Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following relevant facts are found: Petitioner, Southeastern Fisheries Association, Inc., is a not-for- profit incorporated association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, employing approximately 14,000 employees, and including 450 corporate and individual members. The executive offices of Southeastern Fisheries Association, Inc. are located at 312 East Georgia Street, Tallahassee, Florida 32301-1791. The members of Southeastern Fisheries Association, Inc., either catch, process, transport or sell Spanish mackerel and Spanish mackerel constitutes a major part of their business and livelihood. Petitioner, Organized Fishermen of Florida, Inc., is a not-for-profit incorporated association of 2,000 commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, with its headquarters at P. O. Box 740, Melbourne, Florida 32901. Petitioner, Harry H. Bell & Sons, Inc., is a fish processor and sales company employing about 210 employees, located at 756-28th Street South, St. Petersburg, Florida 33712. A large percentage of the fish processed by Harry H. Bell & Sons, Inc., are Spanish mackerel. Petitioner, Bayside Shellfish, Inc., is a fish processor and fish seller, located at P.O. Box 176, Apalachicola, Florida 32320. This petitioner also obtains a substantial amount of its business through the processing and sale of Spanish mackerel. Petitioner, Inlet Fisheries, Inc., is a corporation with its headquarters at P. O. Box 3604, Ft. Pierce, Florida 33450, which unloads and ships fish, and, in particular, Spanish mackerel. Petitioner, J. O. Guthrie, Inc., is a fish processor located at P.O. Box 895, Ruskin, Florida 33570. This petitioner processes fish, including Spanish mackerel, which makes up a high percentage of its fish processing. Petitioner, C. & W. Fish Co., Inc., is a company which unloads and ships fresh fish, located at P.O. Box 1356, Port Salerno, Florida 33492. This petitioner earns its living from the loading and shipping of fresh fish including Spanish mackerel. Petitioner, City Fish Company, Inc., also unloads and ships fish and is located at 3880 Gulf View Avenue, Marathon, Florida 33050. Intervenor, Florida Conservation Association, located at 402 West College Avenue, Tallahassee, Florida 32301, is an affiliate of the Coastal Conservation Association, a non-profit corporation incorporated under the laws of Texas. Effective November 28, 1985, the Marine Fisheries Commission (MFC) adopted rules relating to the commercial harvesting of Spanish mackerel on the East Coast of Florida. As pertinent to this proceeding, those rules prohibited the harvesting of Spanish mackerel by power-assisted gill netting in Dade and Palm Beach Counties, and imposed a 3 and one half-inch mesh size minimum for the monofilament portion of gill nets used to take Spanish mackerel from the remainder of the East Coast of Florida until March 15, 1990. After that date, the entire net was to have a minimum mesh size of 3 and one half inch stretched mesh. These net size requirements were applicable to all gill nets used on the East Coast to harvest Spanish mackerel during the period from November 15th to March 15th. The existing rule allows the harvest of Spanish mackerel as an incidental by-catch of other lawfully targeted species, so long as the combined weight does not exceed 15 percent of the total weight of the lawfully harvested species. The challenged proposed amendments to the MFC's Spanish mackerel rules continue the Palm Beach and Dade Counties gill net closures; establish gill net minimum sizes for three different regions of Florida; closes the weekend harvesting of Spanish mackerel by use of any nets; establishes set seasons for operators of vessels greater than 40 feet in length using power- assisted gill nets, said seasons subject to being shortened if the total regional commercial catch is projected to reach a specified poundage; and imposes a limit on the number of Spanish mackerel which recreational fishermen may possess per day. More specifically, the challenged proposed rules impose the following net size requirements on the harvesting of Spanish mackerel for the three regions of Florida. For the East Coast, defined as those state waters north of the Dade-Monroe County line, the period of the 3 and one half inch mesh size for the monofilament portion of gill nets is shortened to October 1, 1988, with the required minimum size being increased to 3 5/8- inches thereafter until October 1, 1990, whereupon all portions of gill nets are to be 3 5/5 inches stretched mesh. For the Southwest Coast, defined as state waters between the Taylor-Dixie County line and the Dade-Monroe County line, the minimum monofilament portion mesh size is 3 3/8 inches until October 1, 1988, increasing to 3 5/8 thereafter until October 1, 1990, whereupon the entire net is to have a minimum mesh size of 3 5/8 inches stretched mesh. The corresponding requirement for the Northwest Coast, defined as state waters west of the Taylor-Dixie County line, is 3 inches until October 1, 1988, increasing to 3 5/8 inches thereafter. Except for the 15 percent by-catch allowance provided in the existing rule, harvesting Spanish mackerel by use of any net is prohibited in all three regions on weekends, defined as commencing at sunset on Friday and ending at sunset on the following Sunday. Identical commercial fishing seasons for the use of power-assisted gill net gear by vessels greater than 40 feet in length are set for all three regions of Florida. That season opens on December 15 of each year and closes on November 1 of the following year. For other forms of commercial harvesting of Spanish mackerel, the season is year-round, or defined as from December 15 through December 14 of the following year. However, the proposed rule, Rule 46- 23.004, provides a mechanism for shortening the seasons in each region for all forms of commercial fishing (except for the various by-catch allowances) when the total harvest for each region reaches a specified number of pounds. For the larger vessels using power-assisted gill nets, the seasons for the East Coast, Southwest Coast and Northwest Coast close prior to November 1st if the total regional commercial harvest is projected to reach, respectively, 1,670,400 pounds, 1,350,900 pounds and 354,600 pounds. For commercial fishermen using other types of gear, the year-round season will close when the total regional commercial harvest in the season reaches, before December 14, 1,856,000 pounds (East Coast), 1,501,000 pounds (Southwest Coast) and 394,000 pounds (Northwest Coast). In addition to the 15 percent by-catch allowance previously mentioned, the proposed rule also excepts from the required season closures Spanish mackerel harvested as an incidental by-catch of other lawfully targeted species so long as the total weight of mackerel does not exceed 500 pounds, as well as those harvested with a net size greater than 4 inches stretched mesh used to lawfully harvest another target species. When the specified poundages which trigger the closing of the seasons are projected to be reached, the proposed rule provides for the giving of notice by the Executive Director of the Department of Natural Resources in the manner provided in Section 120.52(15)(d), Florida Statutes. Proposed Rule 46-23.005 sets forth a bag limit for recreational fishermen which applies during all times of the year. That limit is four Spanish mackerel per person per day. Because of evidence indicating that the abundance of Spanish mackerel in Florida is declining, the MFC began considering that fishery as a subject of possible regulation in March of 1984. Stock assessments were performed and updated, federal studies and mackerel fishery management plans were considered, various workshops and meetings were held, and numerous management option papers and alternatives were considered. Many of the witnesses in the instant rule- challenge proceeding appeared before, testified or otherwise provided input to the MFC during the rule promulgation process. In considering the proposed regulations, the MFC had before it evidence that commercial and recreational landings of Spanish mackerel had substantially decreased since the 1970's and that seasonal and areal compression had occurred in this fishery. While it could not be concluded with certainty whether the resource was experiencing recruitment overfishing or growth overfishing, the MFC determined that the resource was being overfished to the extent that a reduction in effort and an increase in the size of the fish caught was necessary to protect, conserve and recover the resource. While single year or seasonal commercial and recreational landing statistics may not be entirely accurate due to under-reporting, they are reliable indicators of trends and can be utilized to indicate abundance. Likewise, declining commercial landing statistics can be indicative of a decline in the effort directed toward harvesting and/or market conditions. In approximately 1977, there were over 120 large roller rig boats in the Spanish mackerel fishery. At the present time, there are approximately 41 large roller rig vessels utilized to commercially harvest Spanish mackerel. The size of fish desired in the market has changed somewhat, with a declining demand for the smaller fish. While the price of Spanish mackerel per pound has remained relatively stable over the past ten or more years, its price in relationship to other species of fish and shellfish has declined. The above factors, as well as the voluntary use of larger mesh size nets and the recent closure of Palm Beach and Dade Counties, may provide some rationale for the decline in commercial landing statistics since the 1970's. However, given the evidence concerning a decline in recreational landings, seasonal and areal compressions, and the increased capacity of large power-assisted gill netting vessels, it was not unreasonable for the MFC to conclude that the decline in commercial landings is indicative of a decline in abundance resulting from overfishing. The conceptual goal of the proposed rules is to return the Spanish mackerel fishery to the condition in which it was in the early 1970's. In order to accomplish this goal, the MFC determined to effect an approximate 45 percent reduction in efforts devoted to harvesting and to effect an increase in the size of the fish harvested for commercial purposes. The minimum gear size proposed is directed toward the desired fish size, and the reduction in effort goal is to be accomplished through continued closures of certain areas, weekend closures, and the establishment of commercial seasons, commercial season catch limits and recreational bag limits. Gill mesh nets are highly selective for a specific size of fish. A 1/8 inch difference in gill net mesh size makes a significant amount of difference in the size of the fish caught. The large nets utilized for Spanish mackerel harvesting can cost up to $20,000.00, with the monofilament portion of the net costing between $3,000.00 and $4,000.00. Due to destruction by sharks and normal wear and tear, the life expectancy of the monofilament portion of a gill net is between 1/2 to 3 seasons. The initial minimum mesh sizes proposed in the challenged rules for the monofilament portion of gill nets are reflective of the sizes currently being utilized in the industry in each of the three regions specified in the rule. No conclusive scientific data exists on a statewide basis as to the size of fish that will be captured using a 3 5/8 inch gill net mesh size. The MFC does intend to gather more data concerning gill net mesh size selectivity, and that is one of the reasons the proposed rule delays imposition of the 3 5/8 inch requirement until October of 1988. The evidence does demonstrate that Spanish mackerel in the Northwest Coast region or Panhandle area tend to be longer and thinner with less yield per fish than those found in the East Coast or Southwest Coast areas. There is insufficient evidence to conclude, however, that the Gulf Spanish mackerel stock and the Atlantic Spanish mackerel stock constitute two separate populations. Due to the seasonal migration of the Spanish mackerel in a southerly and northerly direction along the East Coast of Florida, it is impossible to determine the precise impact on effort reduction of the closure of Palm Beach and Dade Counties. The MFC heard evidence from commercial fishermen that the impact from closing those areas could result in a reduction in catch of at least 30 percent. The MFC's calculation of a lower percentage was not unreasonable given the large capacity of the power-assisted gill net industry and the potential for harvesting Spanish mackerel while en route to or from these closed counties. The proposed season catch limits for commercial fishermen are intended to provide a backup to the other effort reduction measures in the proposed rules. It is intended that if the commercial seasons for larger power-assisted rigs, the weekend closures, the increased net sizes, and the areal closures do not significantly reduce the actual landings of Spanish mackerel in Florida, then the season for all commercial fishing can be shortened to effectuate such a result. The quota for each region constitutes a fixed cap on commercial landings per season. Consequently, if abundance does increase, there is no automatic mechanism in the proposed rule for increasing season catch limits. This, of course, will result in the unreliability of landing statistics alone as an indicator of stock abundance. Because the proposed rule contains no restrictions upon the number of recreational fishermen who may enter the fishery, no season for recreational fishing and no limit upon the number of fish caught, as opposed to possessed, by recreational fishermen, the rule could cause some reallocation of the Spanish mackerel fishery from the commercial sector to the recreational sector. In recent years, the commercial sector has maintained at least a 75 percent share of the Spanish mackerel resource. Within the commercial sector, there is no domestic substitute for Spanish mackerel.
