The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Findings Of Fact The subject application requests a water use permit from the Central and South Florida Flood Control District (FCD) for use as a public water supply for an area consisting of 12,000 acres. Received into evidence without objection were the notice of public hearing appearing in The Palm Beach Post, West Palm Beach, Florida; Supplementary Report - Water Treatment Plant and Raw Water and Transfer Mains - September, 1970; Water and Sewer Rate Study, July, 1971; Water and Sewer Rate Study, January, 1972; Summary Report, Water and Wastewater Program, October, 1972; Comprehensive Report, Water Works Improvements, January, 1965; pages 20, 21 and 24 of Addendum to supplementary report filed with application; letter to J.B. Jackson from James C. Williams dated July 17, 1975; letter to Abe Krietman from John H. Klinch, dated July 31, 1975; letter to J.B. Jackson from J. Eldon Mariott dated July 22, 1975; and the Staff Report of the FCD. The application was a part of the hearing officer's file. The application requested a diversion (by way of 18 existing and 4 proposed new wells) of 12,293.2 million gallons of ground water a year and a maximum daily diversion of 33.68 million gallons for a fifty year period. The Staff Report, which is attached hereto, recommends the issuance of a five year permit for an annual allocation of 4,668 million gallons, a maximum daily diversion of 25.45 million gallons and a maximum installed field capacity of 20,000 gallons per minute, with certain conditions attached thereto. Mr. John Klinch, a consulting engineer, testified as to the contents of the application, as revised, which he prepared. It was explained that the projected number of proposed new wells did not include the possibility of failure of some of the existing wells, which do show indications of deterioration at this time. He further compared the water consumption projections for 1976 with the actual demand of the first half of 1975. Said comparison indicates that the projection was underestimated. Projected for 1976 were 9,000 meters. For the first six months of 1975, there were 8,342 meters. The projected average daily use for 1976 was million gallons. As of June of 1975, it has exceeded that at million gallons. The average per capita daily consumption in Delray Beach is approximately 240 gallons. The water consumption projection for the year 1980 is estimated at approximately 25 million gallons per day. Mr. Klinch testified that there had been no problems with salt water or chloride levels in the existing wells. The next witness called by the applicant was Louis Martin, Director of Public Utilities for the City of Delray Beach. He has never, since October of 1973, had to restrict water use, a fact which he attributes to good water management. In December of 1972 the City Council adopted a bond resolution authorizing the validation of issuance of water and sewer revenue bonds in the amount of $5,000,000.00 to expand the water treatment plant to 24 million gallons per day and to construct four new wells. The bonds were approved by the citizens of Delray Beach. Other long range plans include the engineering for the enlargement of the sewage treatment plant from 12 to 24 million gallons a day. This, together with the addition of 4 extra wells, is part of a plan whereby the City of Delray Beach would become a regional water center. Mr. Gerry Winter, a hydrogeologist with the FCD, testified that he evaluated the subject application and prepared the Staff Report in this case, and testified as to its contents. As criteria in evaluating the application, Mr. Winter looked at whether the use was a reasonable and beneficial one and whether the use would present damage to resources or other users. The limiting factor in this particular application was the danger of salt water intrusion. It was recommended that the applicant be required to replace monitoring wells, so that the FCD could obtain valid salt water interface data. It was determined by Mr. Winter that the diversion requested by the applicant would not be a reasonable use of the water with regard to the resource since the current estimate of recharge will equal discharge by the year 1980. Therefore, it was recommended that a five year permit be issued for a maximum annual diversion of 4,668 billion gallons (such amount being equal to the estimated 1980 demand - an average day demand of 12.79 million gallons - times 365); a maximum daily diversion of 25.45 million gallons; and a total maximum installed field capacity of 20,000 gallons per minute, with certain conditions attached thereto pertaining to reports to the FCD and salinity monitoring wells. Finally, Mr. Winter testified that, although his report was prepared prior to receipt of the letter from the Palm Beach County Health Department (Exhibit No. 7), the letter was reviewed by the FCD staff and it was considered insignificant to the impact of this application. Mr. Saberson expressed agreement with the Staff Report.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permit requested be granted in accordance with the recommendations and conditions set forth in the Staff Report. Respectfully submitted this 8th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida Roger Saberson, Esquire City Attorney City of Delray Beach 100 North West 1st Avenue Delray Beach, Florida 33444 =================================================================
The Issue The issues in this proceeding are whether Santa Rosa County Comprehensive Plan Amendment 2007-R-047 adopted by Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008 (Plan Amendment), is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and, more specifically, whether the Plan Amendment is "internally consistent" with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8 of the Santa Rosa County Comprehensive Plan (Plan) and supported by adequate data and analyses.1
Findings Of Fact Parties Petitioner, Belle Mer Owners Association, Inc. (Belle Mer), is the condominium association for the Belle Mer Condominium, which occupies a waterfront parcel of land immediately east of the Property. The Belle Mer condominium consists of 16 floors and 61 dwelling units and has a southwest orientation toward the Gulf of Mexico. PE 7 at 1, 3-4; CE 1-2. The parties stipulated that Belle Mer is an "affected person" as defined in Section 163.3184(1)(a) Florida Statutes, which owns property in the County and timely submitted comments and objections to the Board of County Commissioners of Santa Rosa County (Board) with regard to the Plan Amendment. Santa Rosa County is a local government subject to the requirements of the Local Government Comprehensive Planning and Land Development Regulations Act, Section 163.3161 et seq., Florida Statutes. Intervenors are the owners of the Property that is the subject of the Plan Amendment. The Intervenors possess leases from the County for each of the seven platted lots in Summer Place Subdivision, the location of the Property. In 1967, the relevant leases provided for the development of "multi-unit dwellings or light commercial." In 1987, the leases were amended to provide for the development of "up to 50 condominium units." In 1993, the lease was further amended at the lessee's request to provide a framework for the development of a single-family subdivision. The present lease issued by the County for these lots restricts the use of the lots to single-family residential. The Property and Vicinity The Property consists of 1.89 acres of gulf front property located on Navarre Beach, Santa Rosa County, Florida. There are four single-family homes and several vacant lots on the Property, with a total of seven residential lots. PE 7 at 5; CE 1-2. Since 1989, the Property has been zoned High Density. Prior to approval of the Plan Amendment, the FLUM designated the Property as NBLDR. The FLUM was adopted after adoption of the zoning map and after the Property had been subdivided and leased for single-family lots. The NBLDR designation reflected the existing land use of the Property. The Belle Mer property, including the condominium, is adjacent to and east of the Property and is designated NBHRD on the FLUM. The property to the east of the Belle Mer condominium contains approximately 84 condominium units (Navarre Towers), with a southeast orientation. T 54-55; PE 7 at 2; CE 1-2. The property immediately to the west of the Property, also designated NBHDR on the FLUM, contains 45 condominium units known as Emerald Surf or Emerald Shore. Under current regulations and subject to change, a 17-floor condominium could be developed on this property. PE 7 at 5; CE 1-2. The Navarre Beach Commercial Core Area is defined in the County's Land Development Code (LDC), Section 6.07.00. Prior to approval of the Plan Amendment, the Property was not included in the Commercial Core Area. All the land on Navarre Beach subject to the Plan is owned by the County and either leased to individuals or entities, or held by the County. Navarre Beach acreage that is designated Conservation/Recreation on the FLUM is owned by the County and has not been leased. However, the County is not prohibited from leasing this land to individuals. The County is also not prohibited from modifying current leases to allow a different land use. The Plan Amendment and Change in Density The Plan Amendment changes the FLUM designation of the 1.89-acre parcel from NBLDR to NBHDR. The maximum theoretical density permitted in the area designated NBLDR is four dwelling units per acre. The current density of the Property (1.89 acres) is approximately seven units. The maximum theoretical density permitted in the area designated NBHDR is 30 dwelling units per acre. The Plan Amendment increases the maximum theoretical density allowed on the Property from seven units to 56 units, an increase of 49 units. While subject to change, under the current County Land Development Regulations (LDRs), the footprint for any building constructed on the Property cannot exceed 19 percent of the Property size, assuming all other LDR requirements are met, including setback requirements. T 227-231. The maximum theoretical density permitted in the area designated Navarre Beach Medium Density Residential (NBMDR) is ten dwelling units per acre. Consideration of the Plan Amendment by the County and the Department The Board of County Commissioners of Santa Rosa County (Board) voted to transmit the Plan Amendment at their meeting on September 27, 2007.2 On November 29, 2007, the Board voted to transmit other plan amendments that had also been approved by the Local Planning Board. On December 14, 2007, the Department received the County's proposed plan amendments, including the Plan Amendment. On February 12, 2008, the Department completed its review of several plan amendments adopted by the Board including the Plan Amendment, and issued its Objections, Recommendations, and Comments Report (ORC), raising concerns with the Plan Amendment. The Department objected to the Plan Amendment "based on internal inconsistencies with the [County's Plan] by proposing high density development outside of the Navarre Beach commercial core, directing population concentrations to Navarre Beach, and by increasing evacuation times on Navarre Beach." JE 4. County staff developed a response to the Department's ORC and an updated staff analysis that were presented to the Board during the adoption hearing. JE 5. In response to the Department's first objection and prior to the adoption of the Plan Amendment, the County amended its LDC to expand the boundaries of the Commercial Core Area on Navarre Beach to include the Property and additional acreage. See endnote 4; PE 4. The County had to expand the boundary of the Commercial Core Area because the NBHDR designation is permitted only within the Commercial Core Area. JE 1 at 3-10, Policy 3.1.A.8 16)(The NBHDR "category shall only be located within the commercial core area of Navarre Beach."). The Department also commented in the ORC that the Plan Amendment was inconsistent with Plan Coastal Management Element Objective 7.1.B, which states that "[t]he County shall direct population concentrations away from Navarre Beach and the entire Coastal High Hazard Area" (CHHA) and Policy 7.1.F.8, which states that "[a]mendments to the [Plan] on Navarre Beach shall not be approved which will result in an increase in hurricane evacuation times without mitigation of the adverse impact to evacuation times."3 The Department suggested that "[s]hould the County decide to increase the density on the amendment site, the County should coordinate with the West Florida Regional Planning Council to draft a professionally acceptable hurricane evacuation analysis, based on maximum development potential of the site, demonstrating that the County evacuation time will [be] maintained." On May 22, 2008, the Board approved both the change to the LDC text, which included the Property and other parcels within the Navarre Beach Commercial Core Area,4 and the Plan Amendment. On June 23, 2008, Belle Mer submitted a detailed letter to the Department, with attachments, stating objections to the Plan Amendment. On August 27, 2008, the Department had published a NOI to find the Plan Amendment "in compliance." Internal Inconsistencies and Data and Analysis Petitioner alleges that the Plan Amendment is inconsistent with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8 of the Plan and is not supported by adequate data and analysis. Objective 7.1.B Objective 7.1.B states that "[t]he County shall direct population concentrations away from Navarre Beach and the entire Coastal High Hazard Area." When Objective 7.1.B of the Plan was adopted, all of Navarre Beach, including the Property, was within the CHHA. As a result of a 2006 change in state law, see Chapter 2006-68, Section 2, Laws of Florida, amending Section 163.3178(2)(h), Florida Statutes, and as applied to the Property, the Property is not located in the CHHA. It also appears that very little of Navarre Beach is currently in the CHHA. T 198-200. Also, when the Plan was adopted, no state rule required the County to direct population concentrations away from areas other than the CHHA. The intent appears to "reflect the requirement of the state to direct populations away from the" CHHA and was not intended to apply to areas of Navarre Beach outside of the CHHA. In order to interpret the intent of Objective 7.1.B in areas of Navarre Beach outside of the CHHA, it is appropriate to consider Policy 7.1.B.1 that states: "At least 45% of the developable land within the Navarre Beach Zoning Overlay District shall remain within the Low Density Residential and Conservation/Recreation Future Land Use Map Designations."5 The persuasive evidence indicates that the Plan Amendment is not inconsistent with this policy. In response to the Department's second ORC comment, County staff advised the Board that Objective 7.1.B6 "is implemented by Policies 7.1.B.1, 7.1.B.2 and 7.1.B.3." County staff determined that the Low Density Residential and Conservation/Recreation FLUM designated areas on Navarre Beach comprise 48.02 percent without the Plan Amendment. The addition of the 1.89 acres reduced the percentage to 47.77 percent, a change of .25 percent. JE 5 at 5. Policy 7.1.B.2 states: "The County shall limit the densities and intensities of land use as defined within this Plan. Such limitations will assure generalized low density use of land within the majority of the Coastal High Hazard Area of Santa Rosa County." County staff determined that the County "is a coastal county with three bay systems, a 20 mile long peninsula, and more than 125 miles of shoreline, most of which falls within the CHHA. The subject property has approximately 200 feet of shoreline, and is less than two acres in size. The [FLUM] clearly shows that the vast majority of shoreline in [the County] is designated for low density development between 1 and 4 units per acre, and much of the CHHA is designated as Conservation/Recreation on the FLUM. This amendment, which accounts for approximately 0.03% of the County's CHHA shoreline, will not result in a perceptible change in the generalized low density use within the majority of the CHHA as required by Policy 7.1.B.2." After also considering Policy 7.1.B.3, staff concluded that while the Plan Amendment increased "the total number of potential dwelling units on Navarre Beach by 49 units, it is not inconsistent with Objective 7.1.B or it's [sic] implementing policies." JE 5 at 5-6. Since at least 1996, the Department has consistently determined that any increase above current density levels increases the population concentration in the CHHA. T 241-242. If the property under review is located in the CHHA, the Department's "review is very much heightened with regard to the" CHHA, but not applicable to the Property because it is not located in the CHHA. T 261-262. The Department has no rule or policy to address directing population concentrations away from areas not in the CHHA. T 265. (Within the last three years, the County has approved FLUM amendments within the CHHA, but has not approved an increase in density within the CHHA. In each case, the County directed population increases away from the CHHA and the County's action is consistent with the Department's prior determinations.) The Department's position is credible, but not applicable to the Property, which is not in the CHHA, and in light of Policy 7.1.B.1. Ms. Poplin testified she knew of no way to interpret a comprehensive plan objective, e.g., Objective 7.1.B, without considering it in context with the implementing policies, e.g., Policy 7.1.B.1, and this position is consistent with the Department's definition of "policy." See endnote 7. In other words, the Plan objectives should not be read in isolation without consideration of implementing policies. T 243-244.7 Each relevant Plan objective and policy must be considered. However, they are not considered as stand alone requirements as suggested by Belle Mer. See Petitioner's PRO at 27, ¶ 97. At the time the County adopted the original comprehensive plan and FLUM (approximately 2003), densities allowed on Navarre Beach were reduced by more than 600 residential units. T 216, 225-226. Ms. Faulkenberry did not recall any additional reductions since that time. The County considers an area as a whole in evaluating the direction of population densities rather than on an acre-by- acre basis. The County also does not require any density off- set to occur concurrently with a density increase. T 217. See Lee County and Leeward Yacht Club, Inc., Case No. 06-0049GM (DOAH August 25, 2006, at ¶¶ 42-45; Admin. Comm. November 15, 2006, at ¶ 8). It was not proven that the increase in maximum theoretical density that may occur on Navarre Beach as a result of the Plan Amendment is inconsistent with Objective 7.1.B as implemented, in part, by Policy 7.1.B.1 and is not otherwise supported by adequate data and analysis. Objective 7.1.F Objective 7.1.F states that "[t]he County shall maintain or reduce hurricane evacuation times by implementing Policies 7.1.F.1 through 7.1.F.11, among others."8 Policy 7.1.F.3 states: "The County shall maintain a minimum medium response roadway clearance time for hurricane evacuation of 12 hours on roads under local jurisdiction." Roads under local jurisdiction mean roads within the unincorporated area of the County, including state and Interstate roads, but excluding roads outside the County. The County uses this policy when evaluating the hurricane evacuation times from Navarre Beach and to determine whether the specific numerical criteria have been met. Policy 7.1.F.8 states: "Amendments to the [Plan] on Navarre Beach shall not be approved which will result in an increase in hurricane evacuation times without mitigation of the adverse impact to evacuation times." The persuasive evidence indicates that the over-all reduction in densities on Navarre Beach since the Plan was adopted is adequate mitigation. There is no persuasive evidence that the Plan Amendment is likely to adversely impact (increase) hurricane evacuation times beyond 12 hours. In the ORC, the Department suggested that "[s]hould the County decide to increase the density on the amendment site," that it "coordinate with the West Florida Regional Planning Council to draft a professionally acceptable hurricane evacuation analysis, based on maximum development potential of the site, demonstrating that the County evacuation time will [be] maintained." The Department does not usually examine evacuation times for plan amendments for property not located in the CHHA. The Department raised an issue regarding the evacuation times because Policy 7.1.F.8 refers to Navarre Beach and the requirement of mitigation of the adverse impact to evacuation times. T 268-269.9 County staff contacted the West Florida Regional Planning Council and determined that the latest study was the Northwest Florida Hurricane Evacuation Study Technical Data Report, July 1999 (Study). (The Department was not aware of models (to study hurricane evacuate times) other than as prepared by the regional planning councils. T 270.) There is no statute or rule that requires the County to use "every detail" of the Study. Mr. Crumlish advised that he would expect the County to modify the Study over time. A spreadsheet to aid in calculating clearance evacuation time was distributed with the Study by the U.S. Army Corps of Engineers. The County utilized the spreadsheet produced by the 1999 Corps Study. The spreadsheet is used by the County each year to perform an annual update of hurricane evacuation times, but had not been used by the County in conjunction with a land use change request before it was used during the evaluation of the Plan Amendment. The spreadsheet incorporates various factors contained in the Study and is driven by assumptions and conclusions in the Study.10 There are assumptions made in the Study that when the number of units increases, other numbers may change in relationship to the change in dwelling units. T 149. The spreadsheet is set up so that the County staff may only change or input three columns of data: number of single family units; number of mobile home units; and number of tourist units. Otherwise, "[t]he program is locked." Actual units are counted, e.g., a house, not platted lots without a unit. The spreadsheet also does not allow the County to update road improvements. "Another unknown is the response rate of the population to evacuation orders: rapid, medium or long." According to the County, the spreadsheet is the only and best available data. If other data were used, other than dwelling units described above, the spreadsheet received from the Corps would be altered. Each year the County updates the spreadsheet and accounts for all dwelling units constructed within the County as of the update. Except for consideration of the Plan Amendment, the information was not updated from June 2007 through May 22, 2008. There could have been a change and a significant difference in the number of dwelling units in the County between June 2007 and May 22, 2008, T 99-100, although the number of additional, existing dwelling units during this time period was not quantified. When using the spreadsheet, the County planning staff added 49 units (accounting for the additional units that could be generated by the Plan Amendment) to the annual run of the spreadsheet that was last completed in June 2007. For the purpose of computing the hurricane evacuation time in light of the Plan Amendment, the County did not input any other data into the spreadsheet for the purpose of assessing the hurricane evacuation times.11 County staff provided data and analysis indicating that "the clearance times for critical segments in the County remain less than 12 hours for Cat 1 - 3 hurricanes with the [Plan Amendment]. For Cat 4 - 5 hurricanes, the clearance times already exceeded 12 hours at the following critical segments: US 90 east of Milton, Pensacola Bay Bridge, and I-10 eastbound, but the increased density with the amendment showed no increase in clearance times. The clearance time on SR 87 south of I-10 increased from 9.57 hours to 9.60 hours (again, the widening of that roadway is not factored in). Overall, the effect of the [Plan Amendment] was three hundredths of an hour or less on the critical segments. Therefore, we conclude that County evacuation times will be maintained with the amendment." JE 5 at 6. The County did not assess whether the hurricane evacuation times would increase based on the County's redefinition of the Commercial Core Area other than the Property. According to the County, the changes to the Commercial Core Area were not relevant to its consideration of the Plan Amendment because it did not involve any other plan amendments or changes in density that would impact the hurricane evacuation analysis. T 272. Overall, it was not proven that adverse impacts resulted from the Plan Amendment or that the Plan Amendment was inconsistent with the Plan's objectives and policies referred to herein and not based on appropriate data and analysis. Impact of the Plan Amendment on Potential Loss of View and Financial Impacts on Belle Mer Condominium Unit Owners Petitioner presented two witnesses who own Belle Mer Condominium units, units 1602 and 904 (PE 7 at 4), and who testified regarding their potential loss of view if the Plan Amendment is approved and also that their property values would be reduced. These issues were raised in the JPS at pages 2-3, but not expressly raised in the Petition. See, e.g., T 31-37, 73- 75; see also Petition at 3, ¶¶ 9-12. Assuming for the sake of argument that the two issues were timely raised and may be considered, resolution of the issues is speculative at best given the nature of this proceeding. Notwithstanding the lay testimony of what might be constructed on the Property in the event the Plan Amendment is approved, such as a "needle" or "high rise," T 41-42, the nature, scope, and extent of the loss of view and financial impact can not be readily determined without, among other information, a site plan showing the actual development of the Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued determining that the Plan Amendment 2007-R-047, adopted by Santa Rosa County in Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 7th day of April, 2009, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 7th day of April, 2009.
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
The Issue The issue for determination in this proceeding is whether Respondent should issue a permit for coastal armoring to protect Petitioners' homes.
Findings Of Fact The Parties Petitioners are "property and/or riparian owner[s]" within the meaning of Section 161.053(5)(a). Petitioners own two single family residences situated on contiguous sites on highway A1A in Orchid Island, Indian River County, Florida. Each site fronts the Atlantic Ocean and extends landward from the mean high water line. Petitioners' homes are major habitable structures within the meaning of Florida Administrative Code Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). 2/ Each home is a two story residence that includes a garage, swimming pool, and patio. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). 3/ Petitioners' application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other agency requirements. Respondent determined that the application was complete on or before August 14, 1990. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws Of Florida, Chapter 93-21. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members. Background Petitioners began construction of their homes prior to March 4, 1987. At the time construction began, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioners' homes. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioners' homes. By that time, construction had progressed sufficiently, and both houses were grandfathered by applicable regulatory restrictions. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). The foundations are not designed to resist the predicted forces associated with a one-hundred-year storm event, do not elevate the support structures of the homes above the breaking wave crests or wave uprush projected for such a storm, and do not meet other applicable design criteria. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in Indian River County including that portion in front of Petitioners' homes. The dune fronting Petitioners' homes was severely undercut by wave action from the storm. The dune in front of Petitioners' property suffered 10 feet of bluff line recession. On Saturday, March 11, 1989, Petitioner, Machata, telephoned Respondent at its Tallahassee office for authority to protect his home from the forces of the storm. Mr. Machata was referred to the Division of Emergency Management. Mr. Machata telephoned the Division of Emergency Management at 10:30 a.m. on March 11, 1989, and spoke with Mr. Bill Whiney. Mr. Whiney advised Mr. Machata that the Division was aware of the storm and had delegated emergency management to Mr. Douglas Wright, Director of Emergency Management, Indian River County. Mr. Wright conducted a site inspection within an hour of Mr. Machata's telephone call. The dune was being undercut, and waves were striking near the top of the dune. Mr. Wright did not get near the bluff line for fear that the dune would collapse. Mr. Wright authorized the temporary placement of large quarry rocks on the seaward side of the dune. The rocks were placed at the toe of the dune on Saturday and Sunday, March 11 and 12, 1989. Mr. Wright instructed Petitioners to contact Respondent on Monday, March 13, 1989, for a permit to construct a permanent rock revetment or other bulkhead. On Wednesday March 15, 1989, an inspector for Respondent confirmed that construction of a rock revetment had begun without benefit of a permit from Respondent. Respondent advised Mr. Machata to stop construction of the rock revetment pending application for, and approval of, a coastal armoring permit. Mr. Machata immediately ceased further construction. At that point, a rock revetment 110 feet long had been placed along the toe of the dune in front of Mr. Machata's house. On July 19, 1989, Petitioners filed an application for a permit to complete construction of the rock revetment. Following several meetings and correspondence between Petitioners and Respondent, Respondent determined that the proposed revetment failed to comply with applicable requirements. At the behest of Respondent, Petitioners agreed to apply for a permit to construct and maintain the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead, in place of the rock revetment, if Petitioners demonstrated their homes are vulnerable to a 10 to 15 year return interval storm event (a "RISE"). The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater storm force. 6/ On April 17, 1990, Petitioners submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line and vegetation line and 23 feet seaward of Petitioners' existing patios. All work on the bulkhead is to take place landward of the steel wall. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval of 25 years. The design, engineering, and construction required to protect Petitioners' homes reflects the storm force associated with a high frequency storm. The steel wall will be constructed with 300 to 400 individual sheets of corrugated steel placed in the shore parallel direction. Each sheet is 25 feet long, 18-24 inches wide, 3/8 inches thick, and weighs approximately 1000 pounds. The sheet piles will be stockpiled on site and transported to the dune by a crane equipped with a vibratory hammer. The first sheet pile will be placed at one end of the proposed bulkhead and partially driven into the sand with the vibratory hammer. The next sheet pile will be threaded and interlocked with the first through the coupling joints and partially driven into the sand. After 50 feet of the proposed wall is put in place, the piles in that 50 foot section will be driven to their design depth. The remaining portion of the wall will be completed in 50 foot segments using the same procedure. Once the sheet piles are in place, 20 foot long steel tie rods will be placed through and connected to the piles near their top. The tie rods will be on the landward side of the piles arranged perpendicular to them. The tie rods will be spaced 15 feet apart, on center, along the entire length of the sheet pile wall. The tie rods will be encased in poured concrete. The other end of the tie rods will be secured to a concrete anchor buried in the soil (a continuous "deadman"). The deadman will run parallel to the sheet pile wall approximately 20 feet landward of the wall. The deadman is constructed with concrete formed and poured in place with reinforcing steel. The steel pile wall is connected to the deadman with tie rods to increase the stability of the sheet pile wall and to achieve the designed level of protection. Forty foot return walls at each end of the bulkhead will run landward of Petitioners' lot lines. The return walls ensure the stability of the bulkhead during storm attack by preventing erosion of sand landward of the bulkhead. A concrete cap will be poured in place on top of the sheet pile wall. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. This form of armoring was proposed, in place of a rock revetment, at Respondent's request. It is uncontroverted that the design and construction of the proposed bulkhead meets all applicable engineering and structural design criteria. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioners' property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent's Division of Beaches and Shores recommended approval of Petitioners' application subject to stated conditions. On August 14, 1990, an agenda item recommending approval of Petitioners' application was considered by the Governor and Cabinet. The agenda item represented that Petitioners' homes are vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioners' application without explication. Immediately following the denial of Petitioners' application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioners', were expressly exempt from the new policy. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioners' homes are located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. 7/ Since Petitioners' application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No other applications were complete on or before August 14, 1990. A Final Order denying Petitioners' application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioners timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1). Agency Requirements Respondent consistently applies a multi-tiered test to assess applications for coastal armoring permits. The first tier consists of two parts. First, armoring must be proposed for a major habitable structure within the meaning of Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). Second, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rule 16B-33.005(1), and must show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed armoring. If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protecting a major habitable structure. 8/ It is uncontroverted that Petitioners' homes are major habitable structures. Therefore, the issues for determination in this proceeding are whether Petitioners' have "clearly justified" the "necessity" for protecting their homes, whether the direct and cumulative impacts clearly justify the armoring, and whether the protection sought is the only "feasible" alternative. The phrase "clearly justify" is the test of both the "necessity" for armoring and the direct and cumulative impacts of armoring. Section 161.053(5)(a)3 requires Respondent to consider whether the direct and cumulative impacts on the beach-dune system clearly justify the proposed armoring. Rule 16B-33.005(7) states that: the proposed armoring may not have an adverse impact on the beach-dune system at the specific site; and a number of similar structures on the coast may not have a significant adverse cumulative impact. 9/ The cumulative impact doctrine has been applied as a policy of equitable distribution in permitting cases involving environmental control statutes. 10/ The doctrine is intended to distribute permitted activities without contravening applicable standards or the public interest. The cumulative impact of the proposed bulkhead on the beach-dune system and on marine turtles is not imposed in addition to other applicable requirements but is a factor to be considered in determining whether the proposed bulkhead is clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. 11/ The terms "necessity", "clearly justify", and "feasible" are not defined in applicable statutes and rules. 12/ Respondent has issued written memoranda and uttered unwritten policy statements to provide guidance in defining the quoted terms. Respondent attempted to explicate the quoted terms in this proceeding. Necessity: Vulnerability To High Frequency Storms Under the 1990 policy, the "necessity" for armoring must be clearly justified by demonstrating vulnerability to a five year RISE. However, the proposed bulkhead is exempt from the specific RISE imposed by the 1990 policy. Respondent asserts that a 10 or 15 year RISE was used to assess vulnerability prior to the 1990 policy and should be applied in this proceeding. In order to ascertain the specific numeric standard of vulnerability applicable in this proceeding, if any, it is necessary to consider the emergence of the vulnerability requirement prior to the adoption of the 1990 policy. 13/ Emerging Vulnerability Requirement In November, 1984, a severe storm caused major erosion over wide expanses of the east coast of Florida (the "Thanksgiving Day storm"). A number of applications for coastal armoring followed. Respondent's staff prepared a report proposing specific policy directives to provide guidance in reviewing applications for coastal armoring. The policy directives were approved by the Governor and Cabinet on March 19, 1985. However, the Governor and Cabinet expressly directed staff to review armoring applications on a case-by-case basis and did not adopt a specific policy (the "1985 directive"). The first application for a coastal armoring permit to go before the Governor and Cabinet following the 1985 directive was filed by Seaplace Association, Inc. The application was for a buried, sloping rock revetment and returns seaward of the two- story Seaplace condominium. The Seaplace application was recommended for approval by Respondent and considered by the Governor and Cabinet as an agenda item on February 23, 1988. The agenda item prepared by Respondent stated that Seaplace was vulnerable to a RISE of less than 10 years. This was the first agenda item where vulnerability to a specific RISE was included in Respondent's justification for a proposed coastal armoring permit. At the time that the agenda item was considered, Respondent's director stated that Respondent imposed a 20 year RISE to assess vulnerability in coastal armoring applications. The Governor and Cabinet denied the Seaplace application without explication. Following the denial of the Seaplace application, a storm impacted the shoreline in front of Seaplace causing erosion and further threatening the condominium. After a meeting with Cabinet aides, Respondent recycled the prior agenda item to reprint the document with no changes and brought the item back before the Governor and Cabinet with the same stated vulnerability. The Governor and Cabinet approved the Seaplace application on May 24, 1988, without explication. In approving the Seaplace application, the Governor and Cabinet neither explicitly nor implicitly adopted a specific RISE as a numeric standard for assessing vulnerability prior to the 1990 policy. The agenda items considered by the Governor and Cabinet on February 23 and May 24, 1988, did not recommend that the Governor and Cabinet adopt a 10 year RISE as a numeric standard for assessing vulnerability in all armoring applications but merely stated that Seaplace was vulnerable to a 10 year RISE. When the Governor and Cabinet considered the Seaplace application, they were informed by Respondent's director that Respondent used a 20 year RISE as a numeric standard for assessing vulnerability. When the Governor and Cabinet intend to adopt a policy, notice is given to the public prior to consideration of the proposed policy. No such notice was given prior to approving the Seaplace application on May 24, 1988. On February 7, 1990, Respondent issued internal memorandum PM-27-90 as a policy statement to guide staff in assessing the justification for rigid coastal armoring structures. Memorandum PM-27-90 states: . . . Existing policy on the use of rigid coastal protection structures is contained in Subsection 16B-33.005(3), Florida Administrative Code. The general policy restricts use of such structures . . . and permits them only if they are fully justified as the only feasible means of protecti[on]. . . . This policy [PM-27-90] provides guidance on the determination of justification for such structures. 2. Threat determination * * * b) The structure proposed to be protected is . . . exposed to direct impacts from hydrodynamic forces associated with high frequency storms and in danger of imminent collapse from such storms. (emphasis supplied) Memorandum PM-27-90 did not prescribe a specific RISE as a numeric standard for assessing vulnerability in all coastal armoring applications. It merely required a qualifying structure to be exposed to direct impacts from "a high frequency storm." A high frequency storm can have any return interval up to 25 years. The requirement in PM-27-90 that a qualifying structure be in imminent danger of collapse imposes neither a specific RISE nor an additional requirement for assessing vulnerability. After PM-27-90 was issued, for example, Respondent agreed to recommend approval of the proposed bulkhead if Petitioners demonstrated that their homes are vulnerable to either a 10 or 15 year RISE. When Memorandum PM-27-90 was superseded by the 1990 policy, it lost any general applicability it may have had within the meaning of Section 120.52(16). Since Petitioners' applications are the only applications exempt from the 1990 policy, the applicability of PM-27-90, if any, is not general but is limited to this proceeding. 14/ Respondent required, under the emerging policy in effect prior to the 1990 policy, that qualifying structures be "exposed to direct impacts from . . . high frequency storms." No numeric standard narrowed the scope of a "high frequency storm" to a specific RISE. Nor was a specific RISE identified in final agency action taken on specific applications prior to the adoption of the 1990 policy. While Respondent wishes to deviate from the general requirement for vulnerability that was in effect prior to the 1990 policy by imposing a specific RISE in this proceeding, Respondent failed to explicate a justification for such a deviation. 15/ In cases involving an eroding shoreline, the selection of a specific RISE to assess vulnerability is not intended to determine whether coastal armoring is going to be permitted. Rather, it is intended to determine when such armoring will be permitted and perhaps what form the armoring will take. 16/ The shoreline in the area of the proposed project is an eroding shoreline. Between 1972 and 1992, the shoreline in front of Petitioners' homes eroded at an annual rate of 1.7 feet. Respondent conducted shoreline surveys by registered surveyors at Respondent's monuments R-25 through R-30 in Indian River County. Petitioners' homes are located between monuments R-27 and R-28 and are closest to R-27. The field survey data is more reliable than historic shorelines from 1880-1968 depicted on maps submitted by Respondent and Intervenors during the formal hearing. Between 1972 and 1992, the bluff line at R-27 receded 42 feet. There was 50 feet of bluff line recession at R-25, 40 feet at R-26, and 43 feet at R- Between June, 1986, and March, 1992, five to six feet of dune recession occurred at R-27 with no evidence of dune recovery during that period. Since 1972, a significant decrease in the bluff line near Petitioners' homes has been caused by storms. The Thanksgiving Day storm caused 15 feet of bluff line recession. The storm in March, 1989, caused 10 feet of recession. The bluff line at the northern boundary of the Machata home receded 10 feet between 1987 and 1989. The bluff line at the southern boundary of his home receded seven feet during the same period. While the bluff line and mean high water line generally recede at the same rate, the mean high water line at R-27 receded 19.7 feet, or 3.4 feet a year, between 1986 and 1992, and 14.71 feet, or 2.6 feet annually, at R-28. Inlets constructed by government agencies cause 85 percent of the erosion along Florida's southeast coast. The Sebastian Inlet is the principal cause of erosion of the shoreline in front of Petitioners' homes. The erosion rate of the shoreline in front of Petitioners' homes can be expected to fall below one foot a year only if the Sebastian Inlet Management Plan to transfer sand is fully implemented. No evidence was presented to show when the plan will be implemented, if at all. As the shoreline erodes from the effects of the Sebastian Inlet and natural erosion, Petitioners' homes will eventually be vulnerable to a five year RISE. In the absence of any intervening changes, Petitioners will then satisfy the vulnerability requirement in the 1990 policy. However, Petitioners are expressly exempt from the specific vulnerability requirement in the 1990 policy and should not be required to wait until they comply with that requirement. Petitioners do not have to wait until their homes are vulnerable to a five year RISE if vulnerability is assessed using a 25 year RISE. A 25 year RISE is consistent with the design life of the proposed bulkhead. Rule 16B- 33.007(6)(b) requires that armoring: . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the [armoring]. . . . The design life of the proposed bulkhead is 25 years, but Respondent asserts that Petitioners must show that their homes are vulnerable to a 10 or 15 year RISE to clearly justify the necessity for the proposed bulkhead. Respondent failed to explicate a justification for deviating from Rule 16B- 33.007(6)(b) either by accepting a design life that is inconsistent with Respondent's vulnerability requirement or by assessing vulnerability with a RISE that is less than the 25 year design life of the proposed bulkhead. Absent the requisite justification for Respondent's deviation, Petitioners need only show that their homes are vulnerable to any high frequency storm including a RISE of 25 years. 17/ Vulnerability Clearly Justified By Computer Models Assuming that a specific RISE applies in this proceeding, Respondent asserts that either a 10 or 15 year RISE should apply. Respondent presented conflicting evidence concerning the specific RISE that should be applied to assess the vulnerability of Petitioners' homes. One of Respondent's experts, a professional engineer and administrator within the Division of Beaches and Shore, testified that Respondent's policy requires vulnerability to a 10 year RISE. However, the Division Director testified that Respondent's policy requires vulnerability to a 15 year RISE. The testimony of the Division Director was credible, persuasive, and consistent with Respondent's original recommendation of approval. Respondent, without deviation, determines whether a qualifying structure is vulnerable to a specific RISE through the application of computer models. Computer models analyze certain scientific parameters to mathematically simulate storm surge elevation and erosion for a high frequency storm. 18/ If the computer model shows that the eroded profile of the storm would reach the foundations of Petitioners' homes, then their homes are vulnerable to the specific RISE assumed for the storm. Applicable statutes and rules do not prescribe the computer model to be used in assessing the vulnerability of a qualifying structure. Since 1988, Respondent has relied exclusively on the Dean erosion model for such purposes. The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida. 19/ The original Dean model supporting Respondent's recommendation that the Governor and Cabinet approve the proposed bulkhead shows that the eroded profile of a 15 year RISE would reach the foundation of Petitioners' homes. Therefore, each home satisfies the 15 year RISE imposed by Respondent to assess vulnerability in this proceeding. Another computer model commonly used to assess vulnerability to a high frequency storm is the EDUNE erosion model. The EDUNE model utilized by Petitioners' coastal engineer shows that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. Therefore, each home satisfies the 10 year RISE imposed by Respondent to assess vulnerability prior to the 1990 policy. 20/ Since less severe storms occur more frequently, Petitioners' homes are necessarily vulnerable to more severe storms that occur less frequently including storms with return intervals of 15 to 25 years. Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. The results of an erosion model that has not been properly calibrated may not be reliable. The Dean erosion model has not been calibrated for high frequency storm events. Dr. Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead. Both the EDUNE model utilized by Petitioners' expert and the original Dean model utilized by Respondent were calibrated using erosion data from the Thanksgiving Day storm. However, neither erosion model utilized local calibration factors for the proposed project site. No storm hydrograph for the Thanksgiving Day storm is available for Indian River County and no site specific data is available for the proposed site. In the absence of local calibration data, the accuracy of any erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data. The selection of proper input variables, in the absence of local calibration data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results. An erosion factor of 1.5 was properly used in the original Dean model which showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioners' homes. The Bureau of Coastal Engineering applies the Dean model exclusively for Respondent to predict erosion from high frequency storms and to assess the level of vulnerability for a qualifying structure. An erosion factor of 1.5 is the erosion factor approved by the Bureau of Coastal Engineering and consistently used in the Dean model. Use of an erosion factor of 1.5 is consistent with reasonable and appropriate professional judgment and Respondent's long standing practice. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioners' expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. This is the appropriate and reasonable erosion factor to be used for the EDUNE model in the absence of local calibration data. The A factor is another input variable used in erosion modeling. The A factor defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. If the shoreline steepens beyond the depth of the nearshore breaking wave and the A factor is determined by fitting the shoreline to a depth beyond the nearshore breaking wave, the A factor will be increased and the erosive force of the projected storm will be decreased. The A factors used in the original Dean model and the EDUNE model were properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent's manual states that an A factor between 0.14 and 0.16 is most reliable. Use of an A factor of 0.15 is consistent with Respondent's manual and reasonable and appropriate professional judgment. The Revised Dean Model Respondent prepared a revised Dean model for the formal hearing. The return frequency approach used in both the original Dean model and EDUNE model measures the predicted force of a storm by emphasizing its storm surge elevation. The volumetric approach used in the revised Dean model measures storm force by emphasizing the erosive force of a storm. Both storm surge elevation and erosive force are threats to Petitioners' homes. However, the storm surge of an actual storm may or may not be proportional to its erosive force. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. 21/ If a computer model is calibrated for a greater erosive force, the model can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundations of Petitioners' homes. Conversely, if a computer model is calibrated for a lesser erosive force, the model can be used to demonstrate that the storm surge elevation of the same storm produces an eroded profile that does not reach the foundations of Petitioners' homes. The revised Dean model prepared by Respondent for the formal hearing used an erosion factor of 1.0 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundations of Petitioners' homes. In the absence of site specific data including storm surge elevation and a storm surge hydrograph for the Thanksgiving Day storm, use of an erosion factor of 1.0 was inconsistent with reasonable and appropriate professional judgment, Respondent's long standing practice, and the terms of Respondent's instruction manual. 22/ The A factor of 0.19 used by Respondent in the revised Dean model was neither appropriate nor reasonable. Respondent determined the A factor in its revised Dean model by fitting the shoreline profile to a depth substantially beyond the depth of the nearshore breaking wave. The shoreline steepens beyond the depth of the nearshore breaking wave. As the shoreline steepens, the A factor increases. By determining the A factor on the basis of the steeper profile, Respondent overestimated the value of the A factor and underestimated the erosive force of a 15 year RISE. The revised computer model prepared by Respondent assumed an erosive force that was disproportionate to the actual storm used to calibrate all of the computer models. Both the original Dean and EDUNE models were calibrated with erosion data from the Thanksgiving Day storm. The Thanksgiving Day storm had an erosive force that was disproportionate to its storm surge elevation and 2.8 times greater than a major storm such as hurricane Eloise in 1975. To the extent the volumetric approach in the revised Dean model assessed vulnerability by a standard other than storm surge, Respondent deviated from the storm surge criteria in existing statutes and rules. The CCCL is statutorily intended to define that portion of the beach-dune system subject to a specific storm surge. 23/ Respondent's rules describe design criteria for coastal armoring 24/ and conforming foundations 25/ by reference to storm surge. Respondent's rules also describe design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge. 26/ Evidence presented by Respondent to explicate its deviation from storm surge criteria in assessing vulnerability was neither credible nor persuasive and failed to overcome credible and persuasive evidence supporting the results of the original Dean model and EDUNE model. 27/ Respondent's inability to replicate the results of the EDUNE model is not a reasonable and appropriate basis for relying upon the revised Dean model and rejecting both the EDUNE model and the original Dean model. It is not possible to replicate modeling results without knowing each and every input variable used in the model to be replicated. Respondent did not know all of the input variables used by Petitioners' expert in the EDUNE model. In attempting to replicate the results of the EDUNE model, Respondent used input variables not used by Petitioners' expert. Notice Of Vulnerability The 1990 policy adopted by the Governor and Cabinet includes a notice of vulnerability caveat. The caveat provides that an applicant who constructs his or her home after notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. Petitioners' applications are expressly exempt from the 1990 policy. Since Petitioners are not substantially affected by the 1990 policy, within the meaning of Sections 120.535(2) and 120.57(1)(b)15, it is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy are generally applicable within the meaning of Section 120.52(16). The 1990 policy was adopted by the Governor and Cabinet three years after Petitioners began construction of their homes. At the time construction began, Respondent had no rule or policy giving notice to Petitioners that their construction activities may adversely affect their future ability to obtain a coastal armoring permit. Respondent advised Petitioners by separate letters issued on April 13 and 14, 1987, that their homes were exempt from the permitting requirements of the revised CCCL. At the time the CCCL was reestablished on March 4, 1987, Respondent determined on the basis of actual site inspections that Petitioners' homes were under construction within the meaning of former Rule 16B-33.002(56). 28/ The letters from Respondent in April, 1987, notified Petitioners that the foundations of their homes were nonconforming foundations and included a caveat that Respondent's staff would not recommend approval of any applications for coastal armoring to protect Petitioners' homes. The letters did not represent that the Governor and Cabinet would not approve their applications for coastal armoring permits. Petitioners began construction of their homes long before the notice of vulnerability policy was adopted in 1990. By the time Petitioner, Machata, received Respondent's letter in April, 1987, the entire substructure of his home was complete including the placement of 20,000 cubic yards of fill, the pouring of all footers, piles, grade beams, and retaining walls. Some plumbing and structural steel for the slab had been installed. When Petitioner, Lanzendorf, received a letter from Respondent, construction of his home was 80-90 percent complete and over $460,000 had been expended. It was not economically or legally feasible for Petitioners to stop construction of their homes when they received the letters issued by Respondent in April, 1987. Petitioners had already expended substantial sums on construction of their homes, and it is improbable that the lending institutions would have allowed construction to stop. The caveats contained in the letters issued by Respondent in April, 1987, were not timely under the circumstances and should have been issued prior to the beginning of construction rather than after substantial construction occurred. Notwithstanding its caveats, Respondent recommended approval of Petitioners' applications after Petitioners demonstrated that vulnerability to a 15 year RISE, but the Governor and Cabinet denied the application. Direct And Cumulative Impacts On The Beach-Dune System The proposed bulkhead, existing armoring, and proposed similar structures will have no significant adverse direct or cumulative impact on the beach-dune system within the meaning of Section 161.053(5)(a)3. The proposed bulkhead, existing armoring, and proposed similar structures will neither degrade the beach-dune system along that segment of the shoreline nor threaten the beach-dune system and its recovery potential within the meaning of Rule 16B- 33.005(7). Construction Construction of the bulkhead will not adversely affect the stability of the dune and will not damage vegetation seaward of the sheet piles. The sheet piles will be placed 10-15 feet landward of the dune bluff line and landward of the vegetation line. All construction will take place landward of the sheet piles. Excavation required to construct the proposed bulkhead is minimal. No excavation is required for placement of the tie rods in front of the Machata home. Only minor excavation is required for the deadman in front of the Machata home. The seaward and landward faces of the deadman will be covered with sand and not exposed except for a portion of the deadman in front of the Lanzendorf home. Due to dune elevation differences at the Lanzendorf home, a portion of the landward face of the deadman will be exposed. After removal of the forms used for the cap, tie rods, and deadman, the area between the sheet pile wall and the deadman will be filled with sand to bring the area up to a finish grade of 17.5 feet N.G.V.D. 29/ Any sand excavated to construct the bulkhead will be kept on site and used to build the grade to finish grade. The area between the sheet pile wall and deadman will be planted with native vegetation following placement of the sand. Impacts to dune vegetation landward of the steel wall will be temporary. Planted vegetation will provide protection to the dune from windblown erosion within one growing season. By the second growing season, planted vegetation will be of sufficient density to eliminate the initial impacts of construction. Before construction begins, Petitioners will place beach compatible sand at a 2:1 slope along the entire frontal dune escarpment within the limits of their property lines. The sand will provide additional stability for the dune during construction of the bulkhead and is consistent with the dune restoration plan required as a condition of the permit. The dune restoration plan requires Petitioners to place sand and vegetation in prescribed areas within 90 days of completion of construction. Dune restoration is a standard condition required by Respondent for the issuance of armoring permits. Natural Fluctuation Of The Beach-Dune System The beach-dune system is a balanced, interrelated system in a constant state of fluctuation. Natural erosion and accretion of sediment takes place as a result of coastal winds, waves, tides, and storms. Features of the beach-dune system are subject to cyclical and dynamic emergence, destruction, and reemergence. 30/ The beach-dune system cyclically accretes and erodes as a result of both storm impacts and seasonal changes. During storm events, elevated water conditions carry storm waves inland. Sediment from upland property is eroded. Storm waves carry the eroded material offshore and form an offshore sand bar. The sand bar protects the upland portion of the beach-dune system by tripping incoming waves, causing them to break offshore, and reducing the wave attack on the shoreline. Recovery of the upland portion of the beach-dune system occurs when a milder wave climate returns after a storm. Material from the sand bar is carried back to the upland property by normal wave activity. After the sand is deposited on shore, it is carried upland by wind, trapped by dune vegetation, and the dune previously eroded by the storm is rebuilt. In addition to storm events, seasonal changes cause fluctuations in the beach-dune system. The shoreline typically accretes during the summer when milder waves occur and erodes during the winter when wave action intensifies. When summer returns, the shoreline again accretes. Active Erosion From Armoring Erosion may be passive or active. Passive erosion occurs when the shoreline migrates landward during the natural fluctuation of erosion and accretion. Passive erosion is not an impact of the proposed bulkhead. The proposed bulkhead excludes sand landward of the bulkhead from the natural fluctuation of the beach-dune system. The proposed bulkhead will prevent the loss of sand landward of the bulkhead during storm events with a return interval of 25 years or less. Sand landward of the proposed bulkhead will be released into the beach-dune system in the event of a storm with a return interval of at least 25 years and sufficient force to destroy the proposed bulkhead. The proposed bulkhead will not cause erosion of the beach-dune system during storms with return intervals of less than 25 years unless the bulkhead is exposed and interacts with wave forces. The proposed bulkhead is located 10-15 feet landward of the dune bluff line and, therefore, will not initially be exposed to wave forces. The current annual rate of shoreline erosion near Petitioners' homes is 1.7 feet. At that rate of erosion, the proposed bulkhead would be exposed to wave action in approximately five to ten years in the absence of any mitigating action by Petitioners. If erosion of the shoreline exposes the proposed bulkhead to wave action, active erosion in the form of "scour" and "downdrift" may occur. Scour Scour would be caused by the interaction of the steel wall with storm tides and waves. 