon Executive Director Department of Revenue The Capitol Tallahassee, Florida 32399-0100 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether proposed rule 62-160.300(5)(c) is an invalid exercise of delegated legislative authority, as alleged in the Amended Petition for Rule Challenge (Petition) filed on October 17, 2017.
Findings Of Fact Background The Department is the agency charged with the responsibility of adopting quality assurance rules for the collection and analysis of water quality data submitted to the Department. § 403.0623(1), Fla. Stat. These standards have been codified in chapter 62-160. They are designed to "assure that chemical, physical, biological, microbiological and toxicological data used by the Department are appropriate and reliable, and are collected and analyzed by scientifically sound procedures." Fla. Admin. Code R. 62-160.110(1). Part III of chapter 62-160 addresses laboratory certification and procedures. The Legislature has mandated that when water quality data are used to determine the quality of drinking water or the effluent of a domestic wastewater facility, all laboratories generating such data for submission to the Department must hold certification from the Department of Health (DOH) under the Department of Health, Environmental Laboratory Certification Program (DOH ELCP). See §§ 403.863(7) and 403.0625(2), Fla. Stat. Although DOH is the state's environmental laboratory accreditation program body, the Department has rulemaking authority to determine what types of laboratory data require DOH ELCP certification. § 403.0623, Fla. Stat. Not every laboratory test requires certification for the Department to accept the resulting data. Certified laboratories must have approved Standard Operating Procedures (SOPs), a formalized, written set of instructions which are followed for sample collection and preservation. The SOPs are reviewed by the Department to ensure they provide sufficient laboratory quality assurance. Petitioners are among the more than 100 laboratories in the state that fall within the class of laboratories that must meet DOH ELCP certification standards. They provide testing services primarily for local governments, consultants, and commercial accounts. Petitioners take pride in the fact that they meet all federal and state standards for testing, their laboratories are owned and managed by professionals, and they have been successfully performing these services for decades. The dispute here centers on proposed rule 62- 160.300(5)(c), which allows non-certified "statutorily created volunteer monitoring organizations" to submit water quality data to the Department for certain purposes. Petitioners, who are in the business of generating environmental data to the Department, allege that if they are required to compete with a non-certified laboratory, it will "directly affect their ability to earn a living and will interfere with their contractual relationships." Currently, the only statutorily created volunteer monitoring organization in the state is the Florida LAKEWATCH Program (Lakewatch), an organization created in 2002 within the Department of Fisheries and Aquaculture of the Institute of Food and Agricultural Sciences (IFAS) at the University of Florida. See § 1004.49, Fla. Stat. Petitioners' Operations Florida-Spectrum, located in south Florida, spends around $100,000 annually to keep its five laboratories properly certified. Around a third of its business is testing for municipalities, a third for industries (such as investor-owned utilities), and a third for consultants. It performs lake water sampling for three cities for the purpose of compliance monitoring, but the proposed rule does not allow a non-certified laboratory to submit data to the Department for this purpose. Flowers, located in the greater Orlando area, estimated its annual direct cost to remain certified is around $52,000.00. It provides testing services primarily for domestic waste water effluent and drinking water. Only five percent of its testing is in lakes. Although Benchmark did not provide its annual cost to be certified, more than likely it incurs a similar expense, as it performs water testing primarily for engineering firms and municipalities located along the west coast from Tampa to Naples. A very small percentage of work involves testing in lakes to determine compliance with drinking water standards. The Proposed Rule Existing rule 62-160.300(5)(e), in effect since 2002, allows the Department to waive the certification requirement for an entity that uses "[m]ethods approved for site-specific, limited-use purpose if such certification is specifically waived by the Department program for which the method will be used." The provision has rarely been used, and then "usually only [for] research projects directly funded by DEP." Pet'r Ex. 14, p. 2. The Department proposes to substantially revise existing rule 62-160.300, entitled Laboratory Certification, by adding new text, deleting language, and renumbering the revised provisions. Although the Notice proposed only a minor change to existing rule 62-160.300(5)(e), the Notice of Change deletes that provision in its entirety and proposes to adopt new rule 62-160.300(5)(c), which allows the Department to consider and use data generated by non-certified "statutorily created volunteer monitoring organizations." New paragraph (5)(c) provides that certification is not required for the following tests or analyses: (c) Methods used by statutorily created volunteer monitoring organizations, when the Department has reviewed and concluded that the organization's Standard Operating Procedures provide sufficient quality assurance requirements for Department purposes. The rule is designed to apply to an organization with a very small laboratory and a single