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
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.
The Issue The issue presented for decision herein is whether or not the Respondent, J & M Seafoods, Inc., processed, sold and delivered food (seafood) where the net weight of the containers were less than that stated on the containers. If so, what, if any, disciplinary sanction should be imposed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. J & M Seafoods, Inc., Respondent herein, is a processor and packer of seafoods in Hialeah Gardens, Florida. On August 11, 1983, frozen lobster tails processed and packed by J & M Seafoods, Inc. were sold to Florida fish distributors in Jacksonville, Florida. Those lobster tails were inspected by a representative of the Petitioner, Robert Bailey, inspector. Inspector Bailey visited the warehouses of Florida fish distributors and inspected approximately 72 boxes of lobster tails which were labeled for ten pounds (160 ounces each) . Inspector Bailey weighed each ten pound box with ice glaze on the product. Inspector Bailey thawed the product and the net weight found for the individual boxes averaged 96 ounces or 64 ounces less than the claimed weight of 160 ounces. (Petitioner's Exhibit 1) Inspector Bailey thereafter resealed the boxes and placed a Stop Sale Order after the boxes were retaped with Petitioner's Stop Sale Order attached thereto. Inspector Bailey subsequently authorized the movement of the goods under the Stop Sale Order and the product was transferred back to the Respondent's warehouse in Hialeah Gardens, Florida. (Petitioner's Exhibit 3) Armando Esceto, an agriculture and produce specialist (food inspector) employed by Petitioner, inspected the Stop Sale product at the Respondent's warehouse in Hialeah Gardens. One of Respondent's agents, a Mr. Miranda, identified the boxes and advised that he sold the product to a processor in the Jacksonville area. (Petitioner's Exhibits 4 and 5) Inspector Esceto rechecked the Stop Sale product and noted that the actual weight was 94 ounces versus the claimed weight of 160 ounces. Sometime thereafter, Inspector Esceto again was summoned to the Respondent's warehouse to recheck the product and found that it fell within the allowable weight discrepancy. He therefore issued a release notice for the product to be sold. (Petitioner's Exhibits 9, 10, and 11) John Rychener, Petitioner's Bureau Chief for the Food Grades and Standards Division, was in charge of the overall investigation of the subject case by the Petitioner. Frozen lobster tails, on the average, sell for approximately $6.10 to $6.20 per pound. The product in question, as originally packed, processed and sold, contained approximately 40 percent ice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Florida Department of Agriculture and Consumer Services, impose an administrative fine of $1,500 on Respondent for violations as set forth herein above. RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 16th day of May, 1984. COPIES FURNISHED: Frank A. Graham, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Tallahassee, Florida 32301 Michael I. Rose, Esquire Roberts Building Suite 303 and 330 28 W. Flagler Street Miami, Florida 33130 John Rychener Bureau Chief Food Grades and Standards Division Department of Agriculture Mayo Building Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a challenge by petitioners, Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., Seafood Consumers and Producers Association, Inc., Glen Black, Ronald E. Black, Henry Crane, Dewey Destin, Cecil Lane, Denise Leek, Gerald Pack, Harold Raffield, Richard Van Munster, D. W. Wilson, Tim Adams, Johnnie Clopton, Geoffery Cox, Mike Davis, Ronnie Day, Tim Dixon, Bob Gill, Tim Gerz, Tim Goodrich, and Mark Taylor (petitioners), to the validity of certain changes to forty-seven rules proposed by respondent, Marine Fisheries Commission (MFC or agency). According to paragraphs 5 through 27 of their amended petition, which are not contested, petitioners are incorporated associations of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, as well as individual commercial fishermen, fish and bait dealers, owners of seafood unloading facilities, processors, packers and producers, all of whom are substantially affected by the proposed rules. As such, they have standing to bring this action. The changes being proposed by the MFC affect various rules in Chapters 46-3, 46-4, 46-23, 46-24, 46-36, 46-37, 46-39, 46-42 and 46-43, Florida Administrative Code. The rule changes were proposed as a result of the adoption by the electorate on November 8, 1994, of Article X, Section 16 to the State Constitution. That section generally (a) prohibits the use of gill or entangling nets to take marine animals, and (b) places limitations on other nets in nearshore and inshore Florida waters. The amendment becomes effective July 1, 1995. On December 30, 1994, the agency published notice in the Florida Administrative Weekly (FAW) of its intent to adopt new rules, amend certain rules, and repeal all or portions of other existing rules. Claiming that these changes were invalid on a variety of statutory grounds, petitioners filed a petition to invalidate proposed rules on January 20, 1995. On March 3, 1995, a notice of changes to proposed rules was published in the FAW advising that, "based on written comment and public testimony" given at public hearings, further changes, albeit minor, were being made to rules 46- 3.008, 46-3.029, 46-4-001, 46-4.002, 46-4.004, 46-4.005, 46-23.003, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46-42.007, and 46-43.005. By virtue of these changes, petitioners were authorized to file an amended petition which contains essentially the same contentions as were previously pled. They include allegations that the rules are an invalid exercise of delegated legislative authority because (a) the MFC failed to materially follow the applicable rulemaking procedures in Section 120.54(2)(b), Florida Statutes, by failing to provide them a copy of the Economic Impact Statement (EIS) on each of the rules at least 14 days prior to the public hearing, (b) the MFC failed to materially follow the procedures in Rule 46-1.004(4), Florida Administrative Code, by not allowing public testimony at the final rule adoption hearing, (c) the proposed rules have no foundation in statutory law but rather are derived from the Florida Constitution and thus exceed the MFC's delegated legislative authority, (d) the proposed rules are arbitrary and capricious because they are based on law enforcement considerations and lack scientific certainty, (e) the rules conflict with the law implemented, and (f) as to twelve of the rules, the MFC failed to materially follow an applicable rulemaking procedure in Rule 46- 1.004(5), Florida Administrative Code, which requires that, before amending or repealing any rule derived from local laws, a public hearing be held in each affected county. In conjunction with their claims that the rules exceed the agency's rulemaking authority or are arbitrary and capricious because of law enforcement considerations, petitioners have rarely cited the specific language in the rules that they wish to be invalidated. Rather, they suggest that the entire rule is invalid. Therefore, the undersigned has been forced to undertake the tedious and difficult task of attempting to identify the allegedly offensive language in each of the challenged rules. Where the offending language cannot be readily identified, or speculation is required to identify that language, the contention has been rejected. The Rules and Their Genesis As noted above, on November 8, 1994, the electorate adopted Article X, Section 16 of the Florida Constitution. The new section, which is entitled "Limiting Marine Net Fishing," has a stated purpose of "enact(ing) limitations on marine net fishing in Florida waters to protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing, and waste." More specifically, subsection (b) of section 16 provides as follows: (b) For the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals in Florida Waters: No gill nets or other entangling nets shall be used in any Florida waters; and In addition to the prohibition set forth in 1., no other type of net containing more than 500 square feet of mesh area shall be used in nearshore and inshore Florida waters. Additionally, no more than two such nets, which shall not be connected, shall be used from any vessel, and no person not on a vessel shall use more than one such net in nearshore and inshore Florida waters. Paragraphs 1.- 5. of subsection (c) go on to define the terms "gill net," "mesh area," "coastline," "Florida waters" and "nearshore and inshore Florida waters," while subsection (d) exempts from the application of the provision the "use of nets for scientific research or governmental purposes." Subsection (f) provides that "implementing legislation is not required for enforcing any violations hereof," and that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine animals." Consistent with subsection (f), the legislature has not enacted any implementing legislation for the purpose of enforcing the new amendment. Also, the MFC has cited a proposed effective date for the rules of July 1, 1995, which coincides with the effective date of the new amendment. In the notice published in the FAW, the MFC stated that "the constitutional provision effectively changes the direction of marine fisheries regulation in the state." In general terms, the MFC proposed the numerous changes, additions and repeal of rules to conform the rules "to this new direction," to remove the provisions that were obsolete or in conflict with the new constitutional provision, and to enhance its ability to enforce the new amendment. According to the MFC's executive director, the constitututional amendment "will have a very significant impact on the historical means and methods of commercial, . . . recreational and subsistence fishing in Florida." As specific authority for making every change, the MFC cites Subsection 370.027(2), Florida Statutes, which grants the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. As to the rules in chapter 46-3, the MFC also cites as rulemaking authority Section 2, Chapter 83- 134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. For those rules being modified in chapter 46-4, the MFC additionally relies upon the new constitutional amendment. For the affected rules in chapter 46-23, the agency further identifies as its authority for rulemaking Subsection 370.01(20), Florida Statutes, which authorizes the MFC to include within the term "restricted species" such species of saltwater products as the MFC deems necessary. As the law implemented for all rule changes, the MFC cites Sections 370.025 and 370.027, Florida Statutes. The former statute generally authorizes the MFC to adopt rules to further the state policy of managing and preserving renewable marine fishery resources while the latter statute delegates to the MFC "full rulemaking authority over marine life." The MFC further cites the Florida Constitution as the law implemented for rules in chapter 46-4, and for chapter 46-3 it cites Chapters 83-134 and 84-121, Laws of Florida. In broad terms, the rule chapters in issue cover a wide range of subject matter within the MFC's regulatory jurisdiction over marine fisheries resources, including local laws which have been reenacted as rules governing marine fishing in all or parts of thirteen counties (chapter 46-3), gear specifications and prohibited gear (chapter 46-4), and regulations pertaining to the harvest of spanish mackerel (chapter 46-23), spiny lobster (crawfish) and slipper lobster (chapter 46-24), blackdrum (chapter 46-36), spotted seatrout (chapter 46-37), marine life (chapter 46-42), and bluefish (chapter 46-43). The constitutional amendment does not prohibit the possession of gill or entangling nets. Rather, it