The Issue The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67 are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR. On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent. The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5. Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools. The parties stipulated to the standing of all of the parties. The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4). In Issue 1, DCA and Intervenors challenge ICE Policy 1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools. In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so. Issue 1 ICE Policy 1.2.6 states: The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996. Although unamended by the Plan Amendments, ICE Policy 1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting. Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards. For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads: Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria: Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners. The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education. The site shall be subject to all applicable State or Federal Regulations. The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above. However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided: By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so. Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students. As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School District to site schools through the entire range of future land use designations, including conservation areas. In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5. Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation. As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain. As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding. Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users. DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent with the criterion of designating the future general distribution, location, and extent of educational uses of land. By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land. Issue 2 As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following: Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas. Groundwater Policies 1.2.1 through 1.2.4 provide: The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas. The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development. The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies. DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations. The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons. Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan. Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions. Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties. DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and 1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan. DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas. Issue 3 Drainage Subelement (Drainage) Policy 1.1.2 provides: Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development. The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage. Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990. New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan. The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities"). In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy 1.1.2 promises nothing more than the monitoring of post- development runoff. DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features. Issue 4 This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing. In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat. The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the percentages are 44.3 and 75.9; and for persons with incomes of $20,000 to $34,999, the percentages are 32.3 and 31.4. After reciting these data, the Housing data and analysis state: The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development. As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category). After reciting these data, the Housing data and analysis state: As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions. After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010. Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units. Responding to these data, the Housing data and analysis state: The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually. The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of 287 units by 2010 for persons making over $150,000 annually. Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded." The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area. According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units. The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas. Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units. For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit. The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations. However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35. According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County. The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations. No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee. The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010. Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers. Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County." Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states: Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available. Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of 500 new units, as stated in Housing Objective 1. Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals. DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis. DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers. Issue 5 Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter 28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern." The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern. As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75. Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates. Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west, the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay. Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow. The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern. DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern. The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico. The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff. The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County. The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands. The Drainage data and analysis conclude their description of this process as follows: The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land. In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay. The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services. The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities. The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration. Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving them especially vulnerable to fire during the dry season and droughts during the wet season. The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization. The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle. The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives 90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis. As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters. The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality. The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems. Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways. In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems. The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding standards of the 25-year, 3-day storm event, and these developments have generally done so. The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards. The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features. Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins. Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note: At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts. The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting). The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the County's reduction in water-quality monitoring during the ensuing ten years. Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City. According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen. The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus. The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay. The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water. The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the 185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay. Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy 2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates. Issue 6 Conservation Objective 1.1 provides: By August 1, 1994, the County will complete continue with the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission. Conservation Policies 1.1.1 and 1.1.2 respectively provide: By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program. By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards. Conservation Objective 1.3 provides: By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats. Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights. Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing. Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences. Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors. Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact. Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass. Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection. Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis. The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life. The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis. The focus of Conservation Objective 1.3 and Policy 1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1. In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs. In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "the most important region in Florida" in terms of "maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . .." Closing the Gaps, page 173. Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida. Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates. Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7. Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north. The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite. The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species. Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62. Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard. An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal. Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years. The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan). The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers. The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County. Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females. The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida. Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers. Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations. Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines. Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations. However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved. Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2, although this is a small fraction of the total annual manatee deaths. Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM. There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat. In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality. Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis. Issue 7 Conservation Objective 12.1 is: Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan. Conservation Policy 12.1.1 states: Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element. Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8. These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times. Issues 8 and 15 Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5. The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County. Issue 9 Conservation Objective 6.3 states: A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County. Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issue 10 Conservation Objective 7.3 states: By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status. The effect of the amendment of Conservation Objective 7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issues 11, 12, 13, and 14 Conservation Objective 9.4 is: By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer. Conservation Objective 9.5 is: By August 31, 1989, the The County shall adopt implement construction, pretreatment, monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities. Conservation Objective 10.6 is: By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone. FLUE Policy 3.1.d is: Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones. Groundwater Policies 1.2.1 and 1.2.2 are: The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas. Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are not specific, measurable, intermediate ends that are achievable and mark progress toward a goal. DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies 1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals. Issue 15 Section 187.201, Florida Statutes, sets out the State comprehensive plan. Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d. Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d. Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5. Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and 9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3 10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
Recommendation It is RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance. DONE AND ENTERED this 19th day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1999. COPIES FURNISHED: Shaw P. Stiller Colin M. Roopnarine Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese 2951 61st Avenue South Saint Petersburg, Florida 33712 Marjorie M. Student Rodney C. Wade Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112 Richard D. Yovanovich Roetzel & Andress 850 Park Shore Drive Naples, Florida 34103 Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399-0001 David Schwartz, Esquire Executive Office of the Governor 209 Capitol Tallahassee, Florida 32399-0001
The Issue The issue is whether proposed regulations for Brevard County manatee protection areas by the Florida Fish and Wildlife Conservation Commission (FWCC), which are amendments to Rule 68C- 22.006, Florida Administrative Code, noticed in the April 20, 2001, Florida Administrative Weekly (F.A.W.)("Proposed Rule"), with a Notice of Change published in the F.A.W. on June 15, 2001, are an invalid exercise of legislative authority.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found. Effective July 1, 1999, Respondent, FWCC became primarily responsible for implementation of the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes (2000) instead of the Department of Environmental Protection, by operation of Section 45, Chapter 99-245, Laws of Florida. FWCC is the State agency responsible for promulgating rules pursuant to Section 370.12, Florida Statutes. Respondent noticed proposed rules, and is a mandatory party to a challenge thereto. Section 120.56(1)(e), Florida Statutes. STANDING OF THE PARTIES McGill, Pritchard, Dovark, Gentile, Akins, Mason, Jaren, Robertson, Standing Watch, Inc., Save the Manatee Club, Inc., Florida Wildlife Federation, Inc., and Sea Ray Boats, Inc.1, are substantially affected by one or more of the Proposed Rules in that they operate motorboats in one or more of the areas proposed for regulation, or in that they represent the interests of members who operate motorboats in one or more of the areas proposed for regulations, or who desire to protect manatees and manatee habitats on behalf of members who derive aesthetic or other benefits from manatees, and who observe or otherwise enjoy manatees in Brevard County and elsewhere. Intervenor, Florida Power and Light Company (FPL), is a Florida corporation that owns and operates the Cape Canaveral Power Plant located in Cocoa, Brevard County, Florida. FPL's operations are specifically addressed in the proposed rule in that the proposed rule creates a no-entry zone along an area bordering the FPL Cape Canaveral Power Plant property boundary including easements and right-of-way where electrical generation operating equipment and electrical distribution and transmission equipment are located. Intervenor, Cocoa Beach is a Florida Municipal Corporation located in Brevard County. The Cocoa Beach Sports Area located with the Banana River Lagoon has been designated since 1988 as an area for water-related recreational activities for the residents of the City of Cocoa Beach and for the general public. The Proposed Rule seeks to impose speed restrictions for boats operating within this area and, if promulgated, will directly regulate and restrict the boating, fishing and other water-related recreational activities of the public within the area. Intervenor, Titusville is a Florida Municipal Corporation located in Brevard County, whose elected body has determined that a substantial number of its residents are substantially affected in the Proposed Rule. The parties alleged facts supported their standing in individual petitions, and the parties stipulated to standing. Therefore, none of the Petitioners presented any evidence regarding their standing. Petitioners and Intervenors are substantially affected by one or more sections of the proposed rule in that they operate motorboats in one or more of the areas proposed for regulation, or they represent the interests of members who operate motorboats in one or more of the areas proposed for regulation or who desire to protect the manatees and manatee habitat on behalf of members who derive aesthetic or other benefits from manatees and who observe or otherwise enjoy manatees in Brevard County. ADOPTION PROCESS FOR THE 2001 RULE PROPOSAL On September 6, 2000, the Commission authorized staff to initiate amendments to the Brevard County rules at a public meeting in Deland, Florida. On October 6, 2000, the Commission published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop. On October 26, 2000, the Commission staff conducted a rule development workshop in Melbourne, Brevard County, Florida. On January 24, 2001, the Commission directed staff to conduct a second rule development workshop in Brevard County, Florida. On February 16, 2000, the Commission published notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2000. On March 7, 2000, the Commission staff conducted a second rule development workshop in Viera, Brevard County, Florida. On March 30, 2000, the Commission conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly. On April 20, 2001, the Commission published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001. On May 3, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On May 23, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly. There are no algorithms, formulae, protocols, matrices, math models, or metrics used by the Commission to combine the individual data sources into findings that idle-speed, slow-speed, or no-entry zones were required for any specific zone in question. Aerial surveys have been conducted by the Florida Marine Research Institute (FMRI) and others. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as follows: 1991 1,268 manatees 1991 1,465 manatees 1992 1,856 manatees 1995 1,443 manatees 1995 1,822 manatees 1996 2,274 manatees 1996 2,639 manatees 1997 2,229 manatees 1997 1,709 manatees 1998 2,022 manatees 1999 2,034 manatees 1999 2,354 manatees 2000 1,629 manatees 2000 2,222 manatees 2001 3,276 manatees During the most recent statewide synoptic survey, portions of Brevard County were observed in five counts made during January 5, 6, and 7, 2001. Of the 591 manatees observed in Brevard County on January 6, 2001, 457 manatees were adjacent to Florida Power and Light Company's thermal discharge, 38 manatees were in Sebastian River, 16 manatees were in Berkley Canal System, and 8 manatees were along the east Banana River shoreline on the southeastern extension of Merritt Island. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. These types of surveys are used by the FWCC in assessing manatee use of an area and then establishing manatee protection regulations. The most recent, comprehensive FMRI aerial survey in Brevard County consisted of 45 flights between September 1997 and September 1999. A standardized flight path designed to cover most probable manatee habitats was flown over Brevard County at least once per month during the two-year period at an altitude of approximately 500 feet (except for June 1999, where excessive smoke covered the area); the only area of the county not covered at all was restricted airspace associated with the Kennedy Space Center Complex. The highest number of manatees counted during this survey was 790 manatees in March 1999. General Description of Brevard County. Located in east central Florida, Brevard County is approximately 72 miles north-south and approximately 20 miles east-west. The west boundary of the county is the St. Johns River; the east boundary is the Atlantic Ocean. The Indian River Lagoon in Brevard County extends north of the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county. Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a barrier island running the length of the county, the Indian River Lagoon, and the mainland. Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west; the Banana River on the east; and the Mosquito Lagoon on the north. At the southern end of Merritt Island, the Banana River joins the Indian River. Besides Sebastian Inlet at the southern boundary of the county, the only navigable connection between the Indian River Lagoon and the Atlantic Ocean is at Port Canaveral. Port Canaveral cuts across the Canaveral Peninsula; along the west shoreline, the Canaveral Locks permit vessels to pass from the Port into the Banana River. The Mosquito Lagoon, Indian River and Banana River are located in a transitional zone between the temperate and tropical zones and form one of the most diverse estuaries in North America. The Indian River Lagoon varies from 0.5 to 5 miles in width and has an average depth of one meter (39.4 inches). The Indian River Lagoon system is not subject to significant periodic lunar tides. The water depths are depicted as mean lower low water, while the shorelines are represented in terms of approximate mean high water. In the lagoon system in Brevard County, the relative water levels rise and fall as influenced by wind, rainfall, storms, and tides. Expert witnesses with local knowledge of the waters acknowledged the variation in water level or relative depth and testified that the water level fluctuates in the Indian River Lagoon by more than three feet and fluctuates by two or two and one-half feet or greater annually. The Indian River Lagoon contains extensive sea grass beds, which are the preferred food for manatees. A bathymetric survey commissioned by the St. Johns River Water Management District determined the acreage of submerged land within the lagoon that can be potentially vegetated with submerged aquatic vegetation at a depth of six feet below mean sea level. Brevard County is the hub of the Atlantic Coast manatee population with a large year-round and a large migratory transient manatee population present throughout the year. THE MANATEE The West Indian manatee (Trichechus manatus) is one of endangered marine mammals in coastal waters of the United States. The West Indian manatee is presently classified as an "endangered species" by the federal Endangered Species Act and has protected status under the Marine Mammal Protection Act. The West Indian Manatee is one of the four living species of the mammalian Order Sirenia, the other three are the West African manatee, the Amazonian manatee and the dugong; the fifth species, Stellar's sea cow, was hunted into extinction. In the southeastern United States, manatees are limited primarily to Florida and Georgia and this group forms a separate subspecies called the Florida manatee (T. manatus latirostris). The Florida manatee (hereinafter "manatee") is a migratory species with a large range of movement along the Atlantic and Gulf Coasts of the United States. During the winter, cold temperatures keep the population concentrated in peninsular Florida, but during the late spring and summer they expand their range and are seen infrequently as far north as Rhode Island, and as far west as Texas. Manatees demonstrate "site fidelity" with some individual mammals adjusting their behavior to take advantage of changes in the availability of resources. Manatees often return to the same winter thermal refuges and the same summer habitats year after year. Manatees prefer water temperatures above 68 degrees F and when ambient water temperatures drop below 68 degrees, they seek warm water refuges, such as spring-fed rivers and power plans discharge outs. Florida Power and Light Company and Reliant Energy Power Plants and the Sebastian River are the primary warm water refuges sought by manatees in Brevard County. For feeding, resting, cavorting, mating and calving, manatees prefer shallow sea grass beds in coastal and riverline habitats with ready access to deep channels, particularly near the mouths of creeks, embayments and lagoons. Manatees sometimes prefer vegetation growing along the banks of waterways, instead of submerged or floating aquatic vegetation. Manatees seek and find sources of fresh water for drinking. In brackish or estuarine environment, they locate fresh water sources, either natural or artificial. They have been observed drinking fresh water at marinas, from air conditioning condensate discharge, from pockets of fresh water floating on the surface of the saltier water, from storm water outfalls and from springs. Typically, six-to-eight hours per day are spent on feeding, usually at one-hour intervals. Intermittently, between two and 12 hours per day are spent resting or sleeping either at the surface of the water or on the bottom. Time not devoted to feeding or sleeping is spent in traveling, socializing or exploring during both day and nighttime hours. The basic social unit consists of a female manatee and her dependent calf. Manatees, apart from winter aggregations at warm water resources and transient mating herds, are semi-social or mildly social mammals. Manatees usually prefer to swim below the surface at one to three meters (3.28 to 9.84 feet) depth, surfacing every few minutes to breathe. They typically have a swimming cruising speed between four and ten KM/HR (2-6 MPH), but can swim in short bursts at up to 25 KM/HR (15 MPH). Manatees have been seen in shallow waters with their backs and heads out of the water and on occasion have been observed fully or partially out of the water to feed or escape pursuing male manatees. Female manatees reach sexual maturity by age five years and males at the age of three to four years. Mating occurs when estrous females are successfully approached by dynamic epherimal mating herds of between five and 20 males (lasting up to four weeks). Female manatees will swim to very shallow water when pursued by mating herds of males as a preventive measure from mating. Manatees have a low reproductive rate and a long life expectancy. Manatee's gestation period is 11 to 14 months with usual birthing of one calf. Dependent calves remain near their mother's side from one to two years, swimming parallel to its mother, directly behind her flipper. Life expectancy for a manatee is in excess of 50 years. A significant decrease in adult survivorship due to, among other things, watercraft collisions could contribute to a long-term population decline. The manatee population in Florida has shown yearly increases resulting in more manatees now than there were in 1976 in the areas of Brevard County that are subject to the Proposed Rules. MANATEE PROTECTION PLANS The United States Fish and Wildlife Service developed an initial recovery plan for West Indian manatees in 1980, primarily for manatees in Florida. The plan was revised in 1989 and 1996. A third revision to the Recovery Plan was noticed for public comment in November 2000, and in July 2001. The recovery plans hereinabove recognized the major human-related cause of manatee mortality is collisions with watercraft. The existing and draft recovery plans state: Because watercraft operators cannot reliably detect and avoid hitting manatees, federal and state managers have sought to limit watercraft speed in areas manatees are most likely to occur to afford boaters and manatees time to avoid collisions. Avoidance technology research is ongoing for deterrent devices designed to "avoid collisions"; however, no device or combination of devices has gained acceptance and approval by the Marine Biological Scientific Community. The Florida Legislature has designated the entire State a refuge and sanctuary for the manatee--the Florida State marine mammal. Section 370.12(2)(b), Florida Statutes. HISTORY OF MANATEE PROTECTION IN BREVARD COUNTY The Florida Legislature initially authorized the adoption of manatee protection rules for Brevard County effective July 1, 1978, when it required the (former) Florida Department of Natural Resources to adopt rules regulating the speed and operation of motorboats between November 15 and March 31, 1978, in those portions of the Indian River within 3/4 mile of the then Orlando Utilities Commission (now Reliant) and Florida Power and Light Company power plant effluents. These rules became effective on March 19, 1997 (former Rule 16N-22.06, Florida Administrative Code ("Brevard County Manatee Protection Rules" or "BCMPR"). In 1989, a strategy to improve manatee protection in 13 key counties was approved by the Governor and Cabinet. The strategy called for development of manatee protection plans, for boat facility siting criteria, for priority land acquisition of critical manatee use areas, and improved aquatic preserve management for sea grass protection. Guidelines for implementation included new or expanded speed zones, refuges or sanctuaries for the regulation of boat speeds in critical manatee areas. Financial assistance was given Brevard County for its manatee protection plan in 1993. After creation of the FWCC, effective July 1, 1999, the BCMPR and other manatee protection rules were transferred from Florida Department of Environmental Protection (FDEP) to the FWCC, and the Secretary of State renumbered the prior rules to Chapter 68C-22, Florida Administrative Code. In 1994, FDEP amended BCMPR to establish manatee protection zones in the Canaveral Barge Canal and portions of adjacent areas of the Indian and Banana Rivers; to expand the existing "slow speed" zone in Sykes Creek (north of "S Curve") to include the channel; to establish a maximum 25 MPH zone in the Sykes Creek channel between Sykes Creek Parkway and the "S Curve"; and to renumber and correct map inconsistencies. This site- specific rule-making action was taken in response to proposed additional threats to manatees resulting from development of Abby Marina (now Harbortown Marina), pending completion of Brevard County comprehensive countywide manatee protection plan. In 1998, FDEP amended the BCMPR to establish seasonal "motorboats prohibited" and "no-entry" zones at the then Orlando Utilities Commission's (now Reliant) power plant and a seasonal "no-entry" zone at Florida Power and Light Company's power plant. THE PROPOSED MANATEE PROTECTION RULE AMENDMENTS FOR BREVARD COUNTY 1906 Section II - Proposed Rules THE FULL TEXT OF THE PROPOSED RULES IS: (Substantial rewording of Rule 68C-22.006 follows. See Florida Administrative Code for present text.) 68C-22.006 Brevard County Zones. The Commission hereby designates the waters within Brevard County, as described below, as areas where manatee sightings are frequent and where it can be assumed that manatees inhabit on a regular, periodic or continuous basis. The Commission has further determined that a likelihood of threat to manatees exists in these waters as a result of manatees and motorboats using the same areas. The primary purpose of this rule is to protect manatees from harmful collisions with motorboats and from harassment by regulating the speed and operation of motorboats within these designated areas. A secondary purpose is to protect manatee habitat. In balancing the rights of fishers, boaters, and water skiers to use these waterways for recreational and commercial purposes (as applicable under 370.12(2)(j), F.S.) with the need to provide manatee protection, the Commission has examined the need for unregulated areas or higher speed travel corridors through regulated areas. Such areas or corridors are provided in those locations where the Commission determined, on the basis of all available information, (1) there is a need for the area or corridor and (2) the area or corridor will not result in serious threats to manatees or their habitat. Unregulated areas or higher speed corridors are not provided in locations where both of the above findings were not made. The following year-round and seasonal zones are established, which shall include all associated and navigable tributaries, lakes, creeks, coves, bends, backwaters, canals, and boat basins unless otherwise designated or excluded. As used in this rule, ICW means the Intracoastal Waterway. Access to the NO ENTRY and MOTORBOATS PROHIBITED zones designated in paragraphs (2)(a) and (b) will be provided in accordance with procedures set forth in subsection (4), hereunder, and applicable provisions of Rule 68C-22.003. NO ENTRY (November 15 – March 31) Indian River, Reliant Corporation Delespine Power Plant Area: All waters within the discharge canal of the Reliant Corporation Delespine power plant, and; All waters southerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of the jetty on the north side of the power plant intake canal. Indian River, FPL Frontenac Power Plant Area: All waters in the vicinity of the Florida Power and Light (FPL) Frontenac power plant southerly of a line connecting the northern guy wires of the power poles immediately north of the FPL Unit 2 discharge area from the western shoreline of the Indian River to the third power pole east of the western shoreline (approximately 1,650 feet east of the shoreline), and westerly of a line running from said third power pole to the easternmost point (approximate latitude 28º 28' 07" North, approximate longitude 80º 45' 19" West) of the jetty on the north side of the FPL intake canal. MOTORBOATS PROHIBITED (All Year, except as noted) Indian River, Reliant Corporation Delespine Power Plant Area: All waters in the vicinity of the Reliant Corporation Delespine power plant southerly of a line bearing 90º from a point (approximate latitude 28º 29' 41" North, approximate longitude 80º 46' 35" West) on the western shoreline of the Indian River 95 feet north of the northernmost seawall of the power plant discharge canal, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º. This zone is in effect from November 15 through March 31. C-54 Canal: All waters of the C-54 Canal (South Florida Water Management District Canal 54) east of the spillway (approximate latitude 27º 49' 50" North, approximate longitude 80º 32' 24" West) and west of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. IDLE SPEED (All Year, except as noted) Indian River, Power Plant Area: All waters west of the western boundary of the ICW channel, south of a line bearing 90° from a point (approximate latitude 28º 30' 13" North, approximate longitude 80º 46' 48" West) on the western shoreline of the Indian River approximately three-fourths of a mile north of the Delespine power plant discharge canal, and north of a line bearing 90° from a point (approximate latitude 28º 27' 27" North, approximate longitude 80º 45' 43" West) on the western shoreline of the Indian River approximately three-fourths of a mile south of the Frontenac power plant discharge canal, except as otherwise designated under (2)(a) and (b)1. This zone is in effect from November 15 through March 31. Banana River, Cape Canaveral Area: All waters north of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 331° from said point in the Banana River to a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 38' 19" West) on the State Road 528 Causeway (west of State Road 401). Section II - Proposed Rules 1907 Banana River, Manatee Cove Area: All waters of Manatee Cove (on the east side of the Banana River, just south of State Road 520) east of a line at the mouth of the cove running between a point (approximate latitude 28º 21' 21" North, approximate longitude 80º 36' 52" West) on the northern shoreline and a point (approximate latitude 28º 21' 09" North, approximate longitude 80º 36' 51" West) on the southern shoreline. Turkey Creek: All waters of Turkey Creek north and east (downstream) of Melbourne- Tillman Drainage District structure MS-1 and south and west of a line at the mouth of Turkey Creek that runs from the southeasternmost point (approximate latitude 28º 02' 21" North, approximate longitude 80º 34' 48" West) of Castaway Point to the northeasternmost point (approximate latitude 28º 02' 14" North, approximate longitude 80º 34' 43" West) of Palm Bay Point. Sebastian Inlet Area: All waters of the cove on the northern side of Sebastian Inlet (commonly known as Campbell Cove) northwest of a line running between the two rock jetties at the entrance to the cove. Sebastian River Area: All waters of the North Prong of Sebastian River, and; All waters of the North Fork Sebastian River (also known as Sebastian Creek) and the C-54 Canal west of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong and east of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. SLOW SPEED (All Year) Mosquito Lagoon: All waters west of the ICW channel, south of the Volusia County/Brevard County line, and north of ICW channel marker “43,” and; All waters of Mosquito Lagoon (including the ICW channel) south of ICW channel marker “43,” southwest of a line commencing at ICW channel marker “43” and then running to ICW channel marker “45” and then on a bearing of 132° for a distance of 1,000 feet to the line’s terminus at a point in Mosquito Lagoon (approximate latitude 28º 44' 35" North, approximate longitude 80º 44' 35" West), and north of a line running from said point in Mosquito Lagoon on a bearing of 221° to the western shoreline of Mosquito Lagoon. Indian River, Turnbull Basin Area: All waters south and east of a line commencing at a point (approximate latitude 28º 44' 36" North, approximate longitude 80º 46' 19" West) on the eastern shoreline of Turnbull Basin (about one mile north of Haulover Canal) and then bearing 193° to a point 1,500 feet northwest of the ICW channel, then running in a southwesterly direction 1,500 feet northwest of and parallel with the ICW channel to a point (approximate latitude 28º 41' 22" North, approximate longitude 80º 49' 05" West) 1,500 feet northwest of ICW channel marker “12,” and then running in a southerly direction 1,500 feet west of and parallel with the ICW channel to the Florida East Coast Railroad Bridge, including all waters west of the ICW channel and south of an east-west line 1,500 feet north of the point where the Florida East Coast Railroad Bridge crosses over the ICW, but excluding the ICW channel as designated under (2)(e)2. Indian River, Titusville Area: All waters south of the Florida East Coast Railroad Bridge, east of the ICW channel, and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW, and; All waters west of the ICW channel south of the Florida East Coast Railroad Bridge and north of the State Road 402 Bridge and Causeway. Indian River, State Road 402 (Max Brewer Causeway) to State Road 405 (NASA Parkway): All waters within 2,000 feet of the general contour of the western shoreline of the Indian River, excluding the ICW channel where the channel is less than 2,000 feet from the western shore; All waters within one mile of the general contour of the eastern shoreline of the Indian River south and east of a point (approximate latitude 28º 36' 04" North, approximate longitude 80º 44' 44" West) on the western shoreline of Peacock’s Pocket (northwest of Banana Creek), and; All waters south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3. Indian River, State Road 405 (NASA Parkway) to State Road 528 (Bennett Causeway): All waters north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.; All waters west of the ICW channel and north of the overhead power transmission line that crosses the western shoreline of the Indian River approximately 1,200 feet north of State Road 528, excepting those areas otherwise designated for seasonal regulation under (2)(a), (b)1., and (c)1. when said seasonal zones are in effect; All waters south of said overhead power transmission line and west of a north-south line running through the second power pole east of the western shoreline; All waters within one-half mile of the eastern shoreline of the Indian River north of a point (approximate latitude 28º 25' 47" North, approximate longitude 80º 43' 24" West) on the eastern shoreline of the Indian River 1,500 feet south of the canal on the southern side of Meadow Lark Lane, including all waters of Rinkers Canal, and; All waters east of the ICW channel and south of the overhead power