31/ Scour associated with a seawall is greater due to increased wave velocity caused by reflection of the wave energy off the seawall. Scour may occur during a storm event in front of the exposed bulkhead. Sand lost to scour will move immediately offshore in front of the bulkhead, as part of the sand bar, and eventually be returned to the shore during the recovery of the beach-dune system. A portion of the scoured sand will be diverted from the sand bar by longshore currents during the storm and redistributed within the littoral system. Downdrift Downdrift erosion occurs when longshore sediment is not transported from updrift to downdrift properties. When downdrift erosion occurs, downdrift properties are deprived of sand that otherwise would be transported from updrift properties. Downdrift erosion may occur if the shoreline retreats landward of the proposed bulkhead, the bulkhead protrudes onto the active beach, and interacts with waves. If all of those circumstances occur, the proposed bulkhead will trap sand on the updrift side of the bulkhead and deprive downdrift properties of sand to the extent of any sand trapped on the updrift side. Downdrift erosion, if any, caused by the proposed bulkhead will be limited to the dune area of the beach and will not result in a loss of sand to the beach-dune system. The amount of decrease in sand on the downdrift side of the proposed bulkhead will equal the amount of increase in sand to the updrift location. Renourishment There are several million cubic yards of sand in the littoral system in Indian River County. Any sand eroded at the location of the proposed bulkhead will be insignificant in comparison to the total amount of sand in the littoral system. Current natural erosion of the shoreline fronting Petitioners' homes causes a significantly greater volume of sand loss than may be caused in the localized area of the proposed bulkhead. Government devices in the region, including the Sebastian Inlet, cause significantly greater erosion to the shoreline in Indian River County than any erosion which may occur from the proposed bulkhead. Petitioners will place sand on the beach to offset or mitigate the sand retention features of the proposed bulkhead. Sand placement will be sufficient to offset any adverse impacts from scour erosion and downdrift erosion. Sand placement is common in Indian River County after storm events. Petitioners will conduct yearly shoreline profile surveys and maintain the shoreline profile in front of the proposed bulkhead through annual sand placement. Sand placement effectively mitigates any direct and cumulative adverse impacts from the proposed bulkhead. The beach profile adjacent to Petitioners' homes showed some recovery of the shoreline in the two year period around 1990. That recovery would not have been prevented by the proposed bulkhead. Proposed Similar Structures Proposed similar structures, within the meaning of Section 161.053(5)(a)3 and Rule 16B-33.005(7), include similar armoring under construction, pending applications for similar armoring, and similar structures that may reasonably be expected in the future. No additional armoring is under construction "along that segment of the shoreline." 32/ No pending applications are exempt from the 1990 policy, under review, approved, or vested along that segment of the shoreline. The 1990 policy prohibits all armoring within the Archie Carr National Wildlife Refuge and requires qualifying structures outside the Refuge to be vulnerable to a five year return interval storm event. Accordingly, no similar projects may reasonably be expected in the future. Respondent prepared a cumulative impact analysis for the proposed bulkhead in support of its recommendation for approval of the permit. That original cumulative impact analysis concludes that there is no potential for increased armoring within one mile north or south of the proposed project site. Respondent's original cumulative impact analysis is credible and persuasive. Revised Cumulative Impact Analysis Respondent prepared a revised cumulative impact analysis for the formal hearing. Respondent attempted to define proposed similar structures to include, not only similar armoring under construction and pending applications for similar armoring, but also future armoring that may occur if approval of Petitioners' application creates a precedent for armoring similarly situated properties. Respondent assessed the cumulative impact on the beach-dune system from such potential future armoring and attributed the potential impact entirely to the proposed bulkhead. In addition, Respondent expanded the definition of "that segment of the shoreline" in Rule 16B- 33.005(7) from a two mile segment of shoreline in its original analysis to an 18 mile segment in its revised analysis. 33/ Respondent evaluated a five region area beginning from a point south of Vero Beach in Indian River County and running north to a point south of Melbourne in Brevard County. Region 1 contains the proposed project site and is slightly south of midway in the area evaluated. 34/ Region 2 is immediately south of Region 1. Region 3 is immediately south of Region 2. Region 4 is immediately north of Region 1, and Region 5 is north of Region 4. The area evaluated excludes a portion of state-owned shoreline between Regions 4 and 5, including the Sebastian Inlet State Park. 35/ The shoreline within the boundaries of the five regions is 21.5 miles or 113,520 feet. Excluding the state-owned shoreline between Regions 4 and 5, the shoreline evaluated within the five region area totals 92,000 feet or 18 miles. The length of the proposed bulkhead is 303 feet. Respondent determined that there are 87 major habitable structures similarly situated to Petitioners' homes and that 9.8 percent of the shoreline in the area evaluated will be armored. Respondent determined that approval of Petitioners' application would increase armoring by: 280 feet in Region 1; 3,260 feet in Region 2; 4,145 feet in Region 3; 850 feet in Region 4; and 2,510 feet in Region 5. Respondent's cumulative impact analysis is not a valid application of the cumulative impact doctrine. The cumulative impact doctrine requires Respondent to consider the ". . . cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future." 36/ (emphasis supplied) Assuming arguendo that all 87 structures are "similarly situated" with Petitioners' property, armoring of all 87 structures can not reasonably be expected in the future. Respondent did not apply the 1990 policy in its cumulative impact assessment for the proposed project. Regions 1, 2, 4, and 5 are within the Archie Carr National Wildlife Refuge. The 1990 policy prohibits all coastal armoring within the Refuge. If the Governor and Cabinet require compliance with the 1990 policy, the proposed project will not create a precedent for armoring within Regions 1, 2, 4, and 5. Any armoring that occurs will be a result of non-adherence to the 1990 policy rather than an impact of the proposed project. Respondent did not apply the 1990 policy to qualifying structures outside the Archie Carr National Wildlife Refuge in Region 3. There are no armoring applications pending for any of the 87 structures identified by Respondent in its cumulative impact assessment, and no applications for any of those structures were complete on or before August 14, 1990. Unlike the proposed project, none of the 87 structures identified by Respondent are exempt from the 1990 policy. More than half of the 87 structures would not be vulnerable to a five year RISE under the 1990 policy. The terms of the permit for the proposed project provide that the permit does not create a precedent for armoring similarly situated structures. Permits issued by Respondent for new structures seaward of the CCCL include a caveat that a particular permit may not be considered as precedent for future applications by similarly threatened structures. Even if Respondent's determination is accepted on its face, a 9.8 percent increase in coastal armoring will not create a significant adverse impact on the beach-dune system. Moreover, several considerations suggest that Respondent's cumulative impact analysis is exaggerated. Respondent has promulgated no criteria in any rule to establish the length of shoreline or the number or size of the regions that must be included in any cumulative impact analysis. Rule 16B-33.005(7) requires that the cumulative impact of the proposed bulkhead must be assessed "along that segment of the shoreline." The prescribed segment of shoreline was expanded from 2 miles, in Respondent's original cumulative impact analysis, to 18 miles in Respondent's revised cumulative impact analysis. 37/ During the formal hearing, Respondent suggested several alternatives for determining the segment of shoreline that should be evaluated in assessing the adverse cumulative impact of the proposed project. Alternatives included: the same general area of the applicants' property; the local area; the entire east coast; the limits of the undeveloped portion of the shoreline on either side of the proposed structure; Vero Beach to the south; two miles on either side of the proposed bulkhead; the coastal cell; the area between two major areas of armoring; areas with similar processes; anywhere on the coast; a two mile segment of shoreline; the area in close proximity; and more areas other than the regions actually used by Respondent in its cumulative impact analysis. In the revised cumulative impact analysis, Respondent included the entire width of the shoreline within the property boundary for each of the structures. Respondent does not allow armoring to extend the entire shoreline of the property on which the armoring device is located. The 87 structures identified by Respondent are not similarly situated to Petitioners' homes. Respondent defined similarly situated structures as those located at a distance from the vegetation line that is similar to the distance between Petitioners' homes and the bluff line. Such a definition fails to take into account actual site conditions for a particular structure. Respondent relied solely on aerial photographs of the five region area to determine the distance between the vegetation line and each of the 87 structures. Aerial photographs provide only an approximation of the distance between the structure and the vegetation line. Respondent did not physically verify distances under actual site conditions ("ground truth"). If Respondent had ground truthed its cumulative impact analysis, site specific variations in the beach-dune system would significantly reduce potential armoring projected by Respondent. By not ground truthing actual site conditions for the 87 structures, Respondent failed to identify those structures that are not vulnerable to a five year return interval storm event due to enhanced dune viability. Respondent could not consider whether the beach-dune system at a particular site provided a structure with more protection due to: greater dune height; the condition of the shoreline; and the viability of the beach-dune system. If the foregoing considerations are taken into account, only 860 feet of shoreline in the five region area, or 0.8 percent, is subject to potential armoring. The impact on the beach-dune system of armoring 0.8 percent of the coastline in the five region area is inconsequential and will not have a significant adverse cumulative impact. It is unlikely that coastal armoring structures will be placed on publicly owned land. The State of Florida owns approximately 11,400 feet, or 22 percent, of the shoreline in the Archie Carr National Wildlife Refuge. The Refuge is within the State of Florida Archie Carr Conservation and Recreational Lands ("CARL") Project. The Refuge is ranked 7th on the 1992 CARL priority list. The priority ranking assigned to the Refuge means that Respondent has sufficient funds to acquire properties within the CARL project. Respondent has $10 million a year for the acquisition of land within the Archie Carr CARL project. Respondent could purchase the entire 9.5 miles of coastline in six years. Respondent has already purchased four parcels within the Archie Carr CARL Project totalling 29.88 acres. Respondent is actively negotiating with property owners and continuing to purchase land within the Archie Carr CARL Project. On October 22, 1991, the Governor and Cabinet authorized the purchase of 7.28 acres of land within the Archie Carr CARL Project. The United States Fish and Wildlife Service is also acquiring property in the Archie Carr National Wildlife Refuge. Congress appropriated $2 million in 1991 and $1.5 million in 1992 for the acquisition of such property. At the formal hearing, Respondent claimed that it would have to be 100 percent certain that no additional permits for armoring would be issued as a result of the proposed bulkhead in order for there to be no cumulative impact. As a practical matter, such a standard has the effect of a complete ban on all armoring and is clearly more restrictive than the 1990 policy from which the proposed bulkhead is exempt. Applicable statutes and rules do not authorize such a ban. Such a ban contravenes, not only existing statutes and rules, but also the express exemption granted by the Governor and Cabinet. Direct And Cumulative Impacts On Marine Turtles Florida has the second highest incidence of marine turtle nesting in the world. Loggerhead, green, and leatherback turtles currently nest on Florida beaches. Green turtles are endangered species while leatherbacks and loggerheads are threatened species. Respondent conducts yearly surveys of marine turtle nesting beaches and compiles the information in nesting summary reports. Nesting densities for each species are generally expressed as nests laid per kilometer of shoreline. Actual leatherback nests surveyed from Canaveral to Key Biscayne totaled 114 in 1991. One was located in the Canaveral National Seashore area. Another 44 and 32 were located on Hutchinson Island and Jupiter Island, respectively. Three nests were located in Boca Raton. Four nests were located in Broward County. Thirty nests were located in the Juno/Jupiter area. 38/ It is improbable that leatherback turtles will nest on the beach-dune system in front of Petitioners' homes. No leatherback turtles have ever been found on the beach in front of Petitioners' homes. Nesting densities for leatherback turtles are greater in St. Lucie, Martin, and Palm Beach counties than leatherback nesting densities in Indian River County. The Wabasso Beach survey area covers eight kilometers and includes the proposed project site. 39/ Wabasso Beach is not a significant nesting area for leatherback turtles. Nesting densities for leatherback turtles in Wabasso Beach are very low. Only one leatherback nested along the eight kilometers in Wabasso Beach in 1989, resulting in a nesting density of 0.125. There were no nests in 1990. The nesting density in 1991 was 0.62. The number of leatherback turtles that may be found in front of Petitioners' homes, expressed as a percentage of 1991 nesting density for Wabasso Beach, is 0.006. Wabasso Beach is not a significant nesting area for green turtles. In 1990, 2,055 green turtle nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting quality behind Jupiter Island, Brevard County, and Juno Beach. The likelihood of a green turtle nesting in front of Petitioners' homes is low to very low. Green turtle nesting densities for Wabasso Beach from 1989-1991 were as follows: 14 nests or 1.75 nests per kilometer in 1989; 55 nests or 6.9 nests per kilometer for 1990; and 7 nests or 0.87 nests per kilometer in 1991. Expressed as a percentage of nesting density for Wabasso Beach, the number of a green turtle nests to be found in front of Petitioners' homes was 0.0175 in 1989, 0.069 in 1990, and 0.0087 in 1991. 