prohibits the use of such nets in Florida waters. Thus, it is still permissible for Florida fishermen to use this gear in federal waters which lie outside of Florida waters. In addition, the amendment prohibits the use of any type of net "containing more than 500 square feet of mesh area . . . in nearshore and inshore Florida waters" but contains no limitations for nets below that threshold size. Within the context of petitioners' objections, it is noted that the proposed rule amendments fall into two broad categories: those which delete obsolete or conflicting language in order to conform existing rules to the new amendment, and those which add more restrictive measures than are contained in the new amendment. While petitioners contend that all of the proposed rules are invalid, their principal attack is directed at the more restrictive amendments. For example, the latter group of rules prohibits (a) the possession of a gill net in state waters, (b) the possession of a gill or entangling net aboard a vessel in state waters at the same time a cast net is on the same vessel, (c) the use of two nets from the same vessel in nearshore and inshore waters, (d) the use of purse seine nets under 500 square feet, (e) the use of a bailer net in Volusia County, (f) the use of a trawl for any purpose other than the harvest of shrimp, and (g) the use of purse seines of any size in Escambia and Santa Rosa Counties. None of these activities is prohibited by the new constitutional amendment. Do the Rules Exceed the MFC's Rulemaking Authority? Petitioners contend that all of the proposed rules "have as their exclusive foundation the adoption by referendum of Art. X, Sec. 16 of the Constitution of the State of Florida," and thus they "have no foundation in the criteria established by Ch. 370.025 et seq. for the adoption of rules by the (MFC)." As a consequence, petitioners essentially contend that the MFC has exceeded its delegated legislative authority by relying upon a constitutional provision, rather than statutory law, as the source of authority for its rulemaking. At the same time, they contend that the MFC exceeded its rulemaking authority by adopting a number of rules, all containing more restrictive measures than are found in the constitutional amendment, based solely on law enforcement considerations, rather than on its statutory charge of managing and preserving renewable marine fisheries resources. Similarly, they contend that the more restrictive rules are arbitrary and capricious because they are based on law enforcement considerations. This contention, however, is dealt with in a separate part of this order. As noted earlier, the MFC cites Subsection 370.027(2), Florida Statutes, as the source of its rulemaking authority for each of the rules. That subsection vests in the MFC "exclusive rulemaking authority (in ten areas) relating to marine life," including gear specifications, prohibited gear, closed areas and seasons. For rules in chapter 46-4, the MFC has cited the new constitutional provision as an additional source of authority. Finally, as to the rules in chapter 46-3, the MFC also relies on Section 2 of Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Authority. All of the rule changes generally pertain to the areas of gear specifications, prohibited gear, closed areas and seasons, each of which is within the "exclusive rulemaking authority" of the MFC. In this broad sense, they are derived from MFC's statutory authority under Subsection 370.027(2), Florida Statutes, and thus they arguably fall within the scope of the organic law. Petitioners contend, however, that the MFC exceeded its rulemaking authority by making law enforcement considerations a basis, at least in part, for adopting the more restrictive rules. Petitioners assert that there in nothing in Chapter 370, Florida Statutes, which allows the MFC to take into account law enforcement issues when engaging in rulemaking. In this regard, respondent concedes through testimony, as corroborated by documentation received in evidence, that the more restrictive rules were crafted for the sole purpose of "facilitat(ing) the most cost effective and efficient enforcement on the prohibition of use (of prohibited gear)." In other words, while the new amendment did not require these more restrictive terms, the MFC nonetheless proposed the rule changes in order to make the Florida Marine Patrol's (FMP) job of enforcing the ban on prohibited gear less "costly" and more "efficient." One of the statutes relied upon by the MFC as the source of its rulemaking authority is Section 370.027, Florida Statutes. Among other things, subsection (1) thereof provides that "(a)ll administrative and enforcement responsibilities which are unaffected by the specific provisions of this act continue to be the responsibility of the department (of environmental protection)," of which the FMP is a part. Although Section 370.028, Florida Statutes, provides that "any law enforcement officer certified pursuant to s. 943.13" shall have the responsibility of enforcing the rules of the MFC, it is clear that the FMP has the primary responsibility of enforcing the new restrictions imposed by the constitutional amendment. The principal statutory charge of the MFC is to manage and preserve renewable marine fisheries resources. The MFC has no specific statutory authority to enact rules solely for the purpose of allowing more "cost- efficient, effective" enforcement of its regulations by another agency, and its executive director readily acknowledges that the agency has no role in enforcing its regulations from a law enforcement perspective. The purpose of the constitutional amendment is to protect marine animals from "unnecessary killing, overfishing and waste." By its own terms, then, the intent of the amendment is to preserve and protect Florida's existing and future fishing stocks. The amendment should achieve its goal, for the record shows that, once the amendment becomes effective, there should be a significant reduction in fishing mortality, with a concomitant rise in fishing stocks. Under Section 370.025, Florida Statutes, the MFC is charged with a similar responsibility of managing and preserving marine fishery resources. The evidence clearly shows that the more restrictive rules will have no meaningful effect on fishing mortality. That is to say, this category of rules has been proposed, not to further the MFC's charge of managing and preserving marine fisheries resources, but rather for the sole purpose of assisting another agency (the FMP) in enforcing the ban on the use of gill or entangling nets in Florida waters, and the use of certain nets in nearshore and inshore waters. As such, the more restrictive rules have no foundation in statutory law, and they exceed the MFC's rulemaking authority. For this reason, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46- 3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46-4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, and are derived from appropriate statutory law, the contention that they exceed the MFC's rulemaking authority is deemed to be without merit. Are the Rules Arbitrary and Capricious? In their amended petition, petitioners also contend that all of the rules affected by these changes are arbitrary and capricious. In this vein, they contend that the rules "are not grounded in logic and reason and are not supported by appropriate scientific certainty." They also claim that where the MFC has exceeded the mandate of the constitution, the rules are arbitrary and capricious in the sense they are not grounded on a rational or logical basis since they stem from MFC's desire to ease the FMP's job in enforcing the new amendment rather than its desire to further the goal of managing and preserving the marine fishery stocks in Florida. The record on which the MFC based its changes was derived in part from public hearings conducted in three locations around the state. At those hearings, it heard comment from its staff, numerous affected persons, including those who oppose and support the proposed rules, as well as FMP representatives who are charged with the responsibility of enforcing the new law. In addition, during the rulemaking process, MFC and FMP staffers consulted with the State of Texas, which has a similar ban on the use of entangling net gear, to gain an insight on any enforcement problems which that state experienced. Thereafter, the MFC staff prepared an analysis of the public comment, together with their own recommendations, which were considered by the MFC prior to its final decision. Copies of the staff reports and analyses have been made a part of this record. The more restrictive rules and law enforcement considerations Before adopting any rule, the MFC says it always consults with, and obtains advice from, the FMP regarding enforcement implications. Thus, in crafting its more restrictive rules, the MFC relied wholly upon the recommendation of the FMP, which has the responsibility of enforcing the law. The FMP in turn relied upon the experience of the State of Texas, which first imposed a statutory ban on the use of nets in 1988, and later imposed a statutory ban on the possession of nets in order to provide more effective enforcement. Based on advice from the FMP that, without more restrictive measures, it would experience the same problems as did Texas, the MFC decided that a ban on the possession of nets would be necessary in order to permit a more efficient enforcement of the new amendment. Indeed, it did so even though the FMP's chief law enforcement officer acknowledged that the FMP can enforce the new constitutional amendment without the MFC adopting any new rules. Except for this advice from the FMP during the rulemaking process, there is no other basis in fact or logic to support the broad and sweeping revisions. Therefore, while the more restrictive rules are designed to ease the job of law enforcement officials, and thus in that respect they have some logical and rational basis from a law enforcement perspective, they nonetheless have no correlation to the MFC's task of managing and preserving marine fisheries resources. Given this lack of a factual and logical predicate, the following proposed rules or parts thereof are deemed to be an invalid exercise of delegated legislative authority: the last sentence in 46-3.008(3)(c)3.; 46-3.028(3); 46-3.029(3); 46-3.031(3); 46-3.032(3)(a); 46-3.034(3); 46-3.035(3); 46-3.037(3); 46-3.038(3); 46- 4.001(1)(b); the sentence in 46-4.001(1)(c)3. which reads as follows: "(t)he exceptions provided in this paragraph are not available to a person aboard any vessel on which is also possessed a cast net"; the word "trawl" in 46- 4.001(2)(e); 46-4.001(2)(c)5.; 46-4.001(3); 46-4.004; 46-4.005(2)(a)3.; 46- 23.002(2); the first sentence in 46-23.003; 46-24.007(5); 46-37.002(2); 46- 37.006(2) and (3); 46-39.002(3); and 46-42.007(1)(b) and (c). Because the record supports a finding that the changes to rules 46-4.007, 46-4.015, 46- 4.017, 46-36.002, 46-39.011, 46-39.012, and 46-43.005 do not impose more restrictive conditions than are found in the new amendment, the contention that they are arbitrary and capricious on account of law enforcement considerations is deemed to be without merit. The other rules Petitioners also contend that the rules are arbitrary and capricious because they "are not grounded in logic and reason and are not supported by appropriate scientific certainty." Each of the affected chapters will be discussed separately. Chapter 46-3 Chapter 46-3 contains provisions governing fishing in Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties. When the MFC was statutorily created as a part of the Department of Natural Resouces (DNR) in 1983, there were numerous local laws in existence having special application to these counties. The law which created the MFC directed that these local laws be repealed and reenacted as DNR rules. Some of these were codified in chapter 46-3. As changes to organic law occur, the MFC must logically amend these "local" rules to conform them to statewide requirements. According to the notice published in the FAW, the "purpose of these rule amendments (in chapter 46-3) is to conform the Marine Fisheries Commission's rules readopting portions of various special acts (local laws) to this new direction by deleting numerous local netting regulations and amending other provisions relating to gear still allowed by the constitutional provision." The notice added that "the effect of this rulemaking will be to eliminate many obsolete local rules and implement the constitutional provision's uniform regulatory regime." Affected by the proposed changes are rules 46-3.002, 46-3.008, 46- 3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46-3.034, 46-3.035, 46- 3.037, and 46-4.038. Each of these rules contains requirements unique to a particular county or waterbody within a county. They include seasonal restrictions on the use of nets other than cast nets and bait seines (Caloosahatchee River in Lee County, rule 