transmission line that crosses the eastern shoreline of the Indian River approximately 3,900 feet north of State Road 528. Indian River, State Road 528 (Bennett Causeway) to State Road 518 (Eau Gallie Causeway): All waters within 1,000 feet of the general contour of the western shoreline of the Indian River; All waters south of State Road 528 and within 1908 Section II - Proposed Rules 500 feet of the State Road 528 Causeway, within 500 feet of the State Road 520 Causeway, within 500 feet of the State Road 404 Causeway, and north of State Road 518 and within 500 feet of the State Road 518 Causeway; All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River between State Road 528 and State Road 520; All waters east of the ICW channel from State Road 520 to an east-west line 300 feet south of the southernmost point (approximate latitude 28º 19' 22" North, approximate longitude 80º 42' 00" West) of the spoil island east of ICW channel marker “80,” and; All waters within 500 feet of the general contour of the eastern shoreline of the Indian River south of the aforementioned east-west line and north of State Road 404 (Pineda Causeway). Indian River, State Road 518 (Eau Gallie Causeway) to Cape Malabar: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River; All waters south of State Road 518 and within 500 feet of the State Road 518 Causeway and within 500 feet of the State Road 192 Causeway; All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of State Road 518 and north of the easternmost point (approximate latitude 28º 02' 24" North, approximate longitude 80º 34' 48" West) of Castaway Point (including all waters of the Eau Gallie River and Crane Creek), and; All waters south of said easternmost point of Castaway Point, north of Cape Malabar, and west of a line commencing at a point (approximate latitude 28º 02' 29" North, approximate longitude 80º 34' 38" West) in the Indian River 1,000 feet northeast of said easternmost point of Castaway point, then bearing 130° to the westernmost point (approximate latitude 28º 02' 15" North, approximate longitude 80º 34' 19" West) of the spoil site west of ICW channel marker “14,” then bearing 153° to the westernmost point (approximate latitude 28º 01' 32" North, approximate longitude 80º 33' 55" West) of the spoil site southwest of ICW channel marker “15,” then bearing 138° to the line’s terminus at a point (approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar. Indian River, Cape Malabar to Grant: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River south of Cape Malabar and north of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek); All waters south of Cape Malabar, north of the spoil island between ICW channel markers “25” and “27,” and west of a line commencing at a point approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar, then bearing 157° to the easternmost point (approximate latitude 28º 00' 26" North, approximate longitude 80º 33' 13" West) of the spoil site between ICW channel markers “16” and “17,” then bearing 152° to the easternmost point (approximate latitude 27º 59' 21" North, approximate longitude 80º 32' 35" West) of the spoil island west of ICW channel marker “22,” then bearing 166° to the line’s terminus at the easternmost point (approximate latitude 27º 57' 50" North, approximate longitude 80º 32' 10" West) of the spoil island between ICW channel markers “25” and “27;” All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of said spoil island between ICW channel markers “25” and “27,” and north of ICW channel marker “35,” and; All waters west of the ICW channel between ICW channel markers "35" and “38.” Indian River, Grant to the Indian River County Line: All waters west of the ICW channel between ICW channel marker "38" and the Brevard County/Indian River County line, including those waters east of the centerline of the U.S. 1 Bridge over the Sebastian River, and: All waters within 1,500 feet of the general contour of the eastern shoreline of the Indian River, south of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek) and north of an east-west line running through ICW channel marker “59” (approximate latitude 27º 51' 38" North, approximate longitude 80º 28' 57" West), including those waters within 1,500 feet west of the westernmost edge of the Mullet Creek Islands, within 1,500 feet west of the westernmost edge of the islands south of Mathers Cove, within 1,500 feet west of the westernmost edge of Long Point, and within 1,500 feet west of the westernmost extensions of Campbell Pocket south to said east-west line running through ICW channel marker “59,” and; All waters of the Indian River and Sebastian Inlet east of the ICW channel, south of said east-west line running through ICW channel marker “59,” north of the Brevard County/Indian River County line, and west of a line 200 feet southwest of and parallel with the centerline of the State Road A1A Bridge, except as otherwise designated under (2)(c)5. and excluding the marked Sebastian Inlet channel. Sebastian River Area: All waters of the Sebastian River (including waters also known as San Sebastian Bay), the South Fork San Sebastian River (also known as St. Sebastian River, Sebastian River and Sebastian Creek), and the North Fork Sebastian River (also known as Sebastian Creek) within Brevard County west of the centerline of the U.S. 1 Bridge and east of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong of Sebastian River. Canaveral Barge Canal: All waters of the Canaveral Barge Canal east of the general contour of the eastern shoreline of the Indian River and west of the general contour of the western shoreline of the Banana River. Sykes Creek and Kiwanis Basin: All waters of Sykes Creek and Kiwanis Basin south of the Canaveral Barge Canal and north of the centerline of State Road 520. Section II - Proposed Rules 1909 Newfound Harbor: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Bridge and Causeway; All waters within 1,000 feet of the general contour of the western shoreline of Newfound Harbor north of the runway for the Merritt Island Airport (approximately one mile south of State Road 520), and; All waters within 1,000 feet of the general contour of the eastern shoreline of Newfound Harbor and an extension of said shoreline to a point 1,000 feet south of Buck Point. Banana River, North of State Road 528: All waters within 1,500 feet of the general contour of the western shoreline of the Banana River south of a point (approximate latitude 28º 26' 10" North, approximate longitude 80º 39' 35" West) on the shoreline near Kars Park on the boundary of the federal No Motor zone; All waters south of an east-west line running through the westernmost point (approximate latitude 28º 24' 42" North, approximate longitude 80º 38' 34" West) of the first spoil island north of the Canaveral Locks (commonly known as Ski Island), including those waters in Port Canaveral west of State Road 401, and; All waters east and south of a line commencing at the northernmost point (approximate latitude 28º 24' 44" North, approximate longitude 80º 38' 32" West) of Ski Island, then running to the southernmost point (approximate latitude 28º 24' 55" North, approximate longitude 80º 38' 31" West) of the second spoil island north of the Canaveral Locks, then following the eastern shoreline of said spoil island to its northernmost point, then bearing 6° to a point (approximate latitude 28º 25' 09" North, approximate longitude 80º 38' 29" West) in the Banana River underneath the overhead power transmission line south of the third spoil island north of Canaveral Locks, then following said transmission line (which is the boundary of the federal No Motor zone) in an easterly direction to the line’s terminus at a point (approximate latitude 28º 25' 16" North, approximate longitude 80º 36' 13" West) on the eastern shoreline of the Banana River. Banana River, State Road 528 to State Road 520: All waters south of State Road 528 and north of an east-west line 1,000 feet south of the point where the State Road 528 Bridge crosses over the main Banana River channel, except as otherwise designated under (2)(c)2.; All waters west of a line running from a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 39' 30" West) on the State Road 528 Causeway east of the western State Road 528 Relief Bridge to a point (approximate latitude 28º 21' 26" North, approximate longitude 80º 39' 32" West) on the State Road 520 Causeway approximately 1,200 feet west of the water storage tanks, and; All waters south of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 174° from said point in the Banana River to a point (approximate latitude 28º 21' 28" North, approximate longitude 80º 37' 35" West) on the State Road 520 Causeway approximately 1,000 feet west of Cape Canaveral Hospital Complex. Banana River, Cocoa Beach Area: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Causeway, excluding the main Banana River channel; All waters within 1,000 feet of the general contour of the western shoreline of the Banana River, south of State Road 520 and north of Buck Point and an extension of said shoreline to a point 1,000 feet south of Buck Point, excluding the main Banana River channel where the channel is less than 1,000 feet from the western shoreline, and; All waters east of a line commencing at a point (approximate latitude 28º 21' 25" North, approximate longitude 80º 38' 30" West) on the State Road 520 Causeway (approximately 2,000 feet east of the State Road 520 Bridge over the main Banana River channel), then bearing 190° to a point (approximate latitude 28º 19' 15" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,900 feet west of the northwesternmost point of the Cocoa Beach Municipal Park, then bearing 270° to a point (approximate latitude 28º 18' 38" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,700 feet west of the southwesternmost point of the Cocoa Beach Municipal Park, then bearing 171° for approximately 3,000 feet to a point (approximate latitude 28º 18' 07" North, approximate longitude 80º 38' 50" West) in the Banana River east of channel marker “15,” then bearing 124° to a point (approximate latitude 28º 16' 52" North, approximate longitude 80º 36' 45" West) in the Banana River 1,000 feet west of the eastern shoreline of the Banana River, then heading in a southerly direction 1,000 west of and parallel with the eastern shoreline of the Banana River to the line’s terminus at a point (approximate latitude 28º 15' 51" North, approximate longitude 80º 36' 38" West) in the Banana River near the northern boundary of Patrick Air Force Base. Banana River, South of Cocoa Beach to State Road 404 (Pineda Causeway): All waters south of an east-west line running through the southernmost point (approximate latitude 28º 16' 19" North, approximate longitude 80º 39' 25" West) of the more southerly of the two islands east of Macaw Way (on Merritt Island) and west of a line bearing 162° from said southernmost point to State Road 404; All waters south and east of the overhead power transmission line in the Banana River adjacent to Patrick Air Force Base, and; All waters north of the centerline of State Road 404 and within 2,000 feet of the State Road 404 Bridges and Causeway, excluding the main Banana River channel as designated under (2)(e)5. Banana River, South of State Road 404 (Pineda Causeway): All waters south of the centerline of State Road 404, including those waters east of a line bearing 270° from the southernmost point (approximate latitude 28º 08' 32" North, approximate longitude 80º 36' 15" West) of Merritt Island 1910 Section II - Proposed Rules (commonly known as Dragon Point) to the Eau Gallie Causeway, excluding the main Banana River channel as designated under (2)(e)5. 25 MPH (All Year) Mosquito Lagoon: All waters in the ICW channel south of the Volusia County/Brevard County line and north of ICW channel marker “43” (north of Haulover Canal). Indian River, Turnbull Basin and Titusville Area: All waters in the ICW channel southwest of ICW channel marker “1” (southwest of Haulover Canal) and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW. Indian River, State Road 405 (NASA Parkway) Area: All waters in the ICW channel south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW and north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW. South Indian River Area: All waters in the ICW channel south of ICW channel marker “59” and north of the Brevard County/Indian River County line. South Banana River Area: All waters in the main Banana River channel south of a point in the channel 2,000 feet north of the State Road 404 Bridge, and north of a point (approximate latitude 28º 09' 15" North, approximate longitude 80º 36' 32" West) in the channel on the northern boundary of the local Idle Speed zone approximately 1,900 feet north of the Mathers Bridge. Commercial Fishing and Professional Fishing Guide Permits: The following provisions pertain to the issuance of permits to allow individuals engaged in commercial fishing and professional fishing guide activities to operate their vessels in specified areas at speeds greater than the speed limits established under subsection (2) above. Procedures related to the application for and the review and issuance of these permits are as set forth in 68C-22.003, Florida Administrative Code. Permits shall be limited as follows: Permits shall only be available for the zones or portions of zones described under (2)(d)1. through (2)(d)9., and (2)(d)13. through (2)(d)18. Permits shall not apply on weekends or on the holidays identified in s. 110.117, F.S. Permit applications may be obtained at the Commission’s Law Enforcement office at 1-A Max Brewer Memorial Parkway in Titusville or by contacting the Commission at Mail Station OES-BPS, 620 South Meridian Street, Tallahassee, Florida 32399 (850-922-4330). Access to the NO ENTRY and MOTORBOATS PROHIBITED zones is allowed for Reliant Corporation employees or their authorized agents (for the zones designated under (2)(a)1. and (b)1.) and for Florida Power and Light Company employees or their authorized agents (for the zone designated under (2)(a)2.) provided that entry into the zones is necessary to conduct activities associated with power plant maintenance, emergency operations or environmental monitoring. The Commission must receive notification of the activity prior to its commencement. In the event of an emergency activity, the Commission shall be notified no more than one week after the activity has been commenced. All vessels used in the operation or associated with the activity shall be operated at no greater than Idle Speed while within the zones and must have an observer on board to look for manatees. The zones described in 68C-22.006(2) are depicted on the following maps, labeled “Brevard County Manatee Protection Zones.” The maps are intended as depictions of the above-described zones. In the event of conflict between the maps and descriptions, the descriptions shall prevail. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE FWCC's staff who were primarily responsible for the development of the recommended revisions to the BCMPR to the FWCC included: Scott Calleson, who holds a Bachelor of Science degree in Marine Science and a Masters of Science degree with emphasis on Environmental Planning and Natural Resource Management, and has worked with manatee protection rules since 1992; David Arnold, who holds both a Bachelor of Science degree in Biology and a Master of Science degree in Biological Oceanography, and who supervised the Department of Environmental Protection's marine turtle protection program prior to becoming Chief of the Bureau of Protected Species Management in 1995; and Dr. Charles Deutsch, who has both a Bachelor of Science and a Doctorate degree in Biology with specialization in biology of marine mammals and behavior, animal behavior and behavioral ecology, and worked for the United States Geological Survey (USGS) in a number of analyses of manatee radio tracking along the Atlantic Coast. The verbal, narrative and graphical presentations of the experts were relied upon in making recommendations to the FWCC for the proposed rule revisions. FWCC's staff gave good faith consideration to the experts' opinions, publications, articles, data analysis, and reasonable inferences and predictions. MANATEE MORTALITY DATA FWCC relied upon manatee mortality data in evaluating manatee inhabitation (Brevard County Mortality Information and Brevard County Misc. Information), including FMRI manatee salvage database for Brevard County from January 1974 to December 2000 (including carcass recovery location and cause of death). AERIAL SURVEY DATA In evaluating manatee inhabitation, FWCC relied upon manatee aerial survey data in existing manatee inhabitations. Included in this process were: information on aerial surveys performed for Kennedy Space Center by Dynamic Corporation; Geographic Information System information for FMRI's 1997-1999 Brevard County aerial survey along with data in "Seasonal Manatee Distribution and Relative Abundance in Brevard County, Florida, 1997-1999"; Geographic Information System data from earlier Brevard County aerial surveys; and aerial surveys conducted by the Florida Marine Research Institute and others. Aerial Surveys Aerial surveys have been conducted by the Florida Marine Research Institute and others using various techniques. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as stated in Finding of Fact 23 herein above. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. The commission in assessing manatee use of an area and then establishing manatee protection regulations uses these types of surveys. SYNOPTIC AERIAL SURVEYS Considered by FWCC was the statewide synoptic survey for the period 1991 to 2001. These surveys are used for monitoring winter aggregation of manatees and provide a minimum estimate of the number of manatees observed. Population biologists view synoptic survey results as the best available information source to estimate the minimum size of the manatee population in Florida at the present time. The statewide synoptic survey data for the years 1991-2001 are detailed in paragraph 22 herein above. The Berkeley Canal system location, where manatees were observed on January 6, 2001, has four connecting canals to the eastern shoreline of the Banana River; the northernmost connection is just south of the Pineda Causeway and the southernmost connecting canal is located about three and three-fourths miles to the south between Carter's Cut and the Mathers Bridge. The West Banana River shoreline locations where manatees were observed on January 6, 2001, is the Banana River Marina. MANATEE DISTRIBUTION AND RELATIVE ABUNDANCE Targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. They are used in assessing manatee use of an area and then in establishing manatee protection regulations in those areas. Forty-five flights between September 1997 and September 1999 are the most comprehensive and recent FMRI aerial surveys in Brevard County. Aerial surveys possess an inherent bias because the location of animals can only be seen during daylight hours and do not account for nighttime locations. FWCC's aerial survey data were presented in various forms: raw data entry sheets completed by the surveyors; a composite, GSI plot of the data points for Brevard County; small- format GIS plots of data points that depicted manatees seen by month; and small-format GIS plots of data points that depicted manatees seen during each flight, along a flight path. Before the 1997-1999 Bervard survey, relative abundance and distribution surveys for portions of Brevard County were conducted in late-1985 through early-1987. The 1985-87 Banana River surveys included only the area between Launch Complex 39B and Eau Gallie, but included portions of Canaveral Barge Canal, Sykes Creek and Newfound Harbor. Flights were flown over the Cocoa Beach area during morning hours for a nine-month period (March 3, 1990- November 27, 1990), and showed more than one manatee during each flight, with one exception on March 3, 1990. SATELLITE TELEMETRY DATA AND VHF RADIO TELEMETRY DATA The FWCC relied upon manatee telemetry data in evaluating manatee inhabitation for Brevard County. Included in the satellite and VHF radio telemetry data relative to inhabitation was a GIS database obtained from the "United States Geological Survey (USGS) Biological Resources Division, Florida Carribean Science Center, Sirenia Project, Gainesville, Florida," and reports authored by Dr. Charles Deutsch who analyzed the USGS data. The USGS Sirenia Project data analyzed by Dr. Deutsch were collected from May 1986 to May 1998, and included both VHF radio and telemetry and satellite telemetry data for the 78 manatees that were tagged for varying amounts of time during that period along the lower East Coast of the United States, excluding data for manatees that were born and raised in captivity. This data was considered by Dr. Deutsch as the best telemetry data available. Of the full USGS Sirenia Project data evaluated by Dr. Deutsch, 61 manatees were tracked at some time during the study period in Brevard County, including 16 manatees that were only tracked using VHF radio tracking and not satellite telemetry. The maximum number of tagged manatees observed in Brevard County during the study period was 12 manatees at one time. Dr. Deutsch opined that about one or two percent of the documented East Coast manatee sub-population was tracked each year. The radio telemetry data subsets from the Sirenia Project covered a ten-year period from May 1986, and included over 6,000 manatee observations for 54 individual tagged manatees. Of those 6,000 observation points, three-quarters (almost 5,000) were actual visual sighting of manatees made by persons on shore or in vessels. Of those visual sightings, approximately ten percent were made by non-government employees. The satellite telemetry data evaluated by Dr. Deutsch included data for 45-tagged manatees that was collected from April 1987 to May 1998, with over 34,000 location records of Class 1, 2, or 3 accuracy. Of the 61-tagged manatees that were observed in Brevard County during the 12-year study period, the median tracking period was 135 days, with some animals tracked for several years while others were tracked for shorter periods of time. Of the 61 manatees tracked in Brevard County, approximately one-half were fitted with radio or satellite telemetry transmitters (tags) while in Brevard County, the other half were tagged in different areas of northeast Florida, in southeast Georgia, or in southeast Florida. A majority of the animals tagged outside of Brevard County were observed in Brevard County, and Dr. Deutsch opined that this data demonstrated Brevard County to be the hub of manatee activity along the Atlantic Coast. MIGRATORY RANGE OF TAGGED MANATEES The size of the migratory ranges of tracked manatees varied with considerable variation of movement by individual manatees in Brevard County. Some manatees would spend eight months of the year near Canaveral Sewer Plant (Banana River) and spend each winter near Port Everglades (Ft. Lauderdale). Many tagged manatees displayed strong site-fidelity, returning to the same seasonal locations yearly while others did not. Telemetry data points are not precisely a depiction of the actual and true location of the manatee at the time of data transmission from the tag to the satellite. Services Argos, the company that administers the hardware, assigned 68 percent of the data points within 150 meters of the true location in class three locations. In 1994, USGS performed accuracy experiments in Brevard County of satellite telemetry and found location class 3 data points to be within 225 meters of the true location, and 95 percent within 500 meters of the true location. In addition to Dr. Deutsch's reports, FWCC considered various telemetry papers and publications pertaining to Brevard County: "Tagged Manatee Use of the Cocoa Beach/Thousand Island Area;" "Winter Movements and Use of Warm-water Refugia by Radio- tagged West Indian Manatees Along the Atlantic Coast of the United States;" and "Easton, Tagged Manatee Movement through the Canaveral Barge Canal, Brevard County Florida" (February 14, 1997). MANATEE SIGHTING DATA FWCC relied upon manatee sighting data in its evaluation of manatee inhabitation. Included in the sighting data was the Brevard County 2001 Rule Development and Trip Notes of February 6- 7, 2001; Sea Ray Boats, Inc. Water Test Re-Run Manatee Sighting Records for 2000-2001; Canaveral Barge Canal Boater Activity and Compliance Study; Sharon Tyson's Sykes Creek Observation Records; and cold-seasons sighting logs for the C-54 canal structure. STUDIES AND REPORTS PERTAINING TO MANATEE DISTRIBUTION, RELATIVE ABUNDANCE, HABITAT, BEHAVIOR, OR OTHER MANATEE INFORMATION. FWCC considered and relied upon the Brevard County Manatee Protection Plan that included an inventory and analysis section about manatees, analysis of manatee mortality data, manatee legislation and protection, law enforcement, habitat issues, existing boat facilities, Brevard County boating activity patterns, and an inventory of present manatee education programs. The existing Federal Manatee Recovery Plan, to which members of the Bureau of Protected Species and Florida Marine Research Institute contributed, was relied upon. SCAR CATALOG DATA FWCC considered and relied upon scar catalog data in evaluating manatee protection needs with Brevard County Misc. Information as the source provider. EXPERT OPINIONS FWCC relied upon expert opinions in evaluating manatee inhabitation. A staff meeting with manatee experts, as part of the process, included, but was not limited to, meetings with Jane Provancha and Sharon Tyson in December 2000, meetings and discussions with Dr. Charles Deutsch between November 2000 and May 2001, and various discussions with members of the federal Recovery Plan Team. OTHER AVAILABLE SITE-SPECIFIC INFORMATION FWCC considered site-specific information that was available, principally drafts of the Brevard County Manatee Protection Plan. FWCC also considered site-specific information about water skiing areas and prospective additional travel times in various waters proposed for new, or changed, regulations. DATA ANALYSIS Threat Analysis Rule 68C-22.001(3), Florida Administrative Code, contemplates a qualitative assessment and exercise of discretion by taking into consideration a balancing of manatee protection needs, including an assessment of relative threats to manatees, with the right of boaters, fishers and water skiers. In assessing where threats to manatees may exist from motorboats, the manatee death database provides information on confirmed interactions, such as locations where manatee carcasses have been recovered. Manatee deaths, carcass recovery and confirmed interactions locations are maintained in FMRI's database. From January 1974 to December 2000, 728 manatees died in Brevard County and 184 of those deaths were because of interactions with watercrafts. Watercraft related deaths account for 23.5 percent of all manatee deaths recorded in Brevard County between 1974 and 2000. Approximately 19 percent of all watercraft related deaths of manatees in Florida have occurred in Brevard County. FWCC has determined that manatee death from watercraft interaction is due to blunt trauma more than 50 percent of the time. Deaths from propeller cuts account for less than 50 percent. Often injury instead of immediate death from motorboat strikes is the case. Many manatees have scars from previous sub- lethal motorboat strikes, and manatees have been observed with more than 30 different strike patterns. Where the cause of death is classified as watercraft related, carcass recovery may or may not be where the collision occurred depending upon the acuteness of the injury at the time of collision. Acuteness of the injury, wind, current, tide, and decomposition all affect the location of the carcass at the time of salvage. Additionally, operation of motorboats can disrupt essential manatee behaviors such as warm water sheltering, feeding, sleeping, mating, and nursing. This harassment can lead to cold-related illnesses and increase mortality risk by driving manatees from warm water refuges. The increase in the Atlantic Coast manatee population and the increase of the number of boat registrations result in an increase in the threat of harmful collisions between boats and manatees. Geographic Scope of Threat Analysis Section 370.12(2)(m), Florida Statutes, does not specifically describe the geographic scope of the FWCC's evaluation of "other portions of state waters" for manatee sightings and assumed inhabitation on a periodic or continuous basis. Subsection 370.12(2)(g), Florida Statutes, suggests that the evaluation of manatee sightings is appropriate for large portions of navigable waterways, such as the Indian River between St. Lucie Inlet and Jupiter Inlet. A "waterway" is generally defined as "a navigable body of water." (Webster's Ninth New Collegiate Dictionary, p. 1333.) Rule 68C-22.001(3)(a)2.f., Florida Administrative Code, contemplates a qualitative assessment of the "likelihood of threat" to manatees. The only reference is to the "characteristics of the waterway in question." The rule does not mandate the geographic scope of a "threat evaluation." The FWCC analyzed various data on different scales depending upon the nature of the inquiry - the evaluation of sighting "frequency" generally considered a large geographical area such as a section of a river. Conversely, the regulatory alternatives to protect manatees were evaluated at a smaller or finer scale. The Commission also considered segments of waterways divided by causeways or natural barriers. The Commission considered research that divided Brevard County (north of Eau Gallie) into 12 zones for purposes of analysis. In the Brevard County Manatee Protection Plan, the waterways were analyzed in terms of seven "planning zones," to include review of physical characteristics such as bathymetry and sedimentological conditions, shoreline conditions, and water quality; Manatee Habitat Features, including sea grass, mangrove/salt marsh, freshwater sources, warm water refugia, calving and resting areas, feeding areas, travel corridors, and habitat protection; Manatee Data including manatee abundance and distribution and manatee mortality; boat facilities; boating activity patterns; waterspouts areas; and manatee zones. The Commission's consideration of waterway characteristics and manatee behavior during the Brevard County rule-making process, including the geographic scope of manatee inhabitation and threat from watercraft, was reasonable and consistent with the approach taken by other resource management agencies and researchers as contemplated by the statutory purpose. Proximity and Degree of Known Boating Activities FWCC evaluated available boating activity information in assessing threat. Staff considered the general analysis of boating activity and detailed analysis of boating activity in specific portions of Brevard County as provided in the County's MPP; included therein were maps that show locations of the County's 72 marinas and 65 boat ramps, of which 27 are public ramps. Also considered was the study of Brevard County-Wide Boating Activity by Dr. J. Morris, of the Morris of Florida Institute of Technology. Dr. Morris' inquiry resulted in the following specific finding. First, Brevard County residents are the primary ones who launch at boat ramps, followed by residents of Orange, Osecola, Seminole, Indian River and Volusia counties. Second, the Inter Costal Waterways experiences increases in transient traffic during late fall and winter months, including out-of-state boats. Third, Class One boats (16 to 25 feet) are the most observed type, followed by Class A (less than 16 feet) vessels. Fourth, most boating activity occurs during weekends. Fifth, the greatest concentrations of boats were in specific areas such as NASA causeway (SR 405, Indian River), East Canaveral Barge Canal, SR 520 and the Banana River (the Merritt Island Causeway), the Pineda Causeway (SR 404, Banana River), the Melbourne Causeway (Indian River), near Grant Island Farm, the Sebastian River and the Sebastian Inlet. Dr. Morris concluded that the boating public preferred to cruise the waters of the lagoons with the marked channels and use Indian and Banana Rivers as highways for recreational boating purposes. The United States Fish and Wildlife Service (USFWS) closed a portion of the northern Banana River within the Merritt Island National Wildlife Refuge to public boat entry, limiting public entry to wading or by non-motorized vessels. The closed area has one of the largest concentrations of manatees in the United States, and recently has been the most important springtime habitat for the east coast manatee population. As a result of the March 1990 closing to motorized boats, an average increase of manatee use observed during the summer months in the area increased by 60 percent. The increased use is attributed to improved habitat quality aided by the lack of human disturbance and reduced propeller scarring of sea grass. In December of 1994, Dr. Morris submitted a report, "An Investigation of Compliance to Boat Speed Regulations in Manatee Protection Zones in Brevard County, Florida." This report contained an analysis from on-water and aerial observations in both "slow speed" and "idle speed" zones in various areas of Brevard County for a one-year period of April 1993 to April 1994. At Mosquito Lagoon, of 1,214 boats observed, speeds were clocked for 98 percent of the boats and 11 percent of those exceeded the posted Inter Costal Waterways 30 MPH speed limit, all of which were recreational boats. At the Indian River site between Grant and Sebastian, 2,511 boats were observed, speeds were clocked for 97 percent of the boats and 16 percent of those exceeded the posted ICW 30 MPH speed limit. In posted "slow speed" zones outside the ICW channel, 25 percent of boats observed underway were deemed non- compliant with the speed zone limitation. Of those non-compliant Class A powerboats, the violators were typically personal watercrafts ("Jet Ski" type vessels.) A detailed boater activity study was made of the Canaveral Barge Canal and Sykes Creek Area. The study found, in part, that: highest boating use occurred during holidays, except during bad weather; most use occurred on weekends; and in Canaveral Barge Canal and Sykes Creek 63 percent of the vessels were Class 1 boats and 74.3 percent of the vessels were Class 2 or Class 3 boats. INCREASED LEVEL OF BOATING ACTIVITY IN BREVARD COUNTY In general, the level of boating activity in Brevard County continues to increase with the increasing population, launching facilities, and boat registrations in Brevard County and nearby counties, including Orange and Seminole counties. In 2000, 34,316 vessels were registered in Brevard County. In the preceding year there were 31,842 vessels registered. In 1995, 28,147 boats were registered and in 1987, 23,352 boats were registered in Brevard County. In 2000, Florida registered 840,684 recreational vessels, an increase over the 695,722 vessels registered in 1994. Boating accidents increased with the increased registration of vessels with Brevard County ranking 10th out of the state's 67 counties with the number of boating accidents. Brevard County, since mid-1990's, has registered an increased number of "flats skiffs" which are shallow draft, low profile motorboats capable of speeds up to 50-60 MPH while operating in shallow (about 1 foot) water and often used for sight-fishing in shallow sea grass flats. SEASONAL AND/OR YEAR-ROUND PATTERNS OF MANATEE USE AND THE NUMBER OF MANATEES KNOWN OR ASSUMED TO OCCUR IN, OR SEASONALLY USE THE AREA FWCC staff evaluated whether seasonal restrictions could or would be effective. Staff concluded that the only seasonal regulation of motorboats justifiable by the data was at the power plant discharges in the Indian River. At those locations, extreme concentrations of manatees are regular during the cold season. Year-round manatee protections were proposed for this area, but they would have to be more restrictive during the winter months. During the coldest periods of winter, following a strong cold front, manatees have been observed in large concentrations in: the power plant discharges at Florida Power and Light Company's Indian River plant and at the adjacent Reliant Energy Plant and the Sebastian River Canal. The congregation of manatees at thermal refuges on cold winter days was not for the duration of the winter season. They have been known to leave the thermal refuge for a part of a day, a day, or for many days at a time. Sharon Tyson, observer, performed a detailed Brevard County Manatee Photo-Identification Project during late 1999 and early 2000 at the Brevard County power plants, and documented a number of manatees in the FPL discharge zone between December 24, 1999, and March 4, 2000. During that period the number of manatees in the zone varied greatly, through late-December to mid-January (from 7 to 57 manatees). On January 16, 2000, no manatees were present. On January 17, 2000, 10 manatees were present. On January 23, 2000, 29 manatees were counted. Two weeks later, February 6, 2000, 111 manatees were present. Similar sightings made at the C-54 Canal Structure (near Sebastian Creek), during the same time-period, found as few as 11 manatees to as many as 90 manatees. Apart from the extreme concentration of manatees during extremely cold periods, manatees are distributed through the county waterways during each season of the year. The 1997-1999 Brevard County Aerial Survey GIS Plots gave a clear representation of year-round manatee distribution patterns varying greatly. MANATEE MORTALITY TRENDS WITHIN THE AREA Only in rare cases is the approximate or actual location of a manatee and motorboat collision known. The FWCC considered and relied upon a review of the general trend of watercraft-related (and other) mortality County-wide to assess a generalized increased mortality trend. In doing so as part of the rule-making process, FWCC reviewed total manatee mortality for Brevard County for the period for which records existed from 1974 to 2000. That data base source indicated increasing watercraft mortality in recent years. FWCC evaluated manatee salvage data for January-March 2001 and preliminary information for April-May 2001. Staff employee, Scott Calleson's working file mortality information was reviewed and considered as was Dr. Ackerman's "Mortality Rates White Paper," which concluded that human-caused manatee mortality levels were at an unsustainable rate in the Atlantic, Brevard County, Tampa Bay, and Southwest Florida Regions. The Florida Inland Navigation District provided documentation that was considered in the FWCC rule making that included a regional evaluation of "Watercraft Related Manatee Deaths in the Nine Critical Counties of FIND" from 1990-1999. Of these nine critical east coast counties, Brevard County had the highest mortality trend. During the last two-to-three years, there has not been a clear trend of increased manatee mortality in Brevard County, but the number of watercraft-related mortalities is capable of being reduced, in part, through improved regulations. Historical manatee mortality data for Brevard County from 1977 through 2000 demonstrates a clearly increasing trend in watercraft-related manatee mortality. For each five-year increment, water-related manatee mortality has increased as follows: from 1977-1979 there were an average of 1.9 water-related mortalities/year; 1980-1985 there were 4.6 mortalities/year; 1986-1990 there were 7 mortalities/year; 1991-1995 there were 8.8 mortalities/year; and 1996-2000 there were 11.8 mortalities/year. EXISTENCE OF FEATURES WITHIN THE AREA THAT ARE ESSENTIAL TO THE SURVIVAL OF, OR KNOWN TO ATTRACT, MANATEES SUCH AS SEAGRASSES, FAVORABLE WATER DEPTHS, AND FRESH OR WARM WATER SOURCES Dr. Deutsch stated that his telemetry analysis indicated that the most important habitat correlation for Brevard County manatees was with sea grass, and in particular, often with outer edge of sea grass beds. Manatees prefer feeding on submerged, emergent and floating vegetation, generally in that order. Manatees extensively use Brevard County sea grass beds for feeding. Sea grass coverage is depicted on the Florida Department of Environmental Protection's Boater's Guide to Brevard County, which has no date, but was prepared by the DEP. Sea grass coverage in 1989 is depicted in the 2000 maps prepared by the STMC, using the Atlas of Marine Resources, Versions 1.2 and 1.3b. The most recent St. Johns River Water Management District sea grass coverage data for the Indian River Lagoon indicates a strong correlation between sea grass coverage in waters with an average depth of 66.93 inches (1.7 meters) or less. As of 1992, of the estimated 46.190 acres of sea grass in Brevard County, nine percent of the sea grass suffered light scarring from boat activity; 4.2 percent of the sea grass suffered moderate scarring; and 13.4 percent of the sea grass suffered severe scarring. Areas with boat scarring of sea grass included a number of areas that are included within proposed "slow speed" zones: the eastern portion of Turnbill Basin; the eastern shoreline of the Indian River between the NASA railroad bridge and Rinkers Canal; the Banana River around Manatee Cove and south of the City Golf Course; the northwest part of Newfound Harbor; and the western shoreline of the Banana River, between Newfound Harbor and Pineda Causeway. The location of the proposed manatee protection zones