40/ Wabasso Beach is not a significant nesting area for loggerhead turtles. In 1990, 55,935 loggerhead nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting density behind Jupiter Island, Juno Beach, and south Brevard County. The nesting density for loggerhead turtles in Jupiter Island and south Brevard County, respectively, was five and two times greater than the nesting density in Wabasso Beach. Loggerhead nesting densities for Wabasso Beach from 1989-1991 were as follows: 1,256 nests or 157 nests per kilometer in 1989; 1,155 nests or 144.4 nests per kilometer for 1990; and 1,758 nests or 219.7 nests per kilometer in 1991. Even though Wabasso Beach is not a significant nesting area for loggerheads, it is likely that loggerhead turtles will nest on the beach-dune system in front of Petitioners' homes. Eleven loggerhead nests were laid on the beach in front of Petitioners' homes in 1990. On average, 13.2 loggerhead nests are laid in front of Petitioners' homes each season. Even if all of the green turtle and loggerhead nests laid in front of Petitioners' homes are destroyed as a result of the proposed project, that unlikely loss would not have a significant adverse impact on the total population of green and loggerhead turtles. Based on the number of nests and the number of times a female nests each season, there are 750 to 1,000 female green turtles and 20,000 to 25,000 female loggerhead turtles in the area between Canaveral and Key Biscayne. The loss of anywhere from 0.0087 to 0.069 green turtle nests and the loss of 13.2 loggerhead turtle nests would be insignificant compared to the overall turtle population for each species. The number of loggerhead nests destroyed in front of Petitioners' home, for example, would be 0.00009 percent of the total nests laid in Florida. Nesting data indicates an upward trend for both green turtles and loggerheads. The proposed bulkhead will not have an adverse impact on the upward trend for either species. Marine turtles do not nest landward of the dune bluff- line or vegetation line. The proposed bulkhead is located landward of the dune bluff line and landward of the vegetation line. Construction activities will not take place in the area of the beach where turtles nest and will not occur during the nesting season. Construction activities will not adversely affect the dune, will not cause damage to the dune, and will not destabilize the dune. False Crawls Adverse impacts on marine turtles from the proposed bulkhead, if any, will not occur unless erosion of the dune is so extensive that the proposed bulkhead is exposed. Even an exposed bulkhead will not have an adverse impact on marine turtles if a dry sandy area in the mid to high beach seaward of the bulkhead is available for nesting. If a nesting turtle encounters an exposed bulkhead, she probably will not nest at that site. She will likely return to the ocean, move up or down the beach, find a more suitable nesting area, and make her nest. This process is referred to as a false crawl. A turtle that false crawls at the site of the proposed bulkhead will not have far to go to nest at an unarmored site. The proposed bulkhead is only 303 feet long. The 1990 policy adopted by the Governor and Cabinet prohibits all armoring in the Archie Carr National Wildlife Refuge. Marine turtles frequently false crawl for reasons that are not completely understood. False crawls that occur when the bulkhead is exposed, if any, may not be attributable to the exposed bulkhead. A false crawl is not an abnormal event for marine turtles and is not necessarily harmful to them. Loggerheads may false crawl 50 percent of the time. In Wabasso Beach in 1990, there were 1,114 false crawls associated with 1,155 nests laid. Even on undisturbed beaches, the percentage of false crawls is as high as 50 percent. Marine turtles can successfully nest on the beach in front of the proposed bulkhead. Turtles have a long history of nesting in front of armoring structures in the Town of Jupiter Beach. Since March, 1989, turtle nests have been laid in front of the partial rock revetment at the toe of the dune escarpment along the shoreline fronting the Machata home. There is no evidence that these nests have not been successful. The percentage of false crawls in front of Petitioners' homes has been similar to false crawls on the rest of Wabasso Beach. Marine turtles sometimes emerge at low tide and nest below that portion of the beach inundated by high tide. Such nests are destroyed by the ensuing high tide. Waves and storm action commonly destroy turtle nests even on undeveloped and unarmored beaches. Racoon predation is a significant cause of turtle hatchling and egg mortality. Predation poses a considerably greater threat to eggs and hatchlings than does the proposed bulkhead. Exposed roots at the dune escarpment in front of Petitioners' homes may cause false crawls in the absence of the proposed bulkhead. Natal Beach Marine turtles return to their natal beach to nest. The proposed bulkhead will not adversely affect the ability of marine turtles to return to their natal beach. Female turtles return to a geographic area to nest. They do not return to the specific beach where they are hatched. Female turtles may nest on widely disparate beaches. One loggerhead that nested in the Carolinas also nested in Melbourne Beach. No tagged hatchling has ever returned to the specific beach where it was hatched. There is no agreement among experts on a precise length of beach that comprises a natal beach. However, the length of the proposed bulkhead is considerably smaller than the beach area encompassed by any definition of a natal beach. A turtle that returns to its natal beach and encounters an exposed bulkhead in front of Petitioners' homes can nest in another portion of its natal beach with no adverse impact from the bulkhead. Nest Relocation Marine turtles can be protected from adverse impacts of the proposed bulkhead through nest relocation. Nest relocation has a high success rate. Relocated nests attain hatchling success similar to that enjoyed by natural nests. In some cases, the hatchling success of relocated nests is greater than that of natural nests. Respondent routinely permits the relocation of large numbers of turtle nests. Thousands of nests have been relocated for threatened inundation, beach renourishment projects, beach cleaning, in heavy use areas, where lighting is a threat, and for research activities. In 1988, Respondent authorized the relocation of 199 loggerhead turtle nests in Brevard County for use in hatchling disorientation studies. More recently, Respondent allowed the Rosenstiel School at the University of Miami to relocate 10 nests to study the affect of sand on hatch success of loggerhead turtles. In 1990, Respondent issued permits allowing the relocation of 857 loggerhead turtle nests, containing 94,322 eggs, that were laid on portions of the beach in the City of Boca Raton, Jupiter Beach, Volusia County, Manalipan, and Daytona Beach. While Respondent has issued permits authorizing governmental agencies to relocate many thousands of turtle nests, Respondent maintains that it does not issue permits authorizing private parties to relocate turtle nests. However, Respondent's Division of Marine Resources has approved nest relocation as part of a sea turtle protection plan in the coastal armoring permit for Suntide Condominium. Petitioners have provided reasonable assurances that nesting turtles and their hatchlings will be protected. Petitioners have agreed to a number of permit conditions including the following: implementation of a sea turtle protection plan; implementation of a dune restoration plan within 90 days of the date the proposed bulkhead is completed; removal of the bulkhead once the bluff line recedes to the landward limit of either return wall; locating the bulkhead as far landward as practicable; placement of sand at a 2:1 slope along the entire dune escarpment adjacent to the bulkhead to enhance the stability of the dune; and yearly restoration of the beach profile fronting the bulkhead if surveys indicate that the profile has eroded. Relocation of turtle nests as an element of the sea turtle protection plan and the absence of any significant adverse direct or cumulative impacts provide reasonable assurances that nesting turtles, their hatchlings, and their habitat will be protected within the meaning of Sections 161.053(5)(c) and 370.12, and that the proposed project will not result in a "take" within the meaning of Section 370.12(1)(c)1. Other Considerations: Imminent Collapse; Public Access; And Local Requirements Petitioners' homes are not within the zone of imminent collapse within the meaning of Federal Emergency Management Agency ("FEMA") rules. The state is not qualified to issue certificates of imminent collapse under Section 1306(c) of the National Flood Insurance Act, as amended. Special permit conditions recommended by Respondent assure public access in the event erosion of the beach results in little or no dry sandy beach for access between the water and the proposed bulkhead. Petitioners are required to provide written evidence that a restrictive notice has been provided in the deeds and covenants and restrictions and recorded with the Clerk of the Court for Martin County. The restrictive notice must provide for a perpetual public access easement across the entire shore parallel width Petitioners' property. The easement must provide appropriate means of access and egress and allow passage along the shoreline. Clearly designated signs advising the public of the easement must be appropriately placed on Petitioners' property. Respondent typically requires applicants to grant public access easements when Respondent issues an armoring permit that may interfere with public beach access. The existing rock revetment in front of Petitioners' homes satisfies local requirements regarding setback requirements or zoning or building codes. Respondent may condition its approval of the proposed bulkhead upon receipt of written evidence that the proposed bulkhead will not contravene local requirements. Respondent has done so in connection with an earlier application by CTP Realty, Inc. (a/k/a Pishock) for a coastal armoring permit in the same region as the proposed project. Only Feasible Alternative Once Petitioners have clearly justified the necessity for the proposed bulkhead and shown that the direct and cumulative impacts clearly justify the proposed bulkhead, Petitioners' must demonstrate that the proposed bulkhead is the only feasible alternative. Alternatives asserted by Respondent in this proceeding include: "do nothing"; sand placement; and home relocation. Do Nothing And Sand Placement Respondent asserts that Petitioners should do nothing and rely on the existing dune for protection against high frequency storms. The "do nothing" alternative is not technically feasible. The existing dune does not provide the necessary protection for Petitioners' homes. The receding bluff line, eroding shoreline, and threat from high frequency storms expose Petitioners' homes to a high level of risk. Respondent also asserts that Petitioners should restore the existing beach profile through sand placement. Sand placement that provides a level of protection equivalent to the proposed bulkhead is not economically feasible. Sand placement at that level would require the placement of sand at a rate of 1.7 to 2.0 cubic feet per foot of shoreline for one half mile on either side of Petitioners' homes and in front of the proposed bulkhead. Due to the eroding nature of the shoreline, sand placement would need to occur more than once a year and would be economically prohibitive. Relocation: Technical Feasibility It is not technically feasible to relocate the Machata home. The structural design of the Machata home is unique. It has a 35 foot clear story from the finish floor up to a major ridge beam that supports the entire roof structure. The ridge beam bears on a bearing wall at its south end and the vertical standing fireplace at its north end. The fireplace in the Machata home is a two story, 38 foot high structure. It is the main support for the entire roof system of the home. The fireplace is constructed with concrete masonry and stone veneer and weighs 250,000 pounds. The fireplace rests on a slab foundation and is supported by six to eight 25 foot long piles. The piles are an integral structural element of the fireplace. Girder trusses on the second floor are connected to both sides of the fireplace. The trusses accept the loading of the second floor framing. The fireplace in the Machata home is cantilevered at the second floor. A cantilever beam off the fireplace supports the second story of the fireplace. The cantilevered nature of the fireplace means the fireplace is top heavy, out of balance, and out of symmetry. In order to relocate the Machata home, it would be necessary to sever the piles from the fireplace support structure. The piles that must be severed bear the loading associated with the cantilevered nature of the fireplace. Severing those piles may cause the fireplace to collapse. If the fireplace collapses, the ridge beam will collapse, and a large portion of the home will be destroyed. There is a wide variation in structural loading in the Machata home. Structural loading exceeds a quarter million pounds at the center of the home. Perimeter wall loads are 3,000 pounds per square foot. Interior wall loads are 1,500 pounds per square foot. Variations in structural loading prevent the home from being moved without tilting. If the Machata home is tilted during relocation, the fireplace will tilt or move off center. Due to the cantilevered and top heavy nature of the fireplace, the center of gravity will shift from the center of the fireplace to a point outside the fireplace. A shift in the center of gravity will create bending stress on the fireplace. The fireplace is not reinforced and not designed to withstand bending forces. The fireplace may crack and break under bending forces and fail. If the fireplace fails, the ridge beam will collapse and a large portion of the home will be destroyed. Relocation of the Machata home will alter the location of the property securing the interest of the mortgagee. Under the terms of his mortgage, Mr. Machata can not damage or substantially change his property. Relocation: Economic Feasibility Relocation of Petitioners' homes is not economically feasible. The direct cost of relocating the Machata home and garage is $315,000. The direct cost of relocating the Lanzendorf home is $75,000. Direct costs of relocation do not include the cost of restoration after the move. Relocation costs include the reasonable cost of restoring Petitioners' homes to the condition they were in prior to relocation. Respondent failed to explicate a justification for not including such costs in its proposed alternative. Such costs include: rebuilding the swimming pools, patios, retaining walls, driveways, walkways, planters, terraces, and equipment enclosure walls; disconnecting, reconnecting, and refurbishing electrical, air conditioning, plumbing and septic systems; landscaping and repairing or replacing the irrigation systems; repairing or relocating fences; earthwork such as clearing and filling; constructing new foundations; and exterior and interior refinishing and reconditioning. The cost of restoring Petitioners' homes after relocation is: MACHATA LANZENDORF a. Exterior demolition 45,878 11,923 b. Interior demolition 12,375 0 c. Earthwork 88,727 46,033 d. Concrete for retaining walls, planters, equipment enclosure walls, footings, terrace and steps 84,909 5,600 e. Pilings 37,500 15,700 f. Rebuild interior fireplace 52,000 0 g. Exterior refinishing 74,770 10,800 h. House reconditioning 32,700 13,500 i. Pool area 23,500 26,500 j. Deck drain, flashing, water proofing 3,000 1,000 k. Electrical 12,665 8,400 l. Plumbing 12,500 8,500 m. Air conditioning systems 11,000 1,250 n. Site grading, irrigation, landscaping 33,192 14,000 o. Driveway 23,256 8,165 p. Temporary shoring and structural support 7,500 0 q. Consulting fees 12,500 3,500 SUBTOTAL 567,972 174,871 r. Contingencies, wastes, and unknowns 42,597 13,155 s. Overhead and profit 128,217 39,477 TOTAL 738,786 227,503 The cost estimates for restoration are reasonable and customary based on what a general contractor would typically submit on such a project. The cost of restoring the Lanzendorf home after relocation is $227,503. When this cost is added to the direct cost of relocation ($75,000), the total cost of relocating the Lanzendorf home is $302,503. The cost of restoring the Machata home after relocation is $738,786. When this cost is added to the direct cost of relocation ($315,000), the total cost of relocating the Machata home is $1,053,786. The patios and terraces at the Machata home are not moveable. The costs of relocating the Machata home, therefore, can not be reduced by moving the terraces rather than demolishing and rebuilding them. Estimated exterior demolition costs of $45,878 include the cost of demolishing the terraces, planter walls, pool steps, segments of the driveway and driveway access that would have to be removed to pour concrete runways on which the home would be rolled to its new location. The cost includes trucking and disposal of the demolition material. The pool at the Machata home can not be moved. It is a reinforced mesh, pencil rod structure, sprayed with gunite. The work reasonably necessary to relocate the Machata home and restore it to its condition prior to relocation would require the pool to be demolished and rebuilt. The estimated cost of $37,500 for constructing a new pile foundation for the Machata home includes pilings, steel reinforcing cages, transition caps, and grade beams. The cost of constructing a new foundation would be greater if Respondent requires the new foundation to comply with the requirements of the relocated CCCL. Estimated earthwork costs of $88,727 for the Machata home include: clearing the site; filling the site to elevate the relocated home to flood elevations required by local government and current elevation; and compacting the fill material. It would also be necessary to grade the site, redo the irrigation system, landscape the site and plant sod, and replace fences to restore the site to its condition prior to the relocation. The air conditioning system at the Machata home is a heat exchange system that utilizes two wells. One well is an artisan well. The other is a shallow well. There are numerous connections between the air conditioning equipment and the two wells. The two wells would have to be relocated and reconnected to the air conditioning system. The underground