46-3.002); restrictions on the use of gill nets (Volusia County, rule 46-3.008); minimum mesh size for gill nets and other gear (Lee, Collier and Duval Counties, rules 46-3.025 and 46-3.027); minimum mesh size for gill or trammel nets, a special management regime for purse seine harvest of menhaden in inside waters, and a minimum length for seines (Santa Rosa and Escambia Counties, rule 46-3.028); minimum mesh sizes for gill or trammel nets and maximum lengths for nets (Hernando County, rule 46- 3.029); restrictions on net fishing and a minimum gill net mesh size (Manatee River and Terra Ceia Bay in Manatee County, rule 46-3.031); restrictions on allowable nets and traps for inside waters (Martin County, rule 46-3.032); minimum mesh size for gill and trammel nets (Pinellas County, rule 46-3.034); miminum mesh size for gill and trammel nets (Sarasota County, rule 46-3.035); minimum seine length (Walton County, rule 46-3.037); and restrictions on the use of nets and seines (Brevard County, rule 46-3.038). All of the rules in chapter 46-3 have been amended in some respect to delete language made obsolete by the constitutional amendment. More specifically, the existing rules provide an array of requirements relative to the use of gill or entangling nets in the various counties which are clearly at odds with the amendment. Wherever this language appears, or where other obsolete local rules are present, they have been deleted since the use of such gear will no longer be allowed anywhere in the state after July 1, 1995. On this basis alone, and to the extent the changes do nothing more than delete obsolete or conflicting language, it is found that the changes in rules 46- 3.002, 46-3.008, 46-3.025, 46-3.027, 46-3.028, 46-3.029, 46-3.031, 46-3.032, 46- 3.034, 46-3.035, 46-3.037 and 46-4.038 have a factual and logical basis and are not arbitrary and capricious. Chapter 46-4 This chapter is entitled "Gear Specifications and Prohibited Gear." As stated in the FAW, the purpose of the changes is "to implement new prohibitions and specifications to enhance enforcement of the (constitutional) amendment, and provide guidance to Florida citizens in complying with the requirements of the new provision." In new rule 46-4.001, the FMC prescribes new limitations on marine net fishing. More specifically, it prohibits the use of any gill or entangling net to harvest any marine species in state waters, prohibits possession of nets on the waters of the state except for those persons who have a legitimate need for legal harvest elsewhere, prohibits the use of any net in nearshore or inshore Florida waters to harvest marine species other than certain equipment of specified dimension, prohibits the use of any purse seine in nearshore and inshore Florida waters, and provides an exception for nets fished pursuant to a special activities license issued for public or scientific purposes. Rule 46-4.002, which contains gear definitions, provides new or amended definitions of the terms "entangling net," "gill net," and "mesh area," and repeals the definition of an "airboat." At the same time, rule 46-4.0025, which contains other definitions, provides new or amended definitions for the terms "coastline," "Florida waters," "harvest," and "nearshore and inshore Florida waters." According to the FAW, these changes make the definitions "consistent" with the new constitutional amendment. In proposed rule 46-4.004, as later modified in the notice of changes to proposed rules, the MFC expands the scope of the rule banning the use of certain gear with power to include nearshore and inshore waters. As to rule 46-4.005, it is unclear from the record whether the changes regarding the issuance of a special activities license first proposed in paragraph (2)(a)3. were later eliminated by the notice of changes to proposed rules. Assuming they were not, the revisions to the remaining part of the rule simply substitute the word "governmental" for "public" and redesignate the Department of Natural Resources as the Department of Environmental Protection. The MFC has also proposed to repeal rules 46-4.006, 46-4.007(1)and (3), 46-4.008(1)-(4), 46-4.0081, 46-4.0085, 46-4.015(1), 46-4.016, and 46- 4.017(1) and (5). The MFC says these changes are required in order to eliminate obsolete language, some of which is derived from special laws. Finally, the minor changes in rules 46-4.013 and 46-4.014 prohibit the use of spotter planes in harvesting Spanish mackerel and prescribe gear specifications for using purse seines in certain waters of Pinellas, Hillsborough and Manatee Counties, respectively. These changes have been made in order to conform the rules to what the MFC perceives to be existing law. Where the above revisions simply delete obsolete or conflicting language, or make other changes which are not more restrictive in nature, as described in finding of fact 24, there is a sufficient record basis to support a finding that the amendments are grounded in fact and logic and are thus not arbitrary and capricious. Chapter 46-23 This chapter governs the harvest of fishing for Spanish mackerel. By the rule changes, the MFC proposes to prohibit the commercial harvest of this species of fish in state waters by gill nets after July 1, 1995, and to allow only hook and line gear to be thereafter used. Specific changes have been made to rules 46-23.001, 46-23.002, 46- 23.003 and 46-23.004 to eliminate all reference to gill nets, and to describe other restricted activities relating to this species. To the extent these changes do not create more restrictions than are found in the new amendment, as more specifically described in finding of fact 24, they conform to the new law and will ease the fishing pressure exerted on Spanish mackerel. Because the changes in chapter 46-23 enhance the state policy of preserving marine fishery resources, there is insufficient evidence to support a finding that they are arbitrary and capricious. Chapter 46-24 Chapter 46-24 governs the harvest of Spiny Lobster (Crawfish) and Slipper Lobster. The only rule affected by the changes is rule 46-24.007, which has been amended to specify the maximum size of bully nets and hoop nets used in the spiny lobster fishery. More specifically, the changes in subsection (5) of the rule limit bully nets to a diameter no larger than 3 feet while hoop nets are limited to a diameter no larger than 10 feet. Because the only change has been previously found to be arbitrary and capricious, the additional argument that the rule lacks "scientific certainty" need not be addressed. Chapter 46-36 This chapter, which relates to Black Drum, is amended in one respect by changing language in rule 46-36.002(2) to delete reference to nets and seines in the definition of the term "commercial harvest." Because the change is necessary to conform the rule with the new amendment, and there will be no appreciable change in the number of fish that can be caught, there is a sufficient factual predicate to support the change. Chapter 46-37 This chapter specifies regulations pertaining to the harvest of spotted seatrout. Only two rules are affected, those being rules 46-37.002 and 46-37.006. According to the FAW, the effect of the changes will be to "clearly indicate that hook and line gear is the only allowable gear for the harvest of spotted seatrout and that spotted seatrout harvest in excess of recreational bag limits will be considered commercial harvest after (the constitutional amendment) become(s) effective July 1, 1995." The only change in rule 46-37.002 is found in section (2), which defines the term "harvest for commercial purposes." There, the MFC has proposed to delete reference to the use of nets. In addition, sections (2) and (3) of rule 46-37.006 have been amended to delete all gill and trammel net mesh size requirements. Since both changes exceed the constitutional mandate and are based solely on law enforcement considerations, and have already been determined to be arbitrary, it is unnecessary to address petitioners' remaining contentions. Chapter 46-39 Chapter 46-39 governs the harvest of mullet, which has traditionally been a gill net fishery. All or parts of rules 46-39.002, 46-39.0035, 46- 39.005, 46-39.006, 46-39.007, 46-39.008, 46-39.009, 46-39.010, 46-39.011 and 46- 30.012 have been amended or repealed to conform these rules to the new amendment. More specifically, the species will now be available to a limited extent only through the use of cast nets, and thus all provisions pertaining to gill net specifications, spotter planes, daily vessel limits, and weekend closures and other closed seasons have been deleted. To the extent these rules do not exceed the constitutional mandate, as previously discussed, they are based on facts and logic and are not arbitrary or capricious. Chapter 46-42 This chapter pertains to the broad subject of "Marine Life." As stated in the FAW, the purpose of the single rule amendment is to "specify the maximum size of barrier nets and drop nets used to harvest tropical fish." Rule 46-42.007 provides gear specifications for the harvest of tropical fish. Paragraphs (1)(b) and (c) have been amended to establish a maximum length for barrier nets of 60 feet, with a maximum depth of 8 feet, and a maximum dimension of 12 feet for drop nets. Because these changes have been previously found to be arbitrary and capricious by virtue of being based solely on law enforcement considerations, it is unnecessary to determine if they are arbritrary and capricious for other reasons. Chapter 46-43 The final chapter being amended governs the bluefish harvest and changes one rule "to provide gear specifications to apply to the commercial harvest of bluefish in the federal Exclusive Economic Zone (EEZ) waters adjacent to east coast Florida waters in the Atlantic Ocean, in accordance with the Fishery Management Plan for the Bluefish Fishery . . . as implemented through federal rules." Specifically, subsection (2) of rule 46-43.005 has been amended to delete references to current statewide gear rules and provide new net gear requirements applicable to commercial bluefish harvest in federal waters adjacent to Florida east coast waters, including tending requirements, net marking specifications, maximum net length and minimum mesh size, and soak requirements. The new language also allows only one net to be fished at a time from a single vessel, but allows possession of a maximum of two nets, including the one being fished. Finally, the term "net" is defined to exclude purse seines. These changes apply only to the bluefish fishery in adjacent federal waters which are subject to Florida rulemaking by virtue of an interstate compact. The proposed changes have been approved by the Atlantic States Marine Fisheries Commission, are necessary in order for Florida to meet its state quota under the compact, and have a basis in fact and logic. Accordingly, the rule changes are not found to be arbitrary or capricious. Do the Rules Conflict with the Law Implemented? Petitioners further allege that the proposed rules conflict with the law implemented. More specifically, they have alleged that the proposed rules do not conform with the criteria established in Section 370.025, Florida Statutes, one of the two statutes relied upon by the MFC as the law implemented for all rules. Subsection (1) of the law declares that the state policy of managing and preserving its renewable marine fishery resources shall be based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. Subsection (2) requires that all rules adopted by the MFC relating to saltwater fisheries be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociologi-cal, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Incon- sistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. To show conformity with the above standards, the MFC staff prepared a document entitled "Adherence to Commission Standards" for each of the affected chapters. These documents, which are a part of the rule file, are found in respondent's exhibit 1 received in evidence, and they were considered by the MFC as a part of the rulemaking process. They provide an analysis on how the proposed rules comply with the standards enumerated in subsection 370.025(2), to the extent such standards are applicable. This analysis was not credibly contradicted at hearing. In their proposed order, petitioners focus principally on the rules in chapter 46-4, which relate to gear standards and specifications, and contend these rules are illustrative of the fact that none of the rules are consistent with the statutory standards. As to whether the changes in all of the chapters are consistent with the criteria in Subsection 370.025(1), Florida Statutes, the rule changes were based on oral and written comments from laypersons, law enforcement personnel and experts and thus were based on the best available information. In addition, many of the changes were necessary by virtue of the constitutional amendment, and to this extent, they protect and enhance the marine environment for the benefit of