corresponds well to the location of sea grass beds, deeper waters and channels adjacent to sea grass beds or established migratory routes, and fresh warm water sources. FAVORABLE WATER DEPTHS Dr. Deutsch stated that his telemetry analysis indicated that bathymetry is an important habitat correlate for Brevard County. Generally, tagged manatees were observed in the area from a two-meter (6.65 feet) depth contour to the shoreline. FWCC consideration of "favorable water depths" took into account the fact that water levels fluctuate in the Indian River Lagoon. However, unlike many coastal areas of Florida, the Indian River Lagoon does not experience significant daily tidal fluctuation. On an annual basis, however, the water level fluctuates about 2.5 to 3 feet in response to environmental conditions. It was determined to be impractical to amend manatee protection rules (and to move regulatory signs implementing the rules) in response to changing water levels. Manatees usually swim between one to three meters (3.28 to 9.84 feet) below the surface, surfacing every few minutes to breathe, and typically feed at just below the surface to a depth of three meters. Manatee experts, including persons with extensive experience observing manatee behavior in Brevard County, all testified that manatees used areas where the water level at the time was less than three feet for mating, feeding, fleeing a pack of male manatees, and resting. The FWCC used a bathymetric survey prepared on behalf of the St. Johns River Water Management District for purposes of establishing preferred sea grass habitats during the rule-making and considered the bathymetry in conjunction with other data to predict areas where manatees are likely to inhabit. The St. Johns District advised the FWCC staff that the 1.7-meter depth on its bathymetric survey was the rough depth limit for sea grass, and provided the FWCC staff with a GIS file on the bathymetric survey at 0.3-meter depth intervals for most areas, although the approximate sea grass contour was shown as 1.5 to 1.7 meters. Surveys are tied to a horizontal datum and a vertical datum. A survey depicts the three-dimensional lagoon basin, part of the spheroid planet Earth, on a two-dimensional map. The hydrographic survey data used by the FWCC in the rule-making was based upon a survey tied to a horizontal datum - North American Datum (NAD) 83/90; and a vertical datum - North American Vertical Datum of 1988 (NAVD-88). The horizontal and vertical accuracy of the survey differs. Positional accuracy of horizontal (e.g. shorelines) points is within 1 to 5 meters (3.28 to 16.4 feet). Vertical accuracy of depth data points averages within .03 feet. The hydrographic survey states that it is not to be used for navigation - - "The use of NAVD-88 for the bathymetric survey gives the impression of deeper water than is actually present within the lagoon since the "0" contour of NAVD-88 is located on dry land approximately 1 foot above the ordinary water line." Manatee distribution from aerial surveys and 1992 bathymetry data was graphically depicted by the STMC and confirms manatee use of areas proposed for regulation in the proposed rules. FRESH WATER SOURCES FWCC considered and relied upon major fresh water sources that have been historically used by manatees such as: Turnbull Creek; Titusville Marina/POTW; Addison Canal; the two Indian River power plants; two wells along the eastern shoreline of the Indian River approximately two miles south of Rinkers Canal; the intersection of Bacardi and Dakar Drive in Sykes Creek; the Cape Canaveral POTW (sewer plant); the Banana River Marina; the outfall into the Indian River from the east shore of Merritt Island westerly of the south end of Newfound Harbor; the Indian River Isles; the Eau Gallie River; Crane Creek; Turkey Creek; and the Sebastian River. Also considered were less significant sources of fresh water found at many marina basins, at the Sear Ray Boats, Inc. facilities and in residential canals. WARM WATER SOURCES FWCC considered major warm water sources in the two Indian River power plants and the Sebastian River Canal. Minor sources of warm water include deeper water and areas with artesian springs such as: Port Canaveral; a basin off Wynar Street in Sykes Creek; the Banana River Marina; and the Berkeley Canals. CHARACTERISTICS OF THE WATERWAY IN QUESTION IN RELATION TO KNOWN BOATING ACTIVITY PATTERNS FWCC considered, as its basic source document, Morris' Final Report for Brevard County Boating Activity Study. Boating activity patterns in Brevard County are dependent upon weather, economic conditions, and other factors. Larger motorboats (including tug/barge combinations) are constrained in movement to deeper water--in some areas, primarily within marked or maintained navigation channels including the Canaveral Locks, Canaveral Barge Canal, ICW, and Banana River main channel. In the Indian River, south of the NASA railroad bridge, the deeper area outside of the marked channel widens to between half-a-mile to a mile with depths ranging from seven to 12 feet MLLW, all the way to Rock Point, just north of Grant. For most of the length of the County, larger boats have sufficient water depth to travel adjacent to the ICW channel. Waters outside the main channel in the Banana River are relatively shallow. The Canaveral Barge Canal is dredged to maintain a depth of approximately 15 feet. Barges and escorting tugs navigate through the Canaveral Locks and into the ICW. Some barges proceed northward from the Canaveral Locks into the Banana River channel to make deliveries to the Space Center, according to the Lockmaster, Mr. Querry. Sea Ray Boats, Inc.'s, design and production facilities located along the Canaveral Barge Canal use the Canal to access testing areas to the west in the Indian River ICW, to the east in the Banana River channel, and in the Atlantic Ocean. Limited retests are permitted in an area adjacent to the Canaveral Barge Canal facilities. Recreational motorboats and personal watercrafts can be operated outside of marked channels. Some of these recreational motorboats can navigate "on plane" and up to 60 MPH in water about one-foot deep. Motorboat users engage in a variety of activities having differing operational patterns. Fishers might prefer to travel at relatively high speed enroute to preferred fishing areas, and then operate with a push pole, trolling motor or adrift, in order to hunt certain species of fish. If no fish are located, then high-speed operation to another spot is used, repeating the pattern of locating fish by sight. Water-skiers usually operate at high speed in a relatively small area, usually protected from the wind, and often located near an island or park. BOAT-MANATEE INTERACTIONS FWCC considered that manatees display varying reactions to motorboats. Higher speed motorboat operation in relatively shallow water presents a greater threat to manatees than operation at slow speed or idle speed or than operation in relatively deeper waters, since manatees have fewer opportunities to avoid the collision. Manatees can swim or rest at the surface or underwater and must come to the surface to breathe air every two to three minutes for smaller, active manatees and up to 20 minutes for large, resting manatees. Their general cruising speed is two to six miles per hour, but they can travel at short bursts up to 15 MPH. Boats operated at "slow speed" vary in miles-per-hour over the bottom within a range of about seven to eight miles-per- hour. At "slow speed," the manatee and vessel operator have more time to avoid collision, or the manatee can avoid serious blunt trauma injury from collisions with most vessels. The ability of manatees to avoid being hit by motorboats has diminished in Brevard County as a result of an increase in the manatee population, increase of motorboats, increase in boating access points, and development and use of faster boats that operate in less-predicable (non-linear) patterns in relatively shallow waters where manatees often feed on submerged vegetation. TESTIMONY REGARDING MOTORBOAT-MANATEE INTERACTION Officer Dennis Harrah, qualified as expert in boating safety, marine law enforcement, and local knowledge of the waterways of Brevard County, testified that "slow speed" zones provide greater reaction time for the vessel operator to avoid collision than unrestricted speed areas and than the "25 MPH maximum speed" areas. He further testified that "idle speed" zones provide greater reaction time for vessel operators to avoid collision than "slow speed" areas. Dr. John Reynolds, qualified as expert in marine mammal conservation and policy, manatee biology and behavioral ecology of marine mammals, opined, based on frequent observation of motorboat-manatee interactions, review of videotapes of such interactions, and review of studies on the subject, that there is an increased threat to manatees associated with boats that operate in planing speeds as opposed to slow speeds. His opinion is based, in part, on "common sense" that objects moving faster have greater momentum and therefore greater magnitude of impact, and on the reduced reaction time of both vessel operators and manatees to avoid collision. Dr. Reynolds was not aware of any evidence to suggest that the majority of watercraft strikes to manatees are from vessels operating at "slow speed," and it is his belief that "a good percentage of manatee mortality was from fast-moving vessels." Ms. Spellman, qualified as expert in marine biology and in manatee rescue and salvage, testified that she had observed considerable variability in manatees' reactions to kayaks, canoes and windsurfers, including manatees approaching the vessel, manatees not reacting at all, and manatees swimming away. She has observed manatee reactions to small motorboats as highly variant, depending upon the animal, including: swimming under a slow-moving motorboat, moving just as a motorboat approaches at idle speed, or diving and leaving the area as soon as a motorboat got anywhere near. Ms. Spellman testified, based upon her presence in the waters of the Canaveral Barge Canal or in the Port east of the Locks, that she has been in the water with manatees on five occasions when a barge/tug combination came by and in all cases the manatees reacted to the barge well in advance of the barge coming near her and the manatee, and that in each instance the manatee swam to within 15 to 20 feet of the shoreline. Of the thousands of times that she has seen manatees, she estimated that 95 percent of the time the manatees had scars from boat propellers or skegs. Dr. Powell testified, based upon over 30 years of observation of boat-manatee interactions, that the typical reaction is a flight or startle response, often to dive to deeper water. The diving response may take the manatee under the boat, away from the boat, or across the path of the boat. Based on his observations, including manatees reacting to motorboats moving at "idle-speed," "slow-speed" and at "faster-speeds," Dr. Powell opined that the manatees' reactions resulted from acoustical cues, visual cues, and perhaps pressure cues. Captain Singley, tugboat operator in Brevard County for over 30 years, observed a group of manatees react to a fast moving planing hull; some animals broke the surface, others scattered to the right or left, and others dove to the bottom. Mr. Walden, Sea Ray's Boat, Inc.'s, performance and water test specialist, testified that he had observed manatees in the Barge Canal, and sometimes the manatees would react to the motorboat. The majority of time when the boat was operating at planing speed or faster the manatee would dive and go deeper, and would began evasive action, upon hearing and noticing the motorboat a couple of hundred feet away. Dr. Gerstein testified that fast moving boats can hit manatees and that he was not aware of any physical evidence, eye- witness account, or law enforcement report of a slow-moving boat hitting a manatee. STUDIES ABOUT MOTORBOAT-MANATEE INTERACTION KNOWN BOAT STRIKES FWCC considered that watercraft collisions with manatees are rarely reported to authorities, and, as a result, it is difficult to directly assess the circumstances of such collisions, such as boat size, type and speed at the time of collision. A summary entitled "Watercraft-related Manatee Deaths Where the Responsible Vessel is Known," indicates that barges, displacement hull vessels, and planing hull vessels are known to have been in fatal collisions with manatees. In those planing- hull incidents where the vessels and estimated speed are known, the speed of the vessel ranged from getting-up-on-plane (45-foot boat with twin 425 HP outboard motors) to 35 MPH (18-foot boat with 150 outboard motor). Two other incidents were a 46-foot boat with twin inboard motors operating at 18 knots and a 20- foot boat with 200 HP outboard operating at 20 MPH. The only indication that a slow-moving planing-hull vessel struck a manatee is a report from an individual who was operating at estimated five MPH in a flat hull vessel and reported to have "felt a bump on aft hull, saw two animals (manatees) swam off." PROTECTION OF MANATEE-SEA GRASS HABITAT FWCC considered protection of sea grass habitat a secondary purpose in the Proposed Rule for areas subject to Section 370.12(2)(m), Florida Statutes. The Florida Guide To Recreational Boating notes that: Sea grass beds have been severely scarred (torn up) by boats operated in extremely shallow water. This is due, in part, to the "flats fishing craze" and the rising popularity of vessels designed to operate in shallow water. The Guide recommends that operators set the boat's drive unit at the highest possible setting and that the operator "proceed at idle speed when moving through shallow grass beds." Dr. Reynolds testified that "idle speed" or "slow speed" shoreline buffer zones provide greater sea grass protection (and manatee conservation) than higher motorboat speeds. The Executive Director of the Indian River Guides Association testified that the group is promoting "pole and troll" areas within the Merritt Island National Wildlife refuge portions of the Indian River Lagoon. He stated that many people from Orlando and elsewhere bring their boats by trailers to Brevard County, or move to Brevard County, and operate their boats so as to tear up seagrass beds. FWCC correctly concluded that "slow speed" and "idle speed" zones provide a greater measure of protection to shallow seagrass beds than do higher speeds for motorboats. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE Differing Opinions About Manatee Protection Areas FWCC's Opinion The FWCC, based on the following, took the position that the proposed rules are more likely to protect manatees from motorboat impacts than the existing rules, and that the proposed rules take advantage of the available science of manatee biology and conservation, using the same basic approach used in manatee conservation by officials in Australia to protect dugongs (another Sirenian) from motorboats. The FWCC postulates that "idle speed" and "slow speed" zones provide greater protection to manatees than do higher motorboat speeds. "Maximum 25 MPH" speed zones in deeper water areas provide greater manatee protection than do unregulated waters. Most motorboats observed operating in unregulated areas (outside "slow speed" or "idle speed" zones) in Brevard County, during Dr. Morris' boating compliance study, were operating at or below 25 MPH. The FWCC correctly concludes that "maximum 25 MPH" speed was reasonable in light of research into the minimum planing speed of most recreational motorboat models, the observations of typical motorboat speed and operation in unregulated waters of Brevard County. The FWCC considered 1997 DEP-solicited information from motorboat manufacturers to determine minimum planing speeds and maximum planing speeds, and draft on- and off-plane for various sizes and types of motorboats. Considered also by the FWCC was boating test literature to determine that most boat models could reach planing speed at or slightly below 25 MPH. The FWCC considered information that was submitted showing that many production boats reached planing speed between 20-25 MPH. For example, Scout Boats' 11 models planed between 20- 25 MPH, and Shamrock's 13 models planed between 20-25 MPH. The Florida Marine Research Institute's 1992 information on this topic found a range of minimum planing speed between 14 and 24 MPH. Motorboats operating at speeds higher than 25 MPH are many. Ranger Boats offered several models with maximum speed in the "upper 60's" to "low 70's"; Scout Boats' models had top speeds of 35-60 MPH; Shamrock's models ran at the top end between 36-41 MPH; Donzi Boats operate at speeds in the 70 MPH range; and Bayliner's Capri 1700LS had a top speed of 46 MPH, as did Stingray's 180RS. Since the FWCC's creation, speed zone rules adopted for Lee County included maximum 25 MPH zones. Rule 68C-22.005, Florida Administrative Code for Brevard County has regulated motorboats with a "maximum 25 MPH" speed in channels. Commission staff applied their professional judgment in developing recommendations on manatee protection areas, and presented those recommendations to the FWCC, who considered staff recommendation, in context with public comment, to determine what manatee protections were warranted. PETITIONERS' OPINIONS The various Petitioners advocate manatee protection zones that, in many cases, are similar to the FWCC's proposed rules, including "slow speed" shoreline buffer zones and "maximum 25 MPH channels." Petitioners' challenge to many of the protection zones alleges that FWCC's basic regulatory mechanisms are flawed. FEDERAL LAWSUIT-SETTLEMENT AGREEMENT On or about January 13, 2000, STMC and other related environmental groups filed a lawsuit in the Federal District Court against Alan Egbert as Executive Director of the FWCC. The suit alleged, inter alia, that the FWCC is in violation of the Endangered Species Act by permitting the unauthorized taking of manatees in the State of Florida. During the pendency of the litigation, FWCC engaged in a series of mediations resulting in a settlement agreement approved by FWCC and executed by the parties in April 2001. The agreement contained a series of maps with draft manatee (speed) zones for Brevard County. Petitioners alleged that "the genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Petitioners' speculative conclusion regarding this suit was tendered without one iota of evidence. Mr. Calleson, FWCC's staff employee, acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with speed zones in maps of the proposed rule. Mr. Calleson acknowledged that the FWCC did not direct staff to conduct negotiated rule-making on the proposed rule, and staff participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes, which provides, in pertinent part: (d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutually acceptable proposed rule. * * * 3. The agency's decision to use negotiated rulemaking, its selection of the representative groups, and approval or denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing in this subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developed under this paragraph in accordance with s. 120.56(2). THOMAS MCGILL PETITIONERS Most of the McGill Petitioners support the adoption of rules that are consistent with the Citizens for Florida Waterway, Inc. (CFW), proposal submitted on December 29, 2000. The CFW proposal endorsed the use of "slow speed" zones, the use of "maximum 25 MPH zones," existing power plants "idle speed" and "motorboat prohibited" zones, and the use of shoreline buffers. The CFW proposal differed from the proposed rules primarily in scope of the proposed zones, rather than the nature of the proposed zones. The CFW proposal recommended numerous 25 MPH channels (in marked channels) through protected areas: from the Canaveral Locks through the Canaveral Barge Canal to the Indian River (except for three slow-speed boating safety zones); in North Sykes Creek; in the Banana River north of State Road 528 and between Bicentennial Park to the State Road 520 Relief Bridge. STANDING WATCH, INC. Stowell Robertson, one co-Petitioner of Standing Watch, Inc., is Executive Director of the Indian River Guides Association, Inc. (Guides). Mr. Robertson wrote the Guides' Recommendations, but his personal recommendation differed in two respects: in the North Indian River between NASA railroad bridge and the State Road 405 bridge, he would establish a "slow speed" zone from the western shoreline out to 500 feet (instead of 300); and he would impose a maximum 25 MPH speed in the Canaveral Barge Canal instead of 20 MPH. The Guides recommended that motorboat speed and operation be limited as follow: Mosquito Lagoon-make no changes to existing rule Turnbull Basin, North Indian River Create two "slow speed" zones in Turnbull - one in the Mimms Scottsmoor Canal, another from Jones Road boat ramp to Little Flounder Creek from the shore to 100 feet into the Basin; Set a new "slow speed" zone on the north side of the NASA railroad causeway and bridge out to 250 feet; Set a maximum 25 MPH in the ICW from Haulover Canal to the NASA railroad bridge; Take no further action [to change regulations]. Indian River, NASA railroad bridge to S.R. 402 Place "slow speed" zones on the south side of the NASA railroad bridge and causeway out to 250 feet; Reduce the [existing] west shoreline "slow speed" zone so that the western boundary is 350 feet from the ICW between markers R2 and G1; Set a maximum 25 MPH in the ICW; Take no further action [to change regulations] Indian River, State Road 406 to State Road 402 (1) and (2) Replace eastern "slow speed" zone with reduced "slow speed" zone extending from Peacock's Pocket to the existing "slow speed zone north of the State Road 405 Causeway, extending from shore to 250 feet west of the sand bar/drop off or three feet of water; Reduce the size of the "slow speed" zone north of State Road 405 Causeway to 300 feet; Reduce the size of the existing western shoreline "slow speed" zone to 500 feet from shoreline; Take no further action [to change regulations]. Indian River, State Road 405 to State Road 528 Bridge Close the warm water refuge sites at the power plants to manatees, not to boats; Deliver fuel to the power plants by land; Reduce the existing "slow speed" zone on the western shoreline to 1,000 feet from the shore; Take no further action [to change regulations]. Canaveral Barge (and Banana River to Locks) Maximum 20 MPH channel from Indian River to entrance to Canaveral Locks with "slow speed" zones at 100 feet either side of State Road 3 bridge, Sea Ray docks, Harbor Square Marina; Take no further action (to change regulations). Banana River (1) (2) All waters of Banana River, including channels, not otherwise regulated at "slow speed" should have 25 MPH limit; Reduce all existing "slow speed" zones along east and west shorelines, causeways, and bridges to 500 feet of shore; Retain existing "slow speed" zones in the two channels into "Long Point"[north and south ends of Canaveral Sewer Plant area]; Take no further actions [to change regulations]. Newfound Harbor (1) (2) All waters of Newfound Harbor, including channels, not otherwise regulated at "slow speed" should have a 25 PMH daytime limit and 20 MPH nighttime limit; Establish a "slow speed" zone along western shoreline from State Road 520 south to Two Islands; Establish a "slow speed" zone along eastern shoreline from State Road 520 south to the inside point north of Buck Point; The east and west "slow speed" zones be 500 feet from shorelines, and 200 feet[along northern shore] from S.R. 520; Take no further action. Sykes Creek North State Road 520 Set speed limit in marked channel at 20 MPH; All residential canals should be "slow speed"; Take no further action. Indian River State Road 528 to State Road 520 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 520 to State Road 404 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeway bridges; Take no further action. Indian River State Road 404 to State Road 518 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 518 to State Road 192 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Establish Eau Gallie River "slow speed" zone with 20 MPH speed limit in marked channel daytime only, "slow speed" at night; Take no further action. Indian River (1) Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; (2)-(5) Crane Creek, Turkey Creek, St. Sebastian River, C-54 canal should be "slow speed"; Take no further action. Mr. James Kalvin, Standing Watch co-Petitioner and also President of Standing Watch, Inc., testified at deposition that neither he, nor the corporation, had any objection to the existing Brevard County manatee protection rules. SPECIFIC PROPOSED ZONES CHALLENGED The Petitioners' Challenge All Petitioners challenged the validity of Proposed Rule 68C-22.006, as "an invalid exercise of delegated legislative authority" as that phrase is defined in Section 120.52(8), Florida Statutes. MCGILL PETITIONERS The McGill Petitioners challenged the proposed rule amendment for Brevard County manatee protection areas, Proposed Rule 68C-22.006 (2)(d)2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, and 18, as an invalid exercise of delegated legislative authority. They allege that additional slow speed zones in Brevard County are invalid because the FWCC exceeded the authority granted in Section 370.12(2), Florida Statutes. McGill Petitioners based their allegations on the FWCC's lack of definable principles or data and an erroneously assumed cause-effect relationship for boat-manatee collisions, failure by the FWCC to consider the hearing limitations and capabilities of manatees in their environment, and a failure by the FWCC to employ standards and definitions for critical terms in its rule promulgation. At the final hearing, McGill Petitioners agreed that they do not object to that portion of Proposed Rule 68C- 22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. The McGill Petitioners' position as set forth in their Prehearing Stipulation states: The Florida Fish and Wildlife Commission has exercised unbridled discretion and acted beyond the authority delegated in 370.12(2)(m), Florida Statutes, and has developed the proposed rule in an arbitrary and capricious manner. The proposed rule exceeds the delegated legislative authority because it is not based on scientifically definable principles or data. By failing to understand the root cause of watercraft mortality such as the manatee's inability to hear slow moving vessels, the Commission cannot deem their actions "necessary" to justify imposing speed restrictions as required by Section 370.12(2)(m), Florida Statutes. The Commission continues to impose speed motorboat restrictions even after finding that such restrictions are ineffective at preventing manatee mortality. The Commission relies on a flawed mortality database, a poor understanding of the limitations and applicability of satellite telemetry data, and lack of standards and definitions for critical terms. [emphasis added] The McGill Petitioners' Amended Petition alleged in paragraph 6: The Commission has not employed the best available science or even reasonable science. . . . aerial survey and telemetry data were misapplied. . . . in that areas that did not reflect frequent usage . . . were designated . . . slow speed zones. Also, the use of inaccurate telemetry tracking information was used as the basis for justifying areas where aerial survey data showed no manatee activity. . . . In support of their alleged inaccuracy of the satellite telemetry data, Petitioners presented the testimony of Mr. Dvorak and his Power-point Presentation of Aerial Survey Mortality, Telemetry and Bathymetry Assessment, and other technical papers. Mr. Dvorak did not include in his presentation/analysis survey data available on the Atlas or Marine Resources and did not include all telemetry data available from the United States Geological Survey, which was included in Dr. Deutsch's analysis presented for Respondent, FWCC. The Amended McGill Petition, paragraphs 10 and 12, stated: The McGill Petitioners advised the FWCC that creation of new "slow speed" zones was based upon incorrect assumption "that such slow speed zones alleviate collisions between vessels and manatee" and they suggested that "slow moving vessels are responsible for the majority of documented manatee collisions." McGill Petitioners' evidence proffered to demonstrate that "slow moving vessels are responsible for the majority of documented manatee collisions," consisted of inclusive studies and undocumented theories to demonstrate that slow speed zones do not alleviate collisions between vessels and manatees. FWCC considered an abundance of the best evidence of known or suspected collisions between vessels and manatees that demonstrated that "fast moving motorboats" are a known major source of manatee- vessel collisions. The McGill Petitioners further stated in paragraph 11 that: The rule does not consider the acoustic realities of the manatee's hearing limitations and its environment. McGill Petitioners presented the testimony of Dr. Edmund Gerstein regarding his measurements of the manatees' ability to hear noises. Dr. Gerstein concluded from his research that manatees have difficulty hearing and locating low-frequency sounds (below 400Hz), and they have difficulty detecting sounds of any frequency when it is not sufficiently louder than the ambient noise level. The testimony of Dr. Joseph Blue was given in support of the McGill Petitioners' position that low-frequency sounds are quickly attenuated in shallow water because of the Lloyd Mirror effect. Upon this foundation, Dr. Blue testified that since sound is shadowed ahead of the barge(s), the tugs that push the fuel oil barges between Prot Canaveral and the power plants on the Indian River emit low-frequency sound that is shadowed in the forward direction by the barge(s) and it would be undetectable to animals. Thus, the McGill Petitioners' witnesses concluded that there are acoustic consequences associated with slowing down boats. According to Dr. Gerstein, requiring motor boats to travel a slow speed deprives manatees of acoustic information they can use to detect, localize, and avoid boats. It is this "science of acoustics" Petitioners alleged that the FWCC gave no weight in promulgating the proposed rule. The FWCC considered the issues raised by acoustic studies. The FWCC's Executive Director was advised on the subject by the Manatee Technical Advisory Committee (MATC) whose recommendation resulted from a workshop on acoustic research and technology with presentations of the work of Drs. Gerstein and Blue. No reliable scientific sources, professional literature, expert opinions, and direct observations of manatee reactions to motorboats, supports the proposition of Drs. Gerstein and Blue that manatees cannot hear slow-moving motorboats. The FWCC rejected the studies of Drs. Gerstein and Blue. McGill Petitioners' alleged in paragraphs 3, 4, 13, and 14, of their Amended Petition that the FWCC did not provide a reasonable opportunity for and ignored much of the public's input. In their Prehearing Stipulation, the McGill Petitioners' acknowledgement of public hearings held by FWCC and the opportunity for pubic input during those hearings. There is an abundance of evidence in the record that demonstrates that the FWCC staff held non-mandatory pre-rule development meetings with interested persons, including some of the McGill Petitioners. The Staff held two rule development workshops in Brevard County. Staff held a public hearing specifically on the Proposed Rules in Brevard County. Staff considered the rule adoption at many hours of public hearings on three different dates and locations. Staff mailed special notices regarding the Proposed Rules to all identified waterfront property owners of whom many are the McGill Petitioners, and Staff mailed a series of survey documents to identified boaters and businesses in conjunction with the preparation of a statement of estimated regulatory cost. (CSERC) In paragraphs 7 and 9 of their Amended Petition, the McGill Petitioners alleged that the FWCC entered into a Negotiated Rule-Making Process with litigants to the exclusion of a balanced committee in violation of 120.54(2)(d)1., Florida Statutes. Section 120.54(2)(a), Florida Statutes, authorizes an agency to engage in development of a "preliminary text" or "preliminary draft" of proposed rules prior to the publication of a notice of rule development. Preliminary maps of amendments to the BCMPR were similar to maps being discussed as part of the federal mediation. This fact alone is not a basis to conclude violation of the above-cited statutes. A second rule development workshop was noticed to discuss a preliminary copy of the Staff's "zone configuration" being considered. Subsequent to the second workshop, the FWCC authorized publication of Notice of Proposed Rule-making that incorporated changes to the preliminary draft maps that were discussed at the workshop. The McGill Petitioners, during the hearing, agreed that they do not object to that portion of Proposed Rule 68C-22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. Petitioners offered no testimony in support of this allegation, choosing rather to adopt the evidence and position proffered by Standing Watch, Inc., herein below addressed. In paragraphs 5 and 15 of their Amended Petition, the McGill Petitioners alleged that the Commission did not properly address the consideration of lower cost regulatory alternatives. The "lower cost regulatory alternatives" submitted by McGill, Pritchard and Dvorak were considered and were discussed in the draft SERC. The draft SERC gave reasons for the rejection of each of the proposed "lower cost regulator alternatives," primarily because none would substantially accomplish the objectives of the law being implemented. The SERC was finalized, as required by Sections 120.541(1)(a) and (c); and 120.56(2)(b), Florida Statutes, before filing for adoption with the Secretary of State. In paragraph 17 of their Amended Petition, the McGill Petitioners alleged that the FWCC failed to employ metrics or standards that could be used to validate the effectiveness of both proposed and existing rules, in rule promulgation, and that without the use of metrics, the FWCC had no way to determine and verify that speed zones they propose are necessary to protect harmful collisions with motorboats. The McGill Petitioners proffered no evidence of specific "metrics or standards" that would validate the effectiveness of the existing and or the proposed rule they contend the FWCC could have or should have used in the Proposed Rule development. The FWCC relied upon the best available and reliable information in its rule-making, including opinions of experts. To the information available to it, the FWCC applied its professional judgment, gave consideration to public comments/concerns provided during public meetings, and considered the estimated regulatory costs and other applicable rule-making requirements. In paragraph 18 of their Amended Petition, the McGill Petitioners alleged that the FWCC repeatedly ignored requests to sub classify watercraft-related mortalities in order to properly identify appropriate corrective action. The FWCC considered all available data regarding manatee injury and death resulting from the speed of motor boats and rejected Petitioner's contention that boat size, large boats such as tugs and barges, were more dangerous to manatees than smaller and faster motorboats. Sea Ray Boat, Inc. Petitioner, Sea Ray Boats, Inc., challenged only Proposed Rule 68C-22.006(2)(d)(11) that modifies the existing manatee protection speed zones in the Canaveral Barge Canal (that is 200 feet wide with a 125-foot navigation channel maintained at a depth of 12.5 feet) such that the entire Canal will now be designated a "slow speed" zone. Sea Ray does not argue that the FWCC did not consider all available information or that FWCC's consideration of the information was not complete. Sea Ray's position is, were one to consider the information presented to the FWCC, as balanced against the federal lawsuit filed by Save the Manatee Club, Inc., the challenged Proposed Rule is the result of the latter not the former and, therefore, is an invalid delegation of legislative authority. Sea Ray alleges that the FWCC did not analyze nor address the adequacy of the existing rule and speed zones in effect in the Canaveral Barge Canal. Sea Ray alleged that the FWCC did not consider the alternative (with weekend boating increases over weekdays) whether the risk to manatees would be reduced by "restricting slow speed zones in the channel to weekend and holidays." Sea Ray alleged that the FWCC failed to apply "properly" the mandatory balancing test of the impact of the proposed rule on the rights of commercial and recreational boaters. Section 370.12(2)(j), Florida Statutes. Sea Ray argues that the FWCC's consideration of information in formulating the Proposed Rule was devoid of "ascertainable quantitative criteria, standards or analytical processes," that Sea Ray maintains is required by Section 370.12, Florida Statutes. Standing Watch, Inc. Standing Watch, Inc.'s, Second Amended Petition challenged and alleged that the proposed speed in proposed Rule 68C-22.006(2)(e) 1-5 is not based upon "competent, substantial evidence" and does not comport with Section 370.12(2), Florida Statutes. Paragraphs 38 and 39 alleged that the proposed speeds in the Proposed Rule 68C-22.006(2)(c) 1-6 and (2)(d) 1-18 are not based upon "competent, substantial evidence" and do not comport with Section 370.12(2), Florida Statutes. Standing Watch, in essence, challenges all "idle," "slow" and "25 MPH" maximum speed zones proposed. Standing Watch argues that the FWCC failed to "quantify" by rule or working definition such terms such as "frequent" and "seasonal" and failed to define the term "periodic." Therefore, without working definitions the FWCC had no "threshold" from which to determine whether manatees were "frequently sighted," and the proposed rule is, accordingly, invalid in its entirety. Thus, it is alleged that the FWCC made no independent findings based upon the data reviewed that manatees were "frequently sighted" in any specific area of Brevard County. Standing Watch alleged, "The genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Mr. Calleson acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with the speed zones in maps of the Proposed Rule. The FWCC declined to direct staff to conduct negotiated rule-making on the Proposed Rule. Accordingly, staff's participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes. Continuing their argument, Standing Watch alleged that the FWCC without algorithms, formulae, protocols, matrices, mathematical models, or metrics made no separate determination for each zone and/or area (of the proposed rule) and had no factual basis for the identification of separate speed zones, rendering all determinations made by the Commission as arbitrary and capricious. Based upon the foregone foundation, Standing Watch challenged Proposed Rule 68C-22.006 in its entirety as arbitrary and capricious. City of Cocoa Beach Watersports Area Cocoa Beach intervened to challenge that portion of Proposed Rule 68C-22.006(2)(d)16, that "reduces allowable speeds in the area known as Banana River, Cocoa Beach Waterspouts Area." In support of its challenge, Cocoa Beach adopted the Proposed Final Order submitted on behalf of Petitioners, Standing Watch, Inc., Jim, Kavin, Thomas Mason, Dougals P. Jaren and Stowell Robertson. Additionally, Cocoa Beach relied upon "facts" particularly applicable to the Cocoa Beach (Waterspouts Area). Cocoa Beach alleged that prior to the Proposed Rule and subsequent to 1988 the FWCC had no evidence of manatee deaths attributed to watercrafts having occurred in the Watersports Area; that two years prior to the proposed rule only one or two manatees were sighted in that area; that the sea grass preferred by manatees is not found in the area, and that the Watersports Area does not have the depth [bathymetry] preferred by manatees. Petitioners contend that a "sub-classification" would corroborate Mr. James Wood's view "a majority of watercraft collisions are caused by large, slow-moving vessels, not by small, recreational motorboats." Mr. Wood's analysis was inconclusive as to the characteristics of watercraft that caused manatee injury. The reliable and available evidence, including documentation on known or suspected boat strikes, scar catalog data, and affidavits of persons who perform manatee necropsies, does not support the view held by Mr. Wood. To the contrary, evidence and testimony of experts herein presented, established that small, fast moving motorboats kill and injure manatees and their habitat. The sub-classification of watercraft-related mortalities is not required for rule adoption. The proposition set forth by McGill Petitioners, and adopted by other Petitioners, that larger vessels and barge/tugs were responsible for Brevard County manatee mortalities was raised in an earlier rule challenge filed by McGill, and was rejected, as it is herein rejected. DOAH Case No. 99-5366, page 18 (officially recognized); Final Order, McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. (DOAH 2000). All data, 1997-1999 Brevard County relative abundance and distribution aerial survey, 2000 synoptic aerial survey, telemetry analyses, other data considered, and professional literature indicated that Brevard County is an important year- round habitat for manatees.