purpose. Lakewatch's only purpose is to sample water quality in lakes, with an emphasis on total nitrogen, phosphorus, chlorophyll a, and water clarity. The IFAS laboratory has only "a couple of career staff." Lakewatch performs no sampling for municipalities, commercial accounts, or other entities typically served by certified laboratories. Section 1004.49 authorizes Lakewatch to "[t]rain, supervise, and coordinate volunteers to collect water quality data from Florida's lakes" and to "[c]ompile the data collected by volunteers." The organization consists of citizen volunteers (almost 1,500 as of May 2014), mainly lake residents, who take and hold water samples and then send them to be analyzed by the IFAS laboratory. The results are collected and maintained in a Lakewatch database coordinated by the IFAS. The testing results are forwarded to the Department for inclusion in various databanks. In somewhat unclear terms, a Department witness explained that the purpose of the rule is "to do routine housekeeping for aspects of the rule that [the Department] thought needed revising based on stakeholder input from all sectors." However, the Notice further explains that the new rule "provide[s] increased flexibility for approval of alternative methods," and it "clarif[ies] when [DOH] laboratory certification is not required, because substitute quality assurance requirements will apply." In addition, the Department points out that it has the responsibility of assessing all waters in the State, but lacks the resources to perform this task. At any one time, the Department estimates that Lakewatch is sampling the water in over 100 lakes, many of which are in remote areas that are not accessed by other laboratories. The acceptance of Lakewatch data will fill a gap in the Department's assessment role. Even when data are of lesser quality, they can be valid for some purposes. As a general rule, it is helpful for the Department to maximize the data available for review. Does the Rule Exceed the Grant of Rulemaking Authority? The Notice cites as rulemaking authority four statutes, including sections 403.0623 and 403.0625. Section 403.0623(2) authorizes the Department to "establish standards for the collection and analysis of water quantity, water quality, and related data to ensure quality, reliability, and validity of the data and testing results" and "to adopt rules to implement this subsection." Section 403.0625(1) authorizes the Department and DOH to "jointly establish criteria for certification of laboratories that perform analyses of environmental samples that are not covered by the provisions in s. 403.863." Petitioners allege the new rule exceeds the grant of rulemaking authority in section 403.0625(1) because the DOH did not participate in the drafting of the regulation. Because the rule does not create any standards for laboratory certification, DOH input is not required. The Department's routine practice is to informally collaborate with DOH only for issues that are specific to test methodology or topics related to DOH's scope of certification for environmental test methods. Petitioners also contend the rule exceeds the grant of authority in section 403.0625(2), which provides that only certified laboratories may submit water quality data to determine "the quality of the effluent of a domestic wastewater facility." However, this contention has been treated as an argument that the rule contravenes the statute and is addressed in the following section of this Recommended Order. Does the Rule Contravene the Law Being Implemented? The Notice states that the revisions to chapter 62-160 implement more than 20 statutes, including sections 403.0623 and 403.0625. At hearing, Petitioners asserted that Lakewatch volunteers have sampled water in the St. Johns River, which has package plants that impact both the river and the Green Swamp. They did not disclose the extent of such sampling in the river, and, its purpose. Petitioners incorrectly assume the purpose of the rule is to allow Lakewatch to continue to submit data from areas affected by domestic wastewater effluent, in violation of section 403.0625(2). Assuming that river samples were submitted to the Department, the proposed rule does not legitimize the submission of data for that purpose. Petitioners contend the proposed rule will contravene other Department rules which set general requirements for collection and laboratory methods, including minimum holding times. However, the proposed rule authorizes the Department to approve an alternate method or procedure for some methods used by the organization. Therefore, Lakewatch does not follow generally approved requirements for sample preservation. Rather, it follows approved alternate methods evaluated and approved by the Department. Likewise, Lakewatch relies on an approved limited-use method for chlorophyll extraction, rather than following the typical methods used by certified laboratories. Vagueness, Lack of Standards, and Unbridled Discretion The proposed rule requires an organization's data to be of "sufficient quality assurance" to meet Department purposes. Petitioners argue that by simply using the word "sufficient," rather than mandating that the data be "accurate and reliable," the rule gives the Department unbridled discretion in determining what level of assurance is required. However, this is a distinction without a difference. The Department's determination will be based on whether the laboratory procedures conform to the use of approved methods, sample preservation procedures, and recordkeeping and reporting procedures. See Pet'r Ex. 18. The Department will also consider whether the organization has the ability to produce valid data that can withstand scrutiny under the criteria in rule 62-160.670. Id. Depending on the purpose