all present and future generations. Accordingly, they are found to be consistent with the criteria in Subsection 370.025(1), Florida Statutes. As to whether the changes in chapter 46-4 are consistent with the standards in Subsection 370.025(2), Florida Statutes, the MFC's analysis indicates they "reduce fishing mortality on most inshore finfish species" and do not "jeopardize the health or abundance of inshore finfish stocks" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], eliminate obsolete provisions and "allow for alternative gear fisheries to develop after the new constitutional provision becomes effective" [paragraph (c)], "complement and affect the provisions of already developed management plans" and "maintain consistency" [paragraph (f)], "apply equally to all persons" [paragraph (g)], and "are consistent as possible with federal management plans" [paragraph (g)]. The standards in paragraphs (d) and (e) do not apply. Given these considerations, it is found that the rule changes in chapter 46-4 are consistent with the criteria and standards in Subsection 370.025(2), Florida Statutes. In a similar vein, the rule changes in chapter 46-23 "affect a reduction in fishing mortality on Spanish mackerel in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial harvesters in state waters with hook-and-line and cast net gear" [paragraph (c)], conduct the management of the species "on the unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "apply equally to all persons" [paragraph (g)], and are "consistent as possible with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. As such, the changes are consistent with the statutory criteria. With respect to the changes in chapter 46-37, they "affect a reduction in fishing mortality on spotted seatrout in state waters" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], allow the species to "continue to be available to commercial and recreational fishers with hook-and-line gear" [paragraph (c)], conduct "the managment of spotted seatrout . . . on the unit stock" [paragraph (d)], amend the fishery managment plan [paragraph (f)], "apply equally to all persons seeking to harvest spotted seatrout" [paragraph (g)], and are not "inconsistent with recommended management plans initiated by the interstate commissions" [paragraph (h)]. The standard in paragraph (e) does not apply. On this basis, the rule changes are found to consistent with the standards. As to the consistency of the changes in chapter 46-39, they "affect a substantial reduction in fishing mortality on mullet in state waters" [paragraph (a)], "implement and aid enforcement of the recently adopted revisions to the Florida Constitution" [paragraph (b)], make "available to harvesters with cast net, and to a much lesser extent, hook-and-line gear" and "aid in the development of alternative gear fisheries for mullet" [paragraph (c)], continue to conduct the management of mullet on the unit stock [paragraph (d)], amend the fishery management plan [paragraph (f)], and "apply to anyone attemting to harvest mullet" [paragraph (g)]. The standards in paragraphs (e) and (h) do not apply. Accordingly, the rule changes are found to be consistent with the statutory standards. The revisions in chapter 46-43 "will not change the substantial conservation measures heretofore in place" [paragraph (a)], "conform existing rules to the recently adopted revisions to the Florida Constitution" [paragraph (b)], "continue the current regulatory regime in place in the bluefish management plan" [paragraph (c)], allow the management of Atlantic bluefish to be continued to be conducted on the basis of the U. S. Atlantic coast unit stock" [paragraph (d)], amend the fishery management plan [paragraph (f)], "continue the regulatory regime currently in place and allow a fair and equitable distribution of the available bluefish harvest among commercial and recreational fishers" [paragraph (g)], and "are consistent with federal management plans" [paragraph (h)]. The standard in paragraph (e) does not apply. Again, it is found that the rule changes are consistent with the statutory standards. G. Were Procedural Requirements Met in Adopting the Rules? Petitioners complain that the MFC materially failed to follow the applicable rulemaking procedures set forth in Section 120.54, Florida Statutes, in three respects. First, it is alleged that the MFC failed to provide petitioners with a timely draft of the EIS prepared for each of the rule changes. Second, petitioners contend that the MFC erred by refusing to take public comment at the final adoption meeting in violation of Rule 46- 1.004(4)(b), Florida Administrative Code. Finally, petitioners argue that the MFC amended or repealed rules derived from local laws without holding a mandatory meeting in each affected county. These contentions will be considered separately below. Was the EIS submitted on a timely basis? The Organized Fishermen of Florida, Inc., Southeastern Fisheries Association, Inc., and Seafood Consumers and Producers Association, Inc. are organizations representing at least one hundred persons. Under Section 120.54(2)(b), Florida Statutes, an agency must prepare an EIS if within 14 days after the publication of the notice provided pursuant to paragraph (1)(c) or, if no notice of rule development is provided, within 21 days after the notice required by paragraphs (1)(a) and (b), a written request is filed with the appropriate agency by . . . an organization representing at least 100 persons. The same statute goes on to provide in part that: If an economic impact statement is prepared pursuant to paragraph (2)(b), at least 14 days prior to any public hearing on a proposed rule held pursuant to subsection (3), the agency shall make a draft copy of the economic impact statement available to any person who requests a copy of the statement. On January 20, 1995, or just four days before the first public hearing, petitioners filed with the MFC a written request for preparation of an EIS on each of the proposed rules. They also asked that they be provided with a copy of a draft of the statement. Notwithstanding this request, the hearing on the proposed rules was held on January 24-26, 1995, as previously scheduled. The official record of the rulemaking proceedings was closed on February 9, 1995. On the same day, petitioners were provided with a draft EIS. There is no evidence as to how petitioners were prejudiced in the conduct of this proceeding by virtue of not receiving a copy of the EIS prior to the public hearings. Indeed, petitioners never made the MFC aware of any specific concerns regarding the EIS, and they made no claim that the EIS itself is deficient. Therefore, even if an error in procedure occurred, it was harmless and did not impair the fairness of the proceeding. Did the MFC improperly refuse to hear public comment? Rule 46-1.004(4)(b), Florida Administrative Code, provides that during a MFC rulemaking hearing any person present shall be heard on any issue under consideration, subject to control by the presiding officer of irrelevant, repetitious or unduly extended comment. The rules under consideration here were revised and approved for adoption at a MFC meeting held on February 16, 1995. It is undisputed that no public comment was permitted at that meeting. Prior to the final adoption meeting, the MFC conducted public hearings on the proposed rules in Lee, Orange and Leon Counties. The MFC general counsel was appointed as a hearing officer to conduct those meetings, and at least one commissioner attended each meeting. Members of the public who attended the meetings were allowed to offer both written and oral comment on the rules. The meetings were not transcribed, but they were videotaped in order to preserve the record. After the meetings were completed, the MFC general counsel prepared a summary of the public comment and a staff recommendation for use by the MFC at its regularly scheduled meeting on February 16, 1995. Since three public hearings had already been conducted, including one in Tallahassee, the MFC opted to dispense with public comment at the February 16 meeting and to deliberate and vote on the proposed rule changes. It is undisputed that, prior to voting on the changes, the commissioners who had not attended the public hearings did not watch the videotaped record. Instead, they relied upon the summary of comments prepared by their staff. Even if the MFC's decision to dispense with public comment was in violation of rule 46-1.004(4)(b), there is no evidence as to how petitioners were prejudiced. This is especially true since a public hearing had already been held in Tallahassee less than a month earlier, at which time public comment was invited. Therefore, if an error in procedure occurred, it was not material, and it did not impair the fairness of the proceeding. Were hearings required in each affected county? Each of the twelve affected rules in chapter 46-3 is derived from local laws identified in Chapter 83-134, Laws of Florida, as amended by Chapter 84-121, Laws of Florida. Although these rules affect Lee, Volusia, Collier, Duval, Escambia, Santa Rosa, Hernando, Manatee, Martin, Pinellas, Sarasota, Walton and Brevard Counties, a public hearing was held only in Lee County. Rule 46-1.004(5), Florida Administrative Code, provides in relevant part as follows: (5) Before adopting any rule amending or repealing any rule derived from local laws identified in Section 2(5)(a), (b), or (c) of Ch. 83-134, Laws of Florida, . . . the Commission or, at the direction of the Commission, one or more Commissioners or staff members shall hold a public hearing. When acting on rules derived from such local laws, a hearing shall be held in the county or counties affected. (emphasis added) This rule tracks language in Section 2(5)(d) of Chapter 83-134, Laws of Florida, which requires the MFC to "hold a hearing in the affected county or counties" before amending or repealing any rules derived from local law. Petitioners contend that the foregoing rule and law were violated since a hearing was held in only one of the thirteen affected counties. As noted earlier, when the MFC was created by Chapter 83-134 as a part of the DNR, numerous local laws were in effect regulating fishing practices on a county by county basis. Section 2(5)(a) of Chapter 83-134 provided as follows: Effective upon the appointment of the commission, the following local laws pertaining to saltwater fishing, to the extent they relate to those areas specified in subsection (2), shall be repealed and shall continue as rules of the department: Chapter 83-134 was amended by Chapter 84-120, Laws of Florida, which, among other things, repealed additional local laws but provided that they continue in effect as DNR rules. It is a commonly recognized fact that in 1993 the DNR was abolished through a merger with the Department of Environmental Protection (DEP). Respondent takes the position that when the DNR was merged with the DEP, the DNR rules were repealed and readopted as MFC rules, and thus the present rules found in chapter 46-3 are no longer "derived from local laws." As a consequence, the MFC contends that a public hearing in each affected county is not required. The history notes to the challenged rules reflect that they were amended at various times in 1992, or before the merger of DNR and DEP occurred. No amendments have occurred since that time. Whether the 1992 changes constitute the readoption that the MFC relies upon is not apparent from the record. In any event, the rules are clearly derived from local laws, and thus they are subject to the requirements of Chapter 83-134, Laws of Florida, and Rule 46-1.004(4)(b) Florida Administrative Code. This finding is buttressed by the fact that in the FAW, the MFC describes its changes in chapter 46-3 as being for the purpose of conforming its rules "readopting portions of various special acts (local laws)" to the constitution. Moreover, the rules themselves contain language that the MFC intends "to readopt certain provisions of (the local law)." Even though the requirement in chapter 83-134 was not followed, there was no showing by petitioners that they were prejudiced by this error or that the fairness of the proceeding was impaired. Therefore, the error is deemed to be harmless. G. Do the Rules Conflict with the Constitution? Although petitioners' amended petition does not contain the allegation that the rules conflict with the new constitutional provision, in the main body of their proposed order they argue that eighteen rules "enlarge, modify or contravene the specific provisions of the constitution implemented." In contrast, the appendix to their proposed order cites twenty, rather than eighteen, rules which are allegedly constitutionally infirm. More specifically, petitioners complain that rules 46-3.008, 46-3.029, 46-3.032, 46-4.001, 46-4.005, 46-4.007, 46-4.015, 46-4.017, 46-23.001, 46- 23.002, 46-23.003, 46-24.007, 46-36.002, 46-37.002, 46-37.006, 46-39.002, 46- 42.007 and 46-43.005 make certain conduct unlawful even though such conduct is permissible under Section 16, Article X. By way of example, the rules make the possession (as opposed to the use) of gill or entangling nets unlawful even though the possession of such equipment is not barred by the constitutional amendment. Assuming, but not conceding, that the constitutional claim has been timely raised, Subsection (f) of Section 16, Article X provides in part that "nothing in this section prohibits the establishment by law or pursuant to law of more restrictions on the use of nets for the purpose of catching or taking any saltwater finfish, shellfish, or other marine life." (Emphasis added) Since the changes to the rules under challenge arguably relate to the "use of nets," and they have been made "pursuant to law," that is, pursuant to MFC's statutory rulemaking authority, the cited rules, even if more restrictive than the amendment, do not contravene the constitutional provision.