electrical service to the Machata home would have to be disconnected, relocated, and reconnected. Estimated costs of $12,655 include the disconnection and reconnection of all electrical equipment as well as replacement of numerous pool lights at the new location. The Machata home can not be relocated with the fireplace intact. To assure against the structural collapse of the Machata home during relocation, the home must be properly shored. The fireplace must be disassembled and reassembled after the home is relocated. The cost of demolishing and removing the fireplace, temporarily shoring the home, and rebuilding the fireplace, including masonry reinforcement, internal duct work, structural ties, and Kentucky stone facing, is $71,875. Competing Cost Estimates The estimated relocation costs submitted by Intervenors' expert witness were neither credible nor persuasive. The cost estimates were based on visual observation of Petitioners' homes from an adjacent lot. The witness did not enter Petitioners' property to determine the size or quality of various appurtenances including swimming pools, driveways, tile terraces, retaining walls, and landscaping. The witness did not review structural plans for the Machata home. He was not familiar with structural characteristics of the Machata home and did not know the type of air conditioning used. Relocation costs are based on the estimated weight of each house. Estimating the weight of a structure that exceeds 300,000 pounds is integral to a determination of the cost of relocating that structure. The Machata house weighs 1,200 tons. Intervenors' cost estimates for moving the Machata home are based on a projected weight of 300 to 350 tons. When a structure's weight exceeds 150 tons, an accurate weight projection is integral to an accurate determination of relocation costs. The cost estimates submitted by Intervenors are not formal bids. The cost estimates submitted by Petitioners were prepared as formal bids by an expert in marine construction engineering. The formal bids were based on engineering drawings of the bulkhead. Costs set forth in formal bids are more likely to reflect actual costs than costs set forth in a cost estimate prepared for the formal hearing. The cost estimates submitted by Intervenors unnecessarily exaggerate the cost of the proposed bulkhead. For example, the $5,000 estimate for clearing is unnecessary because no clearing will be conducted. The mobilization/demobilization cost of $10,000 in Intervenors' estimate would actually be $2,500. The $12,000 allotted for site restoration is high and could be completed for $3,000 to $4,000. The $10,000 added for the deadman with tie rods is already included in the square foot cost submitted by Petitioners. Considering these and other examples, the total cost estimates submitted by Intervenors are exaggerated by $100,000. The 2:1 Requirement For Economic Feasibility Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. If the cost of relocation of the upland structure or dune enhancement does not exceed the cost of the proposed armoring by 2:1, then relocation or enhancement is considered to be economically feasible. Respondent requires compliance with the 2:1 requirement in all applications for coastal armoring, and the requirement has the direct and consistent effect of law. The 2:1 requirement is an agency statement of general applicability that implements, interprets, or prescribes policy, or imposes a requirement not included in existing statutes or rules and which has not been adopted in accordance with statutory rulemaking requirements (an "unwritten rule"). 41/ Respondent failed to explicate the reasonableness of selecting the 2:1 requirement over other means of assessing economic feasibility. Even if Respondent had justified its policy during the formal hearing, the cost of relocating Petitioners' homes is more than twice the cost of the proposed bulkhead and, therefore, is not economically feasible. The cost of constructing the proposed bulkhead is $136,000 including all labor, materials, and necessary equipment for the bulkhead and return walls. Of the total cost, $51,000 is attributable to the portion of the bulkhead related to the Lanzendorf home and $85,000 is attributable to the portion of the bulkhead related to the Machata home. The total cost of relocating the Machata home is $1,053,777. The total cost of relocating the Lanzendorf home is $302,464. Agency Requirements Satisfied Petitioners clearly justified the necessity for the proposed bulkhead in accordance with Rule 16B-33.005(1). Their homes are vulnerable to high frequency storms with return intervals as frequent as 10 to 15 years. Computer model results demonstrate that Petitioners' homes are vulnerable to high frequency storm events with return intervals as frequent as 10 to 15 years. The input variables used in the original and EDUNE computer models were reasonably related to Respondent's existing rules, the terms of Respondent's instruction manual, Respondent's long standing practice in all coastal armoring permits since 1988, and reasonable professional judgment. The direct or cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead within the meaning of Section 161.053(5)(a)3. The proposed bulkhead is adequately designed and will be properly constructed within the meaning of Rule 16B-33.005(3) and 16B-33.008. The proposed bulkhead is the only feasible alternative and will be located as far landward as possible within the meaning of Rule 16B-33.005(3)(c).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' application for a coastal armoring permit subject to conditions stated by Respondent on the record and imposed by the terms of this Recommended Order. DONE AND ENTERED this 16th day of February 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.
The Issue The issue to be determined in this case is whether the amendments to the Manatee County Comprehensive Plan (Manatee Plan) adopted by the Board of County Commissioners of Manatee County via Ordinance No. 13-10 on December 5, 2013, are “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes (2013).
Findings Of Fact The Parties Katie Pierola is a resident and landowner in Manatee County. Mrs. Pierola made timely objections and comments to Manatee County on the 2013 Amendments. Greg Geraldson is a resident and landowner in Manatee County. Mr. Geraldson made timely objections and comments to Manatee County on the 2013 Amendments. Manatee County is a political subdivision of the State and has adopted the Manatee Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Robinson Farms is a Florida corporation doing business in Manatee County and owning real property in the County. It owns the property affected by the 2013 Amendments. The 2013 Amendments The 2013 Amendments would amend the Future Land Use Map of the Manatee Plan to change the future land use classification of approximately 20 acres of land owned by Robinson Farms from RES-1 to RES-3. The land is described by metes and bounds in Exhibit A to Ordinance No. 13-10. It is located on the north side of 9th Avenue Northwest, about 600 feet east of 99th Street. The RES-1 classification allows one dwelling unit per acre (du/a). The RES-3 classification allows up to three du/a. The General Introduction chapter of the Manatee Plan, Section D – Special Plan Interpretation Provisions, would be amended to add the following new text: D.5.16 Ordinance 13-10 (ROBINSON FARMS PLAN AMENDMENT) The 20± acre property identified as the Robinson Farms Plan Amendment and designated RES-3 on the Future Land Use Map pursuant to Manatee County Ordinance No. 13-10 shall be limited to a maximum of thirty eight (38) residential units. Coastal Evacuation Area and Coastal High Hazard Area All 20 acres of the Robinson Farms property is within the Coastal Evacuation Area (CEA). The CEA is defined in the Manatee Plan as: The evacuation Level A for a Category 1 hurricane as established in the regional evacuation study applicable to Manatee County, as updated on a periodic basis. Future Land Use Element (FLUE) Policy 2.2.2.4.2, which addresses the purposes of the CEA, states in part: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. All but 4.68 acres is within the Coastal High Hazard Area (CHHA). The CHHA is defined in the Manatee Plan as: The geographic area below the Category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, pursuant to applicable law, as updated on a periodic basis. FLUE Policy 2.2.2.5.2, which addresses the purposes of the CHHA, repeats the same purposes that are set forth above for the CEA. Relevant Goals, Objectives, and Policies Goal 4.3 of the Coastal Element of the Manatee Plan is: Protection of the Residents and Property Within the Coastal Planning Area from the Physical and Economic Effects of Natural Disasters Coastal Element Objective 4.3.1 states: Limit development type, density and intensity within the Coastal Planning Area and direct population and development to areas outside the Coastal High Hazard Area to mitigate the potential negative impacts of natural hazards in the area. Coastal Element Policy 4.3.1.1 states: Direct population concentrations away from the Coastal Evacuation Area FLUE Policy 2.2.2.4.5(a), which addresses development restrictions in the CEA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal Evacuation Area. FLUE Policy 2.2.2.4.4(a) states, in part: The area designated under the CEA Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any land use category overlaid by the CHHA District, except where policies associated with the CEA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the CHHA Overlay District shall override other goals, objectives and policies. FLUE Policy 2.2.2.5.5(a), which addresses development restrictions in the CHHA, states: Prohibit any amendment to the Future Land Use Map which would result in an increase in allowable residential density on sites within the Coastal High Hazard Area Overlay District. FLUE Policy 2.2.2.5.4(a) states that, in the event of a conflict between CHHA policies and other policies in the Manatee Plan, the CHHA policies shall override. Data and Analysis Petitioners contend that the 2013 Amendments are not based on best available data and analysis as required by Florida Administrative Code Rule 9J-5.005(2). However, that rule was repealed in 2011. Section 163.3177(1)(f) requires that plan amendments be based on “relevant and appropriate data and analysis.” This section explains: To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Petitioners contend that the proposed reclassification of the Robinson Farms property from RES-1 to RES-3 does not react appropriately to the data which show the Robinson Farms property lies within the CEA and CHHA. However, as explained in the Conclusions of Law, it is not the mapping of the CEA and CHHA that creates a conflict with the 2013 Amendments. The conflict is created by the policies which address future land uses in the CEA and CHHA. Internal Consistency Petitioners contend that the 2013 Amendments make the Manatee Plan internally inconsistent with Coastal Element Objective 4.3.1 and Coastal Element Policy 4.3.1.1 which require “population concentrations” to be directed away from the Coastal Evacuation Area. No evidence was presented by Petitioners or by Manatee County on the County’s interpretation of the term “population concentrations.” However, FLUE Policy 2.2.2.4.5(a) prohibits any increase in residential density in the CEA. Therefore, assuming as we must that the Manatee Plan is internally consistent, it follows that “population concentrations” in Coastal Element Objective 4.3.1 and Policy 4.3.1.1 means any increase in residential density. Because the 2013 Amendments increase residential density in the CEA, they are inconsistent with this objective and policy. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CEA they are inconsistent with FLUE Policy 2.2.2.4.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CEA. Because the 2013 Amendments would amend the Future Land Use Map to increase allowable residential density on a site within the CHHA they are inconsistent with FLUE Policy 2.2.2.5.5(a), which prohibits any amendment to the Future Land Use Map that would increase allowable residential density on sites within the CHHA. Competing Policies Manatee County and Robinson Farms argue that there are other policies in the Manatee Plan, such as those that discourage urban sprawl and encourage infill in the Urban Core Area, which the County must weigh along with the policies discussed above. The County contends that it weighed these conflicting policies and reached a fairly debatable determination that the 2013 Amendments are consistent with the Manatee Plan. Contradicting this argument are FLUE Policy 2.2.2.4.4(a) and FLUE Policy 2.2.2.5.4(a), which state that the CEA and CHHA policies shall override any conflicting goals, objectives, and policies in the Manatee Plan. Urban sprawl, infill, and other policies of the Manatee Plan cannot be invoked to avoid the specific prohibitions in FLUE Policies 2.2.2.4.5(a) and 2.2.2.5.5(a) against any amendment to the Future Land Use Map that would result in an increase in allowable residential density on sites within the CEA and CHHA. Density Offsets Manatee County and Robinson Farms argue that the County’s reduction in dwelling units in other parts of the CHHA over the past several years is a valid consideration in determining whether an increase in residential density on the Robinson Farms property is permissible despite the prohibition in FLUE Policy 2.2.2.5.5(a). In support of their argument, they cite Department of Community Affairs v. Leeward Yacht Club, LLC, DOAH Case No. 06-0049GM, 2006 WL 2497934 (Nov. 16, 2006). However, the Leeward Yacht Club case involved the comprehensive plan of Lee County, which did not prohibit increases in residential density in the CHHA. In contrast, the Manatee Plan quite plainly prohibits “any amendment” to the Future Land Use Map that would increase residential density in the CHHA. Previous Proceedings These same parties were involved in a dispute regarding an earlier proposed amendment to the Manatee Plan to reclassify property owned by Robinson Farms from RES-1 to RES-3. The 2010 Amendment was different in that it affected 28 acres (which encompasses the 20 acres in the 2013 Amendments). The 2010 Amendment would have increased the residential density on the 28 acres from 28 dwelling units to 105 dwelling units, all in the CEA. It would have added 56 dwelling units to the CHHA. Petitioners challenged the amendment and an evidentiary hearing was held before Administrative Law Judge D.R. Alexander (DOAH Case No. 11-0009GM). On April 13, 2011, Judge Alexander entered a Recommended Order which recommended that the 2010 Amendment be determined not in compliance because: The amendment was not based on relevant and appropriate data because the most current SLOSH model results were not used; The amendment was inconsistent with FLUE Policy 2.2.2.4.5(a) which prohibits any increase in residential density in the CEA. The amendment was inconsistent with Coastal Element Objective 4.3.1 and Policy 4.3.1.1 which require that population and development be directed to areas outside the CHHA. The Recommended Order went to the Administration Commission, which ultimately dismissed the case when Manatee County rescinded Ordinance No. 10-02 and the 2010 Amendment. In Manatee County Ordinance No. 11-035, which was the ordinance used to rescind the 2010 Amendment, the Board of County Commissioners determined that the 2010 Amendment was internally inconsistent with FLUE Policy 2.2.2.4.5(a), Coastal Element Objective 4.3.1, and Coastal Element Policy 4.3.1.1 because the amendment increased residential density in the CEA and CHHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the 2013 Amendments adopted by Manatee County Ordinance No. 13-10 are not in compliance. DONE AND ENTERED this 8th day of July, 2014, in Tallahassee, Leon County, Florida. S 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 8th day of July, 2014. COPIES FURNISHED: James A. Minix, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Edward Vogler, II, Esquire Vogler Ashton, PLLC 2411-A Manatee Avenue West Bradenton, Florida 34205-4948 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Peter Antonacci, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue Whether the Notice to Proceed with the work and activities authorized by Amended Permit IR-507 should be issued.