The Issue Whether the Department of Environmental Protection should issue a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to Deep Lagoon Boat Club, Ltd., for the upgrade of its existing commercial marina in Deep Lagoon, an arm of the Caloosahatchee River?
Findings Of Fact The Caloosahatchee River Located in Lee County and considered a part of Charlotte Harbor, the Caloosahatchee River (the "River") is among the Class III surface waters of the state, so classified on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62-302.400(1). The River runs from Lake Okeechobee in a southwesterly direction past the City of Ft. Myers into San Carlos Bay. The bay, adjoining the Gulf of Mexico, is directly south of Matlacha Pass. It sits in the midst of, and is formed by, Sanibel Island, Pine Island, and the land masses on the north side of the Caloosahatchee (the site of City of Cape Coral) and the south side that culminates in Shell Point, at the mouth of the River. Beginning 120 years ago or so, the River underwent a series of major man-made alterations. Together with a statement of the current status of the River, they are summarized briefly in a publication of a recent special study of manatees and the River by the Florida Fish and Wildlife Conservation Commission's Florida Marine Research Institute (the "Special Study"). (Highly pertinent to this case, the Special Study is referred to elsewhere in this order.) This is its summary of the alterations to the River: Prior to the late 19th century, the Caloosahatchee River was a meandering waterway that ran from west Lake Flirt to San Carlos Bay . . . In 1881, Hamilton Disston began dredging a canal to connect the river's headwaters with Lake Okeechobee (citation omitted). This procedure caused severe flooding downstream, especially during the hurricane season. To mitigate the flooding effects, various spillways, locks and dams were constructed, including the locks at Moore Haven and Ortona. In 1947, the Central and Southern Florida (CS&F) project was authorized to manage the flood-control system and water supply issues of the Caloosahatchee River basin. The CS&F project involved widening and straightening the river and constructing the Olga Lock and Dam (now known as the . . . Franklin Lock and Dam). The river today is 65 miles long with a 25- foot-deep channel. Petitioners' Exhibit 20, A Special Study of Manatees in Mullock Creek and the Caloosahatchee River Eastward to the Edison Bridge, Florida Fish and Wildlife Conservation Commission, Florida Marine Research Institute, November 2002. Despite these alterations, the River is listed among the waters of the state designated as Outstanding Florida Waters. Fla. Admin. Code R. 62-302.700(9)(b)2. As such, it is entitled to special protection by virtue of DEP's pronouncement that "[I]t shall be the Department policy to afford the highest protection to Outstanding Florida Waters". Fla. Admin. Code R. 62- 302.700(1). The Franklin Lock is located on the Caloosahatchee about 25 miles upstream from San Carlos Bay. The lock permits fresh water to flow downstream toward the bay, of course, but it keeps the salt in brackish waters in the River south of the lock from penetrating upstream. In other words, the lock is a salinity barrier. The estuarine extension of the River, therefore, is defined by the lock. Little more than four miles downstream from the lock, the Orange River feeds into the Caloosahatchee. Upstream on the Orange, not far from its mouth, is the site of a Florida Power and Light Company ("FP&L") power plant. Until very recently, the power plant discharged into the Orange River effluent roughly seven degrees Celsius warmer than its ambient waters. (Waters discharged now are not as warm but still significantly warmer than the River's ambient water.) The warmed waters flow into the Caloosahatchee. These river system waters warmed by power plant effluent are sought by manatees as refuge from colder water in the River, the bay and the gulf. "Controlled releases or pulses of fresh water from Lake Okeechobee, upstream runoff, and prolonged periods of drought can severely, though temporarily, alter the salinity gradient [downstream of Franklin lock]." Id. at p. 20. It is believed that the variations in salinity affect seagrass biomass more than actual salinity levels. The salinity ranges cause turbidity and decrease in water clarity in the Caloosahatchee. They darken the water color and result in the submerged aquatic vegetation being variable and patchy instead of plentiful as it would be were the River not affected by rapid and extreme salinity changes. The River is crossed by a number of bridges: the Interstate 75 Bridges, Edison Bridge (part of U.S. Highway 41), the Midpoint Bridge, and the Cape Coral Bridge. The average depth of the water at river's edge is three feet. The center, including the channel, ranges from 6 to 25 feet in depth. Relatively shallow, the length and breadth of the River is traveled by manatees who use it as a critical link in habitat in southwest Florida. Manatee Habitat Linkage The presence of manatees in the River and their use of it for habitat is also summarized in the Special Study: The Caloosahatchee River between the Edison Bridge and Shell Point links habitats used by manatees including warm-water refugia, feeding areas, and resting areas. Because of drastic changes in salinity . . . coupled with high turbidity from development and vessel traffic, the distribution of submerged aquatic vegetation (marine and freshwater) in the study areas is variable and patchy. Manatees travel between stable feeding areas found upstream (freshwater) and downstream (estuarine), although they presumably feed opportunistically while passing through the area. Selected areas in the Cape Coral and Ft. Myers canals likely afford manatees with fresh water through stormwater runoff and drainage, resting habitats, and possible nursery areas. In winter, manatees may also use a few of these canals as temporary warm- water sites. Id. Among the places along the River where manatees congregate is Deep Lagoon. Deep Lagoon Deep Lagoon is a natural, relatively short, largely mangrove-lined arm of the Caloosahatchee on its southern shore just east of Palmetto Point. The lagoon is to the west and south of the downtown area of the City of Ft. Myers, less than a mile south of the southern terminus of the Cape Coral Bridge, and approximately 12 miles downstream from the FP&L power plant. Roughly four miles upstream from Shell Point where the River opens to the bay, the mouth of the lagoon opens west. Just inside the lagoon's mouth, it widens into an area known as the Cove. The lagoon turns 90 degrees to the south and extends in a southerly direction toward McGregor Boulevard. The upper reaches of the lagoon, or its headwaters, very close to McGregor Boulevard, are known as Cow Slough. Like the Caloosahatchee, Deep Lagoon is one of the Class III waters of the state. Unlike the River, the lagoon is not listed among the Outstanding Florida Waters. Wildlife in the area around Deep Lagoon include great blue herons, night herons, osprey and other hawks, and, of course, the manatee. In fact, Deep Lagoon is considered by the Bureau of Species Management in the Florida Fish and Wildlife Conservation Commission (the "FWC") to be a "minor aggregation area" (Tr. 792) for manatees. The lagoon provides some warm waters attractive to the manatee, and manatees consume fresh water discharged into the lagoon from the Iona Drainage District ditch. (See paragraph 17, below.) The waters in and near the lagoon are frequently used by citizens for fishing. Fly fishing for snook, redfish, snapper, sea trout, and sheepshead is particularly popular in and about the lagoon. The lagoon is also the site of the Boat Club's Deep Lagoon Marina. The Deep Lagoon Marina The Deep Lagoon Marina (the "Marina") consists of 24 acres less than one-half mile from the River, north of Cow Slough, and south of the Iona Drainage District ditch. The Iona Drainage District ditch, the result of the first dredging in the Deep Lagoon area, is separated from the Marina by a relatively thin strip of mangrove fringe. It is a source of fresh water runoff from predominately fresh water wetland and upland areas. It appears in a 1944 aerial photograph that pre-dates dredging for the marina or of the lagoon otherwise. An aerial photograph taken in 1958, 14 years later, shows development of the Deep Lagoon marina property, as well as completion of a north canal separated from the Iona Drainage Canal by the mangrove fringe. Sometime between 1958 and 1966, two additional canals were dredged as part of the Marina. The marina consists of 15.4 acres of uplands, largely the result of the dredge and fill activity that created the marina's three man-made canals: the "north canal"; the "main canal" that includes a basin (the "main basin") at its eastern end; and the "south canal." At their eastern ends, the three canals terminate a short distance from MacGregor Boulevard. On their opposite ends to the west, the canals open to the lagoon. Except for the Iona Drainage District ditch that discharges into the north canal, the canal water system has little circulation. Within the dead-end system the canals comprise, the water sloshes back and forth. The dead-end nature of the canals has led to violations of water quality standards as found in paragraphs 4 and 5 of Sheridan, et al. v. Deep Lagoon Marina, et al., Case No. 88-4759 (DOAH June 10, 1989): As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east-west peninsula and the receipt of agricultural and highway drainage into the northern canal may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basins are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. Id. at pp. 4 and 5. The north peninsula (referred to in other DOAH orders as the "east-west peninsula") is the longer of the two peninsulas on the marina property. It lies between the north canal and main canal. The south peninsula lies northeast of the south canal, southwest of the main basin, and south of the main canal. Two steel buildings used for dry boat storage, a building used for boat repair and related marina uses are located on the south peninsula. The marina property located east of the marina's two peninsulas that fronts MacGregor Boulevard is occupied by a boat dealership and the Boat Club's sales trailer. To the north of the marina is the Town and River subdivision. The subdivision has an extensive canal system. Like the marina's canals, the Town and River Canal System is also the result of historic dredge and fill activity. As the Town and River subdivision expanded in the 1970's, the use of the marina increased. A boat storage building appears on the north peninsula in a 1970 aerial photograph. Extensive outdoor dry boat storage on the north peninsula began in the late 1970's. Dry boat storage expanded in the 1980's. An examination of aerial photography taken in 1990, 1993, 1999, 2000, and 2001, reveals 1990 to be "the period of time that the facility appeared to be at full operating capacity." (Tr. 787). As early as March 23, 1980, a travel lift facility appears in aerial photographs at the west end of the north peninsula. The boat lift appears in the same spot on the western end of the northern peninsula, west of the longitude at which the Iona Drainage District canal opens onto the North Canal, in a series of aerial photographs taken over the next two decades. The area surrounding the marina is fully developed, including the residential areas and boat basins to the north and south. Opposite the marina and along much of the western border of the lagoon, there is a vacant tract of wetlands. Purchased by Lee County as conservation lands, it will not be developed. It is the Department's position that Deep Lagoon Marina can operate as a marina without a permit. But a permit is required if its owners seek to upgrade the marina by activity that trips permit requirements such as construction or dredging of channels. The Boat Club became involved in permitting processes soon after it purchased the marina. Purchase by the Boat Club The Boat Club purchased the marina in 1997, with a closing on the purchase in September of that year. At the time of the purchase, it was the Boat Club's intent to redevelop the entire marina property and upgrade its facilities under the authority of development orders and permits obtained by the former owners. These included a Development of Regional Impact Development Order (the "DRI DO") issued in 1987; a surface water management permit (the "MSSW permit") from the South Florida Water Management District issued in 1988; and a dredge and fill permit from the former Department of Environmental Regulation issued in 1989, and extended through a major modification in 1995. A Litigious History These permits have a litigious history, particularly the dredge and fill permit and its conditions. Modifications to the permit resulted in additional permit processes, including administrative hearings. The history of the dredge and fill permit litigation, including litigation related to the Boat Club's application for an environmental resource permit to construct a surface water management system (the "SWMS permit") at the marina site is summarized in a final order of the Department of Environmental Protection rendered March 6, 2000 ("Sheridan III"): Applicant [Deep Lagoon Boat Club, Ltd., or, as referred to in this order, the Boat Club] is the owner and operator of Deep Lagoon Marina (the "Marina"), presently consisting of 61 wet slips, 200 dry slips and other marina-related buildings. * * * In 1989, the Department of Environmental Regulation ("DER") entered a final order issuing a dredge and fill permit to a predecessor in title of Applicant authorizing a major renovation and expansion of the Marina, including additional boat slips and other related activities. See Sheridan v. Deep Lagoon, 11 F.A.L.R. 4710 (Fla. DER 1989). The final order in the original Sheridan case was appealed and the portion thereof issuing the dredge and fill permit was subsequently affirmed by the appellate courts Sheridan v. Deep Lagoon, 576 So. 2d 771 (Fla. 1st DCA 1991). A permit was ultimately issued by the Department in October of 1995 (the "Original Permit") after the conclusion of the appellate proceeding. The Original Permit was modified by the Department in November of 1995 and again in April of 1997. This 1989 DER final order in the original Sheridan case adopted the hearing officer's findings that the waters of the Marina canals violated water quality standards for dissolved oxygen, oils and grease, total and fecal coliform, copper, lead, and mercury. Sheridan, supra, at 11 FALR 4727. These persistent water quality violations in the marina canals in the 1980's were the impetus for specific conditions set forth in the Original Permit issued by the Department in 1995 to ensure a net improvement" to water quality. Specific Condition 5K of the Original Permit, as revised in 1997, requires that a "stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be permitted and phased in prior to use of the parking lot and the new boat slips." . . . In order to meet these requirements of Specific Condition 5K of the Original Permit, Applicant filed an application with the Department in December of 1997 for an environmental resource permit to construct a surface water management system at the Marina site. The Department executed a Notice of Intent to Issue Applicant's requested permit for the surface water management system (the "SWMS" permit) in November of 1998. In March of 1998, Applicant also gave the Department written notice that it intended to "maintenance dredge" the internal canals at the Marina site. The Department's South District Office then issued a letter determining that Applicant's proposal to maintenance dredge the Marina's internal canals was exempt from environmental resource permitting requirements. Upon receipt of this letter from the Department, Applicant's contractor proceeded with the "maintenance dredging" of the three canals. Petitioner and Intervenor then filed petitions challenging the Department's notice of intent to issue the SWMS permit and the Department's maintenance dredging exemption determination. These petitions were forwarded to DOAH and were consolidated for final hearing in Sheridan v. Deep Lagoon Boat Club, DOAH Case Nos. 98-3901 and 98-5409 ("Sheridan II"). A recommended order was entered in Sheridan [II] in November of 1999 by a DOAH administrative law judge ("ALJ"). The Department subsequently entered a final order in January of 2000 in the Sheridan [II] consolidated cases. See Sheridan v. Deep Lagoon Boat Club, OGC Case Nos. 98-1184 and 98[-]3047 (Fla. DEP, January 28, 2000) In its final order in Sheridan [II], the Department adopted the ALJ's conclusion that Applicant failed to establish at the final hearing that the already completed dredging of the three Marina canals complied with two of the statutory requirements for entitlement to "maintenance dredging" exemption. The Sheridan II final order also adopted the ALJ's conclusion that Applicant failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian manatee. The Sheridan [II] final order of the Department thus disapproved the prior determination of Department staff that Applicant was entitled to a permit exemption for maintenance dredging of the Marina Canals [although the matter was moot since the Boat Club had, in fact, conducted the dredging while the proceeding was pending] and denied Applicant's SWMS environmental resource permit application. While Sheridan [II] was pending, DEP issued a notice of intent in March of 1999 to further modify the specific conditions of the 1995 Original Permit. These modifications would allow Applicant to construct and operate a boat travel lift at a new location within the Marina and to install flushing culverts in lieu of the previous requirement of a flushing channel between the north and middle Marina canals. [The modification for the boat lift would allow the construction and operation of a boat lift at the eastern end of the north canal.] These 1999 modifications to the Original Permit were timely challenged by Petitioner and the matter was referred to DOAH, resulting in the formal administrative proceeding now on review in this Department Final Order. Sheridan vs. Deep Lagoon Boat Club, Ltd., et al., OGC Case No. 99-0619, DOAH Case No. 99-2234, (DEP March 6, 2000). As stated in the quote above, following its purchase of the marina, the Boat Club conducted contamination and maintenance dredging of the marina's canals. This dredging had been preliminarily authorized by DEP, but DEP's preliminary action was challenged. The result of the litigation was that the permit for the dredging was disapproved, a result too late for the opponents of the process because the dredging had been undertaken and completed while the litigation wended its way through state agencies and the court. In the meantime, the boats stored on the north peninsula were removed to make way for the dredged materials. When the dredging was completed, dry boat storage resumed on the north peninsula. During the Sheridan II proceedings, the Final Order in Sheridan III was rendered. It accepted the recommendation of the administrative law judge that, with four changes, the modifications that would allow the boat travel lift at the eastern end of the north canal and the flushing culverts be granted. The recommendation was predicated on findings related to and conclusions that any adverse impacts on water quality would be negligible and that impacts to the manatee would be minimal or that projections of significant impacts were speculative. These findings and conclusions were adopted and accepted by DEP in the Sheridan III Final Order. While the administrative process in Sheridan III proceeded toward its culmination with the issuance of a final order in March of 2000, Sheridan II was under appeal in the Second District Court of Appeal. Almost a year after the Sheridan III Final Order, the Court rendered an opinion in Sheridan II. Rehearing in the Sheridan II appellate proceeding was denied on April 6, 2001. The Court affirmed DEP's adoption of the conclusion that the Boat Club failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian Manatee. While the appellate litigation in Sheridan II was pending, the 1989 dredge and fill permit expired. In order to upgrade the Marina, therefore, the Boat Club was required to re-apply to DEP for an Environmental Resource Permit, a type of permit that succeeded the type of permit (the dredge and fill permit) issued by DEP in 1989. This most recent Environmental Resource Permit application is the subject of this proceeding. The ERP Subject to this Proceeding The Boat Club application for the new Environmental Resource Permit ("ERP") was received on August 24, 2001. The following January 22, 2003, approximately one year and five months after the filing of the ERP application, DEP issued a "Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization" (the "Permit/Authorization"). The Permit/Authorization governs the Boat Club's proposed dredge and fill activity, its proposed stormwater and surface water management plan and authorization of sovereign submerged land use. The permitted activity is described in DEP Permit/Authorization No. 36-0128502-008 as follows: The project is to upgrade an existing 445 slip commercial marina. Upon completion, the marina will accommodate 485 slips (129 wet slips and 356 dry slips) 40 of which shall be occupied by sailboats or left unoccupied. This shall include the construction of 1,693 lf (2,257 sq. ft.) vertical retaining wall in the north canal landward of mean high water (MHW) and existing mangroves. The construction of a travel lift affecting approximately 600 sq. ft. and approximately 37,369 sq. ft. of docking structure (3,529 sq. ft. of fixed docking structure and 33,840 sq. ft. of floating docking structure). The construction of two 48" grated culverts to enhance flushing, as well as, the removal of two travel lifts and approximately 10,443 sq. ft. docking structure. Further, the activity is to construct a surface water management system to serve 15.4 acres (total upland area) of the entire 24.0-acre commercial marina site. Construction of the surface water management system will include three separate and independent stormwater collection systems with associated pretreatment areas and underground vault (Infiltrator) systems for stormwater storage/treatment prior to discharge through concrete weir outfall control structures into adjacent Class III waters. Petitioners' Exhibit 15, page 3 of 20. The Parties Petitioners The three petitioners all reside in proximity to Deep Lagoon. Brenda Sheridan resides to the northeast of the marina. Her lot, owned since 1976, is on the shores of the Caloosahatchee River at Deep Lagoon. She and her husband are avid practitioners of fly fishing. In addition to fishing, Ms. Sheridan boats in Deep Lagoon, including in the north canal, where she enjoys observing wildlife, particularly manatees. A member of the Save the Manatee Club for more than 20 years, she has observed manatees in Deep Lagoon "[f]or many years" (Tr. 963) and continues to see them "all the time." Id. With the exception of calving, she has seen them "doing just about everything" (Tr. 964), including drinking fresh water off the surface of Deep Lagoon. She has participated in posting manatees signs "starting at the channel coming in from the river into Deep Lagoon . . . through the cove." (Tr. 973). She has assisted state personnel in the recovery of a manatee carcass, and has reported what she has believed to be speeding boats the many times she has seen them. She believes that the proposed permit will adversely affect her activities of fishing and observing wildlife and fervently hopes to be able to continue to "enjoy wildlife and unpolluted waters for the rest of my life and also for my grandchildren." (Tr. 979). Kevin Derheimer and Kathryn Kleist reside on Deep Lagoon Lane in Ft. Myers adjacent to the Iona Drainage Ditch immediately north of the north canal. Members of the Audubon Society, they selected the property where they built their home because it had been owned by Ms. Kleist's family, and because they "had observed wildlife, manatees, and birds from this piece of property and [so] decided to build a home there because of the proximity to wildlife" (Tr. 856), as well as its proximity to wetlands that could not be developed. They boat, kayak and fish on Deep Lagoon, and observe the abundant wildlife there especially manatees. Ms. Kleist has seen up to seven manatees at one time together in Deep Lagoon. Her observations have taken place over the last five years. She describes herself and her husband as avid observers of manatees who keep their binoculars at the ready any time they think they might have spotted a manatee in the lagoon. Ms. Kleist has a number of concerns about the proposed permit, particularly its effect on the north canal and the areas of the lagoon used by manatees observed by her over her years of residence in the area. Of major concern to her is the increase in boat traffic. Consistent with Mr. Ruff's testimony quoted in paragraph 178 below, Ms. Kleist testified that the proposal will make the marina "much larger" (Tr. 941) than it has been in her five years living in the area. (Tr. 940). When asked whether she observed the speed zones that apply to Deep Lagoon, Ms. Kleist candidly replied: Probably not all the time. Just like I don't with my car. But we attempt to pay attention to speed zones. It's not intentionally, but if you're asking me to 100 percent of the time, have I never speeded in my boat, I would say no. (Tr. 959). Respondents Respondent DEP is the state agency authorized to issue environmental resource permits for projects affecting the waters of the state under Chapter 373, Florida Statutes. It is delegated authority to issue proprietary authorizations to use sovereign submerged lands by Florida Administrative Code Rule 18- 21.0051. Deep Lagoon Boat Club, Ltd., is the owner and operator of Deep Lagoon Marina, a 24-acre marina, claimed in its proposed recommended order (adopted by DEP) to consist presently "of 50 wet slips and approximately 350 dry slips (171 boats stored inside two storage buildings and the remainder stored outside of the buildings on racks or block)." Deep Lagoon Boat Ltd.'s Proposed Recommended Order, p. 6-7. A principal of the Boat Club is Edward J. Ruff, a developer of marinas in southwest Florida. The business is a family concern as was evidenced by the presence of many members of the Ruff family at the final hearing. Mr. Ruff has had success in developing several marinas in southwest Florida. An advocate of the Clean Marina Program, Mr. Ruff attributes the success to his pursuit of development of marinas that meet Clean Marina criteria. The Boat Club has applied for Clean Marina status for the Deep Lagoon Marina, but was turned down for lack of compliance with one criterion. It does not yet have a surface water management system that has been finally approved by DEP. The Boat Club hopes that approval of the surface water management system under review will clear the way for it to be able to "fly the flag" (Tr. 312) that demonstrates its achievement of Clean Marina status. Petitioners' Challenge Petitioners raised 10 bases in their petition for denial of the Consolidated Permit/Authorization. One, found in paragraph 32.H., of the petition, concerning the application of Florida Administrative Code Rule 18-21.0045, has been waived. See p. 55 of Petitioners' Proposed Recommended Order. The remaining nine alleged in paragraph 32 of the petition are as follows: Whether Deep Lagoon Club has provided reasonable assurances of compliance with the applicable water quality standards as required by Section 373.414(1), Fla. Stat., including Florida's anti-degradation policy in Rules 62-4.242(1)9a) and Rule 62- 302.300(7), Florida's minimum standards in Rule 62-302.500, and Florida's Class III standards Rule 62.302.560. * * * Whether Deep Lagoon Club has provided reasonable assurances of compliance with the public interest criteria of Section 373.414(1)(a), Fla. Stat., . . . Whether Deep Lagoon club has provided reasonable assurances of compliance with the elimination and avoidance criteria of Section 373.414(1)(b), Fla. Stat. and SFWMD Basis of Review Section 4. Whether Deep Lagoon Club is collaterally estopped from being granted an ERP for its proposed stormwater management system due to the DEP's denial of the same proposed stormwater management system and its secondary impact on Manatees. . . . Whether Deep Lagoon Club failed to provide reasonable assurance concerning the direct impacts and secondary impacts of its proposed activities on the endangered Manatee. (Section 373.414(1)(a), Fla. Stat.; Rule 40E-4.301(1)(d)-(f); Basis of Review Section 4.2.7(a); [citation omitted]; Section 370.12(2)(m), Fla. Stat.; Fla. Admin. Code Chapter 68C-22 . . .; . . . Whether Deep Lagoon Club failed to provide reasonable assurance concerning the past, present and foreseeable cumulative impacts, especially including cumulative impacts on the endangered Manatee. . . . Whether Deep Lagoon Club has provided reasonable assurances its sovereign submerged lands application complies with the public interest criteria of Rule 18-21.004, including secondary impacts on the endangered Manatee . . . * * * Whether Deep Lagoon Club has provided reasonable assurances that its proposed activities are consistent with Florida's Coastal Zone Management Program . . . Whether Deep Lagoon Club has provided reasonable assurances of compliance with applicable standards, rules and ordinances in light of its past violations such as failing to register for sovereign land lease, dredging the marina basin without authorization, and dredging the marina basin to depths and widths greater than Florida's exempt statute authorized . . . Petition for Hearing, pp. 11-15. These bases can be grouped under three headings: the proposed stormwater management system and water quality; the impact of the Consolidated Permit/Authorization on the Endangered Manatee, and (3) other issues related to these two such as collateral estoppel and past violations. Fundamental to resolution of these issues are issues that relate to the number of boat slips at the Boat Club marina and the number of power boats the marina can accommodate. These numbers vary depending on whether marina usage is considered in terms of physical capacity, actual usage or legal limits. Physical capacity, as found above, exceeds 600 slips. Actual usage has varied over the years. The lawful number of slips depends on local development orders and permit requirements. If a permit is to be obtained from the state, then the lawful number of boat slips and power boats may be restricted, just as is proposed in the permit at issue in this case. Lawful Number of Boat Slips and Power Boats Of the 485 boat slips (129 wet slips and 356 dry slips) allowed at the marina under the Consolidated Permit/Authorization, 40 may not be used for power boats. The 40 may be used for sail boats; otherwise, they must remain unoccupied. This leaves a maximum of 445 slips at the marina that may be used for power boats. Over the years, the number of boat slips at the marina and the number to have been authorized by the various sought- after permits have varied. For example, on June 26, 1998, a Manatee Impact Review Report issued by the Bureau of Protected Species Management, then in the DEP's Division of Marine Resources, showed the marina to have 228 existing slips: 61 wet and 167 dry. The report shows that the marina had an additional 446 slips (113 wet and 333 dry) that were "[p]reviously permitted but not constructed". DEP Ex. 41, page 2 of 7. According to the report, together the existing and authorized, not-yet-constructed slips totaled 674 (174 wet and 500 dry). In the Sheridan II administrative proceeding, the administrative law judge found as follows: 26. In 1988, DEP issued a DAF ["dredge and fill" permit] to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately 89-113 new wet slips . . . so as to raise its marina capacity to 150 -174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant. Deep Lagoon Ex. 9D, 22 FALR 3286. The Applicant and the Department took exception to Finding of Fact No. 26 while the recommended order was under consideration by DEP. The finding was modified in DEP's Final Order so as to reduce the number of new wet slips authorized to 89 so that the total number of wet slips numbered 150. The new dry slips to be added through the permit process under review were left at 227 by the DEP Final Order so that the marina's total capacity for dry slips, if the permit were granted, remained as the ALJ had found, at 427. See Id., at 22 FALR 3264. In the Sheridan II administrative hearing, Mr. Uhle, counsel for the Boat Club, made the following statement: "D.R.I. actually authorized more wet slips and more dry slips. But that's if the amendment is approved, that's what will be authorized." Deep Lagoon Ex. 43, p. 30. In fact, a DRI Amendment (presumably the one to which Mr. Uhle referred) was approved subsequent to the administrative hearing in Sheridan II. The Deep Lagoon Development of Regional Impact Development ("DRI") Order had been adopted on March 23, 1987. At the behest of the Boat Club by the filing of a Notice of Proposed Change on August 10, 1998, the DRI Development Order was amended for a second time. The amendment was adopted on June 7, 1999, a month or so after the administrative hearing in Sheridan II. The "Second Development Order Amendment for Deep Lagoon Marina, A Development of Regional Impact" (the "Current DRI Order") employs a "strike-through and underline format" (Boat Club Exhibit 8, Attachment 18, p. 2 of 17), that reveals both the amendment requested by the Boat Club and the DRI Development Order as it existed prior to the second amendment. The Current DRI Order authorizes "150 permanent wet slips; of which 30 will be reserved only for temporary moorings; 115,000 square feet of dry storage (427 slips)" (Id.) The Current DRI Order thus sets the number of boat slips at the marina as 150 wet slips and 427 dry slips. The Current DRI Order is consistent with the conclusion of DEP in its Final Order in Sheridan II: the legal capacity of the marina, were the permit applied for there to be granted, would be 150 wet slips and 427 dry slips for a total of 577 slips, wet and dry. This capacity was not achieved through permitting, however, because DEP accepted the recommendation of the administrative law judge that the permits applied for in Sheridan II be denied. The denials were based, at least in part, because DEP "declined to reject the ALJ's mixed statements of law and fact concluding that increased boating capacity and other Marina expansion activities authorized in the Original Permit constituted adverse secondary impacts of the proposed SWMS to water quality and to manatees and their habitat." Deep Lagoon Ex. 9D, 22 FALR at 3277. Water Quality