Findings Of Fact Petitioner, James Kashou (Kashou), is the executive vice president and authorized representative of Vilano Ventures, Inc., (Vilano) the riparian owner of property situated on the east bank of the Tolomato River, in North Beach, St. Johns County, Florida. The area of the Tolomato River adjacent to the Vilano property has been classified as approved for shellfish harvesting. Rule 16R-7.004, Florida Administrative Code. The Respondent, State of Florida, Board of Trustees of the internal improvement Trust Fund (the Trustees), is the agency of the State empowered to manage state lands and to grant easements to riparian owners for the use of sovereign-owned submerged lands. On or about April 11, 1985, a request was submitted to the Trustees, on Vilano's behalf, for authorization to construct two access channels connecting the Tolomato River to a proposed multi-slip docking facility. On or about August 24, Kashou filed a new request reflecting modifications to the proposed marina project. The access channels are each to be 100 feet long by 50 feet wide and will require the dredging of 2,000 cubic yards of sovereign- owned submerged lands. The docking facility to which the channels provide access is to consist of 34 boat slips and will be of interior design--that is, it will be constructed entirely from privately owned uplands. Each slip will be assigned to a particular vessel owned by a unit owner in the adjacent multi- family residential project being developed by Vilano. The adjacent residential development will include 294 residential units. In an effort to minimize any potential adverse impacts which could result from the 34 slip marina, Vilano intends to provide a sewage pump out facility at the marina. The pump-out facility will not include a holding tank, but will, instead, convey all sewage directly into the collection lines of North Beach Utilities, a 300,000 MGD wastewater treatment system. The pump-out system will be stationary and will be maintained on a regular basis. The marina will also be located within 200 yards of upland restroom facilities and live-aboards will not be allowed. Any boat having a toilet facility on board will be required to utilize a Type III device--that is, a marine sanitation device which permits no through-the-hull discharge of sanitary wastes. Furthermore, the marina will neither provide refueling nor maintenance facilities. In order to ensure continued compliance with these precautionary measures, Vilano will allow the Marine Patrol and other state personnel to have access to the marina for purposes of inspection. Vilano will also verify the compliance of individual boats at the time slips are assigned and will require continued maintenance of amenities and adherence to precautionary measures, such as the pump-out facility, through its sales agreements and through the existing homeowners' organization. These various compliance and precautionary measures do not now exist in the referenced documents. Despite the design and operation precautions proposed by Kashou on Vilano's behalf, the Trustees' staff (the staff of the Division of State Lands, in reliance on the Division of Marine Resources (Marine Resources) assessment and recommendation on potential impacts on shell fishing areas) concluded that the marina would necessitate the closure of shellfish harvesting areas adjacent to the project. As a result, the Trustees' staff proposed to deny Kashou's request for an easement to dredge the two access channels to the marina. It is from this proposed denial that the extant proceeding was instituted. The Department of Natural Resources has the responsibility for opening and closing Florida waters to shellfish harvesting. Rule 16R-7.005, Florida Administrative Code. These activities are conducted by the Shellfish Environmental Section (SEAS) of the Bureau of Marine Resource Regulation and Development within the Division of Marine Resources. The SEAS is not a permitting agency. The SEAS is asked by other regulatory and permitting agencies for its comments as to the effect of proposed activities or projects on shellfish harvesting waters. POTENTIAL IMPACT OF THE MARINA ON SHELLFISH HARVESTING AREAS The overriding factual issue pertinent to this proceeding is whether the proposed marina will so adversely impact adjacent shellfish resources as to require that the area be reclassified to prohibit shellfish harvesting. Kashou contends that there is no reasonable basis for projecting such a result, while Marine Resources--and, as a consequence, the Trustees--disagree. The area adjacent to the proposed marina does not support a commercially-harvestable number of shellfish. Rather, only small numbers of oysters and clams inhabit the Tolomato River at that location. Nevertheless, the area is classified as approved for shellfish harvesting. When assessing the potential impact of a marina on shellfish, the pollutants of concern are hydrocarbons, trace metals, and fecal coliform. High levels of hydrocarbons can result in shellfish fatalities. Hydrocarbons in the water can also taint shellfish so that they become distasteful to the consumer. Trace metals pose a public health concern in that shellfish can accumulate such substances in their tissue. At high enough tissue levels, such contaminated shellfish can threaten the health of the consumer. A marina,such as the proposed Vilano project, which provides dockage for no more than thirty-four boats, does not offer fueling, repair, or maintenance services, and is well flushed, will cause minimal, if any, adverse impact on shellfish or their consumers as a result of hydrocarbons and trace metals. Fecal coliform, themselves, do not represent a public health risk. However, since the 1920's, fecal coliform have been utilized as an indicator species to measure the presence of a range of human pathogens. Specifically, fecal coliform thrive in the intestinal tracts of warmblooded animals and, in particular, prefer human body temperatures. At present, fecal coliform levels offer the best measure of the level of all human-derived bacterial pathogens. Although viral pathogens do not behave in a manner similar to that of bacterial pathogens, statistical analysis has established that, when fecal coliform levels in a water body do not exceed a median most probable number of 14 fecal coliform per 100 milliliters and no more than 10 percent of the samples reflect a most probable number of 43 fecal coliform per 100 milliliters, (the 14/43 standard) the chances of contacting any illness from the consumption of shellfish taken from such waters are very slim. There is no standard or test available to determine the presence of viral contamination. Fecal coliform are measured in terms of their most probable number (MPN), which is a statistical reflection of the number of bacteria that are found through a series of dilution tests. This method of testing for fecal coliform is environmentally conservative because, during the testing process, fecal coliform taken from stressed environments become rehabilitated. The water quality criteria for fecal coliform adopted by both the Department of Environmental Regulation and the Department of Natural Resources for waters approved for shellfish harvesting is, in part, based upon a determination of the median level of fecal coliform detected in "a large number of samples taken over a large number of days under a large number of different climatic conditions." A median value is the value which falls in the middle of a series of values. It reflects the central tendency of the data and must be differentiated from the average of the data. Where the data reflects a large number of very low numbers and a few spikes, or high numbers, an average value would be skewed toward the spikes. The median value, in contrast, does not reflect this skewing and would be lower than the value obtained by merely averaging the quantities collected. For instance, the data collected at one of the sampling stations adjacent to the proposed marina, Station 101, reflects samples collected and fecal coliform levels measured on 32 separate days. Values range from an MPN of 2 per 100 milliliters to 11 per 100 milliliters. When the 32 values are averaged, it can be seen that the average recorded fecal coliform level for that sampling station was an MPN of 3.2 per 100 milliliters. However, the median value of the 32 samples is merely the value which falls in the middle of the data--that is, the value which falls between the sixteenth and the seventeenth recorded value. For station 101, the median is an MPN of 2 fecal coliforms per 100 milliliters. Fecal coliform are adversely affected by high salinities and die off at increased rates as salinities increase. At salinities of 35 parts per 1000, 50 percent to 100 percent of fecal coliform present would be expected to die-off within 24 to 36 hours. In clear water, on a bright day, die-off rates in highly saline water would be in the order of 90 percent in less than 24 hours. At salinities of 19 parts 1000, which is more typical of an estuarine environment, fecal coliform would perish at a rate of from 50 percent to 75 percent in a 48 to 72 hour period. The Tolomato River at the project site is an estuarine system. An estuary is a body of water in which saltwater and freshwater mix and in which there is transition between a freshwater and marine environment. The river water in the project vicinity is primarily saline, with salinity values at the closest reported sampling stations ranging from 19.0 to 35.0 part per 1000 and averaging 31.6. A salinity value of 35 is akin to oceanic salinity levels. Fecal coliform are also adversely impacted by temperatures which diverge from 98.6 degrees Fahrenheit, normal human body temperature. The Tolomato River at the project site, is tide dominated. The average tidal range, as reported by the National Oceanic and Atmospheric Administration (NOAA) is 4.5 feet, with the spring tide range reaching 5.2 feet. The tidal range is the height difference between low tide and high tide. Tidal velocities measured at the project site ranged from 1 to 3.5 feet per second, which reflects a very swift current. Until a project such as the proposed marina is constructed, the only recognized method of evaluating its potential impacts on water quality is by modeling. Modeling is the customary method of evaluating a proposed project's potential impacts. Other methods of evaluating water quality impacts, though perhaps appropriate to already constructed facilities or to facilities to be constructed out in an existing waterbody are inappropriate. Specifically, dye tracer studies may have some value in evaluating the potential impacts of existing facilities or of a facility built out in the river, but they cannot be used to successfully assess the impacts of a project such as the proposed Vilano marina because the basin within which pollutants may be discharged does not yet exist. As a consequence, dye cannot be released at the location where pollutants might be expected to originate. Marine Resources has never conducted a dye tracer study on a marina. A valid predictive model must take into consideration the sum of the water inflows, minus the water outflows, minus any die-offs of the pollutants of concern. Hydrograhic Modelling of the Proposed Marina Dr. Gregory Powell, an expert in coastal and oceanographic engineering, hydraulics, fluid mechanics, and mathematical modelling, modelled the potential impacts of the proposed marina. The particular modelling technique which he utilized is based upon tidal dynamics in that focused on the flow of water into and out of the proposed marina basin as the result of the tides. There are two primary components to tidal action which were utilized by Dr. Powell in his modelling. The first is tidal prism flushing. The tidal prism is that volume of water entering the basin between low tide and high tide. As this volume of water is exchanged between high tides, pollutants are moved from the system. An analogy can be made to a glass of water into which red dye is added. If half of the red-dyed water in the