of the data, criteria in other rules will be applied to the approval of methods and acceptance of data. See, e.g., Fla. Admin. Code R. 62-160.330 and 62-160.670. In those instances when certification is not required, new rule 62-160.300(9) requires that the organization's laboratory "follow the relevant Department-approved methods as provided in Rule 62-160.320, F.A.C., and shall meet all other requirements for laboratories as provided in this Chapter." Coupled with the challenged rule, this change sets a floor for quality assurance in uncertified laboratories with approved SOPs. Therefore, a non-certified laboratory must have minimum requirements for method detection limits, reporting and documentation, preservation of samples, data validation, and procedures for coding data that do not meet quality control criteria. Given the different purposes for which data are submitted, and the variability of data quality objectives that must be achieved, the Department must necessarily have some level of flexibility and discretion. It would be impractical to include in the rule every potential circumstance that might arise during this assessment. In sum, the record supports a finding that there are adequate and definitive standards in place to ensure that the operating procedures of a non-certified laboratory are sufficiently reliable for the Department to accept the data. Use of Lakewatch Data Section 1004.49 provides that "[d]ata collected and compiled [by Lakewatch] shall be used to establish trends and provide general background information and shall in no instance be used in a regulatory proceeding." However, the term "regulatory proceeding" is not defined. Even though the law is almost 16 years old, the Department has not yet taken a formal position on how the term should be interpreted and generally decides this issue on a case-by-case basis. While the Department admits that the undefined term is a source of confusion, its practice is to never use Lakewatch data for enforcement action or permit compliance. On the other hand, the Department says the statute is "unclear" on whether Lakewatch data can be used for ambient water quality assessments and restoration plans, such as water listings and Total Maximum Daily Loads. Therefore, Lakewatch data have been used for trend analysis, background information, agency resource allocation, and the compilation of the planning list under the Impaired Waters Rule. The Department does not consider these uses to violate the statutory proscription. From 2013 until August 2017, the Department used Lakewatch data for some purposes that may have been inconsistent with section 1004.49. However, that practice has ceased, and the Department now uses Lakewatch data in a manner that it believes is consistent with the statutory directive. Petitioners argue that the improper use of data during the five- year period, by itself, is a sufficient basis to invalidate the rule. This contention is rejected. After a comparability study of Lakewatch and Department data was conducted by the Department in 2011-2012, the Department initiated a review of the Lakewatch SOPs. The SOPs have been periodically revised, the last time in 2016, to incorporate certain quality control measures recommended by the Department. Although Petitioners contend otherwise, the SOPs provide sufficient laboratory quality assurance for accepting data for trend analysis, setting priorities on monitoring plans, and general information. Petitioners' Substantial Interests Petitioners are concerned the Legislature will create other volunteer organizations and this will result in multiple organizations taking advantage of the new rule. They also fear the Department will amend the new rule to allow other non- certified organizations to submit data. These concerns are speculative in nature and without evidentiary support. Because Lakewatch services are free, Petitioners contend their customers will use Lakewatch volunteers rather than paying a certified laboratory for testing services. However, Petitioners did not identify any "contractual relationship" that will be interfered with by virtue of the rule, any existing customer that will move its business to Lakewatch, or more importantly, the percentage of their work, if any, that coincides with work being performed by the volunteer organization. In sum, the evidence does not support a finding that Lakewatch volunteers will compete for the services now provided by Petitioners, who pay substantial fees each year to remain certified. Petitioners posit that if the proposed rule is adopted, the term "regulatory proceeding" will be applied in such a way as to allow Lakewatch data to be accepted and used for a wide range of testing purposes, including regulatory proceedings. But this assumption is based on speculation, and current law prohibits the rule being applied in this manner. If Petitioners disagree with how the rule is applied, there are other remedies in chapter 120, including a requirement that a point of entry be given to third parties when an agency order is involved. The fact that Petitioners may not be notified every time the Department uses data from a volunteer monitoring organization is not a ground for invalidating the rule. Most of Petitioners' evidence at hearing questioned the reliability and accuracy of testing services by Lakewatch. Among other things, Petitioners contend Lakewatch uses volunteers with limited training and experience, its collection and preservation methods do not conform to acceptable professional standards, the Department has never audited the Lakewatch laboratory, and a 2011-2012 comparability study of Lakewatch data with Department data is flawed in many respects. To determine the validity of the rule, however, more on that story need not be told at this time.