and Surface Water Management The Boat Club proposes to construct a stormwater management system for the entire 15.4 acres of uplands at the marina site. Such a system is badly needed if the marina is to operate with environmental integrity. For the most part, any surface water that is generated presently on the south peninsula hits the pavement or the buildings and then runs off into the canals. On the north, runoff sheet flows across the non- vegetated areas and discharges directly into the canal systems. "A person proposing to construct or alter a stormwater management system . . . shall apply to the governing board or the department for a permit authorizing such construction or alteration." Section 373.413(2). Existing ambient water quality in Deep Lagoon does not meet water quality standards. Data collected in May of 2002, "showed exceedances . . . of total coliform . . . of dissolved oxygen and . . . of copper, cadmium and zinc." (Tr. 560). "If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the . . . department shall consider mitigation measures proposed by . . . the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards." Section 373.414(1)(b)(3). Construction of the surface water management system will include three separate and independent stormwater collection systems, associated dry pretreatment areas, and an underground vault/infiltrator system for storage and treatment of stormwater prior to discharge through concrete weir outfall control structures into the adjacent Class III waters. The system proposed in this proceeding retains the components of the design that failed to win approval in Sheridan II, and it enhances them with additional measures designed to provide net improvement in water quality in the receiving body of water. Under the proposed system, any water flowing from a rain event is routed into above-ground pretreatment areas, an enhancement to the original system. Once the water in these detention systems reaches a certain level, it flows into drainage structures. The structures transport the water below ground into a series of pipes connected to underground infiltrator storage treatment areas. The underground infiltrator drainage structures, constructed over crushed stone, were not designed specifically as a retention system. Nonetheless, they have the ability to remove water through ex-filtration into the ground. Chambers will be placed throughout the marina property, including under buildings and parking surfaces, and under some pathways. Their primary function is to detain waters and, through a settling process, treat it. The number of infiltrators provided in the proposed system is increased over the prior system, another enhancement. After detention in the underground system, the water is discharged through three outfalls, one for each of three independent drainage areas. The proposed dry pretreatment areas increase total stormwater storage capacity over the prior system by roughly 18,000 cubic feet, a 30-40 percent increase of storage over the prior design. With the prior system, there could have been discharge from parking areas into the canals during storms. The proposed system is designed so that all the runoff from the uplands is captured by the system. The proposed Marina Management Plan (the "Plan"), another enhancement, will add extra safeguards to eliminate some pollutants. The Plan provides a maintenance program to be carried out by a designated Environment Compliance Officer. Maintenance includes regular inspection of the chambers, themselves, inspections of the outfall structures, and an annual reporting to DEP as to the status of the storage/treatment system. The surface water management system also incorporates three "closed loop" recycling systems, one for each of the two designated boat wash-down areas and a third, located in the maintenance and service area, added as an enhancement to the prior system. The three recycling systems each consist of a concrete containment area with a drain. The water flows into the drain and is pumped up into a closed loop treatment system. There the water is pumped through a purifying device, separating contaminants and byproducts. The clean water is then reused for future wash downs. In the prior system, overflow, during an extreme storm event, for example, would flow into the surface water management system. Under the proposed plan, overflow from the recycling systems discharges directly into the municipal sewage system that will serve the site, another enhancement over the previous system. The proposed permit requires the closed loop recycling systems to be inspected by a Florida-registered professional engineer on an annual basis. The water discharged from the discharge structure will meet Class III standards. The system also complies with design requirements for discharge into Outstanding Florida Waters. The surface water management design incorporates best management practices to eliminate erosion or water quality problems during construction of the project. If done in compliance with permit requirements, construction and operation of the proposed stormwater management system will be in compliance with the Southwest Florida Water Management District's Basis for Review. These requirements together with the Marina Management Plan will improve the quality of the water leaving the site. There will be a net improvement in water quality for all parameters in the marina's receiving waters that currently do not meet standards. The treated water leaving the site will not cause parameters currently within standards to violate those standards. The contamination and maintenance dredging project performed by the Boat Club in 1999, appears to have improved water quality based on a comparison between 1997 pre-dredging water quality data, and the 2002 post-dredging water quality. Jack Wu, a professional engineer and DEP's expert in "coastal engineering, hydrographic impacts of submerged lands and environmental resource permit projects" (Tr. 750), performed a technical review of the marina canals and the proposed projected in accordance with the Basis of Review. He considered the structural design, size, and configuration of the proposed docking system, the flushing and mixing study, tidal data, and water quality data. Mr. Wu's testimony establishes that the proposed flushing culverts will increase circulation and eventually reduce the flushing time of the canals. Jack Myers, DEP's stormwater system design expert testified that the proposed surface water management system would not cause adverse secondary impacts to water resources of the District according to his assessment. Mr. Myers' assessment of the secondary impacts, however, did not include impacts to manatees. The Endangered Manatee Manatees are listed as an endangered species under the federal Endangered Species Act of 1973 (ESA)(16 U.S.C. 1531, et seq.), and under Florida law (Florida Administrative Code Rule 68A-27.003(1)(a)(31). In view of their status as endangered and as a Florida wildlife resource, manatees have undergone extensive study by many including the Florida Marine Research Institute in the Florida Fish and Wildlife Conservation Commission. Among these studies is the Special Study, conducted as the result of a settlement of litigation and released in November of 2002. Paragraphs 91-129 are derived from the Special Study, a copy of which appears in the record as Petitioners' Exhibit 20. The Florida Manatee The Florida manatee (Trichechus manatus latirostirs) is one of two subspecies of the West Indian manatee (T. manatus). Florida manatees inhabit the southeastern United States, primarily occupying the marine, estuarine, coastal, and freshwater inland waters of Florida. Manatees are herbivorous marine mammals. Manatees are not typically gregarious although mothers and calves travel in pairs and, on occasion, manatees travel in mating herds. Otherwise, for the most part, they are solitary although they may aggregate in areas with resources essential to the well-being of the population. These resources include warm water, fresh water, quiet resting areas, and areas with aquatic vegetation (marine and freshwater). Like most large mammals, manatees have a potentially long life-span, mature slowly, are slow to reproduce, and have a high parental investment in their offspring. Threats to the manatee population have their origin both in nature and in the activities of human beings. Potentially catastrophic, naturally occurring threats to manatees include hurricanes, red tide events and disease, and exposure to cold temperatures. To combat cold temperature exposure, manatees rely on a network of warm-water sites in eastern and southwestern Florida, as refuge during the cold season. Tampa Bay is a prime site of warm water refuge because of the number of power plants in the area. The only power plant that produces a manatee aggregation site between Tampa Bay and eastern Florida is the FP&L power plant up river from Deep Lagoon. Continued high counts of manatees at sites near power plants in southwestern Florida highlight the manatees' dependence on this network. Manatees feed on a variety of marine, freshwater, and terrestrial plants. Common forage species include shoal grass, manatee grass, turtle grass, tape grass, and widgeon grass. Manatees are reported to feed on seagrass plants both above and below the sediment. It has been theorized that manatees use fresh water for regulation of body temperature. They obtain fresh water from the plants they consume and are able to maintain their body water balance in salt water systems without drinking fresh water. Nonetheless, manatees are attracted to fresh water sources, especially in areas of high or fluctuating salinity like the Caloosahatchee. In estuarine waters such as Deep Lagoon, where fresh water floats on the top of saltier water, manatees have been observed with their mouths open at the surface drinking fresh water. Warm-water refuges play an important role in defining manatee movements between Shell Point and the Edison Bridge. The warm water refuge at the FPL power plant is classified in the Special Study as a Primary warm-water site. A secondary warm- water site along the River is at the Franklin Lock and Dam. Another secondary warm-water site in the area is in the canals of the Matlacha Isles at the northern end of Matlacha Pass. An old quarry pit in Ten-Mile Canal, Mullock Creek, is another site near Deep Lagoon where manatees aggregate because of warm water. In 2001, FP&L re-powered its plant from oil to natural gas. This reduced its warm water effluent. To compensate for the reduction and to provide manatee habitat, FP&L installed "donkey boilers" in January of 2002. The discharge in January of 2002, was more than one degree Celsius cooler than it had been in January of 2000, but the average January temperature of the FP&L discharge remained more than two degrees Celsius warmer than the water at the Franklin Lock. The single greatest cause of manatees' human-related mortality (referred to in the Special Study as "anthropogenic") is collisions with watercrafts. With regard to "anthropogenic" threats to manatees, the study, in part, reported the following: From 1976-2001, watercraft collisions accounted for approximately 25% of all manatee deaths and are the single greatest cause of human-related mortality (FWC unpublished data). In 2001 there were over 943,000 registered vessels in Florida (citation omitted). Given that about 97% of registrations are for recreational watercraft (citation omitted), it can be expected that there will be a continued increase in recreational vessels plying the waterways of Florida due to an increase in the human population. In addition to the expected increase in boat numbers over the next 25 years, other factors may act synergistically to increase the risk of fatal collision between manatees and watercraft. Relatively new modifications to the design of vessel hulls and engines allow boats to travel at higher speeds in shallower waters (citation omitted), thus threatening manatees and scarring seagrass beds. Boater compliance with existing slow speed zones is inconsistent (citation omitted). Sub-lethal effects of increased vessel traffic on manatees and a growing human population in the nearshore waters create more risk to manatees. Most adult manatee carcasses bear scars from previous boat strikes, and the healed, skeletal fractures of some indicate that they had survived previous traumatic impacts (citation omitted). Of over 1000 living individuals in the manatee photo-identification database (citation omitted), 97% had scar patterns from multiple boat strikes (citation omitted). It should be noted that the photo- identification database contains only animals with scars or other identifiable features. Non-lethal injuries may reduce the breeding success of wounded females and may permanently remove some animals from the breeding population (citation omitted). Vessel traffic and recreational activities that disturb manatees may cause them to leave preferred habitats and may alter biologically important behaviors such as feeding, suckling, or resting (citation omitted). Other threats from human activities include entanglement in fishing gear or debris; entrapment or crushing in water-control structures, locks and pipes; exposure to contaminants; and incidental ingestion of debris (citation omitted). Indirect effects from increased vessel traffic include increased water turbidity from wake action and decline of seagrass beds due to scarring by propellers (citation omitted). Petitioners' Exhibit 20, pp. 3-4. Essential Habitat for the Manatee Essential habitat for manatees, referred to in the Special Study as "places" (see id., p. 17), are areas frequented by manatees for extended time periods. These manatee places contain key habitat for manatee feeding, resting, and thermoregulation. In addition to the warm water aggregation places, the FWC's field staff has verified other places in the Caloosahatchee River area important to manatees. These secondary sites are important because they either contain fresh water or seagrass beds, aid in manatee thermoregulation, or are areas of minimal disturbance. Manatees are frequently seen in these important secondary sites during rapid cooling spells that do not greatly drop the ambient water temperature. Id. These important secondary sites are: Eight Lakes (deep canal lakes with warm water and sediments in SW Cape Coral); Chiquita Canal (freshwater source with access to Eight Lakes area); Bimini Basin (may be used for resting); Shell Point Village Lagoon (may have fresh water); Punta Rassa (seagrass beds-feeding aggregation); Beautiful Island (possible feeding site); Downtown Fort Myers Basins (presumably for fresh water discharged from hoses); Deep Lagoon (fresh water, resting, or warm water); Iona Cove (feeding); and Billy Creek (sediments retain heat). Deep Lagoon has been denominated a "minor aggregation site." Manatee Corridors Manatee "corridors" are areas visited regularly by manatees for brief times as they travel from place to place. The FWC has used telemetry data of manatees to model manatee corridors and manatee places. The Caloosahatchee River is a major manatee travel corridor because of the warm water discharged by the FP&L plant. The FP&L refuge attracts one of the largest wintering aggregations of manatees in Florida, with as many as 469 manatees having been counted in Lee County during the winter. In January 2001, as many as 434 manatees were counted in one day at the FP&L refuge. Manatees in the Caloosahatchee River generally travel not far from the shoreline, but they have also been observed to travel in the River's channels. Manatees also cross the Caloosahatchee River between Deep Lagoon and the Redfish Point area where the river narrows to 1,000 meters, and at Shell Point where the river narrows to 710 meters. Redfish Point lies across the river from Deep Lagoon. Manatees frequently travel between Redfish Point and Deep Lagoon, thereby crossing the main boat channel of the river. The FWC has identified this narrow part of the river between Redfish Point and Deep Lagoon as both a manatee travel "corridor" and as a heavy boat vessel travel corridor. Manatee crossings of the river also occur at Shell Point where the River narrows to 710 feet. Shell Point is the mouth of the river area where the river flows into San Carlos Bay. The FWC has identified the Shell Point area as a manatee travel corridor, and as the most heavily used boat vessel travel corridor. The 1998 Gorzelany report recorded an average of five boats per minute passing the Shell Point area. Just to the west of Shell Point, the boat channel in eastern San Carlos Bay is known as the "Miserable Mile." The Shell Point and Miserable Mile area likely represent the highest risk areas for watercraft collisions with manatees. Manatee Population The exact number of Florida manatees is unknown. Manatees are difficult to count because they are often in areas of poor water quality, and their behavior, such as resting on the bottom of a deep canal, can make them difficult to see. Aerial surveys and ground counts (statewide synoptic survey) have been conducted by the state in most years since 1991. There are four regional sub-populations of the Florida Manatee, these being in the Northwest Region, the Upper St. Johns River Region, the Atlantic Region, and the Southwest Region. The great bulk of the Florida population lives in the Atlantic and Southwest Regions. The sub-populations of the Manatees in those two regions account for substantially more than 80 percent of the total Florida manatee population with roughly half of the two in each region. The Southwest Region of the West Indian Manatee consists of the coastal counties from Pasco County south along the Gulf of Mexico to Whitewater Bay in Monroe County (including Lee County), and the inland counties of DeSoto, Glades, and Hendry Counties. The Southwest Region population of the Florida manatee constitutes approximately 42 percent of the total Florida manatee population. The adult survival rates in the Southwest Region are substantially lower than the survival rates in all of the other manatee regions in the state. The average age at death of manatees in the Southwest Region is significantly lower than in other regions of the state and statewide. Of the four Florida sub-populations, there is less data available for the Southwest population. "[A] priority [has been] placed on catching up to gather the necessary amount of data to better evaluate [the] status of the southwestern population." (Tr. 516-517). Nonetheless, both FWC and the U.S. Fish and Wildlife Service (FWS) have developed manatee population models, that are both sound and comprehensive. The two agree about the status of the Southwest Region population of the Florida manatee and its immediate future as explained at hearing by Dr. Bruce Ackerman, an expert in marine mammal biology, manatee population modeling, and manatee aerial surveys: "The two models were written to answer somewhat different questions, but an area that they agree on is that the southwest population is likely to be declining now, whether a little or a lot, is not so clear, but likely to be declining at this time and in the near future." (Tr. 923). The FWC's Florida Manatee Recovery Plan contains three benchmark criteria for each of the four manatee regions: average annual adult survival rate of 94 percent, average annual reproduction (at least 40 percent of adult females with calves during the winter), and the average annual rate of population growth is equal to or greater than zero. The Southwest Region manatee population is currently failing to meet the Florida Manatee Recovery Plan goal criteria. Even in the absence of any water-craft related mortalities (incidental takes), the growth rate of the Southwest Region manatee population over the next 20 years is expected to be negative. In the Southwest Region, there is no excess manatee population growth and no net productivity which can be allocated to incidental takes. In the absence of any water-crafted related manatee moralities in the Southwest Region, the probability of recovery of the Southwest Region manatee population in the next 100 years is 63 percent. If current Southwest Region watercraft-related manatee mortality trend continues, there is a zero percent chance of the recovery of the Southwest Region manatee population. Natural Threats to Manatees Manatee populations are threatened by natural causes as well as causes whose origin is human activity. The fatal and non-fatal natural threats to manatees include cold temperatures, hurricanes, red tide (Karenia brevis) events, and disease. Manatee carcasses with evidence of cold- stress show reduced gastrointestinal tract activity, a condition that can reduce an animal's buoyance. Juveniles and sub-adults are the most vulnerable to cold-stress death. Manatees on Florida's west coast are frequently exposed to brevetoxin, a potent neurotoxin, during red tide events. Manatees are exposed to brevetoxin through inhalation and ingestion. There were 75 manatee fatalities in the Southwest Region due to red tide recently. Watercraft-Related Mortality Types of Fatal Injuries The Florida Marine Research Institute conducted an analysis of watercraft-related mortality of manatees in Florida covering the period 1979 to 1991. Its abstract sums up the analysis as follows: From 1974 to 1991, the annual number of manatee (Trichechus manatus latirostris) deaths increased. The most frequent cause of death from human activity is collision with watercraft. Scars and wounds from propellers are common. A total of 1,376 sets of fatal or healed wounds was measured on 628 dead manatees recovered from 1979 through 1991. Collisions with watercraft caused 406 of these deaths. Of the 406 deaths, propeller cuts caused 158 (39%); impact injuries (no propeller cuts) caused 224 (55%); propeller cuts and impact injuries, either of which would have been fatal, caused 16 (4%); and unidentified specifics of the collisions caused 8 (2%). Fatal cuts were usually larger (longer) than healed wounds. Many animals survived several boat collisions; one manatee had 22 separate patterns of propeller cuts. The mean length [formula omitted] of the longest fatal cut from a propeller indicated that death was most often caused by a direct-drive watercraft. In contrast, fatal-impact injuries may have resulted from fast-moving watercraft of many sizes and types. Impact injuries killed more manatees than propeller cuts and increased in proportion with time. Impact often resulted in massive internal injuries with only minor surface abrasions. Only 2% of the propeller strikes were to the head, but 98% were to the dorsum. In addition, nearly 90% of the scar patterns were along the head-to-tail axis, indicating manatees were moving in response to an oncoming boat when struck. Changes in watercraft design may increase the frequency of operation of boats in shallow water. This increases the probability of collisions with manatees. Petitioners' Exhibit 26, pp. 259-260. The location of scars and wounds from propellers ranged from the head to the tail of manatees: Head (2%), Thorax (26%), Mid dorsal (body)(17%), Abdomen (36%), Tail (19%). Watercraft collision with manatees are common. Even U.S. Coast Guard and the FWC marine patrol boats have struck manatees. Mortality Data While the FWC's manatee mortality data are deemed to be reliable, the FWC does not document all watercraft-related manatee fatalities. It is, of course, not possible to know how many manatee carcasses escape observation and are not recovered. Even estimation of such numbers has difficulties. But scientifically, it is generally accepted that there is an undercount of manatee carcasses. It is known, for example, that in cases of manatee perinatal (dependent calf) deaths, carcasses are frequently not recovered. No recoveries in such cases are due to a number of factors: the small size of the carcass, rapid decomposition, and presence of scavengers. The manatee deaths listed by the FWC as having an undetermined cause of death could be watercraft-related deaths. A perinatal death, moreover, could be the direct result of a watercraft-related death of the mother. Watercraft-related manatee injuries are not limited to power boats. They may also be caused by sailboats. A significant number of sailboats have shaft driven inboard motors with a rudder that functions as a skeg (a projection that is the after part of the keel or an extension upon which the rudderpost is mounted). Collisions between skegs and manatees cause sub- lethal and lethal injuries to manatees. Statewide Mortality Rate The most frequent cause of manatee death that is avoidable is watercraft collision. Statewide, the watercraft- related mortality of manatees is 24.5 percent for the time period January 1974, to December 2002, the highest single cause of manatee deaths. Lee County Mortality Rate Among counties, Lee County has the second highest level of watercraft-related deaths in Florida, with 163 reported between January 1974, and December 2002. From 1975 through 1993, the annual watercraft-related manatee deaths in Lee County were less than 10 per year. During the nine years from 1994 to 2002, there were 109 watercraft-related manatee deaths in Lee County, an average of 12.1 per year. In 1999, the watercraft-related deaths were 10 in Lee County. There were 13 in 2000, 23 in 2001, and 13 in 2002. The first six months of 2003, through June 10, have seen six watercraft-related deaths of manatees in Lee County. The 23 manatees to have died from watercraft-related injuries in Lee County in 2001, accounted for 45 percent of the total number of manatee deaths in Lee county for the year. Caloosahatchee River Mortality Rate For the ten years from 1976 to 1986, the number of watercraft-related manatee deaths in the Caloosahatchee River was 15, with an average annual number of such deaths being 1.5 per year. For the five years from 1988 to 1993 (no data available for 1989), the number of watercraft-related manatee deaths in the Caloosahatchee River was 13, with the average annual number of such deaths being 1.8 per year. For the seven years from 1994 to 2000, the number of watercraft-related manatee deaths in the Caloosahatchee River was 30, with the average annual number of such deaths being 4.3 per year, a substantial increase over the earlier annual numbers. From 1989 through 2001, the annual number of watercraft-related manatee deaths for the Caloosahatchee River increased by 15.1 percent per year. This rate of increase is higher than the rate of increase of such deaths in the Southwest Region manatee population (9.2%), and almost triple the rate of increase of such manatee deaths statewide (5.5%). The rate of increase of watercraft-related manatee deaths over the past 13 years in the Caloosahatchee River, moreover, is higher than: (a) the manatee death rates of all categories for the Caloosahatchee River, (b) of all watercraft- related manatee deaths in southwest Florida, and (c) of all watercraft-related manatee deaths statewide. There are a number of caveats to be considered when considering manatee death data. For example, "[I]t cannot be conclusively known where manatees are actually struck by boats." Petitioners' Exhibit 21, p. 9. A "Summary and Analysis of Manatee-related Data in Lee County, 2002" prepared by Mary Duncan of the FWC (Petitioners' Exhibit 21), elaborates: The mortality database reports carcass recovery locations, which is not necessarily where animals were struck by watercraft, or where they died. For watercraft-related manatee deaths, the precise location of where animals are struck usually cannot be verified unless reported by a witness of the incident. Carcasses may move with currents and tides, but also some injuries may not cause immediate death. Injured animals have been know to swim many miles before dying. Since there is a warm water refuge in the Orange River, at tributary off the Caloosahatchee River, it is possible that some injured animals may attempt to reach this area since it represents a safe place. Cases where death occurred several days to weeks after the trauma are considered "chronic". Some of the recent watercraft-related deaths recovered in the Orange River have been identified as chronic. Efforts are underway to make this determination on historical necropsy reports. It is possible that some animals included in the Caloosahatchee River dataset may have actually been struck outside the river system. While this analysis may provide additional information and insights, it should be recognized that most cases do not have evidence of chronic injuries-but the carcass location of those cases cannot [be] assumed to represent the impact site. Petitioners' Exhibit 21, pp. 9-10. Because of these caveats, Ms. Duncan's analysis posits, "[i]t is difficult to draw conclusions on relative risks to manatees from vessels with death data alone." Her report reaches these conclusions, There appears to be an intersection of high boat use and high manatee use at the . . . mouth of the Caloosahatchee River and San Carlos Bay, commonly called the Miserable Mile area (reference omitted). This area represents the highest risk area for boat/manatee collisions. Boating studies indicate that vessel traffic is higher during the spring and summer, with the Miserable Mile area of San Carlos Bay being the highest use area. Miserable Mile is also identified as the highest vessel traffic area in Lee County in a 1998 boating study by Mote Marine Laboratory. Manatee aerial survey data confirm higher manatee use in Miserable Mile area and other parts of Lee County outside of the Caloosahatchee River system during the spring and summer. This is also confirmed by a higher number of watercraft deaths in these areas during the same time of year. Id., at 11. Ms. Duncan's report summarizes its conclusions drawn from the analysis of manatee-related data in Lee County: Existing population models now being developed typically assume that the level of threat will remain the same, since it is difficult to factor in projected threat increases. However, it is likely that threats are increasing and will continue to increase, such as increasing boat traffic and reduced foraging resources from increased coastal development. Such factors are likely to influence reproductive success and mortality rates. On a statewide basis, the continued high level of manatee deaths raise concern about the ability of the population to grow or at least remain stable. (Citation omitted.) Lee County currently ranks second in watercraft-related deaths and second in all categories of deaths statewide, suggesting that this county's waters provide a crucial habitat for manatees. Previous offsetting measures recommended during the permit review process do not appear to have offset the impacts of increasing boat traffic. Speed zones alone do not offset all adverse impacts to manatees from increased boat traffic. Long term comprehensive planning documents, such as a boat facility siting plans and manatee protection plans, are also needed to place marinas where they are least likely to increase risks to manatees. These types of conservation measures are needed to reduce the number of human-related manatee deaths, which will reduce overall manatee mortality. Id., at 13. Speed Zones and Boating Restrictions In 1989, manatee speed zones were implemented in Lee County. The steady increase in the annual number of watercraft- related manatee deaths in the Caloosahatchee River since then, and the dramatic increase in the annual rate of watercraft- related deaths in the River during the recent seven-year time period from 1994 to 2000 demonstrate, as is generally accepted and as concluded by Ms. Duncan, that speed zones alone do not offset adverse impacts to manatees from increases in boat traffic. This increase has occurred despite many features of boating restrictions in the area. Primary features of the Lee County speed zone, for example, are a one-quarter mile slowspeed shoreline buffer on either side of the intercoastal waterway channel from the mouth of the River to the U.S. 41 Bridge, and slow speed outside most of the intercoastal waterway channel from the Edison Bridge to the railroad trestle. The State-mandated manatee protection speed zones administered by FWC's Bureau of Protected Species Management under Florida Administrative Code Rule 68C-22.005, impose a year- round one-quarter mile slow speed zone for the entire shoreline of the Caloosahatchee River to the Edison bridges. East of the Edison bridges there is a slow speed zone outside of the marked channel all year, and a 25 mph maximum speed in the channel. East of the railroad trestle near Beautiful Island to east of the I-75 bridge crossing, in the area that includes the FP&L power plant, there is an idle speed zone imposed outside the channel all year, and an idle speed zone in the channel from November 15 through March 31. There is also an idle speed zone in the Orange River all year. Lee County's regulations, pursuant to its Ordinance No. 02-14, adopted on March 26, 2002, restrict boat speed within 500 feet offshore from all beaches, and within 500 feet from any water-oriented structures, such as docks, to idle speed. The FWC rules at Florida Administrative Code Rule 68C- 22.002(7), define "slow speed" as "the speed at which a vessel proceeds when it is fully off plane and completely settled into the water." The definition also states, "This required level of protection for the safety of vessels and vessel operators is also intended to provide adequate protection for manatees and is therefore adopted because of its familiarity to vessel operators." The State defines a slow speed zone as "an area where vessels may not be operated at greater than Slow Speed." Fla. Admin. Code R. 68C-22.002(8). The County's Ordinance 02-14 describes "idle speed" as: the lowest speed at which a vessel can operate and maintain steering control. The actual speed will depend upon the design of the vessel and on the vessels load, wind direction and speed, and the sea conditions. Generally, it will be between 1 and 3 miles per hour for outboard and inboard/outboard vessels, between 2 and 5 miles per hour for fixed shaft/rudder vessels. Boat Club Ex. 20 at Section Three. This definition is substantially the same as the State's definition. Marine signs in Deep Lagoon include two idle speed County ordinance signs. One is at the entrance to the central and south canals; another is at the entrance channel into Deep Lagoon and the River, inside the one-quarter mile State manatee speed zone. The second sign lets boaters know they are entering the County idle speed zone from the slow speed zone. There is also a slow speed sign for the boaters leaving the Deep Lagoon channel. It lets them know they are leaving the idle speed zone and entering the State's slow speed zone. The State, Lee County Sheriff, and Lee County municipalities participate in enforcing the State speed zones in the Caloosahatchee River. The Lee County Sheriff and the