glass is poured out and is replaced with clean water, the dye is diluted and becomes lighter. Each time some volume of water in the glass is poured out and replaced with clean water, the dye concentration is decreased. The second component utilized by Dr. Powell is tidal flow-through flushing. This type of tidal action only occurs in basins which have more than one entrance. A marina basin having dual entrances, like the proposed Vilano project, is subject to flow-through flushing due to a slight change in elevation which is created by the propagating tidal wave. In essence, on a rising tide, the water at the downstream entrance is slightly elevated compared to the upstream entrance. The driving force which results from this difference in elevation causes water to flow through the marina. On the falling tide, the difference in elevations are reversed, causing the flow through the marina to reverse direction. By combining the effects of tidal prism flushing, and flow-through flushing rate for the proposed marina. Powell concluded that the proposed marina would be well-flushed. There are other factors, other than tidal prism and flow-through, which impact flushing rates. Two major such factors are wind and buoyancy effects. These factors, if added in to Powell's model would have increased the calculated flushing rate because both tend to invigorate the system. Factoring in the effect of docking and other structures which will be present in the basin would tend to enhance mixing within the basin. In addition to the tidal flushing rate he calculated, Dr. Powell incorporated into his model certain other coefficients. These included die-off rates, loading rates, and inlet head losses. For each of these factors, Powell utilized conservative values chosen from scientifically accepted manuals. The die-off rate utilized by Powell, 90 percent die-off over a 48 hour period, is consistent with the testimony given at hearing by Dr. Norman Blake, an expert in shellfish biology and ecology and Ms. Leslee Williams, an expert in microbiology and the ecology of pathogenic vibrios in the estuarine environment. The loading rate was taken from the EPA Coastal Marina Assessment Handbook, an accepted authority specifically focusing on marinas. Similarly, the inlet head loss values selected by Dr. Powell were taken from scientific literature and were chosen to reflect the most environmentally conservative scenario, i.e., inlet head losses which would reflect the highest predicted pollutant concentrations. With respect to inlet head losses, Dr. Powell used the upper end values for inlets constructed of a very rough substance like riprap. The access channels of the proposed marina are to be constructed of riprap. Dr. Powell took two different approaches in conducting his modelling of the proposed marina: the closed basin approach and the mixing chamber approach. He utilized the former to simulate instantaneous worst case conditions and the latter to simulate average conditions. The results of these two different simulations were then compared to the two-part water quality- standard for fecal coliform: one an upper 10 percent standard and the other a median standard. Under both the closed basin and mixing chamber approaches, Dr. Powell applied several different scenarios. He first assessed the impact of the marina on water quality if all of the boats in the facility had Type III marine sanitation devices and pump out service was available. He further assumed that, despite these precautions, some of the boats discharged human wastes directly into the marina basin. In order to predict an instantaneous level of fecal coliform, Dr. Powell looked at the effect of a single boat's discharge. His modeling indicated that resulting fecal coliform levels inside the marina itself would be an MPN of 30 per 100 milliliters. For a prediction of the average levels of fecal coliform, over the course of a single tidal cycle, Dr. Powell assumed that 25 percent of the boats in use in the marina ignored marina requirements and discharged human wastes into the basin. This analysis projected an MPN within the basins of 11.1 of fecal coliform per 100 milliliters. Under both peak and average conditions, projected water quality levels would be less than the maximum acceptable levels of fecal coliform, 14/43 standard, set forth in Department of Environmental Regulation and Department of Natural Resource regulations. Dr. Powell next analyzed the water quality impact of the marina assuming that none of the boats had Type III marine sanitation devices but, instead utilized the less restrictive Type I and Type II devices permitted under Coast Guard regulations. Type I device can discharge no more than 1,000 fecal coliform per 100 milliliters of flush water. Assuming all of the boats had Type I devices, fecal coliform in the basin would increase only by 0.067 even if all boats flushed instantaneously. If all of the boats use Type II devices--which allow only 200 fecal coliforms per 100 milliliters to be discharged--a simultaneous discharge from all boats would result in an increase of only 0.0015 fecal coliform. The probability that all of the boats in the marina will discharge from their toilet facilities simultaneously--taking simultaneously to mean within one hour of one another--is greater than 2 x 10. In other words, such an event could be expected to occur once every 5 x 1032 years. Such an event could not be expected to reflect median conditions, nor could it be expected to occur 10 percent of the time. Thus, any analysis based upon a simultaneous discharge from all 34 boats in the marina bears no relationship to water quality levels which can be measured against the dual 14/43 standard for fecal coliform. All of Dr. Powell's modelling reflects projected water quality levels inside the marina basin itself. Water quality outside the basin would be better than that inside the basin. Since water quality levels inside the marina basin can be expected to meet water quality standards, water quality outside would also be expected to be below maximum acceptable levels. The only calculations performed by Dr. Powell which specifically predict water quality levels outside the basin include the assumption of a higher loading rate than did his other models. Essentially, Dr. Powell conducted this analysis utilizing the same loading rates used by Marine Resources in their assessment--that is a fecal coliform discharge from each of the 34 boats in the marina of 4 x 10 fecal coliform (2 X 10 each from two persons on each boat) over a single tidal cycle. With this loading rate, Dr. Powell found that, while fecal coliform concentrations inside the basin would exceed an MPN of 43, concentrations outside the marina basin would only reach an MPN of 11.1 per 100 milliliters. This is below the maximum levels specified by state regulations. Dr. Powell's model includes a safety margin in that his predictions reflect instantaneous and average levels, rather than 10 percent and median levels. As was explained above, median fecal coliform counts are lower than are average levels. In addition, a possible one time occurrence of a significant number of boats discharging over a single tidal cycle would not be an event which could be expected to occur 10 percent of the time. Nor would an instantaneous fecal coliform level exceeding an MPN of 43 necessarily cause closure of an area classified as approved for shellfish harvesting. In fact, in its 1985 survey of shellfish growing areas in St.Johns County, Marine Resources found that sampling station number 772 met the standards for an approved area, even though actual fecal coliform samples for that station reflect one instance on which an MPN of 240 fecal coliform per 100 milliliters was measured. Marine Resources' Assessment of The Proposed Marina's impact Marine Resources conducted its own assessment of the proposed marina's impact on the adjacent approved shellfish harvesting area. This assessment was based upon a written marina policy which, in essence, adopts statements formulated by the Interstate Shellfish Sanitation Conference, a voluntary organization of states, members of the shellfish industry, the Food & Drug Administration, the U.S. Environmental Protection Agency, and the National Marine Fisheries Services. Marine Resources' marina policy is as follows: in accordance with the provisions of the interstate Shellfish Sanitation Program and Food and Drug Administration Policy, the possibility of chance contamination of shellfish in the immediate vicinity would require a reclassification of that area within the marina proper to Prohibited for the harvesting of shellfish. Additional Prohibited areas beyond the marina limits may be required as well, depending on such factors as marina design and quality, marina usage, and hydrography. (Emphasis supplied). Despite Kashou's contention that water quality inside the marina proper would not require it, Marine Resources' classification of the basin of the proposed marina itself as closed to shellfish harvesting was not disputed in this proceeding. Rather, it is the necessity of reclassifying now approved areas in the river which is the subject of this controversy. Marine Resources contends that the proposed marina will cause the closure of an area the radius of which extends 772 feet outside the marina basin. In reaching this conclusion, Marine Resources disregards all design and operating precautions which are to be included in the proposed marina. This is inconsistent with the agency's own policy which specifically states that closed buffer zones may be required, "depending on such factors as marina design and quality, marina usage, and hydrography." Marine Resources' prediction that an area outside the marina will have to be closed is premised upon a simplistic dilution calculation which not only disregards design and operating precautions to be implemented at the Vilano marina, but also disregards the specific hydrographic features of the project site. Dr. Robert Weisburg, an expert in physical oceanography and the hydrodynamics of estuarine systems, analogized Marine Resources' calculations to looking at the effect of pouring pollutants into a static bucket of water. Because the hydrodynamics of the project are not considered, the calculation is not a valid predictive model. The Trustees offered the testimony of David Heil, an expert on the Department of Natural Resources' administration of its rules and policies relating to shellfish area assessments and on the impact of marina contaminants on shellfish and public health, to explain Marine Resources' calculation. Mr. Heil admitted that the assumption that all 34 boats will discharge over a tidal cycle--a critical assumption in the dilution formula-- is unreasonable. He attempted to rehabilitate the dilution calculation by stating that this unreasonable assumption is offset by another, the assumption that contaminants will be uniformly mixed. Clearly, in attempting to validly predict the impacts of a facility on water quality, two improper assumptions cannot balance one another out. In fact, the evidence reflects that the second assumption, uniform mixing, is not unreasonable at all. Marine Resources' incorporation of an unreasonable assumption into its assessment of the Vilano project's impacts further undermines the weight such an assessment can be accorded Any credence which might be given Marine Resources' assessment is thoroughly eroded by the agency's failure to tie such assessment to its own adopted criteria for classifying shellfish waters. Marine Resource's calculation purports to calculate a volume of water within which fecal coliform levels would reach an MPN of 14 per 100 milliliters. It does not predict median conditions; it reflects worst case conditions. The Trustees offered no evidence to suggest that any area outside the marina basin would exceed an MPN of 43 fecal coliform per 100 milliliters under even the worst possible conditions. Therefore, even if Marine Resources' dilution calculation were correct in predicting the area of the river which would contain an MPN of 14 fecal coliform per 100 milliliters--which the evidence indicates it does not do accurately-- this still would not violate water quality criteria for classifying an area as approved for shellfish harvesting. Mr. Heil stated at hearing that the numeric water quality standard for an approved shellfish harvesting area would not apply to the area of the Tolomato River adjacent to the proposed marina because "that area will not meet the definition of [Florida Administrative Code Rule 16R-7 .004(2)] (a)." Apparently, Heil feels that this area of the river will be "so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous. . . ." Rule 16R- 7.004(2)(a), Florida Administrative Code. However, the evidence admitted at hearing establishes that the dual 14/43 standard for fecal coliform effectively protects the public health. While protection against the threat posed by viral pathogens may not be as assured as is the threat of bacterial