Findings Of Fact On July 24, 1996, Respondent, Town of Indian River Shores (Town), filed an application with Respondent, Department of Environmental Protection (Department), for a permit to construct a beach access ramp seaward of the coastal construction control line. By Final Order dated November 27, 1996, the Department granted Permit Number IR-507. Petitioners, Peter Broom and Jeremy R. Geffen, and Duane Jackson, who is not a party to this proceeding, protested the granting of the permit and requested a formal hearing. A formal administrative hearing was held on November 13- 14, 1997, before Administrative Law Judge Errol H. Powell, who issued a Recommended Order on December 8, 1997, recommending that the Department enter a final order granting Permit Number IR-507 with special conditions as may be required by the Department for the protection of marine turtles. Administrative Law Judge Powell concluded the following in Paragraph 49 of the Recommended Order: 49. The evidence demonstrates that the impact of the proposed beach access ramp is minimal; that the construction or use of the beach access ramp will have no adverse effect on the marine turtle or the turtle nesting; and the beach access ramp will not cause significant adverse impacts or cumulative impacts. On January 13, 1998, the Department entered a Final Order, adopting the Recommended Order of Administrative Law Judge Powell and granting Permit Number IR-507 subject to two additional special conditions recommended by the Department staff during the final hearing pertaining to a survey of turtle nesting areas and restrictions on the use of the Town's ATV vehicle as discussed in Findings of Fact 34 and Conclusion of Law 52 of the Recommended Order, which provided: 34. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp. * * * 52. Additionally, the DEP having considered both emergency and routine patrol access, did not deny the CCCL permit. Only another recommendation to protect marine turtles was made by the DEP, regarding the routine patrol. On June 16, 1998, a Final Order was issued by the Department, issuing Amended Permit Number IR-507. Among the special conditions of the amended permit was that the Town would conduct a marine turtle nesting survey prior to the utilization of the access ramp. A notice to proceed with the activities authorized by Amended Permit Number IR-507 was issued on September 17, 1999. Petitioners requested an administrative hearing, challenging the notice to proceed. Petitioners allege that the notice to proceed had been issued without adequate demonstration of marine life/turtle nursery protection and that the proposed construction would adversely affect marine and turtle life on the beach. At the hearing on the motion to dismiss, Petitioners conceded that Town had fulfilled all special conditions prerequisite to the issuance of the notice to proceed and that the permit did not require that a survey of turtle nesting be done prior to the issuance of the notice to proceed or to the commencement of construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing the Request/Petition for Administrative Hearing. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of January, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Theodore W. Herzog, Esquire 1101 Simonton Street Key West, Florida 33040 Michael R. Dombroski Coastal Technology Corporation 3625 20th Street Vero Beach, Florida 32960 Chester Clem, Esquire Clem, Polackwich & Vocelle 3333 20th Street Vero Beach, Florida 32960-2469
Findings Of Fact Petitioner is the owner of property located in Gulf County. In relevant part, the Petitioner's property lies on the mainland between St. Joe Beach to the north and Palm Point to the south, generally east of St. Joseph Bay. The bay is created by a narrow peninsula, St. Joseph Spit, which runs northward for approximately 15 miles from Cape San Blas through the Gulf of Mexico. U.S. Highway 98 runs north-south along the land and bisects the Petitioner's property. Section 161.053(1)(a), Florida Statutes, authorizes the Department to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida." Such lines shall be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. There are circumstances under which the Department may set the CCCL further landward than the 100-year storm impact zone. A 100-year storm event is that which statistically may be expected to occur once every 100 years. A 100-year storm surge is the water level associated with the 100-year storm event. In actuality, a 100-year storm may occur more or less frequently than every 100 years. The CCCL is established to protect the state's beach and dune systems. Certain activities seaward of the CCCL, from construction, excavation or removal of material, to driving a vehicle over or across a sand dune or the vegetation growing seaward of the dune system, require a permit from the Department. The Department identifies the location of the control line by placing concrete monuments, called R-Monuments, at 1,000 foot intervals along the CCCL. In 1981, the Department established a Gulf County CCCL which crossed a portion of Petitioner's property. 2/ In 1986, the Department reset the CCCL over portions of the Petitioner's land east of U.S. Highway 98. Currently, the Petitioner's property runs along both sides of U.S. Highway 98 from a few feet southeast of the Department's R-Monument #15 to R-Monument #30. A small outparcel, not at issue in this proceeding, lies within the Petitioner's property which is subject to the challenged CCCL. No "metes and bounds" legal descriptions of the properties were offered which would permit a more accurate description of the lands involved. The property is utilized for pine forestry. Petitioner intends to use the eastern side of U.S. Highway 98 as a staging area for the timber harvest. The Petitioner would unload equipment at the roadside, take the equipment into the timberland, remove the harvested timber to the roadside, and load the trucks at the side of the highway. Petitioner asserts that the existence of the CCCL east of the highway and west of the timber prevents normal forestry operations and the harvest of the pine. However, Petitioner has not contacted the Department to determine whether permits are required to various activities, or, if permits would be required, whether the Department would issue the permits. There is no evidence that the existence of the CCCL completely prohibits the Petitioner from conducting forestry operations. There is testimony that timber could be taken to staging areas within the forest and loaded onto the trucks at sites to the east of the CCCL. There are primitive sand roads in the forest, but such roads are apparently not sufficient to support harvesting equipment and trucks without improvement. However, this would increase the cost of harvesting the timber. Utilizing the eastern part of U.S. Highway 98 would permit the harvest to be accomplished without the need to improve the existing roads or construct new roads into the timber forest, and would provide enhanced access to the Petitioner's timber mill located in Port. St. Joe. The Petitioner asserts that the Department's establishment of the CCCL over Petitioner's property east of St. Joe Bay enlarges, modifies, or contravenes the specific provision of law which authorizes the Department to establish the line over sand beaches "fronting" the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, because the property in question does not front on one of the specified water bodies, but instead fronts onto St. Joe Bay. The statute does not specifically define "fronting". For the purposes of setting a CCCL, the Department asserts, and the greater weight of the evidence establishes, that sand beaches "front" on the Atlantic Ocean, the Gulf of Mexico, or the Straits of Florida, if the beaches can be directly affected or influenced by a 100-year storm event in one of those water bodies. The Department's definition of "fronting" has been consistent throughout the period during which the agency has been responsible for setting control lines. In determining jurisdiction to establish the Gulf County CCCL, the Department considered the characteristics of the beach areas. In the area of Petitioner's land between R-Monument #15 and R-Monument #30, the sand beach is characterized as a mainland open marine beach system. Generally, high-energy waves carry and deposit the sand along the shoreline. As the sand dries, the wind carries the sand towards and into shore vegetation, eventually forming a dune system. There is a beach face at the water's edge, a berm area of approximately one and one-half meters, and a sand dune system which extends eastward of U.S. Highway 98. Although there are some dune areas which have been cut through by trails or roads, the dune system is otherwise very well developed. A sand "bar" is offshore from the beach. The area's sand is characterized as a medium grain with carbonate and shell fragments thoughout. The evidence establishes that the sand beach area results from, and is affected by, the day-to-day activity of the Gulf of Mexico. The waves carrying the sand into the area originate in the Gulf of Mexico. The beach area between R-Monument #15 and R-Monument #30 is actually accreting at present. The Gulf waves remove sand from beach areas to the north of the Petitioner's land and deposit the sand as the wave energy begins to dissipate upon passing east of the northern tip of St. Joe Spit. It is reasonable to expect that beach areas which are affected by daily fluctuations of wind and water from the Gulf of Mexico would likely be affected by a 100-year storm event in the same waters. The land south of R-Monument #30 and east of St. Joe Bay is characterized as a low-energy coastal marsh system. There is no dune system. There is no visible offshore sand "bar". The shore is composed of fine-grain sediment. The basic difference between the area north of R-Monument #30 and the area south of R-Monument #30 is that the southern coastline is not affected by the Gulf's waves, but is instead influenced by the smaller waves generated by wind action within the waters of St. Joe Bay. In determining the actual the location of the CCCL, the Department must project the portion of the beach dune system which is subject to severe fluctuation based upon a 100-year storm surge, storm waves, or other predictable weather conditions. The Department relies upon computer generated projections of model 100-year storm event hurricanes to determine the location of control lines. A hurricane is a complicated and chaotic weather system. The Department has developed a methodology which defines five basic parameters of a hurricane. These factors identify a storm's size, strength, speed, direction, and location of landfall. These parameters, corroborated with topographical data, determine the extent of the shoreline which is subject to severe fluctuation based upon a 100-year storm event and related storm water levels. A hurricane's size is defined by determining the distance from the storm center to the band of highest wind speed, called "radius to maximum wind" or "R-max". A storm's strength is defined by calculating the difference between normal atmospheric pressure (which exists outside the hurricane) and the low- pressure center of the storm, called "central pressure deficit". Speed is simply identified as the movement of the storm system in a specific direction. The direction of a storm is identified as the track or angle, referenced from north, along which the storm travels. The location of landfall is the site where the storm center crosses the shoreline from water to land. In generating data for projected storms, the Department first gathers historical data related to the five storm parameters for storms which have previously affected the area. Once the data is collected, a statistical analysis is completed which establishes a range of probabilities for the various parameters. The parameters and the statistical analysis are utilized to predict the characteristics of future 100-year storm events, and the anticipated related storm tides. The parameters of 19 hurricanes were utilized in the Gulf County study. Two computer models are utilized in the analysis. The first, more complex that the second model, incorporates two dimensional data related to water depths from and along the shore line to deep water, as well as additional topographical data. The accuracy of the two dimensional model is tested by comparing the computer's storm tide projection generated from the parameters of a past hurricane with the same storm's actual tides. According to the comparison, the two dimensional Gulf County model was accurate. After the two dimensional model is created and tested, a faster and less costly one dimensional model is constructed. Prior to operating the one dimensional model, it is corroborated with the two dimensional model to insure accuracy, by generating eleven hypothetical hurricanes on both models and the comparing storm tide predictions. The one dimensional model is thereafter utilized to project the parameters of future storm events and related storm tides. According to the comparison, the one dimensional Gulf County model was accurate. The one dimensional model utilizes water depths along six specific transect lines, identified as profiles 0 through 5, which project in one direction into the water. The model generates a total of 360 hurricanes over a 2,000 year period, ranked as to their probability of occurrence. From the ranking, the 100-year storm event is determined. The process is repeated five times generating five different 100-year storms. The five storms are compiled to project an average predicted storm tide height, which is then utilized in an erosion model. The erosion model, a computer generated topographical projection, predicts the amount of sand that will be removed from the shore during the projected 100-year storm event. The data is thereafter used to determine the location of the CCCL. In the Gulf County study, the erosion model was modified based upon the expectation that the existence of St. Joe Spit would reduce the storm surge heights along portions of mainland shoreline east of the bay. Accordingly, from the R-Monument #23 to R-Monument #31, the erosion model was reduced by 20 percent, resulting in a CCCL further seaward than would have otherwise been indicated. The Petitioner asserts that the Department's projections are not reliable and are inaccurate. In support of the assertion, Petitioner suggests that the damage resulting from Hurricane Kate, a 1985 storm which affected Gulf County and surrounding areas, was substantially less than that which the Department's projections would indicate should have been seen. However, although there is evidence that Hurricane Kate was a 100-year storm event at some time during the storm's existence, there is insufficient evidence to establish that Kate was a 100-year storm event at the time is crossed the Petitioner's property. The greater weight of the evidence establishes that the Department's projections are reliable and accurate predictions of the area which could be subject to severe fluctuations based upon a 100-year storm surge, storm waves, or other predictable weather conditions. According to the weight of the evidence, the Gulf County coastal construction control line established by the Department of Natural Resources reflects a reasonable determination of the portion of the Gulf County beach-dune system which is subject to severe fluctuations based upon a 100 year storm surge, storm waves, or other predictable weather conditions.