municipalities, through a memorandum of understanding, enforce the Lee County Ordinance if there is not a more restrictive ordinance in the municipality. On July 11, 2002, the Lee County Sheriff enacted a "zero tolerance" policy. It directs its marine unit to no longer issue warnings. Every stop for violation of a speed restriction is ticketed. The cost of the tickets ranges from $50 to $75. It is too soon, however, to tell what effect the policy is having on protection of manatees. Funding for Lee County marine patrol officers has increased recently. In February 2003, local law enforcement entities created a Manatee Task Force in order to better coordinate manatee protection efforts within Lee County. Once or twice per month, the U.S. Fish and Wildlife Service selects an area in Lee County for a heavy patrol known as a "wolf pack." (Tr. 426). The wolf pack consists of "three to four boats and eight or more officers". (Tr. 427). It concentrates in one area. Lee County also maintains displays of the county's Boater Guide at all local boat ramps showing the State and County speed zones, with a more detailed inset of the area where the boat ramp is located. Another education effort consisted of the mailing of a Boater's Guide that detailed manatee protection zones to about 40,000 registered boaters. Nonetheless, there are channels exempt from speed zones. All manatee travel corridors and places, moreover, are not subject to speed limitations. For example, the corridor that crosses the River from Redfish Point to the mouth of Deep Lagoon is not entirely subject to speed limitations. Commercial vehicles, moreover, can apply for exemption from manatee speed zones and can be exempted if compliance would be "burdensome." (Tr. 443). Compliance with manatee speed zones by boaters, as Ms. Kleist, an advocate of manatee protection, confessed in her case, is far from exemplary. A review of vessel activity in the Special Study led to this summary: Boaters in the Caloosahatchee River behave similarly to others throughout the state (citation omitted). Vessel traffic is highest on spring weekend afternoons. Yachts, ski boats, and open fishermen are the three most common vessel types found between the Edison Bridge and Miserable Mile while Mullock Creek is dominated by open fisherman. In these areas, the most common vessel sizes range from 16-39 feet. Highest traffic densities occur at Shell Point, where the Caloosahatchee River and San Carlos Bay converge. Mullock Creek had comparatively low levels of boat traffic. Many of the boats along the lower Caloosahatchee River originate in the Cape Coral canal system and travel toward the Gulf of Mexico. The highly variable, site- specific nature of boaters' behavior and vessel compliance requires scientists and managers to treat each site individually. Compliance with speed zones ranged from 12- 77% in the Caloosahatchee with an overall compliance of 57.3%. Although the number of vessels using Mullock Creek was relatively low, compliance was 26% accompanied by a high level of blatant non-compliance. Compliance rates may not be as important as the total number of blatant violators. While Shell Point has higher compliance, it also has heavy boat traffic that yields a greater total number of blatant violators that could pose a threat to manatees than areas with lower compliance. Petitioner's Exhibit 20, at 15. The number and size of registered boats is substantially increasing. For management of the manatee, it is important to determine where and how watercraft collisions occur. Studies to date have not yet reached these determinations. Watercraft-Related Sub-Lethal Injuries Between 60 percent and 90 percent of all Florida manatees have propeller scars. Propeller scars on manatees are so common that the FWC uses propeller scars to identify manatees. Of the over 1,000 living manatees in FWC's photo-identification data base of manatees with scars or other identifiable features, 97 percent had scar patterns from more than one watercraft collision. Most adult manatee carcasses bear scars from previous boat strikes, and the healed skeletal fractures of some of these carcasses indicate they had survived previously traumatic impacts. An example of such scar patterns is manatee MSW9321. Its carcass "floating in the Caloosahatchee River just inside the mouth of Deep Lagoon" (Petitioners' Exhibit 26), was recovered by the Department of Natural Resources in May of 1993, with the assistance of Mrs. Sheridan. The manatee had ten fresh propeller wounds along its back and across its fluke, five of which penetrated its body cavity, and multiple healed and healing scars in the dorsum. There were 31 prior scars from propeller cuts. The FWC's study of 628 manatees carcasses recovered from 1979 to 1991, found that manatee carcasses with no propeller scars were rare. Many manatees have multiple sets of propeller scars from different collisions. Non-fatal propeller cuts can become contaminated wounds which can cause prolonged illness and death. Non-fatal watercraft-related injuries can damage a manatee's ability to swim. They may reduce the breeding success of wounded females, and remove some animals from the breeding population. In sum, as was found nearly four years ago by Administrative Law Judge Meale in paragraph 14 of the recommended order in Sheridan II: The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential from mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. (Petitioners' Exhibit 8, p. 9 [this exhibit contains only the odd-numbered pages of the recommended order; official recognition is taken of the order in its entirety]). As further found in the Sheridan II recommended order: "Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years." Id. Manatees in Deep Lagoon Groups of manatees frequently use Deep Lagoon. The state, under the auspices of FWC and its predecessors, has made numerous aerial flight observations of manatees of Deep Lagoon. Between January 17, 1984, and December 19, 1985, there were 48 such flights. Between July 24, 1988, and November 15, 1995, 23 aerial observations were flown. Groups of manatees were observed in Deep Lagoon near the mouth of the north canal, in all portions of the north canal, and in the Cow Slough headwaters of Deep Lagoon. Manatees radio-tagged by the state have also been documented in Deep Lagoon. On May 28, 1998, photographs were taken of groups of manatees in Deep Lagoon near the mouth of the marina's north canal and in the north canal. In late May 2003, photographs were taken of manatees in the Iona Drainage District canal near the mouth of the north canal. The Boat Club has also taken video tapes on numerous times of numerous manatees (from one manatee to groups of as many as five manatees) in the north canal. Each of the three Petitioners testified that on numerous occasions they have observed numerous manatees, including manatee mating herds in Deep Lagoon, the north canal, and the Iona canal. A manatee pair was also seen one day in the Iona Canal which appeared to be a new born manatee. Manatees have been observed several times in Deep Lagoon with small calves. From April 1974, to August 2002, within Deep Lagoon itself, 13 manatee carcasses have been recovered by the state. Four of the manatee deaths were determined to be watercraft- related deaths. Five of these manatee deaths were due to natural causes other than cold stress. For three, the cause of death was notdeterminable due to decomposition. One of the deaths was perinatal. In the Caloosahatchee River just outside the mouth of Deep Lagoon, during this period of time, the FWC recovered six manatee carcasses. Three of the deaths were watercraft-related. One was perinatal. The cause of one of the deaths was undeterminable due to decomposition. Another of the deaths was verified but the carcass was not recovered, thus the cause of death of was not determined. The Opinions of Experts None of the Petitioners' manatee experts expressed the opinion that the proposed permit would have an adverse effect on the manatee. Dr. Ackerman, for example, had never seen the application and had no opinion about whether it should be granted or not. See Tr. 933. But two of Petitioners' experts expressed opinions either that the addition of watercraft into any river system that constitutes manatee habitat poses a risk of collisions between boats and manatees or that adding boats to the Caloosahatchee River system poses a threat to the manatee unless there is some other accommodation for manatee protection. Sara Lynn McDonald, a marine biologist with FWC's Florida Marine Institute and an expert in marine mammal biology, wrote the majority of the report for the Special Study. When asked her opinion concerning whether an increase in boat traffic on the Caloosahatchee would increase the possibility of water crafts colliding with manatees, she answered, "Yes, I believe that in any system an increase in vessel traffic would increase risk of harmful collisions with motor boats." (Tr. 898). Ms. McDonald was asked on cross-examination whether she believed that speed zones are an effective measure to prevent collisions between manatees and water craft, she answered, "I think they can be." (Tr. 913). Dr. Bruce Ackerman, an expert in marine mammal biology, manatee population modeling, and manatee aerial surveys, was also called by Petitioners. Dr. Ackerman testified that the between 1974 and 1991, boat registrations in Florida trended upward and so did manatee fatalities from water craft collisions. Both trends have continued since 1991. His opinion was that "all other things being equal, adding more boats into [the Caloosahatchee River] system would increase the risk to manatees." (Tr. 923). On cross-examination, Dr. Ackerman went so far as to agree that speed zones show promise for the protection of manatees. Education, required by the state now of new boaters, in his opinion "helps somewhat." (Tr. 930). Mr. Pitchford, like Ms. McDonald and Dr. Ackerman, is an employee of FWC's Florida Marine Institute. He manages the State's Marine Mammal Pathobiology Lab where manatee necropsies for cause of death is determined. He offered testimony about the causes of deaths of manatees and related issues, but did not express an opinion at hearing, just as Petitioners' other two manatee experts, on whether the Boat Club's application should be granted or not. In contrast to the three experts who testified at the behest of Petitioners, two experts called by the Boat Club opined that there would be no adverse impact to manatees if the Boat Club's application were granted in the form preliminarily approved by the Department. Tom Logan, an expert in wildlife biology, whose specialty is in "endangered species management" (Tr. 484), opined that the project will not have an adverse affect on the manatee or its habitat. Mr. Logan offered this opinion on the basis of information he had examined and because, "the level of use that will be there with the proposed marina in place relative to what has been there in the past . . . will not result in anything increased or additive in the way of activity in the water that manatees are using . . . ." (Tr. 491). In other words, there will be no increase in power boats or other watercraft (sailboats with skegs, for example) in the Caloosahatchee River as the result of the proposed permit and therefore, granting the permit would have no adverse impact on manatees. Furthermore, Mr. Logan testified that manatee management protection programs combining speed zones, enforcement of speed limitations and education, can assist in the protection of manatees particularly in marina areas where manatees tend to congregate or visit. The speed zones in Lee County (in place of a considerable number of years), coupled with a "zero tolerance" enforcement policy in place since July of 2002, appeared to him to be working. (Tr. 491). Ms. Mary Duncan, a state Environmental Specialist III and FWC's Bureau of Protected Species Management's coordinator of its mortality database, was accepted as an expert in "potential impacts to manatees from development." (Tr. 777). At the time of hearing, she had conducted permit reviews for the bureau for 11 1/2 years, the time in which the bureau has been a part of the Department of Natural Resources, the Department of Environmental Regulation, the Department of Environmental Protection and the Florida Fish and Wildlife Conservation Commission. She has a "Bachelor's in biology with a minor in chemistry" (Tr. 775), and prior to the hearing in this case had testified four times in judicial or administrative proceedings on potential impact of manatees from development. Ms. Duncan has been involved with Deep Lagoon Marina permitting since "about 1994." (Tr. 777). In 1998, for example, she prepared a Manatee Impact Review Report for the Deep Lagoon Marina permit modification that involved the stormwater permit application and "the allowance of liveaboards, the relocation of the travel lift ramp to the north canal, and a redesign of the proposed cross connection between the north canal and the main basin." DEP Ex. 41. Her review described the project as in "an area of relatively high manatee use in Lee County, based on aerial survey and mortality data . . . [where the power plant] effluent attracts one of the largest wintering aggregations of manatees in Florida." Id. Her report further noted: Despite some existing manatee protection measures such as speed zones, watercraft- related manatee mortality trend is continuing to increase within the Caloosahatchee River. It is unknown whether the continuing deaths are a result of inadequate speed zones, inadequate posting of speed zones, inadequate enforcement of speed zones, and/or the cumulative impact from years of adding boats to the system. It is probable that many or all of these factors are involved. Id. In the historical information section of the report, Ms. Duncan showed the project to have 228 existing slips (61 wet, 167 dry) with previously permitted but not constructed slip at 446 (113 wet and 333 dry) for a total of 674 slips (174 wet, 500 dry). In a section entitled "Cumulative Impacts," the report found: This project is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft- related injuries, disturbance contributing to stress, and alteration of natural behaviors. Id. Numbers of recommendations were made in the report as conditions for approval including that "boat launching from the uplands be prohibited along the shoreline of the North Canal" (id., page 5 of 7), and that "[a]fter construction of the dry storage barns, storage of boats on trailer or open dry storage racks shall be prohibited." Id., page 6 of 7. On March 1, 1999, Ms. Duncan authored a memorandum through which the Bureau of Species Protection Management suggested that the following language be used as condition of the Boat Club's proposed permit, Launching and retrieval in the north canal shall be restricted to vessels requiring boat repair. The applicant shall maintain a daily log of vessels launched and retrieved from the north canal travel lift. The applicant shall also maintain a log of incoming and outgoing boat repairs, which shall correlate with the travel lift log. DEP Ex. 43. A letter authored by Ms. Duncan dated November 18, 2003, was sent to Mr. Calvin Alvarez in the Southwest District Office of DEP. Signed by Brian Barnett, Interim Director of the FWC's Office of Environmental Services, it represents the Commission's comments and recommendations regarding the Boat Club's application under review in this proceeding. The letter contains a number of recommendations for conditions of the proposed permit, all of which were, in fact, made conditions of the permit as approved. In addition to standard construction conditions, development of a marina manatee education program, and installation of grates over certain pipes to prevent manatee drowning, the recommendations included the following: Of the 485 slips proposed for this marina, the number of powerboats allowed at this facility shall be limited to 445. The remaining slips (40) must be either occupied by sailboats or left unoccupied. Future requests for additional powerboats will be considered if the secondary and cumulative impacts associated with this increase are not expected to adversely affect the West Indian manatee. Storage of boats on trailers or open land racks shall be prohibited. Use of the travel lift in the north canal for boats less than 40 feet in length is prohibited except in emergencies (approaching hurricane etc.). Limitation on the use of this lift shall not exceed a 28-day rolling average of ten vessels a week for those vessels, except in emergencies (approaching hurricane etc.). Launching and retrieval of boats in the north canal shall be restricted to vessels requiring boat repair. The applicant shall maintain a daily log of vessels launched and retrieved from the north canal travel lift. The applicant shall also maintain a log of incoming and outgoing boat repairs, which shall correlate with the travel lift log. DEP Ex. 33, page 3. So long as the recommendations in the letter are conditions of the proposed permit, Ms. Duncan offered the opinion that the proposed permit "imposes minimal adverse impacts to manatees, and if any impacts do occur, they have been offset by" the permit conditions. (Tr. 784). Ms. Duncan's opinion was based on review of the project, "the historical background of the facility, manatee data, the requirements of the ERP rule, and [her] general knowledge of Lee County and manatee use in Lee County." Id. The 1990 Aerial: Proof of Maximum Historical Use Of particular import to Ms. Duncan's review was the historical background of the facility. Ms. Duncan reviewed a document provided to her by Hans Wilson and Associates, the Boat Club's environmental consultant and marine engineer. The document, enlarged as DEP Ex. 37, "has two coverages. It is an aerial photograph in 1990 of the facility. Overlaid on that is a CAD drawing done by Hans Wilson to outline what they determined to be existing boats that were uncovered in open storage on the facility in 1990." (Tr. 786-787). Ms. Duncan used the document to determine "actually how many boats were located coming out of this facility." (Tr. 787). She determined that there were 217 "Uncovered Dry Slips" (DEP Ex. 33) at the marina in 1990. Together with 61 authorized wet slips and 167 authorized "Covered Dry Slips" (id.), she reached a total of 445 slips at the marina as the historical maximum, 40 slips less than the 485 that were proposed in the Boat Club's current ERP application. Hence, FWC recommended that the number of power boat slips be restricted to 445 slips. Ms. Duncan chose the 1990 aerial for the basis of her recommendation because unlike the other aerials she looked at from 1993, 1999, 2000 and 2001, "[t]he 1990 aerial was the period of time that the facility appeared to be at full operating capacity in the sense that this was the aerial that showed the most boats and open storage on the uplands." (Tr. 787). Furthermore, she chose the 1990 aerial because "it represents the existing use of the facility before they started clearing it to prepare for building boat barns later in the 1990's." (Id.) Use of the 1990 aerial as the proof of maximum usage of the marina enabled Ms. Duncan to conclude, like Mr. Logan, that restricting the number of power boats slips at the marina to 445 would not introduce any new boats into the system. Usage at Other Times However fair to the Boat Club the choice of the 1990 aerial as to historical background of usage at the marina might be, it is not free of problems. First, the 1990 aerial is more than a decade old. In the interim, the marina was not shown by a number of aerials to have achieved the usage that appears to have peaked in 1990. The actual usage at the marina, in fact, has varied over time greatly and has been less (at times, much less), than what it was in 1990. Recent usage at the marina, in fact, has been far less than it was in 1990. At the 1999 administrative hearing before Administrative Law Judge Meale, Mr. Ruff, in answer to a question from the Administrative Law Judge, offered that the covered dry space and uncovered dry space totaled only about 200 slips rather than the 356 dry slips proposed in the Boat Club's current application: The ALJ: Okay. Can we deal with first what's in the ground or on the water, regardless of what's been authorized? If you need to confer with other witnesses, that would be fine. Mr. Uhle: Mr. Ruff is the person who knows how many dry spaces there are. The figure 61 wet slips I believe is correct. The ALJ: For present conditions? Mr. Uhle: For present conditions. Ms. Holmes: And that's permitted and in use. Mr. Uhle: Those are existing. The ALJ: Existing, right. * * * The ALJ: How about dry spaces. Mr. Ruff: Okay. The existing dry space, there is approximately in the two buildings and on the ground and outside racks, about 200. When we bought the property [in 1997], there were about 400 because we used the entire north peninsula for dead storage. We've eliminated that, effectively, so we've probably eliminated 150 boats from the property since we bought it. And they were there for a long time. Petitioner's Exhibit 9 (emphasis supplied). Mr. Ruff's testimony supported the administrative law judge's finding that "Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings." Sheridan, et al., v. Deep Lagoon Boat Club, Ltd., et al., DOAH Case No. 98-3901, Recommended Order (November 24, 1999), paragraph 6, and supported the finding that adding 227 dry slips so as to raise its dry slip capacity to 427 dry slips would "adversely impact the value of functions provided to manatees by the affected surface waters." Furthermore, the Sheridan II Recommended Order found: Manatee mortality has increased as boat traffic has increased. Substantial number of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful. Id., paragraph 137. In light of these facts, the recommended order reached the conclusion, "[a]pplicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species." Id., paragraph 138. In its final order in Sheridan II, DEP disapproved the maintenance and dredging exemption issue to the Boat Club, denied the Boat Club's request for a determination of entitlement to a maintenance and dredging exemption for dredging in the marina canals, and denied the Boat Club's application for an ERP to construct a SWMS on uplands at the Marina site. In the course of the final order, DEP "declined to reject the ALJ's mixed statements of law and fact concluding that increased boating activity and other Marina expansion activities authorized in the Original Permit constituted adverse secondary impacts of the proposed SWMS to water quality and to manatees and their habitat." Petitioners' Exhibit 8, DEP Final Order, OGC Case Nos. 98-1184 and 98-3047 and DOAH Case Nos. 98-3901 and 98-5409, p. 42 (January 28, 2000). Actual usage at the marina of 61 wet slips and 200 dry slips was confirmed again in Sheridan III both in the recommended order issued in January of 2000, and the final order by DEP. Ms. Duncan's testimony was forthright; her demeanor earnest. There is nothing to suggest that her opinion was anything other than honest and sincerely held. If one were to suspect that Ms. Duncan had a bias, it would be, in light of her position with the state and the recommendations she has made in the past, toward manatee protection. Her opinion, therefore, that the proposed permit does not adversely affect manatees should be given substantial weight. Ms. Duncan's opinion, however, is rejected. It is rejected because, just as Mr. Logan's, it is based on a faulty assumption: that approval of the permit will not introduce into the Caloosahatchee River system more boats that threaten the endangered manatee. The approval of the permit will allow more slips (485) and power boats (440) than have been actually at the marina since 1999 when Mr. Ruff testified before Administrative Law Judge Meale (261, 200 dry slips and 61 wet slips). The approval will allow more boat slips and power boats than the Boat Club claims in its proposed recommended order exist there now (400, 50 wet and 350 dry). Furthermore, it may be inferred that the upgrade, particularly if Clean Marina status is achieved and is publicized, will make it likely that the marina will be more attractive to boaters and will operate at full capacity. Full capacity is 184 more power boats above the capacity that served as the baseline in Sheridan II, and 224 more boat slips than the Sheridan II baseline. Furthermore, and most persuasively, the Department decided in Sheridan II that allowing a similar number of boats to operate in the Caloosahatchee River system constitutes adverse secondary impacts to the manatee and its habitat. There is nothing in this record that is shown to have occurred in the past three years that would justify overriding the Department's conclusion. Sovereignty Submerged Lands Lease The applicant has provided all information necessary to qualify for a proprietary authorization for a lease of sovereign submerged lands. But the Boat Club has failed to demonstrate that the lease will not be contrary to the public interest. See paragraph 204, below. Claim of Boat Club Violations Petitioners claim that the Boat Club has violated permit conditions or environmental law in the past in a number of different ways. There was no proof, however, of these violations. There was not even proof that the Department has ever issued a notice of violation to the Boat Club. Applicable Law In General At hearing, DEP produced a notebook with a cover page inside the book entitled "ALJ's Copy of Statutes and Rules." Official recognition was taken of the contents with no objection from any of the parties. Included in the notebook is an "Operation Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., . . . Between South Florida Water Management District and Department of Environmental Regulation." Pursuant to the agreement, DEP reviews and takes final action on all applications for permits under Section IV of Chapter 373, Florida Statutes, for docking facilities and adjacent docking and boating-related development which includes "parking areas for the docking facility, dry storage facilities, boat sale and supply facilities, maintenance and repair facilities, associated seafood loading and processing facilities, restaurants, harbor master and marina administration facilities." Section II, A. 1(i), pp. 3 and 4 of the Operating Agreement. Section 373.413 provides that "the governing board [of the water management district] or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction . . . of any stormwater management system . . . will comply with the provisions of (Part IV of Chapter 373] and applicable rules . . . and will not be harmful to the water resources of the district." Section 373.414, entitled "Additional criteria for activities in surface waters and wetlands," provides: As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to water as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands . . . . is not contrary to the public interest. * * * In determining whether an activity, which is in, on, or over surface waters . . . and . . . is not contrary to the public interest . . . the department shall consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. See also Fla. Admin. Code R. 62-4.242; Fla. Admin. Code R. 40E- 4.302; and SFWMD Basis of Review, Section 4.2.3. Florida Administrative Code Rule 62-302.300 states the Department's anti-degradation permitting policy for surface water quality. Section (15) of the rule provides that pollution that causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Section (17) of the rule provides that the Department shall permit new discharge if it will not reduce the quality of the receiving waters below their classification and if the degradation is necessary under federal standards and circumstances clearly in the public interest and meets other requirements. Of particular pertinence to this case, the subsection goes on to state, "[p]rojects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of subsection 373.414(1), F.S." Those requirements, of course, include the statement with regard to "net improvement in water quality" in Section 373.414(1)(b)3. In Florida Administrative Code Rule 62-330.100, DEP has adopted by reference certain ERP rules of SFWMD for its use in conjunction with its existing rules when regulating surface water management systems, including activities on, in, or over wetlands or other surface waters under Part IV of Chapter 373. The Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District August 1995 ("BOR") is also contained in the notebook of "ALJ's Copy of Statutes and Rules" produced at hearing as applicable law. Among the BOR's Environmental Criteria to be "implemented in a manner which achieves . . . a project permitting goal, of no net loss in . . . surface water functions" (Section 4.0, BOR) is Section 4.2.1. It requires the exploration of design modification to reduce or eliminate adverse impacts to surface water functions. The evidence establishes that the proposed surface water management system will enhance surface water functions by providing a net improvement of the water quality of marina's receiving waters. Section 4.2.2 of the BOR requires that the applicant "provide reasonable assurances that the regulated activity will not impact the values of wetland and other surface water functions so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." The Boat Club has failed to provide assurances that the upgrade to the marina will not cause adverse impacts to manatees and their habitat. The opinions of the experts presented by the Boat Club that there will be no adverse impacts are based on the faulty assumption that the upgrade will not add more boats into the Caloosahatchee River system. The boating restrictions imposed by the federal, state and local governments, moreover, have not been shown in this proceeding to mitigate adverse impacts to the manatee and its habitat that will be produced by the introduction of additional boats, power and otherwise, into the River system. The Public Interest Test Deep Lagoon has been found in previous recommended orders and DEP final orders not to be among Florida's Outstanding Waters, even though it is an arm of the Caloosahatchee River and the River is so listed. The parties do not contend otherwise. They have structured their arguments along the line that the proposed permit must be shown to be "not contrary to the public interest." Section 373.414(1). Of the seven criteria of Section 373.414(1), which must be considered and balanced in determining whether the project is contrary to the public interest, it has been shown that there is no adverse impact with regard to criteria 1., 3., 4., and 6. In fact, for example, as the Boat Club points out with regard to criterion 1., "[e]xcept for mosquito control, the testimony and evidence demonstrated that this proposed project will have a positive impact on each and every one of [the] concerns" (Respondent, Deep Lagoon Boat Club Ltd.'s Proposed Recommended Order, p. 53) listed in Section 4.2.3.1 of the BOR for assessment of hazard to public health, safety with respect environmental issues. This leaves criteria 2., 5., and 7. Implementation of the proposed surface water management system will have a positive affect on the conservation of fish and wildlife but the upgrade otherwise will not. The project is of a permanent nature, a matter the Boat Club concedes. (Respondent Deep Lagoon Boat Club Ltd.'s Proposed Recommended Order, p. 55). The surface water management system will improve water quality in the area. The remainder of the upgrade will diminish the value to manatees and of the manatee habitat of the areas affected. Reasonable Assurances Section 4.2.4 of the BOR requires that an applicant provide "reasonable assurance that the regulated activity will not violate water quality standards in areas where water quality standards apply." Water quality standards will not be violated as a result of the proposed project. Reasonable assurances have been provided both in the short term with best management practices during construction, and in the long term with the Marina Management Plan governing the operation of the marina for the life of the facility. The Boat Club offered reasonable assurance that future water quality will be in compliance by detailed maintenance and reporting procedures for the surface water management system and the closed loop systems, and monitoring of water quality and sediments. Sections 4.2.4.2 and 4.2.4.3 of the BOR require long term water quality considerations. Reasonable assurances were offered that the project will not cause water quality violations. Flushing has been improved by making the canals more shallow, and will be further improved by the culverts that will connect the north and main canals. The fueling facilities are conditioned upon a detailed operations and procedures commitment in the area of spill response, minimizing the effects of any spills, as required by Section 4.2.4.3(f). The marina will have publicly available pump-out facilities for boat heads at a nominal cost to minimize improper disposal, as required by Section 4.2.4.3(g), and will not have live-aboards. The disposal of solid waste, such as garbage and fish cleaning debris, has been addressed to prevent disposal into wetlands or other surface waters, as required by Section 4.2.4.3(h). The pollutant leaching characteristics of pilings has been addressed as required by Section 4.2.4.3(i), by the replacement of the existing, treated wood docks with PVC and concrete structures. Anti-fouling paints on hulls have been addressed by requiring all wash-downs to take place in the closed loop contained areas that overflow in storms to the sewer system. Additionally, any boat scrapings are contained and disposed of by a contaminant disposal contractor, and the marina uses only low-copper bottom paints. The permit conditions, as well as the plans, address the short-term water quality impacts of the proposed system, as required by Section 4.2.4.1 of the BOR. The project plans attached to the permit include provisions for erosion and siltation barriers, and similar devices during construction. The permit conditions also require temporary erosion control barriers to remain in place and be inspected daily during all phases of construction until soils stabilize and vegetation has been established. All practices are required to be in accordance with the guidance and specifications described in Chapter Six of the Florida Land Development Manual: A Guide to Sound Land and Water Management (Department of Environmental Regulation 1988), unless a project-specific erosion and sediment control plan is approved as part of the permit. Additionally, all access for construction activities, including placement of floating docks into the water, must occur via the existing boat ramps, travel lift and fork lift areas of the marina. At no time are mangroves affected unless specifically authorized by the permit to be altered or trimmed to accommodate construction or access operations. From a hydrographic standpoint, the project is approvable. Section 4.2.4.5 of the BOR, entitled "Where Ambient Water Quality does not Meet State Water Quality Standards," provides in part: If the site of the proposed activity currently does not meet state water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. The proposed project will result in a net improvement of the water quality standards, and will not contribute to any exceedances where exceedances exist. Section 4.2.7 of the BOR requires that an applicant provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource as described in paragraphs (a) through (d) of the section. The section stresses the import of protection of endangered species such as the manatee: Aquatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to protect under Part IV, Chapter 373, F.S. Those aquatic or wetland dependent species which are listed as threatened, endangered or of special concern are particularly in need of protection. As discussed elsewhere, the applicant has failed to provide reasonable assurances that the proposed project will not cause adverse impacts to the manatee. Florida Administrative Code Rule 18-21.004(1)(a) provides that "all activities on sovereignty lands must not be contrary to the public interest except for sales which must be in the public interest." "Public interest means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for . . . lease . . . in sovereignty lands . . ., the board shall consider the ultimate project and purpose to be served by said . . . lease . . . ." Fla. Admin. Code R. 18-2.003(40). While conditioned upon the construction of the surface water management system that will provide a net improvement in water quality to a water body that does not meet water quality standards, implementation of the Marina Management Plan, and execution of a DEP-approved lease agreement, the proposed activity has not been shown to be not contrary to the public interest because of adverse secondary impacts to manatees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Environmental Regulation that the application by the Deep Lagoon Club Ltd. for a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization be denied. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2003. COPIES FURNISHED: Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Ebelini, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street Post Office Box 2449 Fort Myers, Florida 33902-2449 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered by the Commission dismissing the Department's petition for the reasons set forth above. DONE AND ENTERED this day of September, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of September, 1997. COPIES FURNISHED: Anne Longman, Esquire Lewis, Longman and Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32302 Steven H. Parton, Esquire Dennis Silverman, Esquire Division of Legal Services 625 Larson Building Tallahassee, Florida 32399-0333 Robert S. Cohen, Esquire Pennington, Moore, Wilkinson and Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Elsie Crowell, Chairperson Commission on Hurricane Loss Projection Methodology Larson Building, Fifth Floor Tallahassee, Florida 32399-0300