pathogens, the fecal coliform standard is the best indicator available. Marine Resources' own use of fecal coliform as the indicator species for defining its proposed buffer zone indicates that the agency itself accepts this premise. In conclusion, Kashou has established, using the only valid predictive method available, that the Vilano marina will neither (1) cause water quality levels in the Tolomato River to exceed a median MPN of 14 fecal coliform per 100 milliliters or an MPN of 43 fecal coliform for 10 percent of the samples taken; nor (2) cause the river to become so contaminated by fecal coliform or any other pollutants as to pose a hazard to shellfish or shellfish consumers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the internal improvement Fund enter a Final Order granting the easement requested by James Kashou for Vilano Ventures, Inc., subject to the following conditions: Appropriate modifications to the sales agreements and the charter of the homeowner's association to ensure maintenance of and adherence to the precautionary measures. Termination of the easement, after appropriate due process proceedings, in the event that the adjacent shellfish areas cease to meet the criteria of Rule 16R-7.004(2),Florida Administrative Code, as a result of the operation or existence of this marina. DONE and ENTERED this 8th day of September, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of September, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-1994 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10); 11-35(12-36); and 37-47(37-47). Note: No paragraph 36 was in the proposed findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(10); 2(5); 3(6-8); 4(9); 6(7); 7(9); 8(11); 9(2); 28(13); 29(14); 30(14); 31(16); and 32 (16) 2. Proposed findings of fact 5, 10, 11, 13-15, 18-21, 25, 33 38,49, and 42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 12, 26 and 27 are unnecessary. Proposed findings of fact 16, 17, 41 and 43 are not supported by the creditable, competent and substantial evidence. Proposed findings of fact 22-24 and 39 are irrelevant. COPIES FURNISHED: Martha Harrell Hall Mary E. Haskins Attorneys at Law Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Ross S. Burnaman Margaret S. Karniewicz Attorneys at Law Suite 1003, Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 3299 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Facts admitted by all parties The water quality standards contained in Rule 17-3.111, Florida Administrative Code will not be violated by this project. There are no aquatic macrophytes located in the area of the proposed project. The proposed project is located within 500 feet of the incorporated municipality of Horseshoe Beach, Florida. The proposed project is located within Class II waters of the State not approved for shellfish harvesting. The project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed project will be of a permanent nature. The project will not adversely affect or will not enhance significant historical or acheological resources under the provisions of Section 267.061, Florida Statutes. The rest of the findings The Applicant, Dixie County, applied for a dredge and fill permit to construct a dock which would expand the existing public dock at Horseshoe Beach. In accordance with the revised plans dated October 23, 1986, the proposed facility would consist of a pier 6 feet wide and 120 feet long designed to accommodate six boat slips, each 30 feet wide and 40 feet long. The boundaries of the boat slips will be demarcated by pilings set 10 feet apart. Four of the boat slips would be primarily for the use of commercial fishing boats and commercial shrimping boats. The other two boat slips (the two slips closest to the land) would be reserved for the exclusive use of recreational and other small vessels. By adding a catwalk 3 or 4 feet wide down the middle of the two slips reserved for recreational vessels, the usefulness of those slips to recreational vessels would be greatly enhanced and the narrowness of the resulting slips would preclude their use by large vessels. Adding the two catwalks would be a minor addition to the proposed project which would greatly enhance the usefulness of the project and at the same time avoid the possibility that large vessels in the two slips closest to the land would impede ingress and egress at the nearby boat lift, boat fueling facility, and boat ramp. Adding a reasonable number of permanent trash or garbage containers would also enhance the usefulness of the proposed project and minimize the possibility of improper disposal of trash and garbage which is generated by the normal use of a dock by fishermen and boaters. The proposed project site is located in the Gulf of Mexico at Horseshoe Beach, Florida, and would extend into the waters of the Gulf, which is a tidally influenced water body adjacent to Dixie County, Florida. The water along the shoreline of the area is shallow for a considerable distance waterward, except where basins and channels have been dredged. The Horseshoe Beach area is relatively unpolluted. The existing public dock at Horseshoe Beach is used primarily by recreational vessels, but there is also extensive commercial fishing and Shrimping boat activity in the area. The project is located at the mouth of a canal with direct access to the Gulf. Several commercial fishhouses operate from the canal bank, which generates extensive commercial boat traffic past the proposed project site. Large numbers of commercial shrimp boats presently dock along the canal that ends near the proposed project site. The proposed project requires no dredging. The only filling required by the proposed project is the placement of pilings into the bottom of the Gulf of Mexico. Even though the plans do not specify whether concrete or wooden pilings will be used, this lack of specificity in the plans is irrelevant. Regardless of what types of pilings are used on this project, the filling activity will not violate the water quality criteria contained in Rule 17- 3.051(1), Florida Administrative Code. The placement of the pilings will not adversely affect the public health, safety, and welfare. Further, the proposed project will not adversely affect any property interests of the Petitioners within the scope of Chapter 403, Florida Statutes. The Gulf bottom in the area of the proposed project has already been disturbed. The presently existing suspension of particulate material in the water column, a natural occurrence in the area of the project, results in low visibility which means that seagrass beds and other marine vegetation, which provide shelter and detrital deposits for fish and other marine resources, will not grow. Coast Guard regulations prohibit commercial fishing vessels from depositing materials into the water within three miles of the coast line. Commercial fishing vessels must prominently display a sticker reciting that regulation and it is the practice of commercial fishing vessels operating in the vicinity of Horseshoe Beach to comply with this Coast Guard no discharge requirement by cleaning nets and scrubbing decks outside the three mile limit. It is not the practice of Commercial fishing vessels to deliberately discharge diesel fuel, fish parts or other material into the water while docked. Further, the limited number of commercial fishing vessels which could dock at the proposed facility at the same time cannot reasonably be expected to create discharges in amounts creating a nuisance, posing any danger to the public health safety or welfare, or violating the water quality criteria contained in Rule 17-3.051(1), Florida Statutes. Although small amounts of diesel fuel can become mixed with bilge water and be discharged by automatic bilge pumps while commercial fishing vessels are docked, there is no evidence that this would be in amounts Sufficient to create a nuisance or violate water quality criteria. To the contrary, notwithstanding a large amount of commercial boat traffic past the proposed site and notwithstanding the fact that large numbers of shrimp boats dock up the canal from the proposed site, the water in the area of the proposed site has remained relatively unpolluted. The proposed project will not affect the normal wind and wave action in the area of the proposed project. Such wind and wave action presently results in free exchange between the waters of the open Gulf and the waters near the shore. This free exchange of waters means that any pollutant discharges in the area of the proposed project will be diluted and rapidly dispersed into the Gulf of Mexico. There will be no measurable difference in the wind and wave action, or in the water exchange, after the proposed project is built. No harmful shoaling or erosion is expected to result from construction of the proposed project. Any docking structure extending out into the Gulf of Mexico will obviously have some effect on navigation in the area of the dock, but there is no evidence that the proposed dock will present a hazard to navigation or any significant interference with customary navigation patterns. The distance between the nearest channel marker and the waterward end of the proposed project is more than 200 feet. The angle of the proposed dock and its Spatial relation to the main Horseshoe Beach turning basin cause no impediment to navigation. The placement of Coast Guard Safety lights on the dock would minimize any potential for impeding navigation or posing a danger to the public health or safety during hours of darkness.
Recommendation Based on all of the foregoing, I recommend that the Department of Environmental Regulation issue a Final Order in this case granting the permit applied for by Dixie County. It is also recommended that the permit be made subject to the following additional conditions: That one or more Coast Guard safety lights be placed on the proposed expansion to the dock; That catwalks be added down the middle of the two most landward of the proposed boat slips; and That a reasonable number of trash or garbage receptacles be permanently located on the proposed expansion to the dock to minimize the possibility of trash and garbage being thrown overboard. DONE AND ENTERED this 30th day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 30th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1448 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The paragraph numbers referred to below are references to the paragraph numbers in the parties' respective proposed recommended orders. Ruling on findings proposed by the Petitioners: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: First sentence is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than a proposed finding of fact. Second and third sentences are rejected as repetitious Paragraph 5: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 6: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 7: Rejected as contrary to the greater weight of the evidence. Paragraph 8: Entire paragraph is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than proposed findings of fact. Paragraph 9: Entire paragraph rejected as contrary to the greater weight of the evidence; construction of the dock may be expected to bring about some changes in the nature of the boat traffic in the immediate area, but nothing of the nature or magnitude suggested by these proposed findings. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Paragraph 11: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in part and rejected in part. Rejected portion is irrelevant. Third sentence is rejected as irrelevant. Fourth Sentence is accepted. Fifth sentence is rejected as contrary to the greater weight of the evidence and as repetitious Sixth sentence is rejected as contrary to the greater weight of the evidence. Paragraph 12: Entire paragraph rejected as contrary to the greater weight of the evidence. Rulings on findings Proposed by the Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: First two sentences accepted in substance. Last sentence rejected as irrelevant. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Rejected as unnecessary recitation of opposing party's contentions and not proposed finding of fact. Paragraph 8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Accepted in substance. Paragraph 12: Accepted. Paragraph 13: First sentence accepted in substance. Second sentence accepted in part and rejected in part; rejected portion concerns riparian rights, which are irrelevant to whether this permit should be issued. Paragraph 14: Entire paragraph rejected as irrelevant. Paragraph 15: Accepted in substance. Paragraph 16: Accepted. Paragraph 17: Accepted in substance. COPIES FURNISHED: Frederick M. Bryant, Esquire Moore, Williams & Bryant, P.A. Post Office Box 1169 Tallahassee, Florida 32302 J. Doyle Thomas, Esquire County Attorney Post Office Box 339 Cross City, Florida 32628 Ann Cowles-Fewox, Legal Intern Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Karen Brodeen, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