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permit requested be issued in accordance with the recommendations set forth in the staff report (attached thereto). Respectfully submitted this 31st day of October, 1975, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Arthur Hastings 708 Lincoln Avenue Leesburg, Florida John Wheeler, Esquire Post Office Box V West Palm Beach, Florida 33402 Granada Properties, Ltd. 341 North Mills Orlando, Florida
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population. The City is separated from the Dade County mainland, which lies to its west, by Biscayne Bay. There are four east-west causeways connecting the City with the mainland: MacArthur Causeway; Venetian Causeway; the Julia Tuttle Causeway; and 79th Street (North Bay) Causeway. All four of these causeways serve as hurricane evacuation routes for the City's population. Venetian Causeway The Venetian Causeway, which was completed in 1926, is the oldest of these causeways. It is approximately two and one half miles in length and consists of twelve lowrise bridges. These bridges feature low guardrails of a pierced geometric design which allow a virtually unobstructed view of the bay from anywhere on the roadway. Among its twelve bridges are two drawbridges, which are in relatively poor operating condition and are unable to bear exceptionally heavy loads. Inasmuch as the causeway is classified as a county minor arterial roadway, Dade County is responsible for its maintenance and repair. The causeway has one westbound lane of traffic and one eastbound lane of traffic. Its two lanes of traffic are not divided. As a two-lane, two-way undivided arterial, the causeway has a peak hour capacity of 1570 vehicles. Based upon 1987 statistics compiled by the Dade County Department of Public Works, the causeway's actual peak hour volume is 641 vehicles. Its volume to capacity ratio is therefore .41 and, as a result, its peak hour level of service (LOS) is "A," which is characterized by free flowing, optimum traffic conditions. There are five other service levels used by traffic planners to describe a roadway's traffic operations: LOS "B" (stable); LOS "C" (uncongested); LOS "D" (congested); LOS "E" (very congested); and LOS "F" (extremely congested). While traffic is free flowing most of the time on the causeway, there are occasions when there is congestion. Motorists may encounter such congestion when there is an accident, when there is flooding due to a heavy rain event, 1/ when traffic must stop to allow a truck with a heavy load to cross one of the causeway's drawbridges and when one of the drawbridges is stuck in the up position. Furthermore, when the drawbridge on the MacArthur Causeway is stuck in the up position, which happens not infrequently, a number of motorists who ordinarily travel on the MacArthur will use the Venetian as an alternative route, resulting in heavier than usual traffic on the Venetian. Motorists using the Venetian Causeway must stop at a toll booth located at the western terminus of the causeway to either pay a 50_ toll or show the attendant a plate reflecting that the toll has been prepaid. Rumble strips have been placed on the pavement to warn motorists to slow down before they reach the toll booth. As it traverses the bay from the mainland to the City's main island, the causeway crosses six islands, collectively known as the Venetian Islands, that are marked by residential development. From west to east, these islands are: Biscayne Island; San Marco Island; San Marino Island; Di Lido Island; Rivo Alto Island; and Belle Isle. Biscayne and San Marco Islands are within the jurisdictional boundaries of the City of Miami. San Marino, Di Lido, and Rivo Alto Islands and Belle Isle are within the jurisdictional boundaries of the City of Miami Beach. The Venetian Causeway is the only roadway linking the six Venetian Islands to the mainland. In addition to an eastbound lane and a westbound lane, the causeway has a turn lane on each of the Venetian Islands. At its July 19, 1988, meeting, the Dade County Commission passed the following resolution concerning the Venetian Causeway: WHEREAS, the Venetian Causeway, completed in 1926, was an integral part of the master plan for the residential Venetian Islands in Dade County; and WHEREAS, the Venetian Causeway is the oldest causeway remaining in its original form, linking the mainland of Miami to the island of Miami Beach; and WHEREAS, it is believed that preservation of the unique and historic Venetian Causeway as a historic site will be highly beneficial to the residents of the Venetian Islands, the citizens of Miami, Miami Beach, Dade County and the United States of America; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA, that the County Manager is directed to work with appropriate Local, State and Federal officials to secure funding for its replacement and the Causeway's designation as a State Scenic Highway and its listing as a historic place in the National Register while preserving its character and appearance. On July 27, 1988, the Miami Beach City Commission passed a similar resolution, which provided as follows: WHEREAS, the Venetian Causeway has historic significance in the development of the City of Miami Beach; and, WHEREAS, the Venetian Causeway has unique character by virtue of its scale, bridge profiles, and railing design; and, WHEREAS, the existing Venetian Causeway positively contributes to the appearance and character of the Venetian Islands and the City of Miami Beach. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA, supports the nomination of the Venetian Causeway to the National Register of Historic Places and the designation of the Venetian Causeway as a State of Florida Scenic Highway. On April 5, 1989, the Miami Beach City Commission adopted Ordinance No. 89-2637, which designated "[t]he public right-of-way of that portion of the Venetian Causeway within the corporate limits of the City of Miami Beach" as a historic preservation site, effective April 15, 1989. The Venetian Causeway was officially placed on the National Register of Historic Places effective July 13, 1989. Widening the causeway and adding lanes will change its unique character and appearance and adversely impact its value as a historic resource. Belle Isle Belle Isle is the Venetian Island closest to the City's main island and furthest from the mainland. Both of the Venetian Causeway's drawbridges lie to its west. To the south of the causeway on Belle Isle is a three acre City park and a crescent shaped, fifteen-acre area that is developed with highrise condominium apartment buildings. There are six such buildings. They range in height from ten to twenty- two stories and contain a total of approximately 1050 units. There is also a large vacant lot on the south end of the island. There are 9.17 acres of land to the north of the causeway on Belle Isle. The land is divided into six parcels. From west to east, these parcels are: the Cellazet parcel; Century Lane parcel; Lido Spa parcel; Farrey Lane parcel; Edelstein parcel; and Stortford parcel. The largest of these parcels is the Stortford parcel, which is 3.50 acres. The smallest of these parcels is the Edelstein parcel, which is .60 of an acre. The remaining parcels range in size from .69 of an acre (Century Lane) to 2.21 acres (Lido Spa). Of these six parcels on the north end of Belle Isle, only one, the Cellazet parcel, is vacant. Lowrise, older buildings, none exceeding five stories in height, are found on the other parcels. These buildings contain approximately 270 residential units. There has not been any recent development on the north end of Belle Isle. The units that are furthest south on Belle Isle are only 300 feet from the southernmost point of the 9.17 acres of land that lie to the north of the causeway on the island. Stortford Parcel Intervenor Stortford N.V. purchased the Stortford parcel in 1980 for approximately five million dollars with the intention of replacing the 120 lowrise rental apartment units on the site with highrise condominium apartment units. Shortly after it purchased the property, the market for highrise condominium apartment units in the area weakened and, as a result, Stortford N.V. delayed its plans to redevelop the property. By 1981, market conditions had improved. The improvement rekindled Stortford N.V.'s interest in pursuing its original redevelopment plans. It consulted an architect and investigated the economic feasibility of such a project. It determined after such an investigation that it would be imprudent to go forward with the project under the circumstances as they then existed. Accordingly, it again put its redevelopment plans on hold, but not before it had spent $50,000.00 on the project. Stortford N.V. next took action in furtherance of the project in the late 1980's. It had a building designed for the site and hired a general contractor, L. Milton Construction Company (Milton), to oversee the building's construction. The building was to be 27 stories tall and contain almost 300 apartment units ranging in area from 900 square feet (one-bedroom unit) to 1400 square feet (three-bedroom unit). Four of the building's 27 stories were to used as a multi-tiered parking garage with 494 spaces. On February 22, 1989, Milton applied to the City's Building Department for a building permit to construct the building. The permit for the Stortford project was approved on January 31, 1990, subject to the following conditions: This permit is issued subject to Biscayne Bay Shore Line Development Review Committee Approval. If Biscayne Bay Shore Line Development Review Committee approval is not granted, this permit is null and void and all fees will be refunded (except up front fee). [The applicant] shall incur no costs and construction shall not begin until Biscayne Bay Shore Line Development Review Committee Approval is granted. The permit had an expiration date of July 30, 1990. No other building permit has been issued in recent years for construction anywhere on the north end of Belle Isle. In fact, only one other such permit - for construction on the Callazet parcel - has been sought. On May 17, 1990, the Biscayne Bay Shore Line Development Review Committee (Committee) met to consider the Stortford project. The Committee rejected the project because it was not set back a sufficient distance from the shoreline. The building permit issued for the Stortford project on January 31, 1990, is now void. No actual construction work has yet been done in connection with the project. Stortford N.V. has spent approximately $365,000.00 on the project since the project's revival in the late 1980's. Prior Zoning/Land Use Designations of Belle Isle Property From 1930 until 1951, the south end of Belle Isle was zoned for single family estates (RC) 2/ and the north end of Belle Isle was zoned for multifamily apartments and hotel units (RE). In 1951, the zoning classification of the south end of Belle Isle was changed to RE. No change was made to the zoning classification of the north end of Belle Isle. In 1961, height restrictions were placed on the buildings on both the south and north ends of Belle Isle. Under these restrictions no building could exceed 14 stories or 160 feet. Both the south and north ends of Belle Isle retained their RE zoning classifications until 1971, when the City passed a new zoning ordinance, Ordinance No. 1891, which contained different classifications. Under the new ordinance, both the south and north ends of Belle Isle were classified RM-100, a classification which permitted a maximum of 100 dwellings units per acre and carried no height restrictions. The south and north ends of the island remained so classified until October 1, 1989, when the City's Year 2000 Comprehensive Plan became effective. Petitioners Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn are now, and have been at all times material hereto, residents of the City of Miami Beach. Petitioners Durchslag, Kreitman, Shiff and Kohn live in highrise condominium apartment buildings on the south end of Belle Isle. They each own the apartments in which they live. Petitioner Benson resides in a single-family house that she owns on Di Lido Island. Petitioner Cushing lives in a single-family dwelling that he owns on Rivo Alto Island. The Venetian Islands Improvement Association, Inc. is an organization of owners of single-family residences located on the Venetian Islands. It was founded in 1938 and now has approximately 435 members. Its primary purpose is to advance and protect the collective interests of its homeowner members. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. All notices of these adoption proceedings were published in the "Beaches Neighbors" section of the Miami Herald. 3/ The "Beaches Neighbors" section of the Miami Herald is circulated twice a week along with the main portion of the Herald in the following towns and municipalities in Dade County: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Beaches Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission, over the objections of Petitioners, unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Comprehensive Plan. The objections submitted by Petitioners during the adoption proceedings were directed to the land use designation of the north end of Belle Isle. Although they had the opportunity to do so, they did not contend at any time during the adoption proceedings that the City had given inadequate notice to the public of these proceedings. While Petitioners may not have known at the time of the adoption proceedings that notice of these proceedings had been published only in the "Beaches Neighbors" section of the Miami Herald, they could have obtained such information in advance of the proceedings by reviewing the files maintained by the City Clerk. They did not conduct such a review, however. Contents of the Plan and Supporting Data and Analysis The City's Year 2000 Comprehensive Plan contains a future land use element. An integral part of this element is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of the City. The FLUM was based upon surveys, studies and data regarding the City as a whole, including, among other things: the City's projected population; the land needed to accommodate the projected population; the character of the remaining vacant land in the City; 4/ the availability of public facilities and services; and the need for redevelopment, including the renewal of blighted areas and the elimination of inconsistent and incompatible land uses. Neighborhood studies were also used to develop the FLUM. Census data and existing land uses were examined on a neighborhood-by-neighborhood basis to obtain a detailed inventory of existing conditions in the City. Belle Isle is part of the West Avenue Neighborhood Study Area. 5/ The plan's supporting documents contain the following narrative statement concerning this area: West Avenue is predominantly developed as a high density/high intensity bayfront multifamily residential area. (It includes Belle Isle). Several large vacant parcels and a few existing enclaves of single family homes and older, lower density apartment buildings offer future development opportunities for townhouse construction. Both the south and north ends of Belle Isle are designated RM-2 on the FLUM. RM-2 is a medium intensity, multifamily residential land use designation. The plan regulates the intensity of residential uses by utilizing the concept of floor area ratio (FAR). Floor area ratio is the floor area of a building or buildings on a lot divided by the area of a lot. Under the plan, land designated RM-2 is assigned a maximum FAR range of 1.25 to 3.0. 6/ Where within this range a particular development falls depends upon the features of the development. The more desirable features and amenities a development has, the higher its maximum FAR will be pursuant to the performance bonus provisions of the plan. The RM-2 designation is similar, but not identical, to the RM-100 classification that had existed under Ordinance No. 1891 inasmuch as it does not necessarily bar residential development in excess of 100 dwelling units as did the RM-100 classification. Initially, the City's Planning and Zoning Department staff members had recommended that the north end of Belle Isle be designated on the FLUM for townhouse use. They subsequently changed their recommendation to RM-2. The change was prompted by concerns that a townhouse designation might unlawfully deprive north end property owners, who had invested in their property in reliance upon prior land use regulations that permitted more intensive use of their land, a fair return on their investment. An alternative designation was therefore sought. RM-2 was selected because of its similarity to the RM-100 classification that had been in effect on the north end of Belle Isle since 1971 and because of its compatibility with the existing development on the south end of the island. 7/ Reliance upon these factors in selecting a land use designation was in accordance with sound land use planning techniques. While the north end of Belle Isle, in terms of its character, is suitable for townhouse development, it is also suitable for highrise residential development of the type permitted by its RM-2 designation. The comprehensive plan adopted by the City contains other maps, in addition to the FLUM, that depict future conditions. Among these other maps are those that relate to traffic circulation in the City. These maps reflect that the Venetian Causeway is anticipated to remain a two-lane roadway classified as a County minor arterial. In the City's adopted comprehensive plan, all minor arterials in the City, including the Venetian Causeway, are assigned a peak hour level of service standard of "D." This is the same peak hour level of service standard that the causeway is assigned in Dade County's and the City of Miami's respective comprehensive plans. The City of Miami Beach's Year 2000 Comprehensive Plan provides that no development order or permit may be issued which would "result in a reduction of the level of services for the affected public facilities below the level of service standards adopted in this Comprehensive Plan." Accordingly, any development or redevelopment on the north end of Belle Isle that will lower the Venetian Causeway's peak hour level of service below "D" is prohibited by the plan. The additional traffic that would be generated by the development and redevelopment of the various properties on the north end of Belle Isle at the maximum intensity of use permitted by their RM-2 designation, however, is not expected, in and of itself, to cause the Venetian Causeway's peak hour level of service to deteriorate to such a point that the standard set for it in the City's plan would not be met. 8/ Among the other elements of the City's Year 2000 Comprehensive Plan is a historic preservation element. It contains the following goal: Secure for future generations the opportunity to share in the unique heritage of Miami Beach and promote sound economic development through the purposeful retention, protection, and continued use of buildings, structures, and districts which are associated with important events in the City's history or exhibit significant architectural qualities. As Policy 2.1 of this element makes clear, the City intends to take "a realistic and balanced approach to economic development and historic preservation." The City's plan also has a conservation/coastal zone management element. It contains the following objectives and policies dealing with hurricane evacuation and hazard mitigation: OBJECTIVE 4 The existing time period required to complete the evacuation of people from Miami Beach prior to the arrival of sustained gale force winds shall be maintained or lowered by 1995. 9/ Policy 4.1 All future improvements to evacuation routes shall include remedies for flooding problems and the anticipated increase in the level of the water of Biscayne Bay. Policy 4.2 The Miami Beach Hurricane Handbook will be distributed to the general public with detailed emergency operation instructions and hurricane evacuation pick-up sites. Policy 4.3 The City will work with the Metro-Dade Public Works Department to rate all local bridges for structural and operational sufficiency. Local bridges with unsatisfactory sufficiency ratings shall be programmed for improvements or replacement. Policy 4.4 All trees susceptible to damage by gale force winds shall be removed from the right-of-way evacuation routes and replaced with suitable species. Policy 4.5 The City will coordinate 10/ with Metro-Dade Transportation Administration to ensure adequate buses are available to safely evacuate neighborhoods with large concentrations of households within Miami Beach without private transportation. Policy 4.6 The City of Miami Beach Fire Department shall maintain and annually update the list of people who may need assistance due to physical or medical limitations in the event of an evacuation to ensure their safe mobilization. Policy 4.7 The City of Miami Beach Fire Department shall maintain and annually update the Miami Beach Hurricane Evacuation Plan 11/ and maintain and enhance the resources and capabilities of the plan to provide effective implementation of evacuation procedures to ensure that evacuation times are maintained or reduced. Policy 4.8 Procedures for boat owners during hurricane operations shall be added to the Miami Beach Hurricane Handbook with instructions for safe harbor operations. Policy 4.9 Between 1989 and 1993, coastal area population densities shall be coordinated with the Metropolitan Dade County Hurricane Procedure, which is the local hurricane evacuation plan for Miami Beach, and the lower Southeast Florida Hurricane Evacuation Plan, the regional hurricane evacuation plan. Policy 4.10 Coastal area population densities in Dade County, including the City of Miami Beach, shall be updated in the lower Southeast Florida Hurricane Evacuation Study currently being revised by the US Army Corps of Engineers and the National Hurricane Center. Policy 4.11 By 1993, changes in coastal area population densities identified in the amended lower Southeast Florida Hurricane Evacuation Study shall be used by the Metropolitan Dade County Office of Emergency Management, the overall coordinating authority for local hurricane planning, to update the Dade County Hurricane Procedure. OBJECTIVE 5 Reduce the exposure of life and property in Miami Beach to hurricanes through the implementation of hazard mitigation measures, by adopting the following policies: Policy 5.1 Public expenditures that subsidize additional development in the Coastal High Hazard Zone, (the Federal Flood Insurance Rate Map 'V' Zone), shall be prohibited. Public facilities shall not be built except for public beach or shoreline access and resource restoration. (See Coastal Zone Management.) Policy 5.2 The City will coordinate with Metro-Dade County and the South Florida Planning Council to develop a comprehensive marine hurricane contingency plan. Policy 5.3 New private use facilities along the Coastal High Hazard Zone shall conform to strict setback, open space and accessory use requirements. Policy 5.4 Structures which suffer repeated damage to pilings, foundations or load bearing walls and/or incur damage exceeding 50% of their assessed value shall rebuild to the requirements of all current development regulations, and shall not be located east of the coastal construction control line. No redevelopment shall be permitted in areas of repeated damage unless it is determined by the City of Miami Beach Officials to be in the public interest. Policy 5.5. During post-disaster redevelopment the Building Department will distinguish between those actions needed to protect public health and safety with immediate repair/cleanup and long term repair activities and redevelopment areas. Removal or relocation of damaged infrastructure and unsafe structures shall be by the Miami Beach Public Services Department in accordance with local procedures and those agencies and practices specified in the Metro-Dade County Hurricane Procedure. Policy 5.6 During post-disaster recovery periods, after damaged areas and infrastructure requiring rehabilitation or redevelopment have been identified, appropriate City departments will coordinate to: prepare a redevelopment plan which reduces or eliminates the future exposure of life and property to hurricanes; incorporate recommendations of intragency hazard mitigation reports; analyze and recommend to the City Commission hazard mitigation options for damaged public facilities; and recommend amendments, if required, to the City's Comprehensive Plan. Policy 5.7 Unsafe conditions and inappropriate uses identified in the post-disaster recovery phase will be eliminated as opportunities arise. Even if the City's population increases as projected 12/ and the Venetian Causeway remains a two-lane roadway as contemplated by the plan, it will be possible for the City to accomplish the end, identified in Objective 4 of the conservation/coastal zone management element, of reducing or maintaining the time it takes to complete an evacuation of the City prior to the arrival of sustained gale force winds. The City will be able to do so through the implementation of the strategies described in Policies 4.1 through 4.11 of this element. Likewise, an increase in the City's population will not necessarily prevent the City from attaining the end specified in Objective 5 of the conservation/coastal zone management element. The City will be able to realize this end, notwithstanding such growth, by taking those measures described in Policies 5.1 through 5.7 of this element. Accordingly, to the extent that the RM-2 designation of the north end of Belle Isle will have the effect of increasing the population of the City, it is not in irreconcilable conflict with Objective 4 and Objective 5 of the conservation/coastal zone management element inasmuch as these objectives can be met despite any population increase attributable to such a designation. 13/ Furthermore, because they can be met, despite such an increase in population, without the necessity of widening the Venetian Causeway 14/ and thereby threatening its value as a historic resource, neither is there any irreconcilable conflict with the above-described goal statement found in the historic preservation element of the City's plan. As noted above, the future traffic circulation maps adopted as part of the City's Year 2000 Comprehensive Plan reflect that the Venetian Causeway will remain a two-lane, minor county arterial. No other part or provision of the plan, including the FLUM's RM-2 designation of the north end of Belle Isle, suggests or requires otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Banana Island is separated by marshland into areas known as Islands No. 9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No. 9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide. The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee. There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia. The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay. The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971. The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats. When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior. In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee. It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee. As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's application for a permit to construct and maintain a boardwalk be granted, subject to the stipulations proposed in the permit appraisal relating to the opening and the maintenance of vegetation. Respectfully submitted and entered this 15th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Baya M. Harrison Mark J. Proctor Ausley, McMullen, McGehee, Assistant Department Attorney Carothers and Proctor 202 Blount Street Post Office Box 391 Crown Building Tallahassee, Florida 32302 Tallahassee, Florida 32304
The Issue The issue to be determined in this case is whether the City of St. Petersburg’s amendment to its Comprehensive Plan, adopted by Ordinance No. 2009-689-L (Plan Amendment) is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The City is a Florida municipality and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Petitioner Mauro is a resident of the City. Petitioners Kiefer and Mauro operate businesses in the City. These individuals provided timely comments to the City on the Plan Amendment. Petitioner Tierra Verde Community Association (TVCA) holds easements on the subject properties for access and maintenance of landscaping and lighting. On this basis, TVCA asserts that it owns property within the City. The subject properties are within the boundaries of TVCA and subject to covenants and restrictions adopted by TVCA. The owners of the subject properties are obligated to pay assessments imposed by TVCA for the services and functions provided by TVCA. On this basis, TVCA claims to operate a business within the City. TVCA made timely comments on the Plan Amendment. The Plan Amendment and Subject Properties The City followed the alternative state review process established in Section 163.32465, Florida Statutes. In accordance with Section 163.32465(4)(a), the City transmitted the Plan Amendment and appropriate supporting data and analysis to the Department, the County, Tampa Bay Regional Planning Council, and other appropriate agencies. The Plan Amendment amends the FLUM to apply future land use designations to 18.25 acres on a barrier island in Boca Ciega Bay known as Tierra Verde. Tierra Verde consists predominantly of single-family and multi-family residential developments. Most of the multi-family developments, comprising condominiums and townhomes, are located along the North-South Pinellas Bayway, which is State Road 679. The subject properties include 13 parcels with multiple owners. Madonna Boulevard bisects the subject properties. Existing development on the subject properties include the Tierra Verde Marina, the Tierra Verde Marina High and Dry (an upland boat storage facility), a yacht broker, a beauty parlor, a post office, a bait shop, a hardware store, a convenience store with gas dispensers, a dental office, a dry cleaner, a real estate office, a medical office, and a resort/timeshare building (no longer in use). To the north of the subject properties are single- family residences and Boca Ciega Bay; to the south are multi- family residences; to the east are the Pinellas Bayway and multi-family residences; and to the west are single-family residences. The subject properties were located in unincorporated Pinellas County until the City annexed the properties in November 2008. The properties remain subject to the Pinellas County Comprehensive Plan until the City amends its own Comprehensive Plan to include the properties. See § 171.062(2), Fla. Stat. Currently, there are two Pinellas County land use designations on the subject properties: 17.28 acres are designated Commercial General (CG) and five vacant lots on 0.97 acres are designated as Residential Low (RL). The Plan Amendment would assign the same labels to the subject properties: CG for the 17.28 acres and RL for the five vacant lots. The City's RL designation is essentially the same as the County’s RL designation, but the City’s CG designation differs from the County’s CG designation. The City’s CG designation allows a potential maximum of 414,000 square feet of commercial uses on the 17.28 acres designated CG. The City's CG designation allows for 24 residential units per acre. The Plan Amendment would allow 415 new dwelling units on the CG lands. The City estimated that the 415 dwelling units would be occupied by 639 persons. The City has a workforce housing ordinance that allows residential density to be increased another six units per acre for qualifying developments. If the potential maximum number of workforce housing units were added, 518 residential units could be developed on the lands designated CG. The City CG designation allows for up to 40 rooms per acre of transient (hotel) units, for a total of 691 hotel units. The Pinellas County Comprehensive Plan establishes special overlay policies and criteria for Tierra Verde. The Tierra Verde overlay requires development to be compatible with existing structural bulk and height, requires commercial uses to serve the island’s residents, and restricts single-family development to 35 feet in height and multi-family development to five stories. The City does not propose to adopt an overlay or comparable policies and criteria as part of the Plan Amendment. The Tierra Verde Community Overlay policies and criteria would no longer apply to the subject properties. Hurricane Evacuation and Shelter Capacity Section 163.3178(2)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.012(2)(e) require each coastal management element to designate the coastal high-hazard area (CHHA). Section 163.3178(2)(h) defines the CHHA as "the area below the elevation of the category 1 storm surge line as established by a Sea, Lake and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." The subject properties are not located in the CHHA. Pinellas County uses a broader planning concept than the CHHA, called the Coastal Storm Area (CSA). The CSA encompasses all lands on barrier islands, all areas isolated by the CHHA, and all properties in a FEMA Velocity Zone. The subject properties are currently within the County’s CSA. However, the Plan Amendment would terminate the applicability of the CSA to the subject properties. Petitioners characterize the CSA as the “best available data regarding coastal storm protection.” Presumably, that characterization is intended to invoke the requirement of Florida Administrative Code Rule 9J-5.005(2)(c) that plan amendments must be based on the best available data. However, the CSA, to the extent that it is data, is only the best available data regarding the geographic area affected by coastal storms based on a methodology used by the Tampa Bay Regional Planning Council. In the same way, the CHHA is the best available data on the geographic area affected by coastal storms utilizing the SLOSH model. As stated in the Conclusions of Law, the choice between the two zones remains a matter of legislative policy. The subject properties are located in a hurricane Evacuation Zone A. Therefore, the properties are also located in the “hurricane vulnerability zone,” which is defined in Florida Administrative Code Rule 9J-5.003(57), as all lands that must be evacuated in the event of a 100-year storm or Category 3 hurricane (Evacuation Zones A, B, and C). The only evacuation route for the residents of Tierra Verde is via a causeway and two-lane drawbridge to Isla del Sol. Residents evacuating Tierra Verde would have to cross two more bridges before reaching the mainland. Their out-of-county evacuation route includes four areas that are within the CHHA and could be flooded in a Category 1 hurricane. Low-lying barrier islands are difficult places to evacuate in the event of a coastal storm. The City did not evaluate, in conjunction with the Plan Amendment, the effect that re-development of the 17.28 acres of CG lands for the maximum allowable residences or hotel units would have on hurricane evacuation and shelter capacity. The City asserts that, because the subject properties were not in the CHHA, such an evaluation was unnecessary. Policy CM13.11 establishes a 16-hour out-of-county hurricane evacuation clearance time for a Category 5 storm event. Clearance time is the time required to clear the roadway of all vehicles evacuating in response to a hurricane. Clearance times for Pinellas County do not meet the 16- hour out-of-county evacuation standard. The Tampa Bay Region Hurricane Evacuation Study 2006 estimates that current clearance times in Pinellas County for a Category 5 storm are 23 to 28 hours for in-county to shelter evacuation and 46 to 55 hours for out-of-county evacuation. The clearance times for the Tampa Bay area are the highest for any area of Florida and the coastal United States. If the subject properties were developed with the maximum residential units or maximum hotel units allowed by the Plan Amendment, it is likely that the evacuation clearance times would be increased (worsened). The County reports that it currently has sufficient shelter capacity for evacuation levels A though C. However, this determination of sufficiency is based on an allowance of only 10 square feet per person in the shelters. Most local governments and emergency planners use the American Red Cross standard for shelter space of 20 square feet per person. Even using 10 square feet per person, Pinellas County has a deficit of shelter space for Category 4 and 5 hurricanes. Using 20 square feet per person, Pinellas County has a deficit of shelter space for Category 2 and larger hurricanes. The City points out that, because the subject properties are in Evacuation Zone A, residents and hotel residents on the subject properties would be the first ordered to evacuate during a hurricane. This fact does not change the likely adverse effect of the Plan Amendment on evacuation times and shelter capacity for City and County residents. Although some recent post-hurricane studies found that fewer people use the emergency shelters than was predicted, emergency planners in the region believe that there is inadequate shelter capacity for large hurricanes. Residential and Commercial Need The City did not perform a population-based “needs analysis” for the Plan Amendment. The City stated that it does not use population projections to determine the need for residential density increases because the City is essentially “built out.” The City did not perform a commercial needs analysis for the 17.28 acres of CG created by the Plan Amendment, because the property is already designated and developed for commercial uses. Roadway Capacity A 2008 level of service (LOS) report for the Pinellas Bayway indicates that the LOS was “C” from Madonna Boulevard on Tierra Verde to the drawbridge and Isla del Sol. The adopted standard for this road segment is LOS “D.” To degrade the LOS below the adopted standard would require the addition of 892 vehicle trips. The maximum potential vehicle trips that would be generated from the subject properties would be from its development exclusively for commercial uses; 1,220 peak hour trips, or 1,397 trips if a commercial bonus is applied.3/ However, the City determined that development of the property was not likely to generate the maximum potential vehicle trips, but would, instead, generate approximately 800 trips. The City used the 100th highest hour (k-100) of yearly traffic in estimating the impact of the potential traffic from the subject properties. Use of the k-100 peak hour analysis is part of the usual method for analyzing roadway level of service. Petitioners contend that the City should have used the “design level” peak hour factor, which is the 30th highest hour (k-30). The k-30 peak hour was used by the Florida Department of Transportation (FDOT) in its recent study associated with the drawbridge. Using k-30, FDOT assigned an LOS of “F” for the intersection of Madonna Boulevard and the Pinellas Bayway and for the drawbridge. Petitioners failed to prove that k-30 is the appropriate measure to evaluate the potential roadway impacts of the Plan Amendment, or that it is the “best available existing data” for analyzing the Plan Amendment.4/ The concurrency management system for roadways requires land development to be “concurrent” with roadway capacity, and prohibits the issuance of building permits that would cause the adopted LOS standards on affected roadway segments to be violated. See § 163.3180(1)(c), Fla. Stat. Comprehensive plan amendments do not have to be “concurrent” with roadway capacity. Internal Consistency Petitioners claim that the Plan Amendment would make the FLUM inconsistent with a number of provisions of the City’s Comprehensive Plan, identified below. Policy LU2.4 Policy LU2.4 of the Future Land Use Element (FLUE) states that the City may permit higher intensity uses outside of “activity centers” only where available infrastructure exists and surrounding uses are compatible. The City’s Comprehensive Plan designates four “activity Centers” in the City. The subject properties are not within an activity center. What “higher intensity uses” means in this context was not explained by the parties, but there did not appear to be a dispute that the Plan Amendment would create “higher intensity uses.” The preponderance of the record evidence shows that City utilities and other public services are adequate to serve the subject properties. Petitioners’ arguments regarding the current absence of public transit service to Tierra Verde does not represent a deficiency, because there are currently no City residents on Tierra Verde. The term “compatibility” is defined in the General Introduction to the City’s Comprehensive Plan to have the following meaning: Not having significant adverse impact. With limited variation from adjacent uses in net density, in type of use of structures (unless highly complimentary) and with limited variation in visual impact on adjacent land uses. In the instance of certain adjacent or proximate uses, compatibility may be achieved through the use of mitigative measures. The term “compatibility” is also defined in Florida Administrative Code Rule 9J-5.003(23): “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend that the “surrounding uses” on Tierra Verde are not compatible with the uses allowed under the Plan Amendment. The City responds that compatibility cannot be determined until a future development proposal is submitted for the subject properties. A compatibility analysis is required for this “in compliance” determination for the Plan Amendment. Although a compatibility analysis for a comprehensive plan amendment is a more “macro” or general evaluation than at the time of a specific development application, the issue is not one that can be put off until the City reviews a development proposal for the subject properties. Using the City’s own definition of compatibility as “limited variation” from adjacent uses in net density and type use, it is found that, if the subject properties were developed to attain the maximum residential units or maximum hotel units, it would not be a “limited variation” from adjacent densities and use types. Therefore, these scenarios allowed by the Plan Amendment are not compatible with adjacent land uses. To find otherwise would render the term “limited variation” in the City’s definition of compatibility meaningless. A mix of general commercial uses has existed for years on the subject properties and Petitioners failed to prove that the commercial uses allowed by the Plan Amendment are incompatible with surrounding uses. Policy LU3.8 Policy LU3.8 requires that the City to protect existing and future residential uses from incompatible uses, noise, traffic and other intrusions that detract from the long term desirability of an area “through appropriate land development regulations.” Petitioners presented no evidence to show that the City has failed to adopt land development regulations to address potential incompatible uses, noise, traffic and other intrusions. Policy LU3.11 FLUE Policy LU3.11 requires that residential uses greater than 7.5 units per acre be located along designated major transportation corridors and in close proximity to activity centers where compatible. The City’s Comprehensive Plan does not define “major transportation corridors,” but it defines “Major Street” to include minor arterials. The Pinellas Bayway (SR 679) is designated a minor arterial. The City contends that the Pinellas Bayway on Tierra Verde qualifies as a major transportation corridor. However, it was not disputed that the subject properties are not “in close proximity” to one of the four activity centers in the City. The City did not explain how the Plan Amendment is consistent with Policy LU3.11, except to state that the City could possibly designate the subject properties as a new activity center in the future. Policy LU3.17 Policy LU3.17 states that the City has an adequate supply of commercial land to meet existing and future needs and provides that future expansion of commercial uses shall be restricted to infilling into existing commercial areas and activity centers except where a need can be clearly identified. Petitioners point out that the Plan Amendment would represent an increase in the allowable commercial intensity, compared to the Pinellas County Comprehensive Plan, but that fact is not relevant to whether the Plan Amendment is consistent with other provisions of the City’s Comprehensive Plan. Petitioners’ arguments that the City did not demonstrate the need for commercial uses on the 17.28 acres designated CG by the Plan Amendment fail, because the properties are already designated and developed for commercial uses, and any expansion of the existing commercial square footage on the subject properties would qualify as infilling an existing commercial area. Objective LU4 FLUE Objective LU4 is to provide the land to accommodate the various development types necessary to support future growth. Objective LU4 includes statements that no additional “residential acreages” are needed to accommodate forecasted future populations and no additional commercial acreage is required to serve the City’s future needs. The Plan Amendments would add 17.28 acres of potential residential development. Objective LU4 states that there is no need for this additional residential acreage. The City asserts that it has no other future land use categories that would be more appropriate for the 17.28 acres than CG. The City asserts, in essence, that it has no choice but to allow for the potential addition of hundreds of new residents or over a thousand new hotel units. It is not unreasonable for the City to assign a commercial designation to annexed lands which are already developed for general commercial uses. When Objective LU4 is read together with Policy LU3.17, which allows for commercial infill, an inconsistency with the Plan Amendment with regard to commercial uses is not apparent. FLUE Objective LU4 also states that mixed-use developments are encouraged in appropriate locations to foster a land use pattern that results in “fewer and shorter automobile trips and vibrant walkable communities.” The CG designation would allow for a wide mix of uses. Petitioners did not show that the subject properties could not be developed in a manner that fosters fewer and shorter automobile trips and a walkable community. Objective LU12 Objective LU12 states that the City shall “strive to maintain and enhance the vitality of neighborhoods through programs and projects developed and implemented in partnership with CONA, FICO and neighborhood associations.” No evidence was presented by Petitioners to show that there are existing programs or projects developed by the City and TVCA with which the Plan Amendment is inconsistent, or that the Plan Amendment would prevent future programs and projects. Objective CM13 Objective CM13 requires the City to cooperate with state, regional and county agencies to maintain or reduce hurricane evacuation times. The effect of the Plan Amendment on hurricane evacuation times was not evaluated before the adoption of the Plan Amendment. The City did not engage in meaningful cooperation with state, regional and county agencies to maintain or reduce hurricane evacuation times. If the subject properties were developed at the maximum potential residential density or maximum potential hotel density allowed by the Plan Amendment, hurricane evacuation times would likely increase. The Tampa Bay Regional Planning Council commented that public shelter capacity and evacuation clearance times should have been addressed in conjunction with the Plan Amendment.2/ Pinellas County objected to the Plan Amendment, based on its belief that the Plan Amendment would increase hurricane evacuation times and that there is insufficient shelter capacity. FDOT commented on the Plan Amendment, stating that the addition of permanent residents was “ill-advised” based on the vulnerability of the subject properties to storm surge. The City states that it will consider hurricane evacuation times during the review of development site plans. While consideration of hurricane evacuation issues is appropriate at the site plan review stage, the City must also consider hurricane evacuation issues when it adopts a plan amendment that affects land within the hurricane vulnerability zone. Policy CM13.11 Policy CM13.11 establishes a 16-hour out-of-county hurricane evacuation clearance time for a Category 5 storm event. The City does not meet its 16-hour standard, but contends that, because the subject properties are not in the CHHA, the 16-hour evacuation time does not apply. Clearance times are not defined by, or solely affected by, the number of persons that reside in the CHHA. Clearance times are based on the number of persons evacuating and certainly include the first people to be evacuated -- the people in Evacuation Zone A. The subject properties are within Evacuation Zone A. Similarly, emergency shelter capacity is not based solely on the number of persons evacuating from the CHHA. Objective T12 Objective T12 of the Transportation Element states that the City shall provide equitable transportation service to all residents and accommodate special transportation needs. Petitioners claim that the Plan Amendment is inconsistent with this objective because there is no existing transportation service to the subject properties. As stated above, the lack of existing service is not a deficiency because there are no City residents on Tierra Verde.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the City of St. Petersburg plan amendment adopted by Ordinance No. 2009-689-L is not “in compliance." DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2010.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1999.
The Issue The issue is whether the Department of Environmental Regulation (DER) should modify permit number 599070329, issued to the City of Boca Raton (City), to allow construction of an approved beach restoration project to commence on May 1, 1988, rather than on June 1, 1988.
Findings Of Fact On November 21, 1986, DER issued number 500970329 to the City for a beach restoration project. Issuance of the permit followed resolution of a dispute between DER and the City of Boca Raton which was the subject of an earlier proceeding before this hearing officer. See, City of Boca Raton, et al., v. Florida Department of Environmental Regulation, et al., DOAH Case number 86-0991 (Final Order of Dismissal rendered November 21, 1986). Although the City maintained in this case that the Coral Reef Society and Sierra Club, who are petitioners here, were intervenors in that prior proceeding through an umbrella organization, Save and Protect our Aquatic Resources and Environment (SPARE), no evidence was adduced supporting that contention. In the 1986 proceeding SPARE alleged that it was "a coalition of various environmental and commercial groups with a common interest in the protection of Florida's unique and fragile aquatic resources" (Amended Petition for Leave to Intervene in Case 86-0991, filed September 2, 1986). The groups which made up the coalition were not identified in that prior proceeding or in this one. SPARE filed a voluntary dismissal in the prior proceeding after learning that DER had decided to support issuance of a permit to the City of Boca Raton. After further administrative proceedings at the federal level, the U.S. Army Corps of Engineers issued a permit to the City of Boca Raton for the beach restoration project on or about January 28, 1988. The project, as currently permitted, involves the placement of approximately 980,000 cubic yards of sand, dredged from offshore, onto 1.45 miles of the City of Boca Raton's beachfront. The project will be constructed within and adjacent to two city Spanish River Park and Red Reef Park, and the waters of the Atlantic Ocean. The mean grain size of the dredged sand to be added to the beach is .32 millimeters. The dredged material is 99.6 percent sand and .4 percent silt or clay. The sand to be pumped onto the beach has characteristics almost identical to the current beach sand. As part of the approval process, the City of Boca Raton received a variance from turbidity standards otherwise applicable to Florida Class 3 waters. Turbidity is, to some extent, an unavoidable by-product of beach renourishment dredging. DER approved a mixing zone of 10,000 feet by 1,000 feet in which state water quality standards for turbidity could be violated during the construction period. The City of Boca Raton has also constructed artificial reefs comprised of natural limestone boulders and a protective groin approximately one-half mile south of the project area. Specific Condition Number Three (3) of the DER permit restricts project construction to the months of June, July, and August. In a letter dated February 12, 1988, the United States Fish & Wildlife Service (the Service) requested that the City of Boca Raton seek a modification of its DER permit to allow construction of the project to begin on May 1, 1988. The Service maintained the modification was important to avoid conflict with the peak nesting season of sea turtles, which are protected species. The Service did not make its request to the City to advance the project start date until February 12, 1988, because the Service was under the impression that the City had already requested permission from DER to commence construction sooner. In May of 1987, the City of Boca Raton had requested that the three month construction restriction of Specific Condition Number Three be deleted completely from the permit. When this request was made, the City of Boca Raton had hoped to begin construction of the project in the fall of 1987, and avoid construction during the sea turtle nesting season. DER's hydrographic engineer, Dr. Kenneth Echternacht, opposed this initial request to delete the construction limitation period. Due to delays in the federal permitting process and other logistical problems, the City of Boca Raton withdrew this earlier modification request. In order to meet the concerns of the Service, the City of Boca Raton applied by letter to DER dated February 22, 1988 for the suggested permit modification. Upon review of additional climatological and wave height data and littoral drift calculations from Dr. Robert Dean of the Costal and Oceanographic Engineering Department of the University of Florida College of Engineering, Dr. Echternacht supported a permit modification which would allow the construction period to begin in March, 1988. DER indicated its intention to grant the modification on March 10, 1988, acknowledging the concern of the Service and finding "the proposed modification is not expected to result in any adverse environmental impact or water quality degradation. " American Littoral Society, South Florida Chapter, and the Sierra Club, Florida Chapter, jointly, and the Coral Reef Society, independently, filed virtually identical petitions on March 22, 1988, objecting to DER's proposed approval of the modification request, and each requested a formal administrative proceeding. Those petitions not only questioned the permit modification, but also sought to reopen the issue whether the beach restoration project should be undertaken at all. During a telephone conference hearing on the City of Boca Raton's motion to strike portions of the petitions, held on April 8, 1988, the issue in this proceeding was narrowed to whether DER's proposed approval of the modification, expanding the construction "window" by one month, was proper. The time for objecting to the entire project has passed and the permit modification proceeding cannot be used to reopen the issue whether the beach renourishment now permitted for June, July, and August may go forward. The purpose of the restriction of construction to June, July, and August in Specific Condition Number Three of the permit was to confine construction to the months of minimum wave height. In southeast Florida, the summer months are climatologically the months of minimum average wave height. The amount of sand transported by the coastal littoral system, and consequently, the amount of optical turbidity due to suspension of particulate matter in the water column such as fine sand, is a function of wave height and longshore currents. The lesser the wave height and calmer the sea, the less sand is resuspended and the lower are the turbidity levels. During the months of June, July, and August, the waves propagate from the southeast and the corresponding longshore littoral direction is predominantly to the north. The remainder of the year, the littoral drift is primarily to the south. DER determined that project construction during the period of predominantly northerly littoral transport would better protect Red Reef Rock, a large rock outcropping located to the south of the project area. The Red Reef Rock area supports rich and diverse fish resources as fish are attracted to the rock for feeding and take advantage of the relief the rock outcroppings provide. The City of Boca Raton agreed to construct a groin composed of limestone boulders in order to afford additional protection to Red Reef Rock against the drift of sand to the south. The City is also limited by Specific Condition Number Ten of the permit, which remains in effect, and restricts disposal of material in the southernmost .15 mile portion of the beach to times when the prevailing longshore current is from south to north. Nonetheless, construction during May increases the possibility that some material suspended in the water column as the result of the renourishment will be transported over the Red Reef Rock area. Although project construction during the months of June, July, and August presents the optimum conditions from a water quality perspective, construction during that period conflicts with the height of the sea turtle nesting season. The City of Boca Raton has been monitoring sea turtle nesting activity on the Boca Raton public beaches from Spanish River Boulevard to Palmetto Park Road, a distance of 2.6 miles which encompasses the project area, for the past 11 years. Three species of sea turtles, logger head, green and leatherback turtles have been known to nest on the beaches of Boca Raton within and adjacent to the project area. All three species are protected under state and federal law. Loggerhead sea turtles, by far the most numerous nesters on Boca Raton's beaches, are classified as a threatened species by the U.S. Department of Commerce. Green sea turtles and leatherback sea turtles are classified as endangered species. Compared to the number of nests historically established by loggerhead turtles, green sea turtles are infrequent nesters on Boca Raton's beaches. Leatherback turtles are very rare nesters in this area. Southeast Florida is not a significant nesting habitat for leatherbacks. During the eleven-year monitoring period an average of only 2.4 leatherback sea turtles nested on the beach each year, the largest number nesting in a single year was 7; an average of 8 to 9 green sea turtle nests have been recorded annually in this area. By way of comparison, during the same period an average of 333 loggerhead sea turtle nested in this area. Sea turtle nesting in Boca Raton has historically occurred from April through September. The earliest nest of the year recorded by the City of Boca Raton occurred on April 2, 1987, and was a leatherback. The latest nest of the year occurred on September 13, 1983, and was a loggerhead. Leatherbacks nest early, and green turtles are late to nest. Loggerhead nests commonly begin in May, with the peak nesting period occurring in late June and early July. In light of the facts set out above concerning the likely timing of sea turtle nesting, which also being cognizant of DER's water quality concerns, the Service requested the City of Boca Raton to seek a modification of its DER permit to allow construction to begin on May 1, 1988. This would enable the City of Boca Raton to avoid construction during the peak of the sea turtle nesting season in late June, July, and August. The construction should take about 30 days. In addition to the permit modification request, the Service has recommended several other "reasonable and prudent measures" to avoid possible adverse effects to sea turtle nesting activity during the renourishment of the beach. These include a) tilling the beach to soften the new sand if it becomes compacted over a certain degree, b) relocation of nests is undertaken only by trained persons, c) lighting on the dredge is minimized to reduce any confusion it could cause to turtles attempting to locate the beach for nesting, and d) the addition of dune plants to the project area. The City of Boca Raton has agreed to implement these measures. The Boca Raton beach restoration project will enhance sea turtle nesting activity in the future. Currently, the beach in the project area is critically eroded, posing an immediate threat to successful sea turtle nesting. Nests are at risk of being inundated by sea water or washed away if not found and relocated by City of Boca Raton staff. The project will provide a long-term benefit to sea turtles by providing a wider dry beach area for safer nesting and better nest site selection. The City proved that wave heights, littoral drift, and other climatological conditions in southeast Florida do not vary dramatically, on the average, between the months of May and June. May is a transitional month, and there is net littoral movement south due to cold fronts and northeast winds in the area, along with swells caused by storms out in the Atlantic Ocean. While there is a potential for isolated events in May which could have an adverse impact on Red Reef Rock by causing a shift of newly dredged material south over the reef, the evidence presented by petitioners did not persuade the hearing officer that the risk of such events was unacceptably large when balanced against the value of advancing the construction into May to minimize conflict with the peak nesting season of loggerhead sea turtles. The petitioners' evidence did not quantify the likelihood of storm-related events with enough energy to adversely affect the Red Reef Rock area. The hearing officer is, therefore, more persuaded by Dr. Echternacht's testimony that long-term (i.e., average) data is more useful when assessing safety margins, and the available data gives reasonable assurance that renourishment may take place in May. Consequently, construction commencing during the month of May would not present any adverse water quality or marine resource effects. Petitioners have not persuaded the hearing officer that the subject permit modification would adversely affect water quality to such an extent as to be contrary to the public interest. The City has obtained a permit for a mixing zone which will accommodate all the turbidity which is likely to be caused by the beach renourishment. There is insufficient evidence that climatological event in May are likely to cause the turbidity to extend beyond the approved mixing zone.
Recommendation It is recommended that the Department of Environmental Regulation enter a final order granting the permit modification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of May, 1988. WILLIAM R. DORSEY, JR. 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 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1590 The following are my rulings on the proposed findings of fact submitted by the petitioners pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Petitioners' Proposed Findings of Fact Covered in finding of fact 2. Covered in finding of fact 5. 3-4. Covered in finding of fact 6. 5. Covered in finding of fact 7. 6-7. Covered in finding of fact 8. Rejected because while wave heights are higher in May, there is insufficient evidence that higher wave height would cause turbidity in violation of the mixing zone which has been permitted. Covered in finding of fact 8. 10-11. Rejected as unnecessary. 12-15. Covered in finding of fact 8. 16. To the extent appropriate, covered in finding of fact 9. 17-20. Covered in finding of fact 9. 21-22. Covered in finding of fact 10. 23-24. Rejected because the Hearing Officer accepts the testimony of Mr. Possardt that southeast Florida is not a significant nesting habitat for leatherbacks, and therefore rejects the argument that leatherbacks are entitled to greatest protection. The Boca Raton Beach is a significant habitat for loggerhead turtles, and it is more appropriate to assess the impact of the project based on the predominate species of turtles nesting on the beach, rather than the impact of the project on a species which only rarely nest on this beach and has predominate nesting areas elsewhere. Rulings on Respondent DER's Proposed Findings of Fact Covered in finding of fact 2 and 4. Covered in finding of fact 3. Rejected because the evidence adduced at the hearing did not support findings concerning three systems of hard bottom and rock outcroppings. 4-6. Covered in finding of fact 8. Covered in finding of fact 8 and 13. Covered in finding of fact 14. Rejected as cumulative. Rejected for lack of evidence. Covered in finding of fact 13 and 14. Covered in finding of fact 10-12 Covered in finding of fact 10-12. 14-20. Rejected as unnecessary because the only evidence submitted pertain to potential violations of water quality standards or adverse affect on habitat of endangered species. Rulings of Respondent Boca Raton's Findings of Fact 1. Covered in finding of fact 1. 2. Covered in finding of fact 2. 3. Covered in finding of fact 5 and 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11 and 12. 9. Covered in finding of fact 8. Covered in finding of fact 13. Rejected as argument. COPIES FURNISHED: Alexander Stone Judy Schrafft, President South Florida Director Coral Reef Society American Littoral Society 357 North Lake Way 75 Virginia Beach Drive Palm Beach, Florida 33480 Key Biscayne, Florida 33149 Alfred Malefatto, Esquire Karen Brodeen, Esquire David C. Ashburn, Esquire Department of Environmental Post Office Box 24615 Regulation West Palm Beach, Florida 33416 Twin Towers Office Building 2600 Blair Stone Road Alan J. Kan, Esquire Tallahassee, Florida 32399-2400 Penthouse Suite 11088 Biscayne Boulevard Jonathan Shepard, Esquire Miami, Florida 33181 5355 Town Center Road Suite 801 Dale Twachtmann, Secretary Boca Raton, Florida 33486 Department of Environmental Regulation Daniel H. Thompson, Esquire 2600 Blair Stone Road General Counsel Tallahassee, Florida 32399-2400 Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
